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Subscription Agreement - OnDemand Suite

Please read this agreement carefully as it governs your use of our online services (your “Subscription”) and limits our liability to you. By clicking “I agree to the Terms and Conditions” at the end of this screen and accessing either our “Powermapper” hosted software service OR our “Sortsite” hosted software service at the website at https://app.powermapper.com (the “Services” and each a “Service” all as more particularly defined below) you are forming a contract and agreeing to the terms that appear below. Please note that the Services are intended for commercial use only. References to “you” and “your” and/ or the “Customer” are to you on behalf of your business and include your business (i.e. the company, partnership, sole trader or other organisation which you work for or represent). If you have any questions, please email us at sales@powermapper.com.

 

Please note that by accepting this agreement, you are legally binding your business (i.e. the company, partnership, sole trader or other organisation which you work for or represent) to the terms of this agreement which include provisions in terms of which it may incur liabilities.

By clicking “I agree to the Terms and Conditions” at the end of this screen, you are also warranting to us that you have authority to bind your business.

The Services are provided by Powermapper Software Limited, a company registered in Scotland (No. SC362274), whose registered office is at Quartermile Two, 2 Lister Square, Edinburgh Midlothian EH3 9GL (“we” or “us” or the “Supplier”).

 

1              Some Additional Defined Terms

1.1             The definitions and rules of interpretation in this clause apply in this agreement.

"Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.4;

"Backup Policy" means the Supplier’s backup policy which can be viewed by the Customer online at https://app.powermapper.com/legal or such other means as is notified by the Supplier to the Customer from time to time;

"Business Day" means any day which is not a Saturday, Sunday or public holiday in the UK;

"Change of Control" means the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions;

"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5;

"Customer Data" means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services together with the data generated for the Customer by the Customer’s proper use (in accordance with this agreement) of the Services.

"Documentation" means the document made available to the Customer by the Supplier online via https://app.powermapper.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;

“Effective Date” means the date on which the Customer, having agreed to this agreement, submits a valid order for User Subscriptions which is accepted by the Supplier;

"Initial Subscription Term" means the period commencing on the Service Commencement Date and ending on the date of expiry of the User Subscription purchased ordered on the Effective Date;

"Normal Business Hours" means 9.00 am to 6.00 pm local UK time, each Business Day;

“Payment Card” means a credit card or a debit card acceptable to the Supplier;

"Product EULA" means, respectively, the end user licence agreement applicable to any Software;

"Renewal Period" means the period described in clause 14.1;

"Services" means either or both of the subscription services known as a “Powermapper” and ”Sortsite” provided by the Supplier (subject to this agreement) via https://app.powermapper.com and https://app.powermapper.com respectively (or any other website notified to the Customer by the Supplier from time to time), as more particularly described in the Documentation (and Service shall be construed accordingly);

"Service Commencement Date" means the date on which Services are made available to the Customer which, unless otherwise agreed by the Supplier, shall be the date on which the Supplier actually receives payment of the relevant Subscription Fees;

"Software" means any software applications made available in downloadable or physical form by the Supplier as part of or in connection with the Services (if any);

"Subscription Fees" means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, the prices for which are as set out on the Supplier’s website at https://www.powermapper.com/buy from time to time or such other website address as may be notified to the Customer from time to time or as otherwise notified by the Supplier to the Customer in writing from time to time.

"Subscription Term" has the meaning given in clause 14.1;

"Support Services Policy" means the Supplier's policy for providing support in relation to the Services as made available at https://app.powermapper.com/legal or such other website address as may be notified to the Customer from time to time or as otherwise notified by the Supplier to the Customer in writing from time to time;

“Storage Capacity” means online capacity (provided as part of the Services) for the storage and access of electronic data generated by the Customer in using the Services;

“Upgrade Fee” has the meaning given to it in clause 3.5;

“Usage Limits” means any limit(s) to which the Customer’s use or application of the Services is or may be subject in accordance with the relevant User Subscription(s) (including but not limited to: limits on Storage Capacity, number of Authorised Users or the number of websites or web pages which the Services can be used in connection with or applied to);

"User Subscription" means the user subscription purchased by the Customer pursuant to clause 9 (and upgraded or downgraded in accordance with clause 3, if applicable) which entitles the Customer to access and use the Services and the Documentation in accordance with this agreement and applicable Usage Limits;

"Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2             Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3             A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4             A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5             Words in the singular shall include the plural and vice versa.

1.6             A reference to one gender shall include a reference to the other genders.

1.7             A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8             A reference to writing or written includes faxes but not e-mail.

1.9             References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2              User subscriptions

2.1             Subject to the Customer purchasing the User Subscription in accordance with clause 3.5 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement and of the Product EULAs, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.

2.2             In relation to the Authorised Users, the Customer undertakes that:

2.2.1                the maximum number of Authorised Users that it authorises or permits to access and use the Services and the Documentation shall not exceed the number of Authorised Users permitted by its User Subscription from time to time;

2.2.2                it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

2.2.3                each Authorised User shall keep a secure password for his use of the Services and Documentation, and that each Authorised User shall keep his password confidential;

2.2.4                it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;

2.2.5                it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User.  Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;

2.2.6                if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Supplier may, or may require the Customer to disable such passwords and the Supplier reserves the right not to issue any new passwords to any such individual; and

2.3             The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services (nor use the Services in relation to any website) that:

2.3.1                you do not own or in respect of which you do not otherwise have permission to use the Services;

2.3.2                is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.3.3                facilitates illegal activity;

2.3.4                depicts sexually explicit images;

2.3.5                promotes unlawful violence;

2.3.6                is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

2.3.7                causes damage or injury to any person or property;

and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause, and/or (without limitation to the generality of clause 13.4,) to terminate this agreement with immediate effect Customer’s licence for breach of this clause.

2.4             The Customer shall not:

2.4.1                except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

2.4.1.1                  attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

2.4.1.2                  attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.4.2                access all or any part of the Software or the Documentation in order to build a product or service which competes with the Services or the Software; or

2.4.3                subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Software and/or Documentation available to any third party, or

2.4.4                attempt to obtain, or assist third parties in obtaining, access to the Services and/or Software and/or Documentation, other than as permitted under this clause 2

2.5             The Customer’s use of the Services shall be subject to the applicable Usage Limits together with any applicable Product EULA.

2.6             The Customer’s use of the Software shall at all times be subject to the relevant Product EULA.

2.7             The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.8             The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless specifically agreed to in writing by the Supplier.

2.9             The Customer may access the Services itself for the purposes of providing its own, wider services to third parties, provided always that:-

2.9.1                The Customer has submitted a full and accurate description of such wider services together with any additional information about itself or such services as the Supplier shall so require; and

2.9.2                the Supplier has approved in writing the Customer’s use for such purposes (which approval shall be deemed to be conditional on the accuracy of the information submitted pursuant to clause 2.9.1); and

2.9.3                the Customer shall keep the Supplier fully informed in writing about any change to the nature and/ or scope of the services in connection with which it has obtained permission to access the Services; and

2.9.4                if and when required by the Supplier (and not otherwise), the Customer shall:-

2.9.4.1                  acknowledge the Supplier as the ultimate provider of the Services;

2.9.4.2                  incorporate the Supplier’s name, logo and/or other branding and/or marketing materials in its own marketing materials for its services.

2.9.5                Nothing in this clause 2.9 shall be deemed to permit the Customer to do anything which is otherwise excluded under clause 2.4.

2.9.6                Without prejudice to the generality of clause 14.3, the Supplier may terminate this agreement and/ or the Customer’s access to the Services with immediate effect and without liability in the event that the Customer is in breach of this clause 2.9.

3              Upgrading and downgrading User Subscriptions

3.1             Subject to clause 3.4 and clause 3.5, the Customer may, from time to time during the Subscription Term, switch to a different User Subscription (this may be an upgrade or a downgrade) as required in order to increase or decrease the applicable Usage Limits.

3.2             The new User Subscription shall become effective:-

3.2.1                in the case of a downgrade, at the commencement of the next Renewal Period; and

3.2.2                in the case of an upgrade, immediately on confirmation by the Customer of the upgrade.

3.3             Supplier shall apply the applicable Usage Limits and Subscription Fees to the Services available to the Customer as soon as the new User Subscription becomes effective.

3.4             Switching User Subscriptions may be done by following the instruction on the Supplier’s website from time to time; or by writing to the Supplier at the address noted on the website; or by telephone, provided always that the Supplier shall be entitled to ask for such information as it deems appropriate to verify the identity/ or authority of the person requesting the upgrade.

3.5             In the case of an upgrade, the Customer shall, within 30 days of the date of the Supplier’s invoice, or, if paying by Payment Card, at the time specified in clause 9.2, pay to the Supplier an amount equal to the difference between the Subscription Fees already paid for the relevant Initial term or Renewal Period, and the Subscription Fees applicable to the relevant Initial Period or Renewal Period for the upgraded User Subscription  (“Upgrade Fee”) and, if such upgraded User Subscription is purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

3.6             No refund of any Subscription Fees shall be made in the case of a downgrade of User Subscription for the then current Initial Period or Renewal Period.

4              Services

4.1             The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.

4.2             The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

4.2.1                planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time and/ or other times of minimum demand; and

4.2.2                unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance; and

4.2.3                any emergency maintenance which is required from time to time.

4.3             The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided.  The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.

5              Customer data

5.1             The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2             The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, as such document may be amended by the Supplier in its sole discretion from time to time.  In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

5.3             The Supplier shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data available at https://www.powermapper.com/smallprint/privacy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

5.4             If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

5.4.1                the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement;

5.4.2                the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;

5.4.3                the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

5.4.4                the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and

5.4.5                each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6              Third party providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.  The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier.  The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.  The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7              Supplier's obligations

7.1             The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2             The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.  Notwithstanding the foregoing, the Supplier:

7.2.1                does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and

7.2.2                is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.3             This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

7.4             For the avoidance of doubt the Supplier shall be under no obligation to provide the Services until it has been paid the relevant Subscription Fees.

8              Customer's obligations

The Customer shall:

8.1             provide the Supplier with:

8.1.1                all necessary co-operation in relation to this agreement; and

8.1.2                all necessary access to such information as may be required by the Supplier;

in order to render the Services, including but not limited to Customer Data, security access information and configuration services;

8.2             comply with all applicable laws and regulations with respect to its activities under this agreement;

8.3             keep its credit card details and/ or approved purchase order information held by the Supplier current and up to date;

8.4             carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.5             ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;

8.6             obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

8.7             ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

8.8             be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

9              Charges and payment

9.1             The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9.

9.2             The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete Payment Card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

9.2.1                its Payment Card details to the Supplier, the Customer hereby authorises the Supplier to bill such Payment Card:

9.2.1.1                  on or within 10 Business Days after the Effective Date, for the Subscription Fees payable in respect of the Initial Subscription Term; and

9.2.1.2                  subject to clause 14.1, on or within 10 Business Days of the date on which the Initial Subscription Term and/ or any Renewal Term ends, for the Subscription Fees payable in respect of the next Renewal Period; and

9.2.1.3                  on or within 10 Business Days of the date on which the Customer confirms an upgrade of its User Subscription in accordance with clause 3, for the Upgrade Fee;

9.2.2                its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:

9.2.2.1                  on or immediately following the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

9.2.2.2                  subject to clause 14.1, at least 30 days prior to the date on which the Initial Subscription Term and/ or any Renewal Term ends for the Subscription Fees payable in respect of the next Renewal Period,;

9.2.2.3                  on or within 10 Business Days of the date on which the Customer confirms an upgrade of its User Subscription in accordance with clause 3, for the Upgrade Fee;

and the Customer shall pay each invoice within 30 days after the date of such invoice.

9.3             If the Supplier has not received any payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

9.3.1                the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.3.2                interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of The Royal Bank of Scotland plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4             All amounts and fees stated or referred to in this agreement:

9.4.1                shall be payable in the currency (being either (i) Pounds Sterling, (ii) Euros or (ii) US Dollars) which the Customer agreed to at the time of ordering the Services (or extra services relating thereto) to which they relate;

9.4.2                are, subject to clause 13.4.2, non-cancellable and non-refundable;

9.4.3                are exclusive of value added tax and any other sales tax or other applicable taxes or levies, which shall be added to the Supplier's invoice(s) at the appropriate rate where applicable.

9.5             The Supplier shall be entitled to increase the Subscription Fees from time to time, such increase to be effective from the commencement of the next Renewal Period upon 30 days’ prior notice to the Customer.

10           Proprietary rights

10.1           The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2           The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

11           Confidentiality

11.1           Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.  A party's Confidential Information shall not be deemed to include information that:

11.1.1              is or becomes publicly known other than through any act or omission of the receiving party;

11.1.2              was in the other party's lawful possession before the disclosure;

11.1.3              is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

11.1.4              is independently developed by the receiving party, which independent development can be shown by written evidence; or

11.1.5              is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2           Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

11.3           Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

11.4           Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5           The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

11.6           The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7           This clause 11 shall survive termination of this agreement, however arising.

12           Indemnity

12.1           The Supplier may (at its sole discretion, which must be exercised in writing) defend the Customer, its officers, directors and/ or employees against any claim that the Services, Software or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall (having opted to so defend the Customer as aforesaid) indemnify the Customer (subject to clause 12.3) for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

12.1.1              the Supplier is given prompt notice of any such claim;

12.1.2              the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

12.1.3              the Supplier is given sole authority to defend or settle the claim.

12.2           In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.3           In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12.3.1              a modification of the Services or Documentation by anyone other than the Supplier; or

12.3.2              the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

12.3.3              the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

12.4           In the event that the Supplier exercises its right to defend and indemnify the Customer pursuant to clause 12.1, the terms of clause 12.1 to 12.3 (inclusive) shall represent the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12.5           The Customer shall defend, indemnify and hold harmless the Supplier against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) from third parties arising out of or in connection with the Customer's use of the Services, the Software and/or Documentation either (a) in breach of this agreement, and/or any applicable Product EULA; or (b) in the course of providing its own services to a third party as permitted by clause 2.9, provided that:

12.5.1              the Customer is given prompt notice of any such claim;

12.5.2              the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense.

13           Limitation of liability

13.1           Subject to the provisions of clause 12, this clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

13.1.1              any breach of this agreement;

13.1.2              any use made by the Customer of the Services and/or the Software and/or the Documentation or any part of them; and

13.1.3              any representation, statement or tortuous or delictual act or omission (including negligence) arising under or in connection with this agreement.

13.2           Except as expressly and specifically provided in this agreement:

13.2.1              the Customer assumes sole responsibility for results obtained from the use of the Services, the Software and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

13.2.2              all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

13.2.3              the Services and the Documentation are provided to the Customer on an "as is" basis.

13.3           Nothing in this agreement excludes the liability of the Supplier:

13.3.1              for death or personal injury caused by the Supplier's negligence; or

13.3.2              for fraud or fraudulent misrepresentation.

13.4           Subject to clause 13.2 and clause 13.3:

13.4.1              the Supplier shall not be liable whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and

13.4.2              (except where the Supplier exercises its rights under clause 12.1) the Supplier's total aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid by the Customer (and actually received by the Supplier) for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

14           Term and termination

14.1           This agreement shall, commence on the Effective Date and, unless otherwise terminated as provided in this clause 14, shall continue until the end of the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of one calendar month (or such other period as is agreed in writing between the parties) (each a “Renewal Period”), unless:

14.1.1              the Customer cancels its subscription by using the “Cancel” / “Unsubscribe” button/ facility on the Supplier’s website at https://app.powermapper.com/Customer/Billing not less than 30 days prior to the end of the of the then current Initial Subscription Term or Renewal Period (as applicable);

14.1.2              either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

14.1.3              it is otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute theSubscription Term”.

14.2           Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

14.2.1              an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or

14.2.2              an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986 (meaning the UK Statute commonly referred to in the UK by that name)); or

14.2.3              a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or

14.2.4              the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

14.2.5              the other party ceases, or threatens to cease, to trade; or

14.2.6              there is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988 (meaning the UK Statute commonly referred to in the UK by that name); or

14.2.7              the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

14.3           Without prejudice to any other rights or remedies to which it may be entitled, the Supplier may terminate this agreement without liability to the Customer if:

14.3.1              the Customer commits a material breach of this agreement or any applicable Product EULA; or

14.3.2              the Customer or any of its subsidiaries or parent companies (in either case whether direct or indirect) or other affiliates has (or the Supplier reasonably suspects has) previously committed a material breach of (i) a contract similar or identical to any of the foregoing; (ii) any other material licence of the Supplier’s products or services; or (iii) the Supplier’s intellectual property rights.

14.4           On termination of this agreement for any reason:

14.4.1              all applicable Product EULAs and all licences granted under this agreement shall immediately terminate;

14.4.2              each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

14.4.3              the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten Business Days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

14.4.4              the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

15           Refunds

15.1           Subject to clause 15.2, if the Customer terminates this agreement, for any reason, within thirty (30) days of the Effective Date, the Supplier shall refund all Subscription Fees received from the Customer in respect of all User Subscriptions ordered on or after the Effective Date but prior to notification of such termination (“30 Day Money Back Guarantee”).

15.2           The Customer may only benefit from the 30 Day Money Back Guarantee on one occasion.  If the Customer has previously terminated User Subscriptions within 30 days of the date of ordering the same and has received a refund on terms similar or identical to those set out in clause 15.1, it shall be liable (subject to the remaining provisions of this clause 15) for all Subscription Fees and other fees relating to its use of the Services.

15.3           In all other cases, the Customer shall not be entitled to a refund unless termination takes place due to the default of the Supplier.

16           Force majeure

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage (including without limitation so-called “denial of service” attacks or computer or server hacking or similar malicious online activity), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

17           Waiver

17.1           A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

17.2           Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

18           Severance

18.1           If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2           If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19           Entire agreement

19.1           This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2           Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

20           Assignation

20.1           The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20.2           The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

21           No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22           Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

23           Modifications to this Agreement or the Product EULA

23.1           The Supplier may make changes to this agreement, or to any Product EULA or any other terms or policies referred to in this agreement.

23.2           If the Supplier makes any such change, it shall publish a revised version of the relevant agreement, terms or policy (“Revised Version”) at https://app.powermapper.com/legal (or such other website address as may be notified to the Customer from time to time or as otherwise notified by the Supplier to the Customer in writing from time to time) and may also be published at the other relevant parts of the Supplier’s website or websites.

23.3           Any such revised version will become effective as to you on the first to occur of:-

23.3.1              the first day of a Renewal Period that begins at least thirty (30) days after the time that the Revised Version has been posted;

23.3.2              the Customer’s execution or confirmation of a new or additional agreement for all or part of the Services that incorporates the Revised Version by reference; or

23.3.3              thirty (30) days following the Supplier’s written notice to the Customer of the Revised Version.

23.4           If the Customer’s compliance with the Revised Version would adversely affect its use of the Services, and the Customer gives written notice of its objection no later than thirty (30) days following the date that the Revised Version would otherwise have become effective as to the Customer, the Supplier shall not enforce the Revised Version as to the Customer until sixty (60) days following the date the Revised Version would otherwise have become effective as to the Customer, and the Customer shall continue to be subject to the prior version.  During the sixty (60) day period, the Customer may elect to terminate this agreement on these grounds by giving written notice.

24           Notices

24.1           Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at:-

24.1.1              in the case of the Supplier, its address set out in this agreement or by email to support@powermapper.com, or such other address or email address as may have been notified by the Supplier for such purposes; and

24.1.2              in the case of the Customer, to any of the following:-

24.1.2.1                the address supplied for the User Subscription to which this agreement applies;

24.1.2.2                the credit card billing address supplied by the Customer in accordance with clause 9.2;

24.1.2.3                the address given with the approved purchase order information supplied by the Customer in accordance with clause 9.2; or

24.1.2.4                any email address or fax number supplied by the Customer specifically for the purpose (including any given during the process of ordering User Subscriptions).

24.2           A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax or email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

25           Governing law and jurisdiction

25.1           This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Scotland.

25.2           The parties irrevocably agree (for the sole benefit of the Supplier) that, subject as provided at 25.3 below, the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

25.3           Nothing in this clause 25 shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.