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SILKFLO PLATFORM TERMS
Itis hereby agreed
1.1 The definitions and rules ofinterpretation in this clause apply in this agreement.
Administrative Users: those employees,agents and independent contractors of the Customer who are authorised by theCustomer to use the Services and the Documentation as “Account Owner”, “ProgramManager”, “Idea Approver”, and “Authorised User” each of which has the accessrights of a Standard User, as well as additional access to greaterfunctionality than a Standard User, but each of which also has its ownrespective usage restrictions, as furtherdescribed in clause 2.2(d)
Business Day: a day other than a Saturday, Sunday or public holidayin England when banks in London are open for business.
Change of Control: the beneficial ownership of more than 50% of the issuedshare capital of a company or the legal power to direct or cause the directionof the general management of the company, and controls, controlled and theexpression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and iseither clearly labelled as such or identified as Confidential Information inclause 11.5 or clause 11.6.
Controller, Processor, Data Subject, PersonalData, Personal Data Breach and Processing: have the meaningsgiven to them in the Data Protection Legislation.
Customer Data: the data inputted by the Customer, Users, or SilkFlo onthe Customer's behalf for the purpose of using the Services or facilitating theCustomer's use of the Services.
Documentation: the documentation made available to the Customer bySilkFlo online via www.SilkFlo.com or such other web address notified bySilkFlo to the Customer from time to time which sets out a description of theServices and the user instructions for the Services.
Effective Date: the date of this agreement.
Heightened CybersecurityRequirements: any laws, regulations,codes, guidance (from regulatory and advisory bodies. Whether mandatory ornot), international and national standards, industry schemes and sanctions,which are applicable to either the Customer or an User (but not SilkFlo)relating to security of network and information systems and security breach andincident reporting requirements, which may include the cybersecurity Directive((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), theNetwork and Information systems Regulations 2018 (SI 506/2018), all as amendedor updated from time to time.
Initial Subscription Term:the initial term of this agreement asset out on the pricing page.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 14.1.
Services: the subscription services provided by SilkFlo to theCustomer under this agreement via https://silkflo.com or any other website notified to the Customer by SilkFlo from time totime, as more particularly described in the Documentation.
Software: the software applications provided by SilkFlo as partof the Services.
Standard User: those employees, agents and independent contractors ofthe Customer who are authorised by the Customer to use the Services and theDocumentation with restrictions on the functions they can access, and only haveaccess to the Services in order to submit automation ideas, view the Customer’sideas pipeline and profiles of other Users, and interact with the Customer’sleader-board.
Subscription Fees: the subscription fees payable by the Customer toSilkFlo for the User Subscriptions, as set out on the pricing page.
Subscription Term: has the meaning given in clause 14.1 (being theInitial Subscription Term together with any subsequent Renewal Periods).
Users: Administrative Users and Standard Users.
User Subscriptions: the user subscriptions purchased by the Customerpursuant to clause 9.1 which entitle AdministrativeUsers to access and use the Services and the Documentation in accordance withthis agreement.
Virus: any thing or device (including any software, code, fileor programme) which may: prevent, impair or otherwise adversely affect theoperation of any computer software, hardware or network, any telecommunicationsservice, equipment or network or any other service or device; prevent, impairor otherwise adversely affect access to or the operation of any programme ordata, including the reliability of any programme or data (whether byre-arranging, altering or erasing the programme or data in whole or part orotherwise); or adversely affect the user experience, including worms, trojanhorses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example,code) found in software and hardware components that when exploited, results ina negative impact to the confidentiality, integrity, or availability, and theterm Vulnerabilities shall be construed accordingly.
1.2 Clause headings shall not affectthe interpretation of this agreement. References to clauses are to the clausesof this agreement.
1.3 A person includes an individual,corporate or unincorporated body (whether or not having separate legalpersonality) and that person's legal and personal representatives, successorsor permitted assigns. A reference to a company shall include any company,corporation or other body corporate, wherever and however incorporated orestablished.
1.4 Unless the context otherwiserequires, words in the singular shall include the plural and in the pluralshall include the singular. Unless the context otherwise requires, a referenceto one gender shall include a reference to the other genders. A reference towriting or written includes faxes but not e-mail.
1.5 A reference to a statute orstatutory provision is a reference to it as it is in force from time to time. Areference to a statute or statutory provision shall include all subordinatelegislation made from time to time under that statute or statutory provision.
2. User subscriptions
2.1 Subject to the Customer purchasingthe User Subscriptions in accordance with clause 3.3, clause 3.4 and clause 9.1, therestrictions set out in this clause 2 and the otherterms and conditions of this agreement, SilkFlo hereby grants to the Customer anon-exclusive, non-transferable right, without the right to grant sublicences,to permit both the Administrative Users (not exceeding the number of UserSubscriptions purchased) and the Standard Users to use the Services and theDocumentation during the Subscription Term solely for the Customer's internalbusiness operations, in accordance with the restrictions of the relevantsubscription package purchased as set out on the pricing page. The number ofUser Subscriptions initially purchased by the Customer shall be agreed and setout on the pricing page.
2.2 In relation to the Users, theCustomer undertakes that:
(a) the maximum number of AdministrativeUsers that it authorises to access and use the Services and the Documentationshall not exceed the number of User Subscriptions it has purchased from time totime;
(b) it will not allow or suffer anyUser Subscription to be used by more than one individual Administrative Userunless it has been reassigned in its entirety to another individual AdministrativeUser, in which case the prior Administrative User shall no longer have anyright to access or use the Services and/or Documentation;
(c) each User shall keep a securepassword for their use of the Services and Documentation, that such passwordshall be changed regularly (including upon request of SilkFlo, and SilkFloreserves the right to disable any User’s ability to use and access the Serviceswhere it fails or refuses to do so) and that each User shall keep theirpassword confidential;
(d) it shall maintain a written, up todate list of current Users and provide such list to SilkFlo within 5 BusinessDays of SilkFlo's written request at any time or times;
(e) it shall permit SilkFlo orSilkFlo's designated auditor to audit the Services in order to establish thename and password of each User and the Customer's data processing facilities toaudit compliance with this agreement. Each such audit may be conducted no morethan once per quarter, at SilkFlo's expense, and this right shall be exercisedwith reasonable prior notice, in such a manner as not to substantiallyinterfere with the Customer's normal conduct of business;
(f) if any of the audits referred to inclause 2.2(e) reveal thatany password has been provided to any individual who is not an User, thenwithout prejudice to SilkFlo's other rights, the Customer shall promptlydisable such passwords and SilkFlo shall not issue any new passwords to anysuch individual; and
(g) if any of the audits referred to inclause 2.2(e) reveal thatthe Customer has underpaid Subscription Fees to SilkFlo, then without prejudiceto SilkFlo's other rights, the Customer shall pay to SilkFlo an amount equal tosuch underpayment within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access,store, distribute or transmit any Viruses, or any material during the course ofits use of the Services that:
(a) is unlawful, harmful, threatening,defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race,gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causesdamage or injury to any person or property;
and SilkFlo reserves theright, without liability or prejudice to its other rights to the Customer, todisable the Customer's access to any material that breaches the provisions ofthis clause.
2.4 The Customer shall not:
(a) except as may be allowed by anyapplicable law which is incapable of exclusion by agreement between the partiesand except to the extent expressly permitted under this agreement:
(i) 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
(ii) attempt to de-compile, reversecompile, disassemble, reverse engineer or otherwise reduce to human-perceivableform all or any part of the Software; or
(b) access all or any part of theServices and Documentation in order to build a product or service whichcompetes with the Services and/or the Documentation; or
(c) use the Services and/orDocumentation to provide services to third parties; or
(d) subject to clause 22.1, license,sell, rent, lease, transfer, assign, distribute, display, disclose, orotherwise commercially exploit, or otherwise make the Services and/orDocumentation available to any third party except the Users, or
(e) attempt to obtain, or assist thirdparties in obtaining, access to the Services and/or Documentation, other thanas provided under this clause 2; or
(f) introduce or permit theintroduction of, any Virus or Vulnerability into SilkFlo's network andinformation systems.
2.5 The Customer shall use all reasonableendeavours to prevent any unauthorised access to, or use of, the Servicesand/or the Documentation and, in the event of any such unauthorised access oruse, promptly notify SilkFlo.
2.6 The rights provided under thisclause 2 are granted tothe Customer only, and shall not be considered granted to any subsidiary orholding company of the Customer.
3. Additional user subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customermay, from time to time during any Subscription Term, purchase additional UserSubscriptions in excess of the number already purchased and SilkFlo shall grantaccess to the Services and the Documentation to such additional AdministrativeUsers in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchaseadditional User Subscriptions, the Customer shall notify SilkFlo in writing.SilkFlo shall evaluate such request for additional User Subscriptions andrespond to the Customer with approval or rejection of the request (suchapproval not to be unreasonably withheld). Where SilkFlo approves the request,SilkFlo shall activate the additional User Subscriptions within 7 days of itsapproval of the Customer's request.
3.3 If SilkFlo approves the Customer'srequest to purchase additional User Subscriptions, the Customer shall, within30 days of the date of SilkFlo's invoice, pay to SilkFlo the relevant fees forsuch additional User Subscriptions as are notified to it by SilkFlo and, ifsuch additional User Subscriptions are purchased by the Customer part waythrough the Initial Subscription Term or any Renewal Period (as applicable),such fees shall be pro-rated from the date of activation by SilkFlo for theremainder of the Initial Subscription Term or then current Renewal Period (asapplicable).
3.4 Alternatively, where SilkFloimplements such functionality, the Customer may purchase additional UserSubscriptions via the Services directly. In such cases, the Customer will berequired to pay the relevant fees for such User Subscriptions in advance, andupon doing so will be given access to the additional User Subscriptions.
4.1 SilkFlo shall, during theSubscription Term, provide the Services and make available the Documentation tothe Customer on and subject to the terms of this agreement.
4.2 SilkFlo shall use commerciallyreasonable endeavours to make the Services available 24 hours a day, seven daysa week, except for planned and unscheduled maintenance performed outside NormalBusiness Hours, provided that SilkFlo has used reasonable endeavours to givethe Customer at least 6 Normal Business Hours' notice in advance.
4.3 SilkFlo will, as part of theServices and at no additional cost to the Customer, provide the Customer withSilkFlo's standard customer support services whereby the Customer may submit supportqueries to SilkFlo during Normal Business Hours by emailing [email protected] may amend the nature of its support services in its sole and absolutediscretion from time to time. The Customer may purchase enhanced supportservices separately at SilkFlo's then current rates.
5. Data protection
5.1 Both parties will comply with allapplicable requirements of the Data Protection Legislation. This clause 5 is in additionto, and does not relieve, remove or replace, a party's obligations under theData Protection Legislation.
5.2 The parties acknowledge that forthe purposes of the Data Protection Legislation, the Customer is the datacontroller and SilkFlo is the data processor (where DataController and Data Processor have themeanings as defined in the Data Protection Legislation). The following tablesets out the scope, nature and purpose of processing by SilkFlo, the durationof the processing and the types of Personal Data and categories of DataSubject:
Data Processing Details
The processing of personal data resulting from the provision of services by SilkFlo under this agreement.
Nature and purpose
The personal data will be processed in the course of the operation of the Services.
The duration of this agreement
Types of personal data
Names and email addresses of Users.
Categories of Data Subject
5.3 Without prejudice tothe generality of clause 5.1, SilkFlo shall,in relation to any Personal Data processed in connection with the performanceby SilkFlo of its obligations under this agreement:
(a) process that Personal Data only onthe written instructions of the Customer unless SilkFlo is required by DataProtection Legislation to otherwise process that Personal Data. Where SilkFlois relying on Data Protection Legislation as the basis for processing PersonalData, SilkFlo shall promptly notify the Customer of this before performing theprocessing required by Data Protection Legislation unless the Data ProtectionLegislation prohibits SilkFlo from so notifying the Customer;
(b) ensure that it has in placeappropriate technical and organisational measures, to protect againstunauthorised or unlawful processing of Personal Data and against accidentalloss or destruction of, or damage to, Personal Data, appropriate to the harmthat might result from the unauthorised or unlawful processing or accidentalloss, destruction or damage and the nature of the data to be protected, havingregard to the state of technological development and the cost of implementingany measures (those measures may include, where appropriate, pseudonymising andencrypting Personal Data, ensuring confidentiality, integrity, availability andresilience of its systems and services, ensuring that availability of andaccess to Personal Data can be restored in a timely manner after an incident,and regularly assessing and evaluating the effectiveness of the technical andorganisational measures adopted by it);
(c) not transfer any Personal Dataoutside the United Kingdom or the EEA unless the following conditions are fulfilled:
(i) the Customer or SilkFlo hasprovided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceablerights and effective legal remedies;
(iii) SilkFlo complies with itsobligations under the Data Protection Legislation by providing an adequatelevel of protection to any Personal Data that is transferred; and
(iv) SilkFlo complies with reasonableinstructions notified to it in advance by the Customer with respect to theprocessing of the Personal Data;
(d) assist the Customer, at theCustomer's cost, in responding to any request from a Data Subject and inensuring compliance with its obligations under the Data Protection Legislationwith respect to security, breach notifications, impact assessments andconsultations with supervisory authorities or regulators;
(e) notify the Customer without unduedelay on becoming aware of a Personal Data breach;
(f) at the written direction of theCustomer, delete or return Personal Data and copies thereof to the Customer ontermination of the agreement unless required by Data Protection Legislation tostore the Personal Data; and
(g) maintain complete and accuraterecords and information to demonstrate its compliance with this clause 5.
5.4 The Customer consents generally toSilkFlo appointing third-party processors of Personal Data under thisagreement. SilkFlo confirms that it has entered or (as the case may be) willenter with the third-party processor into a written agreement incorporatingterms which are substantially similar to those set out in this clause 5. As between theCustomer and SilkFlo, SilkFlo shall remain fully liable for all acts oromissions of any third-party processor appointed by it pursuant to this clause 5.
5.5 SilkFlo may, at any time on notless than 30 days’ notice, revise this clause 5 by replacing itwith any applicable controller to processor standard clauses or similar termsforming party of an applicable certification scheme (which shall apply whenreplaced by attachment to this agreement).
6. Third party providers
7. Supplier's obligations
7.1 SilkFlo undertakes that theServices 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 SilkFlo's instructions, or modification or alteration of theServices by any party other than SilkFlo or SilkFlo'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 theCustomer 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.
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free;
(ii) the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements;
(iii) the Software or the Services willbe free from Vulnerabilities or Viruses; or
(iv) the Software, Documentation orServices will comply with any Heightened Cyber security Requirements.
(b) 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.
7.4 This agreement shall not preventSilkFlo 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.
7.5 SilkFlo warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.6 SilkFlo shall follow its archiving procedures for Customer Data by scheduling back-ups on a regular basis, as dictated by SilkFlo 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 againstSilkFlo shall be for SilkFlo to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SilkFlo in accordance with its archiving procedures. SilkFlo shall not be responsible for any loss, destruction, alteration or disclosure ofCustomer Data caused by any third party (except those third parties sub-contracted by SilkFlo to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
8. Customer's obligations
8.1 The Customer shall:
(a) provide SilkFlo with:
(i) all necessary co-operation inrelation to this agreement; and
(ii) all necessary access to such information as may be required by SilkFlo;
in order to provide theServices, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) 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, SilkFlo may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Users use theServices and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any User's breach of this agreement;
(e) insofar as it has the capacity todo so, obtain and shall maintain all necessary licences, consents, and permissions necessary for SilkFlo, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by SilkFlo from time to time;and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to SilkFlo'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.
8.2 The Customer shall own all right,title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity,accuracy and quality of all such Customer Data. The Customer grants to SilkFlo a perpetual, royalty-free, sub-licenseable, transferable, worldwide licence to anonymise all Customer Data and use such anonymised Customer Data for the purposes of improving the Services and Software and creating machine learning models to be used within its Services and Software.
9. Charges and payment
9.1 The Customer shall pay theSubscription Fees to SilkFlo for the User Subscriptions in accordance with this clause 9.
9.2 The Customer shall on the EffectiveDate provide to SilkFlo valid, up-to-date and complete payment method details and/orapproved purchase order information acceptable to SilkFlo and any otherrelevant valid, up-to-date and complete contact and billing details and, if theCustomer provides:
(a) its payment method details toSilkFlo, the Customer hereby authorises SilkFlo to bill such payment method:
(i) on the Effective Date for theSubscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, on eachanniversary of the Effective Date for the Subscription Fees payable in respectof the next Renewal Period;
(b) its approved purchase orderinformation to SilkFlo, SilkFlo shall invoice the Customer:
(i) on the Effective Date for theSubscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, prior to oron each anniversary of the Effective Date for the Subscription Fees payable inrespect of the next Renewal Period,
and the Customer shall payeach invoice on the date of such invoice.
9.3 If SilkFlo has not received paymentwithin 14 days after the due date, and without prejudice to any other rightsand remedies of SilkFlo:
(a) SilkFlo may, without liability tothe Customer, disable the Customer's password, account and access to all orpart of the Services and SilkFlo shall be under no obligation to provide any orall of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a dailybasis on such due amounts at an annual rate equal to 4% over the then currentbase lending rate of SilkFlo's bankers in the UK from time to time, commencingon the due date and continuing until fully paid, whether before or afterjudgment.
9.4 All amounts and fees stated orreferred to in this agreement:
(a) shall be payable in poundssterling;
(b) are, subject to clause 13.3(b),non-cancellable and non-refundable;
(c) are exclusive of value added tax,which shall be added to SilkFlo's invoice(s) at the appropriate rate.
9.5 SilkFlo shall be entitled toincrease the Subscription Fees and the fees payable in respect of theadditional User Subscriptions purchased pursuant to clause 3.3 or clause 3.4 at any time bygiving at least 45 days’ prior notice, such increase to take effect from thestart of the next Renewal Period.
10. Proprietary rights
10.1 The Customer acknowledges andagrees that SilkFlo and/or its licensors own all intellectual property rightsin the Services and the Documentation. Except as expressly stated herein, thisagreement does not grant the Customer any rights to, under or in, any patents,copyright, database right, trade secrets, trade names, trade marks (whetherregistered or unregistered), or any other rights or licences in respect of theServices or the Documentation.
10.2 SilkFlo confirms that it has allthe rights in relation to the Services and the Documentation that are necessaryto grant all the rights it purports to grant under, and in accordance with, theterms of this agreement.
11.1 Each party may be given access toConfidential Information from the other party in order to perform itsobligations under this agreement. A party's Confidential Information shall notbe deemed to include information that:
(a) is or becomes publicly known otherthan through any act or omission of the receiving party;
(b) was in the other party's lawfulpossession before the disclosure;
(c) is lawfully disclosed to thereceiving party by a third party without restriction on disclosure; or
(d) is independently developed by thereceiving party, which independent development can be shown by writtenevidence.
11.2 Subject to clause 11.4, each partyshall hold the other's Confidential Information in confidence and not make theother's Confidential Information available to any third party, or use theother's Confidential Information for any purpose other than the implementationof this agreement.
11.3 Each party shall take allreasonable steps to ensure that the other's Confidential Information to whichit has access is not disclosed or distributed by its employees or agents inviolation of the terms of this agreement.
11.4 A party may disclose ConfidentialInformation to the extent such Confidential Information is required to bedisclosed by law, by any governmental or other regulatory authority or by acourt or other authority of competent jurisdiction, provided that, to theextent it is legally permitted to do so, it gives the other party as muchnotice of such disclosure as possible and, where notice of disclosure is notprohibited and is given in accordance with this clause 11.4, it takes intoaccount the reasonable requests of the other party in relation to the contentof such disclosure.
11.5 The Customer acknowledges thatdetails of the Services, and the results of any performance tests of theServices, constitute SilkFlo's Confidential Information.
11.6 SilkFlo acknowledges that theCustomer Data is the Confidential Information of the Customer.
11.7 The above provisions of this clause11shall survive termination of this agreement, however arising.
12.1 The Customer shall defend,indemnify and hold harmless SilkFlo against claims, actions, proceedings,losses, damages, expenses and costs (including without limitation court costsand reasonable legal fees) arising out of or in connection with the Customer'suse of the Services and/or Documentation, provided that:
(a) the Customer is given prompt noticeof any such claim;
(b) SilkFlo provides reasonableco-operation to the Customer in the defence and settlement of such claim, atthe Customer's expense; and
(c) the Customer is given soleauthority to defend or settle the claim.
12.2 SilkFlo shall defend the Customer,its officers, directors and employees against any claim that the Customer's useof the Services or Documentation in accordance with this agreement infringesany United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify theCustomer for any amounts awarded against the Customer in judgment or settlementof such claims, provided that:
(a) SilkFlo is given prompt notice ofany such claim;
(b) the Customer does not make anyadmission, or otherwise attempt to compromise or settle the claim and providesreasonable co-operation to SilkFlo in the defence and settlement of such claim,at SilkFlo's expense; and
(c) SilkFlo is given sole authority todefend or settle the claim.
12.3 In the defence or settlement of anyclaim, SilkFlo may procure the right for the Customer to continue using theServices, replace or modify the Services so that they become non-infringing or,if such remedies are not reasonably available, terminate this agreement on 2Business Days' notice to the Customer without any additional liability orobligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall SilkFlo, its employees,agents and sub-contractors be liable to the Customer to the extent that thealleged infringement is based on:
(a) a modification of the Services orDocumentation by anyone other than SilkFlo; or
(b) the Customer's use of the Servicesor Documentation in a manner contrary to the instructions given to the Customerby SilkFlo; or
(c) the Customer's use of the Servicesor Documentation after notice of the alleged or actual infringement fromSilkFlo or any appropriate authority.
12.5 The foregoing and clause 13.3(b) state theCustomer's sole and exclusive rights and remedies, and SilkFlo's (includingSilkFlo's employees', agents' and sub-contractors') entire obligations andliability, for infringement of any patent, copyright, trade mark, databaseright or right of confidentiality.
13. Limitation of liability
13.1 Except as expressly andspecifically provided in this agreement:
(a) the Customer assumes soleresponsibility for results obtained from the use of the Services and theDocumentation by the Customer, and for conclusions drawn from such use. SilkFloshall have no liability for any damage caused by errors or omissions in anyinformation, instructions or scripts provided to SilkFlo by the Customer inconnection with the Services, or any actions taken by SilkFlo at the Customer'sdirection;
(b) all warranties, representations,conditions and all other terms of any kind whatsoever implied by statute orcommon law are, to the fullest extent permitted by applicable law, excludedfrom this agreement; and
(c) the Services and the Documentationare provided to the Customer on an "as is" basis.
13.2 Nothing in this agreement excludesthe liability of SilkFlo:
(a) for death or personal injury causedby SilkFlo's negligence; or
(b) for fraud or fraudulentmisrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
(a) SilkFlo shall not be liable whetherin tort (including for negligence or breach of statutory duty), contract,misrepresentation, restitution or otherwise for any loss of profits, loss ofbusiness, depletion of goodwill and/or similar losses or loss or corruption ofdata or information, or pure economic loss, or for any special, indirect orconsequential loss, costs, damages, charges or expenses however arising underthis agreement; and
(b) SilkFlo's total aggregate liabilityin contract (including in respect of the indemnity at clause 12.2), tort(including negligence or breach of statutory duty), misrepresentation,restitution or otherwise, in any 12 month period starting on the Effective Dateor any anniversary of it (each a Contract Year), arising in connectionwith the performance or contemplated performance of this agreement, shall belimited to the total Subscription Fees paid by the Customer to SilkFlo during thatContract Year.
13.4 Nothing in this agreement excludesthe liability of the Customer for any breach, infringement or misappropriationof SilkFlo’s Intellectual Property Rights.
14. Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and,thereafter, this agreement shall be automatically renewed for successive periods equal to the Initial Subscription Term (each a Renewal Period),unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of theInitial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term orRenewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the InitialSubscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable)fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme fora solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, oran order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution,sequestration or other such process is levied or enforced on or sued against,the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to clause14.2(j) (inclusive);
(l) the other party suspends or ceases,or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
14.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) 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;
(c) SilkFlo may destroy or otherwise dispose of any of the Customer Data in its possession unless SilkFlo receives,no later than ten 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. SilkFlo shall use reasonable commercial endeavours to either deliver or make available for download the back-up to theCustomer 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). TheCustomer shall pay all reasonable expenses incurred by SilkFlo in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination,including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
SilkFlo 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 SilkFlo or any other party),failure of a utility service or transport or telecommunications network, act ofGod, war, riot, civil commotion, malicious damage, 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.
If there is an inconsistency between any of the provisions in the main body of this agreement and theSchedules, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
21.4 Nothing in this clause shall limit or exclude any liability for fraud.
22.1 The Customer shall not, without the prior written consent of SilkFlo, assign, transfer, charge, sub-contract ordeal in any other manner with all or any of its rights or obligations under this agreement.
22.2 SilkFlo 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.
23. 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).
24. 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) pursuant to theContracts (Rights of Third Parties) Act 1999.
25.1 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 its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
25.2 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 shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
26. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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