Terms And Conditions

• 3.2.1 each Authorised User shall keep a secure password for use of the Services, and that each Authorised User shall keep his password confidential;
• 3.2.2 you shall maintain a written, up to date list of current Authorised Users and provide such list to us within five Business Days of our written request at any time or times;
• 3.2.3 you shall permit us 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 our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;
• 3.2.4 if any of the audits referred to in Clause 3.2.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to our other rights (whether under this Agreement or at law), you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; and
• 3.2.5 if any of the audits referred to in Clause 3.2.3 reveal that you have underpaid the Fees, then, without prejudice to our other rights and remedies, whether under this Agreement or at law, you shall pay to us an amount equal to such underpayment as calculated in accordance with the prices set out in the Schedule within ten Business Days of the date of the relevant audit.

• 3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
• 3.3.2 facilitates illegal activity;
• 3.3.3 depicts sexually explicit images;
• 3.3.4 promotes unlawful violence;
• 3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
• 
  3.3.6
  in a manner that is otherwise illegal or causes damage or injury to any person or property;
  and we reserve the right, without Liability (subject to Clause 14.2) and without prejudice to our other rights and remedies whether under this Agreement or at law, to disable your access to the Services if you are in breach of this Clause 3.3.

• 
  3.4.1
  except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:
  • (a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
  • (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
  • (c) access all or any part of the Services in order to build a product or service which competes with the Services; or
  • (d) use the Services to provide services to third parties; or
  • (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
  • (f) attempt to obtain, or assist third parties in obtaining, access to the Services, except as expressly provided for by this Agreement.

• 5.5.1 correct any errors or omissions in the Services after receiving full and clear information on them (“Support Services”); and
• 5.5.2 respond to a request for Support Services;

but we cannot guarantee any particular result or outcome nor within any particular time. In particular, without limitation, we may need to obtain support in turn from a third party that assists us with the provision of the Support Services. The Support Services exclude the resolution of faults or defects that arise as a result of your failure to comply with this Agreement or any other agreement between you and us. We may provide those excluded services as part of the Support Services at our absolute discretion; subject to Clause 14.2, we will not have any liability for our provision of any of those excluded services to you. You can request Support Services by emailing us at help@frenkels.com.

• 6.8.1 Process Customer Data only on documented instructions from you, unless required to do so by Data Protection Laws or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;
• 6.8.2 ensure that persons authorised to Process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
• 6.8.3 ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Data and against accidental loss or destruction of, or damage to, Customer Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Customer Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);
• 6.8.4 notify you as soon as reasonably practicable before appointing any subcontractor in respect of Processing of Customer Data, and ensure that any such subcontractor complies with the provisions of this Paragraph 6 as if it was a Party; if you (acting reasonably) object to the appointment of the subcontractor for reasons relating to the Processing of Customer Data and we cannot provide the relevant Services without the appointment of that subcontractor and/or provide a reasonable alternative means of providing the Services, you shall have the right to terminate this Agreement immediately on written notice; a list of pre-approved subprocessors for such purposes are set out in Clause 6.13;
• 6.8.5 taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Laws, to the extent that such requests relate to this Agreement and our obligations under it;
• 6.8.6 assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• 6.8.7 at your option, delete (to the extent practicable) or return all the Customer Data to you after termination of this Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Customer Data;
• 6.8.8 not share the Customer Data with any other processors of personal data that you commission without your prior written consent;
• 6.8.9 make available to you all information necessary to demonstrate our compliance with this Clause 6.7, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you, provided that:
  • (a) you give us reasonable notice of any such audit;
  • (b) such audit takes place during our normal business hours and does not cause unreasonable disruption to our normal business operations; and
  • (c) during such audit, you will have access only to information that is directly relevant to this Agreement, and you will have no access to information which is proprietary to us or in respect of which we owe obligations of confidentiality to any third party; and
• 6.8.10 inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause the infringement of) Data Protection Laws.

• 6.12.1 you are able to justify the Processing of Customer Data as lawful in accordance with Data Protection Laws (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of Data Protection Laws;
• 6.12.2 where Customer Data falls within the Special Categories of Personal Data, the Processing of such Special Categories of Personal Data is justified as lawful under Data Protection Laws before Processing takes place;
• 6.12.3 where the Processing of Special Categories of Personal Data is not justified as lawful under Data Protection Laws, no such data will be sent to us; and
• 6.12.4 you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Data to us for the duration and purposes of the Agreement.

• 8.2.1 your use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents; and/or
• 8.2.2 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 you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

• (a) all necessary co-operation in relation to this Agreement; and
• (b) all necessary access to such information as we may require;

in order to provide the Services, including Customer Data, security access information and configuration services;

• 10.2.1 at such times and in such instalments as we may direct from time to time; unless set out otherwise in this Agreement, we may issue invoices to you for the Fees at such intervals as we may, at our absolute discretion, consider appropriate;
• 10.2.2 by any payment method that we may stipulate from time to time; no payment shall be considered paid until we have received it in cleared funds in full;
• 10.2.3 in the currency in force in England from time to time or such other currency as we may stipulate from time to time for the Fees; and
• 10.2.4 in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

• 10.4.1 charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
• 10.4.2 recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
• 10.4.3 suspend performance of this Agreement, and any licences and rights granted under it, until payment in full has been made.

• 12.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
• 
  12.1.2
  disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 12.
  Each Party shall use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.

• 12.2.1 it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
• 12.2.2 it does so subject to obligations equivalent to those set out in this Clause 12.

• 12.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
• 12.4.2 was independently developed by it; or
• 12.4.3 was independently disclosed to it by a third party entitled to disclose the same; or
• 12.4.4 was in its written records prior to receipt.

• 12.7.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
• 12.7.2 erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
• 12.7.3 certify in writing to the other Party that it has complied with the requirements of this Clause 12.7, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.

• 13.2.1 we are given prompt notice of any such claim;
• 13.2.2 you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
• 
  13.2.3
  we are given sole authority to defend or settle the claim.
  In the defence or settlement of any such claim, we may procure the right for you 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 two Business Days’ notice to you without any additional Liability or obligation to you, subject to Clause 14.2.

• 13.3.1 a modification of the Services by anyone other than us; or
• 13.3.2 your use of the Services in a manner contrary to this Agreement or the instructions given to you by us; or
• 13.3.3 your use of the Services after notice of the alleged or actual infringement from us or any third party.

• 14.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any goods, services or deliverables in connection with this Agreement; or
• 14.1.2 otherwise in relation to this Agreement or entering into this Agreement.

• 14.2.1 its fraud; or
• 14.2.2 death or personal injury caused by its Breach of Duty; or
• 14.2.3 any breach of the obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
• 14.2.4 any other Liability which cannot be excluded or limited by applicable law.

• 14.4.1 indirect or consequential losses, damages, costs or expenses;
• 14.4.2 loss of actual or anticipated profits;
• 14.4.3 loss of contracts;
• 14.4.4 loss of use of money;
• 14.4.5 loss of anticipated savings;
• 14.4.6 loss of revenue;
• 14.4.7 loss of goodwill;
• 14.4.8 loss of reputation;
• 14.4.9 loss of business;
• 14.4.10 ex gratia payments;
• 14.4.11 loss of operation time;
• 14.4.12 loss of opportunity;
• 14.4.13 loss caused by the diminution in value of any asset; or
• 
  14.4.14
  loss of, damage to, or corruption of, data;
  whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 14.4.2 to 14.4.14 (inclusive) of this Clause 14.4 apply whether such losses are direct, indirect, consequential or otherwise.

• 14.5.1 110% of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 months prior to the date on which the claim first arose; or
• 14.5.2 £500,000 (Five hundred thousand pounds)

• 14.8.1 you assume sole responsibility for results obtained from your use of the Services, and for conclusions drawn from such use. Subject to Clause 14.2, we shall have no Liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction;
• 14.8.2 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
• 14.8.3 the Services are provided to you on an “as is” basis.

• 15.1.1 the other Party commits a material breach of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven days after being notified in writing to do so; or
• 15.1.2 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order, or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction; and/or
• 15.1.3 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

• 15.2.1 you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 14 days after being notified in writing to make such payment; or
• 15.2.2 you undergo a change of control (as defined in section 1124 of the Corporation Tax Act 2010); or
• 15.2.3 you challenge or dispute the validity of any of our IPR; or
• 15.2.4 you purport to assign any of your rights or obligations under this Agreement.

• 15.3.1 all licences and rights granted under this Agreement shall immediately terminate;
• 15.3.2 each Party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other Party;
• 15.3.3 you shall pay to us any amounts due to us under this Agreement, whether invoiced or not;
• 15.3.4 we may destroy or otherwise dispose of any of the Customer Data in our possession unless we receive, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to you of the then most recent back-up of the Customer Data. We shall use our reasonable endeavours to deliver the back-up to you within 30 days of our receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
• 15.3.5 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 this Agreement which existed at or before the date of termination, shall not be affected or prejudiced.