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End User Agreement the idapt group

PLEASE READ CAREFULLY BEFORE SUBSCRIBING TO THE SERVICE OFFERED FROM THIS WEBSITE:

This subscription agreement is a legal agreement between you (“the Customer” or “you”) and Idapt LLP of The Byre, Limes Farmyard, Luckington Road, Acton Turville GL9 1HG (GREAT BRITAIN) (a Limited Liability Partnership and with registered number OC 353796) (“the Supplier”, “us” or “we”) for:

The online Idapt Planner 3D service (whether on a free, trial period, monthly, yearly or other type of subscription) and associated documentation provided by the Supplier to the Customer under this agreement on our website (www.idaptplanner3d.com) (“the Website”) or any other website notified to the Customer by the Supplier from time to time (“the Services”).

We licence use of the Services to you on the basis of this agreement. We do not sell the Services to you. We remain the owners of the Services at all times.

OPERATING SYSTEM REQUIREMENTS

The Service requires access to the internet via a compatible website browser or you have downloaded our App from one of the available application stores. A list of compatible devices and minimum system requirements is available on request.

IMPORTANT NOTICE TO ALL USERS

By Subscribing to the Service, ticking the box to accept the terms and conditions set out in this agreement and clicking the “Next Step” button (both on the registration page of the Website) you agree to the terms of this agreement, which will bind you, your employees or any person you grant access to the Service in accordance with the terms and conditions of this agreement.

If you do not agree to the terms of this agreement, we will not grant you a licence to access the Services and you must discontinue the subscription process now. In this case, the ordering process will terminate and you will not have access to the Service.

IMPORTANT NOTICE TO CONSUMERS

As a Consumer, you have the right to withdraw from your transaction without charge and without any reason before subscribing to the Service. However, you will lose the right to cancel the transaction once you begin to subscribe to the Service.

You should print a copy of this agreement for future reference.

IMPORTANT SUBSCRIPTION INFORMATION

Please be aware that the Services will continue and any appropriate fee will fall due until the Services are cancelled. If you no longer require access to the Services then you must cancel your account by either contacting sales@idaptplanner3d.com or using the cancel account function in the secure client portal dashboard area. If we hold any credit card details on file then this will be automatically debited until notice of your intention to cancel is received and any invoices issued prior to the notice to cancel being confirmed will remain due.

1. DEFINITIONS

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

1.2. 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.

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

1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.7. 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. “User Subscriptions” are subscriptions purchased by the Customer in accordance with clause 9.1, which entitle Authorised Users (as defined below) to access and use the Services in accordance with this agreement.

2.2. Subject to the Customer purchasing the User Subscriptions in accordance with:

2.2.1. clauses 3.3 and 9.2;

2.2.2. the restrictions set out in this clause 2; and

2.2.3. the other terms and conditions of this agreement,

the Supplier grants to the Customer a non-exclusive, non-transferable right to permit those employees, agents and associates of the Customer who are authorised by the Customer to use the Services (“the Authorised Users”) to use the Services during the Subscription Term (this has the meaning given in clause 14.1).

2.3. In relation to the Authorised Users, the Customer undertakes that:

2.3.1. the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions (User Subscriptions are the number of Authorised User user subscriptions purchased by the Customer pursuant to clause 9.1) it has purchased from time to time;

2.3.2. 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 (for the avoidance of doubt it is not permissible to repeatedly reassign licenses to different users), in which case the prior Authorised User shall no longer have any right to access or use the Services;

2.3.3. each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;

2.3.4. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 business days (this means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business (“a Business Day”)) of the Supplier’s written request at any time or times;

2.3.5. 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;

2.3.6. if any of the audits referred to in clause 2.3.5 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 Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

2.3.7. if any of the audits referred to in clause 2.3.5 reveal that the Customer has underpaid Subscription Fees (as defined below) to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the current price list of the Supplier and detailed on the Website within 10 Business Days of the date of the relevant audit.

2.4. The Customer shall not access, store, distribute or transmit any:

2.4.1. 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 rearranging, 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 (“a Virus”): or

2.4.2. any material during the course of its use of the Services that:

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

2.4.2.2. facilitates illegal activity;

2.4.2.3. depicts sexually explicit images;

2.4.2.4. promotes unlawful violence;

2.4.2.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.4.2.6. in a manner that is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.5. The Customer shall not:

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

2.5.1.1. 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 online software applications or documents provided by the Supplier as part of the Services (“the Software”) (as applicable) in any form or media or by any means; or

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

2.5.2. access all or any part of the Services in order to build a product or service which competes with the Services; or

2.5.3. use the Services to provide services to third parties; or

2.5.4. subject to clause 22.1, 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

2.5.5. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.

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

2.7. 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.

3. ADDITIONAL USER SUBSCRIPTIONS

3.1. Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term (defined in clause 14.1), purchase additional User Subscriptions and the Supplier shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.

3.2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall upgrade its account via the upgrade account button in the secure client portal area of the dashboard or send an email to the Supplier requesting the appropriate upgrade. The account will be automatically upgraded if the request is submitted via the upgrade account button in the secure client portal area of the dashboard and payment is made by credit card or the Supplier shall evaluate any other upgrade request for additional User Subscriptions and respond to the Customer with approval or rejection of that request.

3.3. If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall pay to the Supplier the relevant fees for such additional User Subscriptions as set out on the Website from time to time and applicable in respect of the Customer’s subscription to the Services. If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees for the additional User Subscriptions shall be payable, subject to clause 14.1, on the same day of the month as the upgrade request was received of any subsequent month, year or any other subscription billing cycle period that is available from the Website, which corresponds to the day on which the first payment for the additional User Subscription(s) was made (if in any such month there is no such corresponding day then the payment shall be made on the last day of the relevant month) for the Subscription Fees payable in respect of the next Renewal Period (as described in clause 14.1). The Customers authorises the Supplier to arrange payment for the additional User Subscription(s) in the same manner as the Subscription Fees in clause 9.

4. SERVICES

4.1. The Supplier shall, during the Subscription Term, provide the Services 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

4.2.2. unscheduled maintenance performed outside Normal Business Hours, where such maintenance is essential for the effective maintenance of the Service and it has not been possible to provide such notice of the maintenance in advance.

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 9.00 am to 5.00 pm local UK time, each Business Day in accordance with the Supplier's Support Services Policy (this means the Supplier's policy for providing support in relation to the Services as made available at www.idaptplanner3d.com or such other website address as may be notified to the Customer from time to time) 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. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.

5. CUSTOMER DATA

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

5.2. The Supplier is permitted to run reports on the Customer Data and other information stored in the Supplier’s database to understand how the Services are being used, which products are being specified in Idapt Planner 3D and any other information that can be obtained from interrogating the information stored in the Supplier’s databases. As long as any presented information is in an anonymised form and not traceable to an individual person, the Supplier is further permitted to share this information with other third parties, sell this data, publish this information in any form and to use it for any purposes it deems necessary or commercially advantageous.

5.3. The Supplier is permitted to archive the Customer Data at regular intervals to maintain the efficiency of the Services.

5.4. The Supplier is permitted to delete any Customer Data from a free account after the expiry of one month after the relevant Customer cancelled his/her subscription or from the date of their last login.

5.5. The Supplier is permitted to delete any Customer Data from any other subscription after the expiry of 6 months after the relevant Customer cancelled his/her subscription to the Services or has failed to pay any sums due that would allow the Supplier to cancel the account.

5.6. The Supplier is not obliged to maintain copies of the Customer Data after the Customer’s subscription has expired or has been cancelled by either party. The Customer has the sole responsibility to ensure that any Customer Data that the Customer needs to access after the expiry of the Customer's subscription is downloaded or exported prior to the end of the Subscription. For the avoidance of doubt, the Customer will not be able to rely on the Supplier to provide access to the Services in order to retrieve previously saved Customer Data.

5.7. The Supplier’s data storage policies may be amended by the Supplier in its sole discretion from time to time.

5.8. 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 backup of such Customer Data maintained by the Supplier. 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).

5.9. The Supplier shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data available at www.idaptplanner3d.com 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.

5.10. The parties record their intention about how personal data should be processed in paragraph 24 (Data Protection) of this agreement.

6. THIRD PARTY PROVIDERS

6.1. 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.

6.2. The Supplier has taken reasonable care during the data entry stage to ensure all product specifications, details, sizes, prices, 3D models and other information provided by third-parties (“the Third Party Information”) is accurate and up to date.

6.3. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the Third Party Information containing any errors, being incorrect or being out of date.

6.4. The Customer acknowledges and agrees that it is the Customer’s responsibility to check the accuracy of the Third Party Information to ensure that it does not have any adverse impact on the design proposal created using the Services.

6.5. The Customer further acknowledges and agrees that it is the Customer’s responsibility to check the accuracy of the Third Party Information to ensure it is suitable for the environment where it is to be installed and the medical or other requirements of the client.

7. SUPPLIER’S OBLIGATIONS

7.1. The Supplier undertakes that the Services will be performed 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; or that the Services and 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 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. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

8. CUSTOMER’S OBLIGATIONS

8.1. The Customer shall provide the Supplier with:

8.1.1. all necessary cooperation 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 provide 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. 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;

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

8.5. 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;

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

8.7. 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. For the purposes of this agreement references to “Subscription Fees” shall mean the subscription fees posted on the Website from time to time and applicable in respect of the Customer’s subscription to the Services.

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

9.3. The Customer shall on the date of entering into this agreement “the Effective Date”) provide to the Supplier:

9.3.1. valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier;

9.3.2. and any other relevant valid, up-to-date and complete contact and billing details.

9.4. If the Customer provides:

9.4.1. its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:

9.4.1.1. on the Effective Date for the Subscription Fees payable in respect of the initial subscription term of this agreement, which is determined by the subscription package chosen by the Customer from the Website (“the Initial Subscription Term”); and

9.4.1.2. subject to clause 14.1, on the same day of the month as the Effective Date of any subsequent month, year or any other subscription billing cycle period that is available from the Website, which corresponds to the day on which the first payment was made (if in any such month there is no such corresponding day then the payment shall be made on the last day of the relevant month) for the Subscription Fees payable in respect of the next Renewal Period (as described in clause 14.1);

9.4.2. its approved purchase order information to the Supplier for an offline payment, the Supplier shall invoice the Customer:

9.4.2.1. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

9.4.2.2. subject to clause 14.1, on any subsequent month, year or any other subscription billing cycle period of the Effective Date that is available from the Website, which corresponds to the day on which the first payment was made (if in any such month there is no such corresponding day then the payment shall be made on the last day of the relevant month) the Subscription Fees payable in respect of the next Renewal Period (the Client will receive email notification prior to the next Renewal Period to advise them of this date),

9.4.3. and the Customer shall pay each invoice within 21 days after the date of such invoice.

9.5. If the Supplier has not received payment within 21 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

9.5.1. 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

9.5.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

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

9.6.1. shall be payable in the currency stated on the invoice;

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

9.6.3. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

9.7. The Supplier shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 90 days' prior notice to the Customer and the corresponding rates on the Website will be updated accordingly.

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. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

10.2. The Supplier confirms that it has all the rights in relation to the Services and 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 information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information in clause 11.5 (“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. This clause 11 shall survive termination of this agreement, however arising.

11.7. No party shall make, or permit any person to make, any public announcement concerning this agreement (save that the Customer agrees that the Supplier can use its name, company name and logo for the purposes of including in marketing materials and on the Website for the purposes of promoting the Services) without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12. INDEMNITY

12.1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:

12.1.1. the Customer is given prompt notice of any such claim;

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

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

12.2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

12.2.1. the Supplier is given prompt notice of any such claim;

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

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

12.3. 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.

12.4. 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:

12.4.1. a modification of the Services by anyone other than the Supplier; or

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

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

12.4.4. The foregoing and clause 13.4.2 states 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.

13. LIMITATION OF LIABILITY

13.1. 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:

13.1.1. arising under or in connection with this agreement;

13.1.2. in respect of any use made by the Customer of the Services and Documentation or any part of them; and

13.1.3. in respect of any representation, statement or tortious 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 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 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 tort (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. the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (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 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, 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 of equal length to the Initial Subscription Term or, in the case of the Customer changing subscription plans, the length of the subscription plan chosen by the Customer (each a “Renewal Period”), unless:

14.1.1. either party notifies the other party of termination, in writing, in advance of the next Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period (for the purposes of this clause it is acceptable to send a cancellation request by email to sales@idaptplanner3d.com or by cancelling the account in the Client Portal section of the secure dashboard area); or

14.1.2. otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription 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 notice to the other party if:

14.2.1. the other party fails to pay any amount due under this agreement on the due date for payment;

14.2.2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

14.2.3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

14.2.4. 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;

14.2.5. 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 for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.2.6. 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;

14.2.7. an application is made to court, or an 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;

14.2.8. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

14.2.9. 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;

14.2.10. 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;

14.2.11. 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 14.2.4 to clause 14.2.10 (inclusive); or

14.2.12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.3. On termination of this agreement for any reason:

14.3.1. all licences granted under this agreement shall immediately terminate;

14.3.2. 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;

14.3.3. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with the provisions of this agreement and in particular with the principle of clause 24 (data protection); and

14.3.4. 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

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, lockouts 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, 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 subcontractors, provided that the Customer is notified of such an event (this notification can be given by entering an article on the blog or any other section of the Website) and its expected duration.

16. VARIATION

16.1. We may revise this end user agreement at any time by amending this page and sending you notice of any changes 30 days’ prior to them taking effect (this notice will contain a link to the updated end user agreement and an overview of the provisions that are amended).

16.2. You are expected to check this page from time to time to take notice of any changes we make, as they are legally binding on you.

16.3. If this agreement is updated then you have the right to cancel your subscription immediately by giving notice to the Supplier but this right to cancel will cease if no such notice is given within 30 days of receiving notice of the updated terms and conditions.

16.4. If you continue to use the service after notice is given of the updated terms and conditions then you are expressly deemed to have accepted the new terms and conditions and will be bound by them.

17. WAIVER

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.

18. 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.

19. SEVERANCE

19.1. 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.

19.2. 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.

20. ENTIRE AGREEMENT

20.1. 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.

20.2. 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.

21. ASSIGNMENT

21.1. 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.

21.2. 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.

22. 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).

23. 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 the Contracts (Rights of Third Parties) Act 1999.

24. DATA PROTECTION

24.1. Both parties will comply with all applicable requirements of the the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy (the “Data Protection Legislation”).

24.2. This paragraph 24 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

24.3. In this paragraph 24, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation (“UK Data Protection Legislation”) and any other law that applies in the UK.

24.4. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Supplier’s Privacy Policy (a copy available from the website or on demand from the Supplier) sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.

24.5. Without prejudice to the generality of paragraphs 24.1-24.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.

24.6. Without prejudice to the generality of paragraphs 24.1-24.3, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:

24.6.1. process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

24.6.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal 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 Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal 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 it);

24.6.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

24.6.4. not transfer any Personal Data outside of the European Economic Area unless the prior consent of the Customer has been obtained and the following conditions are fulfilled:

24.6.4.1. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

24.6.4.2. the data subject has enforceable rights and effective legal remedies;

24.6.4.3. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

24.6.4.4. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

24.6.4.5. assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

24.6.4.6. notify the Customer without undue delay on becoming aware of a Personal Data breach;

24.6.4.7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and

24.6.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 24.

24.7. The Customer consents to the Supplier appointing Xero (UK) Limited, Chargebee Inc, Insightly Inc., Google LLC, Stripe Inc, PayPal (Europe) Sarl, The Rocket Science Group, Unity 3D and SupportBee Inc. as third-party processors of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 24. As between the Customer and the Supplier, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 24.

24.8. Either party may, at any time on not less than 30 days’ notice, revise this clause 24 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

25. NOTICES

25.1. Any notice required to be given under this agreement shall be in writing and shall be either:

25.2. delivered by hand;

25.3. sent by pre-paid first-class post or recorded delivery post;

25.4. sent by facsimile; or

25.5. sent by email,

to the other party at its address, fax number or email address (as appropriate): (i) set out in this agreement; (ii) in the case of the Customer at the address, fax number or email address associated with its account to use the Service; or (iii) such other address, fax number or email address as may have been notified by that party for such purposes.

25.6. 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 long as the sender can show satisfactory evidence of transmission and does not receive notification that delivery has failed).

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.

27. JURISDICTION

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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