General Terms and Conditions (UK) - FLIP GmbH

Preamble

Flip GmbH, Rotebühlstraße 50, 70178 Stuttgart, Germany (the “Provider”) operates the employee platform “Flip” (the “Software Service” or “Platform”). The Provider contracts exclusively with customers acting in the course of a business, trade, craft or profession, with legal persons governed by public law and with public-law special funds, in each case wishing to use the Platform for internal communication and collaboration, in particular with employees who do not work at a desk (frontline employees). The Software Service is not offered to consumers, and the Customer confirms that it is not entering into this Agreement as a consumer. The Platform may be extended by additional modules (e.g. Frontline Identity, Flip Fusion), for which supplementary Special Conditions may apply.

1. Definitions

“Authorised Users” / “Users” means the natural persons nominated by the Customer in accordance with clause 4.

“DPA” means the single, consolidated data processing agreement pursuant to Article 28 UK GDPR, including its annexes (for Features) and the applicable EU, UK, Swiss and U.S. modules, in the version published as at the date of conclusion of the Agreement, available online at https://www.getflip.com/legal/dpa-uk/.

“Order Form” means a quotation or order document or an online order specifying the Software Service to be provided under this Agreement, entered into between the Customer and either the Provider or a Reseller or one of their affiliates, including all supplements and addenda thereto.

“Documentation” means the Provider’s then-current, generally made available usage and system documentation.

“Customer” means, where an individual accepts this Agreement on behalf of a company or other legal entity, that company or other legal entity on whose behalf that individual accepts this Agreement, together with the affiliates of that company or legal entity (for as long as they remain affiliates) which have completed Order Forms.

“Customer Content” or “Customer Data” means all data, content and materials which the Customer or Authorised Users provide or cause to be generated in the course of using the Software Service.

“Modules” means additional service components available for booking in accordance with the Service Description or the Special Conditions.

“Usage Data” means technical information arising from use of the services (e.g. logs, telemetry and aggregated usage metrics) which identifies neither the Customer nor any natural person; identifying Customer Content is excluded.

“Reseller” means a third party engaged and authorised by the Provider to resell services to the Customer.

“Service Description” means the document (if any, available online at https://www.getflip.com/legal/softwaredescription/) containing a description of the Software Service and any additional terms applicable to a particular Software Service. Where no Service Description is available on the Provider’s website for the offering to be purchased, the Documentation shall constitute the “Service Description” for the purposes of this Agreement.

“Service” or “Software Service” means the products and services ordered by the Customer via an Order Form or an online purchasing portal, or made available to the Customer online by the Provider free of charge (as applicable) or as part of a free trial.

“SLA” means the service level agreement on the Provider’s website (available online at https://www.getflip.com/legal/sla-uk/).

2. Subject Matter, Services and Responsibilities of the Provider

2.1 The subject matter of the Agreement is the services of the Provider set out in this clause 2; the Provider shall render them in accordance with these General Terms and Conditions (the “Terms” or “General Conditions”), the applicable Order Form and the Service Description. The Provider shall provide the Software Service in compliance with the laws and governmental regulations generally applicable to the Provider’s provision of the Software Services to its customers (i.e. irrespective of the Customer’s particular use of the Software Services), and subject to use by the Customer and the Users in accordance with these Terms, the applicable Service Description and the relevant Order Form.

2.2 The Agreement is concluded as soon as the Customer accepts the Order Form in writing within the acceptance period specified therein. For the purposes of these Terms, “in writing” includes email and other text-based electronic communication, and no signature is required unless expressly stated. Where the parties agree a later commencement date, the Agreement is concluded no earlier than that date. Where an affiliate of the Customer enters into its own Order Form referring to these Terms, that affiliate becomes a party to the contract thereby created upon it taking effect; the rights and obligations under these Terms apply to that affiliate as if it were an original party. No consent under clause 18.3 is required for this purpose; clause 18.3 remains unaffected in respect of the transfer of existing contracts.

2.3 Conflicting, deviating or supplementary terms of the Customer shall become part of the Agreement only if the Provider has expressly agreed to their application in writing. Acceptance of orders, performance of the services or reference to documents of the Customer shall not constitute such agreement. The Customer’s purchasing conditions or purchase orders have administrative significance only.

2.4 Where the Customer books additional Modules or Features during the term, this shall be effected by a separate Order Form or addendum; the General Conditions continue to apply and are supplemented or modified only to the extent expressly provided for in the Special Conditions of the relevant Module.

2.5 The Provider shall make the Software Service available to the Customer and the Authorised Users in its then-current version, within the agreed scope, as software-as-a-service via the internet; there is no entitlement to the provision or retention of any particular earlier version. Use requires the initial setup and onboarding of the Customer by the Provider with the Customer’s cooperation (clause 6); details, timetable and any one-off fees are set out in the Order Form. The functional scope and characteristics of the Software Service are determined conclusively by the Order Form (including the service packages and Modules agreed therein) read together with the Service Description; public statements, advertising or product announcements do not constitute any agreement as to characteristics or any representation on which the Customer may rely. The point of delivery is the router output of the data centre used by the Provider. Provision of the Flip Platform comprises access to the Flip Web App via the then-current versions of common web browsers as well as via the Flip Android App and the native iOS app, operation of the Platform and hosting in a data centre in Europe secured in accordance with the current state of the art. The Platform is provided for the number of user accounts agreed in the Order Form. The Provider performs daily data backups and undertakes release management; details, in particular backup intervals, retention periods and restoration times, are set out in the Service Description and the SLA.

2.6 The Provider shall provide support services in accordance with the Order Form and the SLA, where appropriate by way of remote diagnosis. The Provider shall use commercially reasonable endeavours to make the Software Service available in accordance with the SLA, with the exception of (i) Software Services for which no SLA exists, (ii) planned downtime notified in advance electronically and (iii) any unavailability caused by circumstances beyond the Provider’s reasonable control, e.g. force majeure, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or other labour disputes (other than those involving the Provider’s employees), failures or delays of internet service providers, of third-party applications, or denial-of-service attacks.

2.7 Consultancy, implementation, training and other services (“Professional Services”) shall be provided by the Provider in accordance with the Order Form or separate statements of work (SOW) on a reasonable care and skill basis; unless a specific result is expressly agreed, the Provider does not warrant the achievement of any particular outcome. All rights in work results created in the course of such services vest in the Provider; the Customer receives a non-exclusive right to use them for internal purposes for the term of the Agreement, unless otherwise agreed in the SOW. The Provider remains free to render comparable services to third parties.

2.8 Save where expressly agreed in the Order Form, the Provider does not owe individual extensions or adaptations of the Software Service, the fulfilment of customer-specific or sector-specific regulatory requirements, or ongoing user administration including the manual resetting of passwords.

2.9 The Provider may further develop, modify and update the Software Service (e.g. by new versions, updates, changed user interfaces), provided that the core functionalities set out in the Service Description are not thereby materially adversely affected. The provisions of this Agreement apply accordingly to new versions, upgrades and updates. The Customer has no entitlement to the provision of new, separately marketed Modules. If the Provider discontinues a material function of the Software Service without replacement, it shall give at least six (6) months’ prior notice in writing; if the discontinuation materially affects the core functionalities set out in the Service Description, the Customer may terminate the affected part of the services with effect from the date on which the discontinuation takes effect. Changes required in order to comply with statutory requirements or to remedy a material security risk remain unaffected.

2.10 The Provider may render the services in whole or in part through subcontractors; it remains responsible for performance of the Agreement.

2.11 Where the Provider expressly makes features available free of charge for testing as beta, pilot, preview, early access or under a comparable designation, those features do not form part of the services owed. Neither the SLA nor the availability and functionality commitments of this Agreement apply to them; the Provider may change or discontinue them at any time and is under no obligation to make them generally available. The Provider’s liability in this respect is limited to wilful misconduct and gross negligence; clause 15.1 remains unaffected. In all other respects the provisions of this Agreement, in particular those on confidentiality, information security and data protection, also apply to beta and pilot features. The engagement of sub-processors within the meaning of data protection law is governed exclusively by the DPA.

3. AI Features

3.1 The Software Service may contain features based on artificial intelligence (“AI”) (e.g. assistance, search, translation and generation features; the “AI Features”). The AI Features provided are set out in the Service Description or the Special Conditions of the relevant Module. Where so provided, the Customer may enable and disable AI Features at tenant level.

3.2 AI Features generate outputs on a probabilistic basis. The parties agree that AI-generated outputs may be inaccurate, incomplete or unsuitable in substance and require review by the Customer before any external-facing use or any use for decisions having legal effect. The Provider owes the provision of the AI Feature in accordance with the Service Description, and does not warrant the substantive accuracy of individual outputs.

3.3 The Customer shall not use the AI Features to make, or as the sole or determinative basis for, automated decisions concerning employees or other individuals, including decisions on recruitment, promotion, remuneration, performance evaluation, disciplinary action or termination, nor for the automated monitoring, scoring or behavioural evaluation of employees. Where an output of an AI Feature is used externally or as the basis for a decision affecting an individual, the Customer shall ensure meaningful human review of that output before use. The Customer is responsible for ensuring that its use of the AI Features complies with all laws applicable to the Customer, including equality, discrimination, data protection and employment law, and for providing any notices to, and obtaining any consents or consultations from, individuals, employee representatives or works councils that such laws require. The Provider supports the Customer by means of in-product labelling and information.

3.4 The Provider does not use the Customer’s personal data to train, fine-tune or improve AI models; details, including the use of anonymised data, are governed by the DPA and its Module annexes.

4. Authorised Users, User Accounts

4.1 The Customer may, at its discretion and up to the number of licences agreed in the Order Form, nominate as Authorised Users natural persons who are employees of the Customer. The Customer may further permit, by way of sub-licensing and within the contractually agreed scope, use in the same environment by undertakings affiliated with it within the meaning of sections 1159 and 1162 of the Companies Act 2006 and their employees, as well as by persons otherwise specially connected with the Customer (e.g. applicants, alumni, agency workers and engaged external service providers), provided that it has notified the Provider and no further setup or onboarding by the Provider is required. The Customer is liable for compliance with the Agreement by its affiliates as for its own acts. Should additional setup or onboarding be required, the Provider is entitled to charge additional fees in accordance with its then-current price list. The nomination of employees or agents of competitors of the Provider is not permitted. Each user account may be used by one authorised person only.

4.2 The Customer (i) is responsible for compliance with the Agreement by the Authorised Users and for all acts carried out via their accounts, save where these result from a breach of duty by the Provider; (ii) shall oblige the Authorised Users to use the Software Service in accordance with the Agreement; and (iii) shall inform the Provider without undue delay of any unauthorised use of accounts or credentials. Credentials shall be kept confidential. The allocation, reallocation and withdrawal of user accounts is the responsibility of the Customer via the administration console.

4.3 Only the Customer may claim performance under the Agreement. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, and the parties agree that the creation of user accounts and the making available of content or functionality to Authorised Users are not intended to confer any benefit on, or any right of enforcement upon, Authorised Users or any other third party. This clause does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

5. Rights of Use, Use Restrictions

5.1 For the term of the Agreement the Customer receives the non-exclusive, non-transferable and (subject to clause 4) non-sub-licensable right to use the Software Service for its own internal business purposes in accordance with the Agreement and the Documentation. No physical copy of the software is supplied. Initial provision of the Software Service is conditional upon receipt of the first payment due under the Order Form; in all other respects the Provider’s rights under clause 8 apply in the event of late payment. The Customer may use the Software Service worldwide, save from countries in which such use is unlawful under applicable import, export control or sanctions law.

5.2 The Customer must not (i) make the Software Service available to third parties outside the contractually envisaged group of users, whether for consideration or free of charge (e.g. by way of a service bureau); (ii) copy, modify, reverse engineer, decompile the software or determine its source code, save to the extent that such acts may not lawfully be prohibited, and in particular save as permitted by sections 50B and 50BA of the Copyright, Designs and Patents Act 1988; (iii) use the Software Service to build a competing product or for benchmarking for the benefit of competitors; (iv) circumvent security mechanisms, carry out vulnerability scans without the Provider’s prior consent, or impair the operation of the Software Service; (v) upload unlawful content or use the Software Service unlawfully.

5.3 Access to the Software Service is personal to the individual user. Use of a single access by more than one person, and generic or shared log-ins, are not permitted where this circumvents the agreed number of user accounts. The same applies to indirect access to the Software Service or its content via upstream portals, interfaces or automations for the benefit of persons who are not Authorised Users. Technical service accounts used to automate processes initiated by Authorised Users remain permitted, as do kiosk, noticeboard and display devices, to the extent that the Order Form provides for such forms of use. Use by affiliates of the Customer remains unaffected in accordance with the Order Form and is not restricted by this clause.

5.4 The Software Service may contain open source components; the relevant open source licence terms, which the Provider identifies on request or in the Documentation, apply in addition to these Terms.

5.5 Where the Customer makes a customer-specific (branded) app available via an app store in accordance with the Order Form, the Customer is responsible for compliance with the relevant app store terms, unless the Provider has assumed publication as a managed service.

6. Customer Cooperation Obligations

6.1 The Customer shall support the Provider to the extent necessary for the provision of the services. In particular, the Customer shall (i) provide required information, data, interfaces and contact persons in good time; (ii) nominate an email distribution list for maintenance announcements and emergency communications; (iii) report defects and faults without undue delay and in a comprehensible manner; (iv) create the technical prerequisites required for use within its own sphere of responsibility (system requirements in accordance with the Service Description) and protect its IT systems against malware in accordance with the state of the art; (v) not unreasonably delay any required approvals. To the extent and for so long as the Customer fails to render required cooperation, the Provider is released from the performance obligations dependent thereon; agreed deadlines shall be extended reasonably.

6.2 The Customer is responsible for ensuring that its use of the Software Service, including the processing of Customer Content, complies with the law applicable to it (including data protection law and any employee consultation or co-determination requirements). The Provider does not provide legal advice; template texts provided by the Provider as a courtesy (e.g. terms of use, privacy notices for users) are non-binding examples which the Customer must review and adapt on its own responsibility.

7. Fees

7.1 The Customer shall pay the fees agreed in the Order Form. The fees for the Software Service are determined in particular by the agreed user package (maximum number of user accounts) and the Modules booked and are, unless otherwise agreed, invoiced annually in advance. Where more than two weeks elapse between conclusion of the Agreement and completion of onboarding, the obligation to pay fees for the Software Service is suspended for the period until completion of onboarding, to the extent the Provider is responsible for the delay. One-off fees (e.g. setup) fall due on conclusion of the Agreement. Professional Services are charged on a time and materials basis at the rates agreed in the Order Form or at the Provider’s then-current rates.

7.2 The user package is fixed for the agreed term; the payment obligation exists irrespective of actual use. A change to a smaller user package during the agreed contract term, and any pro rata refund, are excluded.

Where the number of user accounts created exceeds the agreed user package at any time, the Provider shall notify the Customer in writing. The Customer may reduce the number of user accounts within 30 days of receipt of the notification. In the notification the Provider shall expressly draw attention to the deadline and to the fact that a failure to reduce will be treated as agreement to an increase of the user package. Otherwise the user package increases on expiry of the deadline by the number of excess users. The price per user account per month agreed in the Order Form applies to excess users. The additional fee is calculated pro rata from the month of the increase until the end of the current contract year and invoiced with the next annual invoice. From the following contract year the increased user package forms the basis of the fees.

7.3 Unless otherwise agreed, invoices fall due for payment within 30 days of receipt without deduction. All prices are exclusive of value added tax and any other applicable transaction taxes, which shall be added at the applicable rate and are payable by the Customer; the Provider is responsible for taxes on its own income. If the Customer is required to withhold any tax, it shall gross up the payment so that the Provider receives the full amount invoiced. The Provider issues invoices electronically.

7.4 The Customer may set off only against counterclaims that are undisputed or have been finally determined by a court, and may exercise a right of retention only in respect of such counterclaims. The Customer’s right to withhold performance in respect of counterclaims arising under the same contractual relationship remains unaffected.

7.5 Adjustments to recurring fees are governed exclusively by the provision made in the Order Form.

8. Temporary Suspension

The Provider may temporarily restrict or suspend the access of the Customer or of individual Authorised Users where this is necessary to avert a specific risk, in particular where (i) the Customer breaches material use restrictions under clause 5.2; (ii) the Customer is more than 30 days in arrears with payments due despite a reminder and the setting of a further period for payment; (iii) mandatory legal provisions so require; or (iv) the use gives rise to a risk to the security, availability or integrity of the Software Service or of third parties. The Provider shall, so far as possible and permissible, give prior notice of the suspension in writing, shall choose the least intrusive suitable measure and shall lift the suspension without undue delay once the reason for it has ceased to apply. The Customer’s payment obligation remains unaffected by a justified suspension.

9. Customer Content

9.1 The Customer grants the Provider, in respect of the Customer Content, the non-exclusive, worldwide rights, limited to the term of the Agreement, which are necessary for the provision of the contractual services (in particular storage, reproduction, technical adaptation, display and transmission within the Software Service, including by the subcontractors engaged, to the extent necessary for the provision of the services).

9.2 The Customer is responsible for the Customer Content and warrants that it holds the necessary rights and that the Customer Content infringes no third-party rights and no applicable law.

9.3 Where the Provider is notified of, or a claim is made in respect of, a possible infringement by Customer Content, the Provider may temporarily block the affected Customer Content to the extent necessary to avert loss and reasonable for the Customer; the Provider shall inform the Customer without undue delay and give it an opportunity to comment. If the Customer does not demonstrate the lawfulness of the content within a reasonable period, the Provider’s further rights (including termination for material breach) remain unaffected.

9.4 All rights in the Software Service, the Documentation, the Usage Data and the Provider’s templates, formats and dashboards remain with the Provider or its licensors. Where the Customer submits feedback or improvement suggestions to the Provider, the Provider may use these free of charge and without restriction. The Provider may use usage and performance data arising from the operation of the Software Service in aggregated and anonymised form, which permits no inference as to the Customer, Authorised Users or Customer Content, in order to ensure operation, for error analysis, for capacity planning and for the improvement and further development of its services. Use of Customer Content for those purposes or for the training of AI models takes place only to the extent separately agreed.

9.5 (a) The data storage made available by the Provider serves exclusively to support the functionality of the Software Service and must not be used as general cloud storage. (b) The Provider may manage the data storage and may technically limit it to the extent necessary to maintain system performance, to comply with applicable laws or to give effect to the Customer's own policies. This shall not reduce the storage capacity committed in the Service Description. The Provider does not inspect the content of Customer Content; monitoring is limited to volume, operational and security metrics. (c) Where the Service Description states retention periods for particular categories of data, those periods apply; where it describes them as configurable, the Customer may set them itself within the limits provided for. Otherwise Customer Content is retained for the duration of the Agreement. (d) Any deletion of Customer Content by the Provider going beyond paragraph (c) takes place only after prior notice in writing and a reasonable opportunity to export. Automated deletion on expiry of the retention periods stated in the Service Description does not require separate notice. Customer Content for the purposes of this clause 9.5 means the data and content submitted by the Customer or its Users; it does not include artefacts generated by the Software Service, the portability of which is governed by the applicable Service Description. Deletion following the end of the Agreement, the Customer's rights under clause 16.2 (export of Customer Content) and the provisions of the DPA remain unaffected.

10. Confidentiality

10.1 “Confidential Information” means all information which one party (the “Disclosing Party”) discloses to the other party (the “Recipient”) in connection with the Agreement and which is marked as confidential or which, having regard to its nature and the circumstances of disclosure, is reasonably to be regarded as confidential. The Provider’s Confidential Information includes in particular the terms of the Agreement and technical and performance-related information about the services; the Customer’s Confidential Information includes in particular the Customer Content.

10.2 The Recipient shall (i) protect Confidential Information with the same degree of care that it applies to its own confidential information, and in any event with no less than reasonable care; (ii) use it only for the performance of the Agreement; and (iii) make it available only to those employees, advisers and subcontractors who need to know it and who are subject to comparable confidentiality obligations. These obligations apply for the term of the Agreement and for three years thereafter; in respect of trade secrets within the meaning of the Trade Secrets (Enforcement, etc.) Regulations 2018 and the law of confidence, they apply without limit of time.

10.3 The obligations do not apply to information which can be shown (i) to be or become publicly known otherwise than through a breach of duty; (ii) to have been lawfully known to the Recipient already; (iii) to have been lawfully obtained from third parties without any confidentiality obligation; or (iv) to have been independently developed. Disclosures required by law, by a regulator or by a court remain permitted; the Recipient shall inform the Disclosing Party in advance to the extent legally permissible and shall use reasonable endeavours to secure confidential treatment.

11. Data Protection

The parties shall comply with applicable data protection law, including the UK GDPR and the Data Protection Act 2018. To the extent that the Provider processes personal data on behalf of the Customer, the Provider’s single, consolidated Data Processing Agreement (which includes the applicable EU, UK, Swiss and U.S. State Privacy Laws modules and the applicable international transfer mechanisms) applies, available online at https://www.getflip.com/legal/dpa-uk/; it is hereby incorporated into this Agreement by reference and prevails over this clause in matters of data protection. The Customer is the controller in respect of the personal data processed by the Provider on its behalf and shall in particular ensure that Authorised Users are informed and that a lawful basis exists. The Customer’s acceptance of this Agreement and the execution of an Order Form by an affiliate is deemed execution of the transfer mechanisms and their annexes by the Customer.

The Provider shall implement appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Customer Data, as further described in clause 12 and in the DPA. These safeguards include, among other things, measures to prevent unauthorised access to, or disclosure of, Customer Data (other than by the Customer or the Users).

12. Information Security

The Provider implements the security measures described in the Trust Center at https://trust.getflip.com/ in the version published as at the date of conclusion of the Agreement; subsequent changes to the Trust Center shall not reduce the level of protection so undertaken. This does not constitute a guarantee or a strict contractual undertaking as to any particular outcome. The Provider operates, among other things, an information security management system certified to ISO/IEC 27001 and applies technical and organisational measures in accordance with the state of the art as set out in the DPA. The Provider shall inform the Customer without undue delay of security incidents which materially affect the Customer Content; notification obligations under data protection law are governed by the DPA.

13. Warranties

13.1 The Provider warrants that (i) the Software Service will, during the term of the Agreement, perform materially in accordance with the Service Description; and (ii) it will provide the Software Service, support and any Professional Services with reasonable care and skill. Except as expressly set out in this Agreement, all terms, conditions and warranties implied by statute, common law or otherwise are excluded to the fullest extent permitted by law, including the terms implied by section 13 of the Supply of Goods and Services Act 1982. The Provider does not warrant that the Software Service will be uninterrupted or error-free, or that it will meet requirements of the Customer that are not set out in the Service Description or the Order Form.

13.2 The Customer shall notify defects without undue delay in a comprehensible form, stating the information relevant to identifying the defect; the fault procedure under the SLA remains unaffected. Where the Software Service is unavailable, the service credit provisions of the SLA are the Customer’s sole financial remedy for such unavailability, in place of any price reduction or damages claim in respect of the unavailability itself; this does not limit the Customer’s right to terminate for material breach under clause 16.1 or affect any liability which cannot lawfully be limited.

13.3 In particular, the following do not constitute a breach of the warranties in clause 13.1: impairments resulting from (i) improper use or use contrary to the Agreement; (ii) environments which do not meet the system requirements; (iii) third-party software, third-party platforms or disruptions outside the Provider’s sphere of responsibility; or (iv) interventions carried out by the Customer or by third parties.

13.4 The Provider’s obligation on a breach of clause 13.1 is to remedy the non-conformity within a reasonable period at no additional charge. If the Provider fails to do so within a reasonable period after written notice, the Customer may terminate the affected part of the services in accordance with clause 16.1 and the Provider shall refund fees prepaid for the unexpired part of the term in respect of the affected services.

14. Indemnity

14.1 If a third party asserts against the Customer that the use of the Software Service in accordance with the Agreement infringes its industrial property rights or copyrights in the United Kingdom, the European Union or Switzerland, the Provider shall defend the Customer against those claims at its own cost and shall reimburse the Customer for damages and costs finally awarded against it, or amounts in settlement approved by the Provider, provided that the Customer (i) informs the Provider without undue delay in writing, (ii) leaves conduct of the defence and settlement negotiations to the Provider and (iii) provides reasonable assistance to the Provider.

14.2 The Provider may at its option (i) procure for the Customer the right of use, (ii) modify or replace the Software Service so that no property rights are infringed and the essential functions are preserved, or, where neither is possible with reasonable effort, (iii) terminate the affected part of the services and refund fees prepaid for the unexpired part of the term.

14.3 The obligations under clause 14.1 do not apply to the extent that the infringement is based on (i) Customer Content, (ii) use contrary to the Agreement or the Documentation, (iii) combination with products or services not supplied by the Provider, (iv) specifications of the Customer or (v) modifications not made or approved by the Provider.

14.4 The Customer shall indemnify the Provider against third-party claims based on unlawful use of the Software Service by the Customer or the Authorised Users or on infringing Customer Content, including the reasonable costs of legal defence; clause 14.1 (i) to (iii) applies accordingly in favour of the Customer. The indemnity applies only to the extent that the Customer is responsible for the infringement.

15. Limitation of Liability

15.1 Nothing in this Agreement limits or excludes the liability of either party for (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) any liability which cannot lawfully be limited or excluded. Nothing in this Agreement limits the Customer’s obligation to pay fees properly due.

15.2 Subject to clause 15.1, neither party shall be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any of the following, in each case whether direct or indirect: (i) loss of profit; (ii) loss of revenue; (iii) loss of anticipated savings; (iv) loss of business or business opportunity; (v) loss of goodwill or reputation; (vi) indirect or consequential loss or corruption of data; or (vii) any indirect or consequential loss. Direct loss or corruption of data is governed by clauses 15.3, 15.4 and 15.5.

15.3 Subject to clause 15.1, the Provider’s liability for loss or corruption of data is in any event limited to the loss which would also have occurred had the Customer carried out proper, regular and risk-appropriate data backups, save where responsibility for data backup has been contractually assumed by the Provider.

15.4 Subject to clauses 15.1 and 15.5, the Provider’s total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the net annual fees payable by the Customer in the twelve (12) months preceding the event giving rise to the liability. Where several liability events occur within one contract year, the Provider’s liability is limited to that amount in aggregate.

15.5 By way of exception to clause 15.4, the Provider’s total aggregate liability for (i) claims under the indemnity in clause 14.1 and (ii) loss arising from breach of data protection obligations (clause 11, including the DPA) is limited in aggregate to two times (200%) the net annual fees payable by the Customer in the twelve (12) months preceding the event giving rise to the liability. Several breaches or liability events arising from the same event, the same cause or the same series of connected circumstances are treated as a single liability event and count once towards that cap, irrespective of the number of individuals, data records or individual breaches affected and irrespective of the number of contract years over which they take effect. This limitation does not affect the statutory rights of data subjects against either party; it governs only the allocation of liability as between the parties.

15.6 The limitations and exclusions in this clause 15 apply also for the benefit of the Provider’s officers, employees and subcontractors and to all claims, whether contractual or non-contractual. Clause 4.4 applies, save that those persons may enforce this clause 15 under the Contracts (Rights of Third Parties) Act 1999; the parties may vary or rescind this Agreement without their consent.

15.7 Subject to clause 15.1, neither party shall be liable in respect of any claim unless the claimant party has given written notice of the claim to the other party within twelve (12) months of becoming aware, or of the date on which it ought reasonably to have become aware, of the circumstances giving rise to the claim, and in any event within twenty-four (24) months of the event giving rise to the claim, provided that the twenty-four (24) month period shall be suspended for so long as the claimant party neither knew nor, exercising reasonable diligence, could have known of the circumstances giving rise to the claim. This clause does not apply to claims for payment or to claims under the indemnities in clause 14, in respect of which the periods under the Limitation Act 1980 apply.

15.8 The parties acknowledge that these Terms are the Provider’s written standard terms of business and that the exclusions and limitations in this clause 15 have been drafted having regard to the requirement of reasonableness under the Unfair Contract Terms Act 1977. The parties agree that they are reasonable having regard to the fees payable, the availability to each party of insurance, the allocation of risk reflected in the Service Description and the SLA, and the fact that the Customer retains control over the Customer Content and over the backup and use it makes of the Software Service. Each exclusion and limitation in this clause 15 operates separately; if any is held to be unreasonable or unenforceable, the remainder continue to apply.

16. Term, Termination, Data Export

16.1 The term is set out in the Order Form. Minimum term, renewal and notice period are governed exclusively by the Order Form. Either party may terminate this Agreement with immediate effect by written notice if the other party commits a material breach of the Agreement and, where the breach is capable of remedy, fails to remedy it within thirty (30) days of written notice requiring it to do so, or if the other party becomes insolvent, enters into administration or liquidation or suffers any analogous event. A material breach exists for the Provider in particular where the Customer is in arrears with a not insignificant part of the fees for more than two months or persistently breaches clause 5.2.

16.2 During the term of the Agreement the Customer may at any time export the Customer Content in the formats and via the interfaces described in the Service Description, using the self-service export functions of the Software Service. Following the end of the Agreement the Provider shall keep the Customer Content available for retrieval for a period of thirty (30) days, during which the Customer may export it. The Provider may charge its then-current rates for any migration or export assistance going beyond the self-service functions, which shall be agreed separately. After expiry of the retrieval period the Provider may delete the Customer Content; the deletion and return of personal data is governed by the DPA.

16.3 Where the Agreement is terminated at the instigation of the Customer before expiry of the agreed term, without the Customer being entitled to a statutory or contractual right of termination, the Customer undertakes to pay reasonable compensation of no more than 90% of the pro rata recurring fees payable by the Customer for the remainder of the term. The compensation is assessed having regard to the following criteria: (i) the pro rata value of the contractually agreed services for the remaining period, (ii) expenditure saved by the Provider and (iii) any advantages accruing to the Provider as a result of the early termination (e.g. alternative use of resources). The Provider shall on request provide the Customer with a comprehensible calculation of the compensation. The Customer is entitled to demonstrate that the actual compensation must be lower having regard to those criteria; in that case the compensation shall be adjusted accordingly. No compensation is payable where the Customer terminates for material breach under clause 16.1 or on the basis of a statutory right of termination. The parties agree that this amount is a genuine pre-estimate of the Provider’s loss and is not a penalty.

16.4 On termination of the Agreement the Customer’s rights of use end and the Provider shall cease to provide the services. The deletion and return of personal data is governed by the DPA; the return of other exportable data is governed by clause 16.2. Backups may be overwritten in the regular backup cycle and remain subject to the confidentiality obligations until deleted.

16.5 Provisions which by their nature are intended to survive (in particular clauses 7 in respect of outstanding claims, 9.4, 10, 11, 14, 15, 16.2 to 16.4 and 18) are unaffected by termination.

17. Changes to these Terms and the Annexes

As a matter of principle, the version of the Terms and the annexes incorporated at the time of conclusion of the Agreement applies for the term. The Provider may adjust the Terms, the Service Description and the SLA with effect for the future, (i) to the extent that the change is exclusively advantageous for the Customer or purely editorial, on notice also for the current contract period; (ii) otherwise only on notice in writing with a period of at least six weeks and with effect no earlier than the start of the next renewal period. If the Customer objects in writing to a notified change under (ii) before it takes effect, the Agreement continues on unchanged terms; in that case each party has a right to terminate with effect from the date on which the change was to take effect. The Provider shall draw attention to the right of objection and the right of termination in the notice. Changes to the DPA are governed exclusively by the DPA. Changes to the Service Description which materially adversely affect the core functionalities are permitted only in accordance with clause 2.9.

18. Final Provisions

18.1 In the event of conflict between the components of the Agreement, the following order of precedence applies: (1) the Order Form; (2) the Special Conditions of the relevant Module; (3) the DPA; (4) these Terms; (5) the SLA; (6) the Service Description; (7) the Documentation. The precedence of the DPA in matters of data protection (Section 1.2 of the DPA) and the precedence of individually negotiated terms are unaffected.

18.2 Amendments and supplements to the Agreement must be in writing, which for this purpose includes email. Individually negotiated terms take precedence over these Terms and are effective irrespective of form. Amendments should on the Provider’s side be agreed by the management or a person authorised by it.

18.3 The Customer may transfer rights and obligations under the Agreement only with the Provider’s prior consent. The Provider may transfer the Agreement to affiliates or in connection with a transfer of all or part of its business or undertaking (e.g. reorganisation, sale of business).

18.4 Neither party is liable for non-performance of obligations (other than payment obligations) to the extent that this results from events beyond its reasonable control (e.g. war, terrorism, pandemic, strike, acts of government, large-scale internet or power outages, natural disasters). The affected party shall inform the other party without undue delay; obligations are suspended for the duration of the event. If the event continues for more than 60 days, either party may terminate the affected part of the services.

18.5 Performance of the Agreement is subject to there being no impediments arising from national or international provisions of foreign trade, export control or sanctions law, including the Sanctions and Anti-Money Laundering Act 2018 and the sanctions regimes and consolidated lists maintained by the United Kingdom (including the OFSI consolidated list and the UK Sanctions List), the European Union, the United Nations and the United States. The Customer warrants that it is not subject to any relevant sanctions list of the United Kingdom, the European Union, the United Nations or the United States, and that it will not use the Software Service in breach of such measures.

18.6 The Provider may name the Customer as a reference customer using its name and logo and include it for that purpose in its customer directory, which is used for reference and acquisition purposes, for example naming on the website and inclusion in social media campaigns. Any further reference use — in particular success stories, video case studies, press releases, quotations, telephone references and joint participation in webinars — requires the Customer’s prior consent in each case. The Customer shall approve content naming it or showing its logo in writing before publication; an approval given may be withdrawn with effect for the future for good cause.

18.7 The Agreement sets out the parties’ agreement in respect of its subject matter in full and supersedes all prior arrangements; there are no oral collateral agreements. Neither party has relied on any statement, representation or assurance not expressly set out in this Agreement, save that nothing in this clause limits liability for fraud or fraudulent misrepresentation. If individual provisions of the Agreement are invalid or unenforceable, the remainder of the Agreement remains effective and the invalid provision shall be replaced by a provision reflecting the parties’ commercial intention as closely as permissible.

18.8 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) are governed by and construed in accordance with the law of England and Wales, excluding the United Nations Convention on Contracts for the International Sale of Goods and excluding any conflict of law rules that would lead to the application of another law. The courts of England and Wales have exclusive jurisdiction to settle any such dispute or claim.

18.9 The language of the Agreement is English. This English-language contract set applies to customers established in the United Kingdom and, unless otherwise agreed in the Order Form, to customers established outside the EU/EEA, save that the Provider’s U.S. General Terms and Conditions apply to customers established in the United States. Where a German-language version of this English-language contract set is provided, it is for information purposes only and this English version prevails. This clause governs the language of this contract set only and does not affect the German-language General Terms and Conditions of the Provider, which remain the operative terms for customers to which they are incorporated.