LOTTIE ORGANISATION LTD “FOUNDCRM” SOFTWARE AS A SERVICE TERMS AND CONDITIONS
Last Updated: January 2023
These Software as a Service Terms and Conditions (“Terms”) apply to the Agreement entered into between the Customer (as identified on the Order Form) and Found (as identified on the Order Form) under which Found will provide the Customer with access to the Software as set forth on the Order Form.
1 Commencement and Term
1.1 This Agreement shall commence on the Commencement Date and shall continue throughout the Initial Term unless before the end of the Initial Term it is extended or terminated otherwise in accordance with this Agreement (the “Term”).
1.2 At the end of the Initial Term, this Agreement shall automatically renew without the requirement for notice by either party for successive 12 month periods (each, a "Renewal Period"), unless either party serves a written notice on the other party at least 90 days before the end of the then current Term requesting termination of this Agreement, in which case this Agreement shall terminate at the end of the then-current Term (“Term”).
1.3 The terms of this Agreement shall also apply to any additional or changed Services agreed by the parties in the course of the Initial Term, and shall apply to any Renewal Period.
2 Provision of the Services
2.1 Found shall make available the Software through the Services as set out in the Order Form from the Commencement Date for the duration of the Term subject to the terms of this Agreement.
2.2 The Customer may grant only the Authorised Users access to the Software. The Customer may at any time during the Term designate in writing further individuals and legal persons in addition to the identified Service Recipient Group on the Order Form as Authorised Users subject to the payment of the relevant fees for such additional users. The Customer is responsible for ensuring compliance by the Authorised Users with the provisions of this Agreement.
2.3 If the Service Recipient Group includes Customer Affiliates (as stated in the Key Terms), the parties agree the following terms apply:
- each member of the Service Recipient Group shall receive and benefit from such Services as the Customer designates from time to time, including as may be set out in this Agreement;
- Found's obligations under this Agreement are given and shall be performed for the benefit of each member of the Service Recipient Group (and any reference to "Customer" having a right or benefit under this Agreement shall be construed as a reference to every member of the Service Recipient Group having such right and benefit, and references to a "party" or "parties" under this Agreement, where such reference is intended to grant a right or benefit to Customer, shall be deemed to be a reference to every member of the Service Recipient Group) having such right and benefit.
2.4 Found may, at any time and without notice, temporarily discontinue or modify the Services or any part of them where this is necessary in Found’s sole discretion for the purpose of making modifications to the design, specifications, network connectivity or method of operation of the Services in order to maintain their compliance with current security or other technical requirements or standards.
2.5 In connection with any period of suspension or temporary discontinuance or modification of Found’s provision of the Services permitted by the terms of this Agreement:
- Found may delete or remove access to some or all of the Customer Data stored on the impacted Services;
- Found shall provide as much notice as is reasonably possible taking into account the urgency of the situation, its potential effect on Found’s ability to continue providing services to its customers generally and the need to maintain a safe and secure environment;
- Found shall not be liable for any loss or damage to the Customer including any liability it may incur to third parties; and
- Found shall be entitled to charge and be paid all Fees until the end of the period of suspension, discontinuance or modification.
2.6 Without prejudice to the foregoing specific rights to suspend or temporarily modify or discontinue the Services, Found shall not be responsible or accept any liability for delays, failures or loss of or damage to data arising from the transfer of data over the internet or other communications networks or facilities other than those networks or facilities which are supplied by Found as part of the Services or which are under Found’s direct control or in its possession.
2.7 The Customer acknowledges that the Services are subject to the limitations, delays and other technical issues which are inherent in the use of third party networks or communications facilities including the internet.
3 Exclusions from the Services
3.1 Found shall not be responsible for and the Customer shall accept sole responsibility for the following matters:
- supervision of the Authorised Users and ensuring compliance by each of them with the terms of this Agreement;
- the inputting and maintenance of the Customer Data and (except as otherwise expressly agreed by the parties) its security and integrity;
- the taking of backups of the Customer Data or any other data (and the Customer acknowledges that the Services do not include any dedicated data back up or disaster recovery facilities and that the Customer should ensure it at all times maintains backups of all Customer Data);
- the safety and integrity of any backups of the Customer Data; and
- except as otherwise agreed under this Agreement, extracting, transferring or recovering any data (including any Customer Data) whether during or after the Term (or providing any assistance with any such activities).
3.2 The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s business(es). The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its and its Authorised User’s needs) and extracts all necessary Customer Data from all Services prior to the termination or expiry of this Agreement or the cessation or suspension of any of the Services.
3.3 Except to the extent Found has direct obligations under applicable laws, the Customer acknowledges that Found has no control over any Customer Data hosted as part of the provision of the Services and might not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Services) complies with all applicable laws and Intellectual Property Rights.
3.4 Found routinely undertakes regular backups of the Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make Found responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, Found shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
3.5 Apart from the software expressly set out in the Order Form, Found is not responsible for the provision of any further software, middleware or other platform whatsoever, the provision of which is entirely the Customer’s responsibility.
4 Changes to the Services
4.1 Found may by notice in writing make any changes to the Services which are necessary to comply with any law applicable anywhere in the United Kingdom or with any published policies, guidelines or codes of practice not having the force of law but which represent good practice.
4.2 Where Found would be required to make a change to the Services consequent on a change in law applicable anywhere in the United Kingdom which comes into force at any time after the Commencement Date (including those laws referred to in the DPA), then Found may instead terminate this Agreement by notice in writing of not less than 30 days, in which case this Agreement shall terminate at the end of that 30 day period.
4.3 Found may at any time and without prior notice to the Customer implement any Operational Change provided that neither the work of implementing the Operational Change nor the consequence of the Operational Change has a directly adverse effect on the Customer’s access to, receipt of or use of the Services.
4.4 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a relevant Change Order has been signed by both parties. A Change Order in the form set out in Schedule 1 shall be a document setting out the proposed changes and the effect that those changes will have on:
- the Services;
- the Fees; and
- any of the other terms of the relevant Order Form.
4.5 If either party wishes to make a change to the Services it shall:
- provide a draft Change Order to the other party with details of the proposed changes; and
- the other party shall, as soon as reasonably practicable after receiving the request, give feedback on the draft Change Order.
4.6 If the parties:
- agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Order Form; or
- are unable to agree a Change Order, the Services shall remain unaffected and shall continue to be provided under the terms of this Agreement.
5 Misuse of the Services
5.1 The Customer is responsible for ensuring compliance by the Authorised Users with the terms of this Agreement and shall be fully liable for the acts or omissions of the Authorised Users as if they were its own.
5.2 The Customer shall be responsible for any acts of unauthorised access to the Software where such access is gained by unauthorised use of an Authorised User’s account. The Customer shall inform Found immediately on becoming aware of any unauthorised access, whether through an Authorised User’s account or otherwise.
5.3 The Customer shall not use or allow the Software to be used in order to license, sell, rent, transfer, host, outsource or permit timesharing or the provision of service bureau facilities to any third party based on the Services.
5.4 The Customer shall comply with any law applicable to it in its access to, receipt of or use of the Software.
5.5 The Customer may not perform any security testing of the Services or of any infrastructure or facilities whatsoever used to provide the Services, including network discovery, port/service identification, vulnerability scanning, password cracking, remote access testing or penetration testing.
5.6 If the Customer or any Authorised User fails at any time to comply with clauses 5.3 to 5.5 (inclusive) in any, including a trivial respect, Found reserves the right without prior notice to suspend the Customer’s (and Authorised Users’) access to or use of the Services either completely or to the extent Found in its sole discretion deems necessary to ensure a safe and secure manner of providing its services to its customers in general. Found shall be entitled to maintain the suspension until the Customer is able to remedy its non-compliance with clauses 5.3 to 5.5 (inclusive) and to demonstrate its future ability to comply with such clauses to Found’s reasonable satisfaction.
5.7 The Customer shall not use the Services, or allow any Authorised User to use the Services, to create, store, access, transfer to any third party or otherwise distribute any Malware or any other material which:
- is unlawful;
- fails to comply with any Policy;
- is in breach of any of Found’s obligations under the DPA;
- is or contains material, which is harmful, obscene, defamatory, infringes any third party's rights including any third party's Intellectual Property Rights;
- is or contains material which is of a harassing or offensive nature;
- contains sexually explicit or other offensive material;
- promotes the use of unlawful violence against a person or property; or
- is or contains material, which is discriminatory based on race, origin, belief, sexual orientation, physical or mental disability, age or any other illegal category.
5.8 In the event of any breach (or alleged breach) of clause 5.7, Found may without prior notice:
- disable or suspend access to or use of the Services or to any part of them that allows access to or use of any material which is causing (or is alleged to cause) a breach of clause 5.7; and/or
- delete any Customer Data that is causing (or is alleged to cause) a breach of clause 5.7,
clause 2.5 shall apply to such disabling of access as it applies in the case of any suspension or temporary discontinuance or modification of the Services under clause 2.5.
5.9 It is the Customer’s responsibility to understand if software within the Customer Data includes programs (including third party programs) that might access the Services or Customer Data. Found has no responsibility (howsoever arising, including in negligence) to prevent any such access nor for the consequences of such access (including the deletion or disclosure of Customer Data, whether or not intended or authorised).
5.10 The Customer shall indemnify Found against all claims, losses, costs or expenses incurred by Found in consequence of any non-compliance by the Customer with the provisions in this clause 5, any of the provisions of the DPA.
6.1 The Customer shall pay the Fees set out in the Order Form including:
- any one-off charges in respect of any agreed set-up activities or any additional licensing; and
- any recurring charges in respect of the provision of the Services.
6.2 Found may render an invoice for Fees at the following times:
- in respect of any one-off charges indicated on the Order Form, on the earlier of the Commencement Date or the time indicated on the Order Form for that charge; and
- in respect of any recurring charges in respect of the Services, monthly in advance as from the Commencement Date.
6.3 Unless stated to the contrary on the Order Form, it is a condition of this Agreement that the Customer should pay for the first month's Fees in advance on the Commencement Date.
6.4 Unless stated to the contrary, all Fees are exclusive of VAT or other charges imposed by law from time to time, and the Customer shall in addition pay such VAT and other charges at the rate and in the manner prescribed by law from time to time.
6.5 Found may increase the Fees with effect from the first anniversary of the Commencement Date provided it has given the Customer at least 30 days’ written notice. Found may not increase the Fees by an amount greater than the percentage increase in the Consumer Prices Index over the 12 month period up to the time of giving written notice.
6.6 Unless stated to the contrary, Found shall issue invoices in pounds sterling and the Customer shall make full payment in pounds sterling without set-off or deduction within 30 days of the invoice date.
6.7 Timely payment shall be of the essence and in addition to its other rights and remedies under the terms of this Agreement or at law, Found may suspend any Services pending full payment. Clause 2.5 shall apply to such suspension as it applies in the case of any suspension or temporary discontinuance or modification of the Services under clause 2.5.
6.8 If any sum is not paid by the due date for payment as set out above, Found may charge interest on any outstanding balance at the rate of 4% per annum above the base rate of the Bank of England such interest to accrue on a daily basis and to be compounded quarterly.
7.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
7.2 Found warrants to the Customer that:
- it has the right, power and authority to grant the Customer the rights set out in this Agreement and provide the Services;
- it shall provide the Services using reasonable care and skill; and
- the access to, receipt of and use of the Services shall not infringe the Intellectual Property Rights of any third party.
7.3 The Customer acknowledges that clause 7.2 does not apply to Trial Services provided in connection with the same. Without prejudice to Found's obligations under our Agreement in respect of Agreement Personal Data and Trial Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.
7.4 Found does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that it will meet the Customer’s specific requirements. Found does not warrant that the Services are or will be interoperable with or capable of working in conjunction with any other software or hardware, for which the Customer takes full responsibility.
7.5 The Customer warrants and represents to Found that it has done such reasonable due diligence of the Services prior to the Commencement Date and takes sole responsibility for their suitability for its own intended purposes. The Customer acknowledges that Found is making available to it a general service made available to its customers generally and that it is not making a bespoke service available specifically for the Customer’s individual requirements.
7.6 Other than as set out in this Agreement all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
8 Data Protection
Each party shall comply with its respective obligations, and may exercise its respective rights and remedies, under the DPA.
9 Systems Monitoring
10 Intellectual Property Rights
10.1 Found or its licensors shall retain ownership of all Intellectual Property Rights in the Services and in any materials created by Found (or anyone acting on its behalf) in the course of providing the Services, whether those materials are provided to the Customer or not. The Customer shall execute all such documents and do such things as Found may consider necessary to give effect to this clause 10.1.
10.2 The Customer shall retain ownership of all Intellectual Property Rights in the Customer Data.
10.3 The Customer hereby grants Found a non-exclusive, sub-licensable (including by multi-tier), worldwide, royalty-free licence to use, transmit, copy, install and otherwise utilise:
- the Customer Data; and
- any software, materials and data made available to Found (or those acting on its behalf) by or on behalf of the Customer or any Authorised User,
to the extent necessary to enable Found to provide the Services and exercise its rights and perform its obligations under this Agreement.
10.4 Subject to clauses 10.6 and 12, Found shall:
- defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services in accordance with this Agreement infringes any copyright of a third party (an IP Claim); and
- pay all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
10.5 The provisions of clause 10.4 shall be the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
10.6 The provisions of clause 10.4 shall not apply unless the Customer:
- promptly notifies Found upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
- makes no comment or admission and takes no action that may adversely affect Found’s ability to defend or settle the IP Claim;
- provides all assistance reasonably required by Found subject to Found paying the Customer’s reasonable costs; and
- gives Found sole authority to defend or settle the IP Claim as Found considers appropriate.
10.7 Found shall have no liability or obligation under this clause 10.4 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
- any modification of the Services (or any part) without Found's express written approval;
- any Customer Data;
- any Trial Services;
- any breach of our Agreement by the Customer;
- installation or use of the Services (or any part) otherwise than in accordance with the Agreement; or
- installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Found.
10.8 The Customer shall indemnify, keep indemnified and hold harmless Found from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it as a result of or in connection with any action, demand or claim that the transmission, receipt, copying, installation, use, possession or other utilisation of the Customer Data in accordance with this Agreement infringes the Intellectual Property Rights of any third party.
11.1 Each party agrees that it may use the other party’s Confidential Information only in the exercise of its rights and performance of its obligations under this Agreement and that it shall not disclose the other party’s Confidential Information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 11.
11.2 Subject to clause 11.4, each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential Information in order to exercise the disclosing party’s rights or perform its obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 11 as if it were a party.
11.3 Subject to clause 11.4, each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
11.4 To the extent any Confidential Information is Protected Data, such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provision of the Data Protection policy.
12 Limitation of liability
12.1 Subject to clause 12.5 and 12.5, Found's maximum liability in respect of each individual Free or Trial Service (howsoever arising under or in connection with our Agreement) shall not exceed the sum of one thousand pounds (£1,000).
12.2 Subject to clause 12.4 and 12.5, Found's maximum liability howsoever arising under or in connection with the Agreement shall not exceed the greater of:
- an amount equal to the Fees for all Services paid to Found in the 12-month period immediately preceding the first incident giving rise to any claim under the Agreement; or
- an amount equal to 12 times the Fees due or paid to Found for the Services provided in the first month of the Service Period.
12.3 Subject to clause 12.5, neither party shall be liable for consequential, indirect or special losses.
12.4 Subject to clause 12.5, neither party shall be liable for any of the following (whether direct or indirect):
- loss of profit;
- loss of revenue;
- loss or corruption of data;
- loss or corruption of software or systems;
- loss or damage to equipment;
- loss of use;
- loss of production;
- loss of contract;
- loss of commercial opportunity;
- loss of savings, discount or rebate (whether actual or anticipated);
- harm to reputation or loss of goodwill; and/or
- wasted expenditure.
12.5 Notwithstanding any other provision of this Agreement, the parties' liability shall not be limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- any other losses which cannot be excluded or limited by applicable law;
12.6 Except as expressly stated in this Agreement, and subject to clause 12.5, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
13.1 Either party may terminate this Agreement at any time by giving notice in writing to the other party if the other party:
- commits a material breach of this Agreement which is not remedied within 30 days of receiving written notice of such breach; or
- has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within thirty (30) days after the other party has received notification that the payment is overdue;
- is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
- becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
- becomes the subject of a company voluntary arrangement under the Insolvency Act 1986.
13.2 Found may terminate or suspend the provision of Trial Services at any time with or without notice.
13.3 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
14 Consequences of termination
14.1 Upon termination or expiry of this Agreement for any reason:
- the obligation on Found to provide any Services and any rights and licences granted by Found under this Agreement shall immediately terminate (including, for the avoidance of doubt, any rights granted to Authorised Users to access the Services);
- the Customer shall immediately pay all sums outstanding to Found; and
- each party shall return to the other party and make no further use of any materials, software or other items (excluding Customer Data, which is addressed in clause 14.4) whatsoever (or of any copies of them) belonging to the other party and/or provided by it pursuant to this Agreement.
14.2 Termination or expiry of this Agreement for any reason is without prejudice to any rights or liabilities which have accrued prior to the date of termination.
14.3 Termination or expiry of this Agreement shall not affect those provisions which expressly or by necessary implication are intended to survive termination of this Agreement including clause 5 and clauses 8 to 12 (inclusive).
14.4 Unless otherwise agreed in writing by the parties, the Customer hereby instructs that within 60 days of the earlier of the end of the Term or the end of the provision of the Services (or any part) relating to the processing of the Customer Data, Found shall securely dispose of all Customer Data in Found’s possession or control processed in relation to the Services (or any part) which have ended (and all existing copies of it) except to the extent that any applicable law requires Found to store such Customer Data. Found shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with this Agreement.
15 Entire agreement
15.1 The parties agree that this Agreement and any documents entered into pursuant to it, constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
15.2 Each party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it, in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it, except in the case of fraudulent misrepresentation. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
16.1 Notices under this Agreement shall be in writing and sent to a party’s address as set out on the first page of this Agreement (or to the email address set out below). Notices may be given, and shall be deemed received:
- by first-class post: 2 Business Days after posting;
- by hand: on delivery; and
- by email to email@example.com in the case of Found and in the case of those to the Customer, to any email address or contact details notified on the Order Form (as updated from time to time pursuant to clause 16.2).
- in the case of the Customer: on receipt of a return email.
16.2 Any change to the contact details of a party as set out in clause 16.1(c) shall be notified to the other party in accordance with clause 16.1 and shall be effective:
- on the date specified in the notice as being the date of such change; or
- if no date is so specified, 5 Business Days after the notice is deemed to be received.
16.3 This clause does not apply to notices given in legal proceedings or arbitration.
No announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any court, any governmental, regulatory or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction.
18 Force Majeure
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from any event beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than 3 months, either party may terminate this Agreement by written notice to the other party.
The Customer shall not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the prior written consent of Found.
20 No partnership or agency
The parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
21.1 Each provision of this Agreement is severable and distinct from the others. If any provision in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the provision or some part of it was deleted or modified (or the duration of the relevant provision reduced):
- the relevant provision (or part thereof) shall apply with such deletion or modification as may be required to make it legal, valid and enforceable; and
- without limiting the foregoing, in such circumstances the parties shall promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
23 Third party rights
Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
24.1 In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies:
- the terms and conditions in the main body of this Agreement and the DPA;
- the other Schedules.
24.2 Subject to the above order of priority between documents, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
25 Governing law and jurisdiction
This Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
26 Definitions and interpretation
26.1 In this Agreement:
- each Order Form entered into by the Customer shall form a separate agreement, incorporating these Terms together with the DPA (the "Agreement");
- in the event of any conflict in respect of the provisions of our Agreement and/or the documents referred to in it the following order of priority shall prevail (in descending order of priority):
- the Order Form;
- the DPA
- the Terms; and
- the Documentation; and
- subject to the order of priority between documents in clause 26.1(b), later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
26.2 Definitions. In this Agreement, unless the context otherwise requires:
Agreement Personal Data:. has the meaning given in the DPA;
Application:. means the software or applications used by or on behalf of Found to provide the Services.
Authorised Users:. means the directors, employees, officers, agents, sub-contractors and professional advisers of the Customer, its Affiliates and any member of the Service Recipient Group designated by the Customer on the Order Form as requiring access to the Services;
Business Day:. means a day other than a Saturday, Sunday or bank or public holiday in England;
Change Order:. has the meaning given in clause 4.4.
Commencement Date:. means the date specified in the Order Form;
Confidential Information:. means any and all confidential information (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other's business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including without limitation information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organisation associated with that party;
Consumer Prices Index:. means the Consumer Prices Index as published by the UK Office for National Statistics;
Customer Data:. means all information, data and content which is either:
- provided by the Customer or by an Authorised User to Found when accessing, using or receiving the Services or otherwise in connection with this Agreement;
- uploaded to the System by the Customer or an Authorised User;
- generated specifically and solely for:
- the performance of the Services for the benefit of the Customer or its Authorised Users; or
- the access by the Customer or its Authorised Users to the Services;
- Confidential Information of the Customer in the possession or control of Found, any of Found’s direct or indirect sub-contractors, or of any Found's personnel;
- Agreement Personal Data; and/or
- derived and/or generated from, or based on, (in whole or in part) any of the foregoing.
DPA: means the data protection agreement identifying certain respective rights and obligations of the parties in respect of personal data and privacy under the Agreement which as at the Effective Date is the latest version available at foundcrm.care/privacy-policy.
Documentation: means in respect of the Services, the relevant instructions as to how to use that part of the Services as updated from time to time;
Fees: means those fees which are set out as payable by the Customer on the Order Form and may comprise one-off charges or recurring charges;
Force Majeure: means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock-outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include lack of funds;
Found's Standard Pricing Terms: means Found’s standard pricing terms for any service or activity, as amended by Found from time to time;
Initial Term: the initial term of this agreement as set out in the Order Form;
Intellectual Property Rights: means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case whether registered or not including any applications to protect or register such rights, all renewals and extensions of such rights or applications; whether vested, contingent or future; and wherever existing;
IP Claim: has the meaning given in clause 10.4.
Key Terms: means the key terms set out in the Order Form;
Malware: means any code or device intended to interfere with or having the effect of interfering adversely with, the operation of any hardware or software, including any bugs, worms, logic bombs, trojan horses or any other such programs;
Operational Change: means
- the application of any software fix or patch, update, upgrade and/or service pack generally released by the relevant software owner or licensor;
- the application of any software fix or patch, update, upgrade and/or service pack necessary for the secure, lawful or otherwise proper functioning of the Services (or any part); and/or
- any modification in Found’s operational, technical, security or other means of delivering the Services which, when implemented, will not cause any alteration in the Fees or have any directly adverse effect on the Customer’s receipt or use of the Services;
Order Form means the electric or physical form (including the DPA, any schedules, annexes and appendices (if any)) ordering the Services entered into by or on behalf of the Customer and Found, incorporating these Terms and the Agreement (and as varied by the parties by agreement in writing from time to time);
Renewal Period the period described in clause 1.2;
Service Recipient Group means the intended users and recipients of the Services as stated in the Key Terms.
Services means the service to which the Customer has subscribed as set out in the Order Form;
Software the online software applications provided by the Supplier as part of the Services.
Term has the meaning given to it in clause 1;
Trial Period means the period indicated in the Order Form subject to the earlier termination of this Agreement; and
Trial Service means the Services identified as being provided on the Order Form on a trial basis or provided without charge (for the duration of the period during which it is provided on such basis).
26.3 Interpretation. In this Agreement, unless the context otherwise requires:
- a reference to this Agreement includes its schedules, appendices and annexes (if any);
- a reference to a party includes that party’s personal representatives, successors and permitted assigns;
- a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
- a reference to a gender includes each other gender;
- words in the singular include the plural and vice versa;
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
- the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and
- a reference to any legislation or legislative provision is a reference to it as amended, extended, re-enacted or consolidated from time to time, and a reference to legislation includes all subordinate legislation made and in force from time to time under that legislation.