LAST UPDATED: 21 APRIL 2018
Please note, these terms cover a subscription agreement with Fiz, allowing the client to utilise Fiz content in a single consumer-facing application that does not seek to distribute, sub-license, white label, re-brand or monetise the content via 3rd parties, partners or external agencies. If you wish to use Fiz within a business to business relationship you will need to agree Commercial Terms with Fiz.
FIZ LIMITED a company incorporated in England and Wales with company number 07732631 and whose registered office is at Orchard House, Three Elm Lane, Golden Green, Kent TN11 0BE (Fiz); and
- Fiz has developed and operates an online platform and content management system which provides curated third party data and information relating to places and locations from various sources.
- The Client wishes to access various Fiz Content and Third Party Content in order to generate Custom Output(s) for its Authorised Users (all as defined below). The Client may also, if appropriate, make certain Client Content available via the Fiz Platform.
- Fiz agrees to make the Fiz Platform available to the Client for such purposes and the Client agrees to license the Client Content to Fiz, subject to the terms and conditions set out in this Agreement.
- Fiz and the Client have signed an Order Form to which these terms and conditions apply.
IT IS AGREED as follows:
1.1 The definitions and rules of interpretation in this clause apply in this Agreement:
|Authorised User:||any employee, subcontractor or agent of the Client authorised by the Client, and on Fiz’s prior written approval, to access the Fiz Platform and Fiz Content|
|Branding Materials:||the branding of the Client which shall contain the look and feel and images relating to any trade marks or logos which the Client wishes to be applied to the Content Management System (CMS) and/or the Widget(s).|
|Business Day:||a day other than a Saturday, Sunday or public holiday in England when banks are open for business.|
|Charges:||the subscription fees for the Dashboard Services payable by the Client in accordance with clause 9.|
|Client Content:||any Branding Materials, text, graphics, audio, visual (including still visual images) and/or audio-visual material, software, applications, data, database content or other multimedia content, information and material, including the metadata relating to any such content, provided by the Client under this Agreement.|
|Client Website:||As defined in the Order Form.|
|Commencement Date:||the date of Client signature on the Order Form.|
|Confidential Information:||any information which is secret, confidential, technical and/or commercial relating to the Fiz Platform, the Dashboard, the Fiz Content, Fiz Guidelines, Widget(s), Data Feed(s) or either party’s business (including without limitation know-how, software products, product development concepts, customer lists and strategy information) which is either identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.|
|Connectivity Requirements:||such requirements as are made known by Fiz to the Client from time to time to enable access to the Fiz Platform, the Data Feed(s) and/or to make the Widget(s) available via the Client Website.|
|Content Preferences:||the Client’s preselected preferences of data categories relating to the Location (which shall form the Selected Content) and such other content preferences as may be agreed between the parties in a Purchase Order from time to time, which will comprise the Custom Output(s).|
|Custom Output:||Widgets and/or Data Feeds relating to the Location (including the Selected Content therein).|
|Dashboard:||the user interface on the Fiz Platform used by clients to manage the Selected Content and Custom Outputs which is skinned and/or white labelled by Fiz for the Client with the Branding Materials.|
|Dashboard Services:||grant of the licence under clause 2 and access to and provision of the Fiz Platform, the Dashboard, the Selected Content and the generation of Custom Outputs.|
|Data Feed(s):||data feeds of Fiz Content and/or Third Party Content, between the Fiz Platform and the Client Website, including without limitation, JSON, XML or API feed or any other types of data feeds as agreed between the parties in writing from time to time.|
|End User:||any end user of the Custom Output(s) i.e. members of the general public viewing content on the Client’s website or application.|
|Fiz Content:||any text, graphics, audio, visual (including still visual images) and/or audio-visual material, software, applications, data, database content or other multimedia content, information and material, including the metadata relating to any such content, created by Fiz .|
|Fiz Guidelines:||such guides, instructions, standards, policies and/or directions in relation to the Client Content (including without limitation file sizes and formats) as Fiz may notify to the Client from time to time.|
|Fiz Platform:||Fiz’s content management system and algorithms, including the Dashboard and Fiz.com.|
|Fiz.com||the Fiz website hosted at www.fiz.com.|
|Intellectual Property:||patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill, rights in designs, database rights, rights to use, confidential information (including know-how and trade secrets), and all other intellectual property rights.This definition shall apply in each aforementioned case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|Location:||As defined in the Order Form.|
|Order Form:||The Order Form signed between Fiz and the Customer which shall form part of this Agreement. In the event of any conflict between the clauses hereunder and the Order Form, the Order Form shall take precedence.|
|Placelet:||the harmonised record of curated data pertaining to a specific place|
|Selected Content:||the Client Content, Fiz Content and/or Third Party Content, available to the Client via the Fiz Platform, and to the End Users via the Custom Output(s), as determined by the Content Preferences.|
|Term:||the Initial Term and any Renewed Term (as defined in clause 16.1).|
|Third Party Content:||any text, graphics, audio, visual (including still visual images) and/or audio-visual material, software, applications, data, database content or other multimedia content, information and material,(including the metadata relating to any such content), provided by any third party and uploaded to the Fiz Platform which is outside of the control of Fiz and may vary or become unavailable over time.|
|VAT:||value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.|
|Widget(s):||the application extension(s) displaying the Selected Content, designed and developed by Fiz and made available for the Client to embed into the Client Website (which, for the avoidance of doubt, may include Placelets).|
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 The Schedule forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedule.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to writing or written includes e-mail.
1.8 References to clauses and the schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the schedules.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Fiz has designed and developed the Fiz Platform and will, subject to the Client’s payment of the Charges, make it available to the Client (and Fiz hereby grants to the Client a non-exclusive, non-transferrable, revocable limited licence to access and use the Fiz Platform for the Term) in order for the Client to manage the Client Content and make Content Preference selections which will comprise the Custom Output(s) via the Dashboard, strictly in accordance with the terms and conditions of this Agreement.
3.1 On or around the Commencement Date the Client shall supply to Fiz its Branding Materials, in such format as Fiz require, in order for Fiz to incorporate such Branding Materials into the Client’s Dashboard on the Fiz Platform (and the Client hereby grants Fiz a non-exclusive licence in respect of the same). Fiz will also incorporate functionality to permit the management of the Client’s Content Preferences via the Dashboard.
3.2 The Client warrants that the Branding Materials will not will not infringe the Intellectual Property Rights, or any other rights, of any third party.
3.3 Following incorporation of the Branding Materials and the Content Preferences into the Dashboard Fiz shall provide the Client with access details, including a username and password for each Authorised User, to the Fiz Platform.
3.5 The Client is responsible for maintaining the confidentiality of its Fiz Platform account and all user names and passwords. The Client shall use and shall procure that each Authorised User shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Fiz Platform and shall notify Fiz promptly of any such unauthorised access or use.
3.6 Fiz reserves the right:
(a) to suspend access to the Fiz Platform if at any time Fiz considers that there is or is likely to be a breach of security; and/or
(b) to require the Client to change any or all of the usernames and/or passwords used by the Client and/or any Authorised User) in connection with its access to the Fiz Platform.
3.7 The Client may from time to time provide in writing to Fiz a request that a change be made to the Dashboard. Fiz shall consider such request in good faith, and shall respond within a reasonable period of time indicating whether or not it agrees with such a request, and if so, indicating how Fiz intends to implement such a request and any charges that may be due in relation to such request. For the avoidance of doubt, any change shall only be implemented at the sole discretion of Fiz.
3.8 Fiz will endeavour to give notice to the Client of any maintenance to the Fiz Platform which may affect the availability or use of it, the Dashboard and/or the Custom Output(s) by the Client and/or the End Users.
4) CLIENT CONTENT
4.1 Throughout the Term the Client may upload to the Fiz Platform, or otherwise provide to Fiz, such Client Content as it determines is appropriate from time to time. The Client can select (via the Dashboard settings) whether such Client Content is “shared” with other Fiz clients and/or Fiz commercial partners (under clause 4.2) or whether the Client Content is uploaded to the Fiz Platform for the Client’s use only (under clause 4.4).
4.2 Where the Client opts to “share” the Client Content, the Client grants to Fiz a non-exclusive, royalty-free, perpetual and irrevocable licence to make the Client Content available on the Fiz Platform and, subject to clause 4.3, to:
(a) modify, reproduce, adapt, translate, distribute, publish, publicly perform, create derivatives from and/or display the Client Content;
(b) combine the Client Content with such Fiz Content and Third Party Content as Fiz deems appropriate from time to time and make such combined Selected Content available to other clients and commercial partners; and/or
(c) reproduce and/or distribute through any media now known, or hereafter developed, the whole of and/or excerpts of the Selected Content in advertisements for, and in marketing and promotional materials related to, the Fiz Platform.
4.3 When Client Content is “shared” and used by Fiz under clause 4.2:
(a) to the extent that such Client Content contains factual information (including, by way of example only, brand information, contact details, location data and/or rates) the Client acknowledges that Fiz shall not be under any obligation to attribute authorship of such Client Content to the Client; and
(b) where the Client Content contains non-factual information (including, by way of example only, opinions, reviews and descriptions) Fiz will embed an appropriate statement attributing authorship of such Client Content to the Client when making it available to third parties via the Fiz Platform.
4.4 Where the Client opts “not to share” the Client Content the Client grants to Fiz a non-exclusive, royalty-free licence to store and display the Client Content on the Fiz Platform for the Client’s use only. In such circumstances Fiz shall not be under any obligation to attribute authorship of such Client Content to the Client.
4.5 The Client warrants that it is the owner, or licensee, of all Client Content and the Client Content will, at all times:
(a) comply with the Fiz Guidelines;
(b) not infringe any third party’s Intellectual Property Rights, other proprietary rights or rights of publicity or privacy;
(c) be true, accurate, not misleading, current and complete (where it states facts) and be genuinely held (where it states opinions);
(d) not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);
(e) not be defamatory, trade libellous, unlawfully threatening or unlawfully harassing;
(f) not be obscene or pornographic and not contain child pornography;
(g) not violate any laws regarding unfair competition, anti-discrimination or false advertising; and/or
(h) not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
4.6 Nothing in this Agreement is intended to place an obligation on Fiz to publish the Client Content via the Fiz Platform and Fiz has no obligation to the Client, and assumes no responsibility, to review the Client Content to determine whether any such Client Content may result in any liability to any third party. To the extent it does publish the Client Content on the Fiz Platform, Fiz reserves the right to remove any Client Content from the Fiz Platform if such Client Content fails to satisfy the content standards set out at clause 4.5.
4.7 The Client shall indemnify Fiz and keep Fiz indemnified and hold Fiz harmless against any and all damages, liabilities, costs, expenses and/or losses arising out of or relating to any breach of clause 4.5 and in respect of any claim or action that the normal operation, possession or use of the Client Content by Fiz, in connection with the Fiz Platform or otherwise, infringes a third party’s Intellectual Property Rights, their right to privacy or any other rights. The provisions of this Clause 4 shall survive expiry or termination of this Agreement.
5) FIZ CONTENT AND THIRD PARTY CONTENT
5.1 Fiz will publish and make available the Fiz Content and Third Party Content on the Fiz Platform and hereby grants to the Client a non-exclusive, non-transferable, non-sublicensable, revocable licence to use the Fiz Content and Third Party Content during the Term, in accordance with this Agreement in combination with (and/or separate to) the Client Content for generation of the Custom Outputs, including, without limitation, the non-exclusive right to electronically store, cache, display, communicate, transmit, make available and distribute such Fiz Content and Third Party Content to End Users via the Custom Output(s).
5.2 Where the Client selects Fiz Content and/or Third Party Content for use in the Custom Output(s) the Client must not remove, obscure, alter, or make invisible, illegible or indecipherable, any notice (including any attributions of authorship) appearing on or contained within such Fiz Content and/or Third Party Content (as applicable).
5.3 The Client acknowledges that the Fiz Content and Third Party Content comprise information outside of Fiz’s control and, although the Fiz Platform has been compiled, and (in respect of Fiz content only) validated, in good faith, Fiz does not warrant or represent that the Fiz Content or Third Party Content will always be complete, accurate, true, up-to-date and/or of value to the Client. It is the Client’s responsibility to determine whether the Fiz Content and Third Party Content meet its requirements AND Fiz shall have no liability to the Client in respect of its selection of any Fiz Content and/or Third Party Content.
5.4 Except as otherwise set out in this clause 5 the Client is not permitted to use, display, transmit, sell, distribute, sub-license or transfer any of the Fiz Content or Third Party Content, regardless of whether for commercial gain or otherwise.
6) CUSTOM OUTPUTS
6.1 The Client is able to select what Selected Content to publish, and the method by which such Selected Content will be distributed to its End Users as a Custom Output, via the on-boarding process (as detailed in the Order Form) prior to accessing the Dashboard.
6.2 The Client acknowledges that the attribution “via Fiz” must be displayed in any Custom Output.
6.3 Where the Client selects the Data Feed(s) as a Custom Output the Client acknowledges and agrees that:
(a) in order to use and access the Data Feed(s) the Client will need to apply for a developer account with Fiz, or such third parties as Fiz may instruct from time to time. After completing registration, which may include providing the URL for the Client Website, the Client will be issued with a uniquely assigned electronic key associated with the URL of the Client Website (the Client acknowledges that any requests to import the Data Feed(s) with an invalid key and/or invalid URL will be blocked);
(b) its access key is the property of Fiz (or a third party owner as specified on the Order Form) and the Client is responsible for keeping its key secure and must notify Fiz (or a third party nominated by Fiz) immediately if it becomes aware of any unauthorised use of, or access to, its key;
(c) subject always to the Client’s compliance with the terms of this Agreement, and any applicable third party terms and conditions, Fiz grants the Client a non-exclusive, non-transferrable, non-sublicensable, revocable licence to use and access the Data Feed(s) during the Term to enable the Client to receive the Selected Content and to provide such Selected Content to the End Users via the Client Website;
(d) Fiz has no control over, or responsibility for, the Client’s manipulation and/or display of the Selected Content generated by the Data Feed(s) and the Client is solely responsible for ensuring its display of the Selected Content meets its own requirements; and
(e) it is solely responsible for ensuring its use of the Data Feed(s), and its display of the Selected Content via the Client Website, is compliant with all applicable laws, regulations and any applicable third party terms and conditions. The Client shall indemnify Fiz and keep Fiz indemnified and hold Fiz harmless against any and all damages, liabilities, costs, expenses and/or losses arising out of or relating to the Client’s breach of this clause 7.3.5.
6.4 Where the Client selects the Widget(s) as a Custom Output the Client acknowledges and agrees that:
(a) each Widget will be designed and developed by Fiz, based on Fiz’s template designs and populated with the applicable Selected Content, in accordance with the Client’s Content Preferences and all applicable user interface guidelines;
(b) Fiz will incorporate such Branding Materials into each Widget as the Client may instruct from time to time and the Client hereby grants Fiz a non-exclusive licence in respect of the same;
(c) following design and development of each Widget Fiz will provide the Client with the unique code for each Widget for the Client to embed within the Client Website, and instructions in relation to the same and, subject always to the Client’s compliance with the terms of this Agreement, Fiz grants the Client a non-exclusive, non-transferrable, non-sublicensable, revocable licence to display the Widget(s) on the Client Website; and
(d) Fiz shall have no responsibility in the event that any defect or fault arises in any Widget which results from the Client, or anyone acting with the authority of the Client, having failed to observe Fiz’s instructions when embedding the Widget(s) within the Client Website, having amended the Widget or used it outside the terms of this Agreement for a purpose or in a context other than the purpose or context for which it was designed, or the Client has failed to meet the Connectivity Requirements.
7) USE RESTRICTIONS
7.1 The Client shall not and shall procure that its Authorised Users shall not, except to the extent expressly set out in this Agreement:
(a) sublicense or purport to sublicense the Custom Output(s) to any party other than the End Users;
(b) interfere with or disrupt services or servers or networks connected to the Fiz Platform or attempt to interfere, in any manner, with the functionality or proper working of the Data Feed(s);
(c) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Fiz Platform or any Custom Output except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(d) attempt to re-use, reproduce, reverse compile, disassemble, reverse engineer, attempt to discern any software, including source code, used by or otherwise relating to the Fiz Platform or any Custom Output, or otherwise reduce to human-perceivable form all or any part of the Fiz Platform or any Custom Output, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(e) access all or any part of the Fiz Platform or any Custom Output in order to build a product or service which competes with the Fiz Platform.
7.2 The Client will, in relation to its use (and that of the Authorised Users) of the Fiz Platform, and more particularly the Dashboard, ensure that such use is in compliance with all reasonable instructions, directions and training provided by Fiz from time to time.
7.3 The Client warrants that it will not use the Fiz Platform, the Selected Content or any Custom Output:
(a) in any way that breaches any applicable local, national or international law or regulation;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) for the purpose of harming and/or harassing or attempting to harm and/or harass anyone in any way;
(d) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
(e) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, logic bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware or deprive any third party of their legal rights.
7.4 If any unauthorised use is made of the Fiz Platform, the Selected Content and/or any Custom Output and such use is attributable to the act or default of, or through, the Client (or any Authorised User) then, without prejudice to Fiz’s other rights and remedies, Fiz may suspend and/or terminate the Client’s access to the Fiz Platform and all Custom Outputs.
7.5 From time to time Fiz may limit the Client’s access to the Fiz Platform, any Custom Output and any other Fiz services limiting:
(a) the number of network calls that are made via the Data Feed(s);
(b) the number of Data Feed requests the Client makes; and/or
(c) maximum file sizes for Client Content.
7.6 Fiz reserves the right to impose additional Charges in respect of increased bandwidth costs required to accommodate the Client’s increased use of the Fiz Platform resulting from exceeding any limit(s) imposed by Fiz pursuant to clause 7.5.
8.1 In relation to all use of, or connection to, the Custom Output by the Client, the Client shall comply with such requirements of Fiz including but not limited to compliance with the Connectivity Requirements. In any event, the Client is responsible for configuring its information technology, computer programmes and servers in order to access the Fiz Platform and shall, at all times, ensure that, at its own cost, it has an appropriate and secure internet connection of suitable bandwidth to enable the Client Website to access the Fiz Platform in order to make the Custom Output(s) available to End Users.
8.2 Fiz will use its reasonable endeavours to make the appropriate Data Feed(s) available to the Client but Fiz makes no warranty as to the availability of the Fiz Platform or the Data Feed(s) and shall not be liable in relation to any errors in the Data Feed(s) or in relation to their unavailability. Furthermore Fiz shall not be responsible for the availability of the Client Website and all access to and availability of the Client Website shall be a matter solely for the Client.
8.3 The Client acknowledges that:
(a) The Third Party Content is outside of the control of Fiz and may vary or become unavailable over time and Fiz accepts no liability for Third Party Content;
(b) complex software is never wholly free from defects, errors and bugs, and Fiz gives no warranty or representation that the Fiz Platform, the Selected Content and/or any Custom Output will be wholly free from such defects, errors and bugs;
(c) Fiz does not warrant or represent that the Fiz Platform will always be available, accessible, error-free, uninterrupted or that the contents will always be accurate; and
(d) the transmission of information via the internet is not completely secure and as such Fiz cannot guarantee the security of any data transmitted to the Fiz Platform. Any transmission is at the Client’s risk.
8.4 Fiz assumes no responsibility and shall not be liable for any loss or damage caused by a virus, or other technologically harmful material that may infect the Client’s computer systems or other equipment or other property on account of its access to, use of, or browsing of the Fiz Platform or any website linked to it or any Data Feed.
9.1 In consideration of the provision of the Dashboard Services the Client shall pay to Fiz the Charges as set out in the Order Form.
9.2 The Client shall pay each invoice submitted by Fiz in full and in cleared funds within 30 days of the date of the invoice (unless otherwise agreed between the parties in writing), to a bank account nominated in writing by Fiz.
9.3 Fiz may charge interest at an annual rate of 4% above the base rate of Barclays Bank plc, calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by Prioritis of the full amount, whether before or after judgment. Fiz reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.4 All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Client at the rate and in the manner for the time being prescribed by law.
9.5 Fiz may increase the Charges no more than once in any 12 month period, always provided that the first such increase shall fall after the first anniversary of the Commencement Date. Fiz shall give the Client not less than 30 days’ notice of any increase. Any increase in the Charges shall apply with effect from expiry of Fiz’s notice.
10.1 Each party warrants and represents to the other:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement; and
(b) that it will perform its obligations under this Agreement with reasonable care and skill.
10.2 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
11) INTELLECTUAL PROPERTY RIGHTS
11.1 Subject always to clause 11.2, all Intellectual Property Rights in the Fiz Platform, the Fiz Content, the Third Party Content, the Custom Output(s) and in all advertising and marketing material in relation to the Fiz Platform shall at all times belong to Fiz or its licensors and no rights shall transfer to the Client under this Agreement in respect of the same. Nothing in this Agreement shall serve to limit the right of Fiz to pursue a legal action against the Client for passing off or unfair competition in the event that the Client breaches the terms of this Agreement.
11.2 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Client Content shall at all times remain with the Client or its licensors. Except as expressly provided in this Agreement, nothing shall be construed to grant to Fiz any right, title or interest in or to the Client Content.
11.3 The Client hereby grants to Fiz a licence to use and reproduce the Client’s name and logo on Fiz.com to promote the Client’s involvement in the Fiz Platform, and at the request of Fiz, the Client shall supply a copy of such logo in the format requested by Fiz. The Client warrants that use of the Client’s name and logo in accordance with this clause 11.3 shall not infringe the Intellectual Property Rights of any third party.
11.4 Fiz hereby grants to the Client a licence to use and reproduce the Fiz logo on the Client Website, and at the request of the Client, Fiz shall supply a copy of such logo in the format requested by the Client. Fiz warrants that use of the logo in accordance with this clause 11.4 shall not infringe the Intellectual Property Rights of any third party.
11.5 The Client shall notify Fiz of any actual, threatened or suspected infringement of any Intellectual Property Rights relating to the Fiz Platform of which the Client becomes aware and the Client shall, at the request and expense of Fiz, take all such steps during the term of this Agreement as Fiz may reasonably require to assist Fiz in maintaining the Intellectual Property Rights as valid and effective, or to take or defend any court or other dispute proceedings concerning intellectual property matters.
12.1 Neither party shall, without prior written consent of the other party, divulge or allow any disclosure of the whole or any part of the other party’s Confidential Information to any person except its own employees and/or agents, and only to the extent that it is strictly necessary for the proper performance of this Agreement. Both parties undertake to the other party to ensure that such employees and/or agents are made aware of the confidentiality of such information and that such employees and/or agents owe a binding and effective duty of confidence to them in relation to such information.
12.2 The obligations of confidentiality under this clause 12 will not apply to information which:
(a) comes into the public domain other than by way of a breach of this Agreement;
(b) is lawfully in a party’s possession before disclosure under this Agreement and such party can provide reasonable evidence of such possession;
(c) is received by a party from a third party who does not breach any duty of confidence in disclosing it; or
(d) is required to be disclosed by law, by any court of competent jurisdiction.
12.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement.
12.4 For the avoidance of doubt the obligations set out in this clause 12 shall survive termination of this Contract and shall continue indefinitely thereafter.
13) DATA PROTECTION
13.1 For the purpose of this clause 13 “Personal Data” shall have the meaning given to it under the Data Protection Act 1998.
13.2 Each party warrants to the other that it will at all times comply with the provisions of the Data Protection Act 1998 or any other applicable data protection or privacy laws, rules and regulations (the DPA) and any other legislation relating to the protection of Personal Data including the data protection principles set out in the DPA and with the guidelines and guidance notes issued from time to time by the Information Commissioner (and any successor) and all other relevant authorities in connection with the performance of the Services, which shall include, without limitation, maintaining such valid and up-to-date notifications and registrations under the DPA as shall be required for the purposes of carrying out the Services and shall only undertake such processing of Personal Data reasonably required in connection with the performance of the Services.
14) LIMITATION OF LIABILITY
14.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; and
(c) any matter in respect of which it would be unlawful to exclude or restrict liability.
14.2 Subject to clause 14.1, Fiz shall not in any circumstances be liable to the Client whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any loss of profits, loss of contracts, loss of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss, damage to or corruption of data, or any indirect or consequential loss, and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, the exclusions set out in this clause apply, whether such losses are direct, indirect, consequential or otherwise.
14.3 Subject to clauses 14.1 and 14.2, Fiz’s total liability to the Client in respect of any loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall, in any 12 month period commencing on the Commencement Date and its anniversary thereafter (the Period), in all circumstances be limited to the Charges paid by the Client during the Period.
Without affecting any other right or remedy available to it, Fiz reserves the right to disable any access key, user identification code and/or password and suspend the Client’s access to and use of the Fiz Platform and/or the Custom Output(s) at any time, if in its reasonable opinion the Client has failed to comply with any of the provisions of this Agreement, including without limitation the Client’s failure to pay the Charges in accordance with clause 9.
16) DURATION AND TERMINATION
16.1 This Agreement shall commence on the Commencement Date and remain in effect for 12 months (Initial Term) and thereafter shall renew for consecutive 12 month periods (each a Renewal Period), until either party gives to the other party 1 months’ written notice to terminate, such notice not to expire before the end of the Initial Term or until either party terminates this Agreement in accordance with the remainder of this clause 16.
16.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any 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;
(b) an order is made or a resolution passed for the winding up of the other party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or documents are filed with the Court for the appointment of an administrator, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order, or an arrangement or composition is made by the other party 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) or an application to a court for protection from its creditors is made by the other party; or
(c) the other party takes or suffers any action similar or analogous to any of those in clause 16.2.2 in consequence of debt.
17) CONSEQUENCES OF TERMINATION
17.1 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
17.2 On termination of this Agreement for any reason:
(a) except as otherwise agreed between the parties in writing, all rights and licences granted to the Client under this Agreement shall cease with immediate effect and Fiz may disable the line of code for each Widget in use by the Client and/or Fiz may block access to the Data Feed(s);
(b) the Client will cease to have any right to use the Fiz Platform and as such the licence granted under clause 3 shall terminate accordingly (and the Client’s Fiz Platform account shall be deactivated);
(c) the Client shall destroy all material copies of the Fiz Platform, the Custom Output(s), the Fiz Content and the Third Party Content, and shall ensure that any copies of the Fiz Platform and any Custom Output(s) on hard discs or other storage means associated with any computer equipment owned or controlled by the Client are permanently deleted;
(d) the Client shall immediately pay any outstanding unpaid invoices and interest due to Fiz. Fiz shall submit invoices for any Dashboard Services that it has supplied, but for which no invoice has been submitted, and the Client shall pay these invoices immediately on receipt; and
(e) each party shall immediately cease to use, either directly or indirectly, any Confidential Information and trade marks, trade names and/or logos of the other party, and shall forthwith return to the other party any documents in its possession or control which contain or record any of its Confidential Information.
17.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
19.1 Any notice required to be given pursuant to this Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service or commercial courier providing proof of postage and delivery, to the relevant party’s registered office (if it is a company) or its principal place of business (in any other case) or such other address as either party notifies to the other from time to time.
19.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
20.1 Fiz shall not in any circumstances be in breach of its obligations under this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the same if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, provided that if the period of delay or non-performance continues for 1 month, either party may terminate this Agreement by giving written notice to the other party.
20.2 Nothing in this Agreement is intended to, or shall operate to, create a partnership, relationship of employer and employee, or authorise either party to act as agent for the other, and neither party shall have authority to act in the name of or on behalf of or otherwise bind the other party in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20.3 The Client may not assign or transfer any of its rights, or sub-contract any or all of its obligations under this Agreement without the prior written approval of Fiz.
20.4 Fiz may at any time assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement without the consent of the Client.
20.5 This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
20.6 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
20.7 The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
20.8 No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
20.9 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation, construction or interpretation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.10 The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement AND THAT either party shall be entitled to enforce any such judgement in any other jurisdiction as appropriate.