Flex Terms and Conditions
This agreement is entered into between Flex and the entity agreeing to these terms and conditions (“Customer”) for the Services provided by Flex (including Services provided under a Trial Period) and is effective as at the date of Customer’s acceptance of this agreement by either using the Services, ticking the acceptance box or the date when the agreement is countersigned (“Effective Date”). If you are accepting on behalf of Customer or another entity you represent and warrant that you have full legal authority to bind Customer or applicable entity to this agreement.
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Account: means any account created by or for the Customer within the Services;
Active User: means any natural person other than Administrators who are authorised by the Customer or its Administrators to use the Services and the Documentation whether as a Free Active User or Paid Active User.
Administrators: means an individual authorised to use a Service through Customer’s Account as an administrator using a unique login.
Agreement: means this agreement and the Order together with any Documentation.
Applicable Laws: means:
a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which is subject.
Applicable Data Protection Laws: means:
a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Flex is subject, which relates to the protection of personal data.
Business Day: a day other than a Saturday, Sunday or public holiday in England and Wales when banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Customer Data: the data inputted by the Customer, Administrators, Authorised Users, or Flex on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Customer Personal Data: any personal data which Flex processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
Documentation: any written or electronic document made available to the Customer by Flex online via thinkbooker.com or such other web address notified by Flex to the Customer from time to time which sets out a description of the Services, and user instructions for the Services.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Fees means the product of the amount of the Services (including set up fees) and any Optional Features used or ordered by the Customer multiplied by the prices set out the Order together with any applicable taxes.
Flex: means Flex Systems Limited registered in England and Wales under company number 12082546 of 10 Drake Walk, Brigantine Place, Cardiff CF10 4AN.
Flex Personal Data: any personal data which Flex processes under this agreement, in the capacity of a controller.
Free Active User: an end user who makes a booking which is not subject to a payment.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Active User (but not Flex relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Legal Notices: notices to be given under this agreement which are termination notices or an indemnifiable claim.
Non-Supplier Applications: means any web based, mobile, offline or other software application that interoperates with a Service and which is provided by the Customer.
Normal Business Hours: 9.00 am to 17.30 pm local UK time, each Business Day.
Notification email address: means the email address(es) designated by the Customer and provided to Flex.
Order: means Flex’s order document specifying the Services together with any Optional Features and to which this agreement shall apply.
Optional Features: means the Customer’s selected optional features to be provided by Flex in addition to the Services as set out in the Order.
Paid Active User: an end user who makes a booking which is subject to a payment.
Purpose: the purposes for which the Customer Personal Data is processed, as set out in clause 5.6(a).
Services: means whether on a trial or paid basis, the products and services and any Optional Features (excluding Third Party Services) provided by Flex to the Customer under this agreement via thinkBooker.com or any other website notified to the Customer by Flex from time to time, as more particularly described in the Documentation and an Order.
Site: means a website operated by Flex.
Software: the thinkBooker online software application provided by Flex as part of the Services to allow Administrators and/or Active Users to use any functionality in connection with the relevant Service.
Term: means the relevant term for the provision of the Services as stated in an Order and shall include any renewal or extension of such term and, if no such term has been agreed in writing between the parties the term shall be month to month;
Support Services Policy: Flex’s policy for providing support in relation to the Services from time to time.
Third Party Services: means any third-party products and services that are not proprietary to or supplied by Flex and which include Non Supplier Applications;
Trial Period: the 14 day trial period granted by Flex to allow the Customer to trial the services in accordance with clause 2.1 below.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
User Licences: the licences purchased by the Customer pursuant to an Order which entitle Administrators to access and use the Services and the Documentation in accordance with this agreement.
User Terms: the “User Terms of Service” provided by Flex by persons invited by the Customer to become Active Users during the online Account creation process following acceptance by the Customer of this agreement;
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision and all subordinate legislation is a reference to it as it is in force as at the date of this agreement.
2. The Services
2.1 Where the Customer requests certain Services on a trial basis, Flex shall make such Services available to the Customer in accordance with this agreement, free of charge for a period of fourteen (14) days unless otherwise terminated by Flex at its sole discretion (“Trial Period”). Any Customer Data used in the Services and any customisations made by Customer to the Services shall be deleted by Flex at the end of the Trial Period unless the Customer enters into an Order pursuant to clause 2.2 below.
2.2 In consideration for the Fee, Flex shall make the Services available to the Customer in accordance with the terms of this agreement and the relevant Order for the Term.
2.3 In purchasing the Services, Flex grants the Customer, its Administrators and Active Users a non exclusive, non transferable, time limited right without the right to grant sub-licences to access and use the Services and Documentation solely for the Customer’s internal business operation, provided always that a User Licence for each Administrator is purchased. Each Active User will be required to agree to the User Terms to activate access and use of the Services.
2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property
and Flex reserves the right, without liability or prejudice to its other rights to the Customer, to disable any access to any material that breaches the provisions of this clause.
2.5 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except as otherwise set out in this agreement, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2 or
(f) introduce or permit the introduction of any Virus or Vulnerability into Flex’s network and information systems.
2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Flex.
2.7 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Order Modifications
3.1 Upon giving the relevant notice to Flex as set out in the Order, the Customer may at any time during a Term:
(a) increase or decrease the Optional Features the Fee for which shall be prorated for the remaining period under the existing Term;
(b) increase or decrease the number of User Licences (subject to the minimum number of User Licences) set out in the Order; and/or
(c) increase or decrease the number of Active Users
whereby the parties shall execute an additional Order reflecting such changes and Flex shall grant access to the Services and the Documentation to such additional Administrators and/or Active Users in accordance with the provisions of this agreement.
4. Services and Support
4.1 Flex shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 Flex shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) downtime for which Flex shall give advance electronic notification; and
(b) any unavailability caused by the circumstances outside Flex’s reasonable control.
4.3 As part of the Services, Flex will provide the Customer with Flex’s standard customer support services during Normal Business Hours and in accordance with Flex’s Support Services Policy in effect at the time that the Services are provided. Flex may amend the Support Services Policy at its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Flex's then current Fee rates as an Optional Feature.
4.4 The Customer acknowledges that Flex may modify the features and functionality of any of the Services during the relevant Term.
5. Data protection
5.1 For the purposes of this clause 5 the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
5.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws.
5.3 For the purposes of Applicable Data Protection Laws, Flex is the data processor and the Customer is the data controller.
5.4 Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to Flex and/ or lawful collection of the same by Flex for the duration and purposes of this agreement.
5.6 Without prejudice to the generality of clause 5.2 Flex shall, in relation to Customer Personal Data:
(a) process that Customer Personal Data only on the documented instructions of the Customer unless Flex is required by Applicable Laws to otherwise process that Customer Personal Data. Where Flex is relying on Applicable Laws as the basis for processing Customer Processor Data, Flex shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Flex from so notifying the Customer on important grounds of public interest. Flex shall inform the Customer if, in the opinion of Flex, the instructions of the Customer infringe Applicable Data Protection Legislation;
(c) ensure that any personnel engaged and authorised by Flex to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Flex), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Agreement unless Flex is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 5.6(f) Customer Personal Data shall be considered deleted where it is put beyond further use by Flex; and
(g) maintain records to demonstrate its compliance with this clause 5.
5.7 The Customer hereby provides its prior, general authorisation for Flex to:
(a) appoint processors to process the Customer Personal Data, provided that Flex:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Flex in this clause 5;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Flex; and
(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Flex's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Flex for any losses, damages, costs (including legal fees) and expenses suffered by Flex in accommodating the objection.
(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Flex shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Flex, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
5.8 Either party may, at any time on not less than 30 days' notice, revise clause 5.7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
6. Third Party Services
6.2 Where the Services contain features that interoperate with Non-Supplier Applications, Flex does not warrant the continuing availability of such features within the Services. Where a Non-Supplier Application ceases to be available for interoperation with the Service in a manner reasonably acceptable to Flex, Flex may cease to provide such features within the Services.
7. Flex’s obligations
7.1 Flex undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care. Without affecting its other obligations under this agreement, Flex shall comply with all applicable laws and regulations with respect to its activities under this agreement
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Flex’s instructions, or modification or alteration of the Services by any party other than Flex or Flex’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Flex will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses; or
(iv) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This agreement shall not prevent Flex from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.5 Flex is not responsible for notifying the Customer, Administrators or Active Users of any upgrades, fixes or enhancements to any software or for any compromise of data, including Customer Data, transmitted via computer networks or telecommunication facilities which are not owned by Flex.
7.6 Flex warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.7 Flex shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy as such document may be amended by Flex in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Flex shall be for Flex to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Flex in accordance with the archiving procedure described in its Back-Up Policy. Flex shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Flex to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
8. Customer's obligations
8.1 The Customer shall:
(a) provide Flex with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Flex;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Flex may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that its Administrators and Active Users use the Services and the Documentation in accordance with the terms and conditions of this agreement, each Order and the User Terms and shall be responsible for any Administrator or Active User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Flex, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network connections, software and systems comply with the relevant specifications provided by Flex from time to time in order to receive the Services; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Flex’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8.3 If the Customer receives notice that a Non-Supplier Application must be removed or modified, the Customer must do so promptly. Where Flex so requests, the Customer shall confirm such deletion and discontinuance of use in writing and Flex shall be permitted by Customer to provide a copy of such confirmation to any third party. Where the Customer does not provide such confirmation, Flex shall be entitled to disable or suspend the Customer’s access to the Services without further notice unless or until such confirmation is provided.
9. Charges and payment
9.1 The Customer shall pay the Fees to Flex for the Services in accordance with this clause 9 and as specified in an Order. For the avoidance of doubt, the Services will not commence unless or until the relevant set up charges forming part of the Fee has been paid by the Customer in full.
9.2 The Customer shall as at the Effective Date provide Flex with valid, up-to-date and complete credit card details or approved purchase order information acceptable to Flex and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to Flex, the Customer hereby authorises Flex to bill such credit card:
(i) on the Effective Date for the Fees payable in respect of the Term; and
(ii) subject to clause 14.1, on each anniversary of the Effective Date for the Fees payable in respect of any subsequent Term,
(b) its approved purchase order information to Flex, Flex shall invoice the Customer:
(i) on the Effective Date for the Fees payable in respect of the Term; and
(ii) subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Term,
and the Customer shall pay each invoice within 14 days after the date of such invoice.
9.3 If Flex has not received payment within 10 days after the due date, and without prejudice to any other rights and remedies of Flex:
(a) Flex may, without liability to the Customer, disable the Customer's password, Account and access to all or part of the Services and Flex shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Flex’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and Fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling without any set-off, counterclaim or other deduction whatsoever;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Flex’s invoice(s) at the appropriate rate.
9.5 Flex shall be entitled to increase the Fees unless otherwise agreed in an Order upon 30 days' prior notice to the Customer and the Order shall be deemed to have been amended accordingly.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that Flex and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 Flex confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10.3 The Customer grants to Flex a fully paid, royalty free, worldwide, limited term licence to host, copy, use, transmit and display any Customer Data and any Non-Supplier Applications and program code created by or for the Customer using a Service or for use by the Customer with the Services for the purposes required by Flex in order to provide the Services. Where the Customer chooses to use a Non-Supplier Application with a Service, Flex may allow the Non-Supplier Application and its provider to use and access Customer Data and information about the Customer’s usage of the Non-Supplier Application, in connection with the supply of the Service. Subject to the licences granted herein Flex acquires no right, title or interest from the Customer in or to any Customer Data, Non-Supplier Applications or programme codes. Customer grants to Flex a worldwide, perpetual, irrevocable, royalty free licence to use and incorporate into its services any (i) suggestion, enhancement request, recommendation, correction or otherwise provided by the Customer of Active Users relating to the operation of Flex’s services and (ii) information available to Flex relating to the Customer’s use of the Services, including Customer Data, but only in an aggregate composite form and combined with other similar information such that the information used by Flex will not specifically identify any Customer or any of their employees, agents, contractors, clients or Active Users.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this agreement.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Flex's Confidential Information.
11.6 Flex acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 Flex may identify the Customer as its customer in its promotional advertising, marketing, website or other commercial activities which Flex may undertake in promoting its services.
11.9 In performing its obligations under this agreement Flex shall comply with the Mandatory Policies.
12.1 The Customer shall defend, indemnify and hold harmless Flex against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Flex provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 Flex shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Flex is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Flex in the defence and settlement of such claim, at Flex’s expense; and
(c) Flex is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Flex may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall Flex, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Flex; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Flex; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Flex or any appropriate authority.
12.5 The foregoing and clause 13.3(b) state the Customer's sole and exclusive rights and remedies, and Flex’s (including Flex’s employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. Limitation of liability
13.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Flex shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Flex by the Customer in connection with the Services, or any actions taken by Flex at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services and the Documentation are provided to the Customer on an "as is" basis.
13.2 Nothing in this agreement excludes the liability of Flex:
(a) for death or personal injury caused by Flex’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
(a) Flex shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) Flex’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.
14. Term and termination
14.1 This agreement shall commence on the Effective Date and the Term for the Services shall be set out in the relevant Order. Unless the Order states otherwise, each Term shall be automatically renewed for successive terms equal to the expiring Term unless:
(a) terminated by either party upon sixty (60) days’ written notice to the other prior to the end of the relevant Term in which case this agreement shall terminate upon the expiry of the applicable Term; or
(b) otherwise terminated in accordance with clause 14.3 below.
14.2 The Fees payable by the Customer pursuant to clause 14.1 above for the relevant subsequent Term shall be the then current fees for the Services.
14.3 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 fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so (and for the avoidance of doubt a breach of clause 2.6 shall be deemed a material breach);
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3(c) to clause 14.2(j) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(l) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
(m) there is a Change of Control in Flex.
14.4 Other than where Customer has terminated its Order or otherwise cancelled its Account pursuant to clause 14.3 above no refunds or credits for Fees are payable by Flex.
14.5 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) Flex may destroy or otherwise dispose of any of the Customer Data in its possession unless Flex receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Flex shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Flex in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
Flex shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Flex or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions between the documents that make up the Agreement, the provisions in the Order will prevail over this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
The following clauses will survive termination or expiration of this agreement: clause 2.7, 6.2, 9 (Charges and Payment), 10 (Proprietary Rights), 11 (Confidentiality), 12 (Indemnity), 13 (Limitation of Liability), 14.4 (Term and Termination).
20. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
22. Entire agreement
22.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
23.1 Neither the Customer or Flex shall assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement without the consent of the other (such consent not to be unreasonably withheld).
24. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
25. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26.1 Flex may provide any notice to the Customer by sending an email to the Notification Email Address. The Customer may provide notice to Flex by sending an email to [email protected] Notice will be treated as received when the email is sent (whether or not the other party has received the email).
26.2 Any Legal Notice given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes.
26.3 A Legal Notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed Legal Notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
27. Dispute Resolution
27.1 Subject to clause 27.3 if a dispute arises in connection with this agreement which cannot be resolved between the parties within 30 days, the parties agree to refer the matter to an independent expert for final and binding determination. The parties shall seek to agree a single expert and failing agreement within 7 days shall refer the appointment of an expert to the Centre for Effective Dispute Resolution (CEDR) who shall appoint a suitably qualified expert.
27.2 The expert shall set their own procedure for determination of the dispute and shall act as an expert and not an arbitrator. The expert shall have discretion to award costs as they see fit, failing which the parties shall equally bear the expert’s costs and their own costs. The expert’s determination shall be final and binding except in the case of manifest error or fraud.
27.3 In the event that the parties agree a dispute is not suitable for expert determination or the CEDR declines to make an appointment the parties may proceed to litigation in accordance with clause 28 below.
28. Governing law and Jurisdiction
28.1 This agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement.