Last updated 31/12/2021

These terms and conditions (the “Agreement”) are entered into by and between Collums Solutions Limited, company no. 11683119, registered at The Pinnacle, Midsummer Boulevard, Milton Keynes, MK9 1BP, UK (“Collums”), and the Person or Company (“Customer”) set forth on the initial order submitted to Collums requesting to purchase a Subscription (“Order”), or accessing or using any Application or Site (including any associated Data) provided by Collums.

1. ACCEPTANCE OF AGREEMENT

1.1. The supply and access to and use of our Services is always subject to and conditional on compliance with these terms and conditions and all applicable laws.
1.2. Accessing, installing or using any Collums services, and/or executing an Order incorporating this agreement, constitutes acceptance of these terms and conditions by an authorised representative of the Customer (as defined below).
1.3. If the Customer does not accept these terms and conditions, or did not purchase the services from Collums, the Customer has no license or right to use the services and the limited warranty and indemnification provisions under these terms do not apply.
1.4. These terms and conditions and the terms of the Order will form the Agreement and will constitute the entire agreement between us in relation to their subject matter and supersede and extinguish all previous drafts, agreements, arrangements and understandings between us, whether written or oral.
1.5. Collums may change these terms at any time for a variety of reasons, such as to reflect changes in applicable laws or updates to services, and to account for new services or functionality. The most current version will always be posted on https://collums.co/terms-conditions/. If an amendment is material, as determined at Collums’ sole discretion, Collums will notify the Customer by email. The Customer may also be notified of amendments while using our products or services. Changes will be effective no sooner than the day they are publicly posted. In order for some changes to be effective, applicable law may require Collums to obtain the Customer’s consent to such changes, or to provide the Customer with sufficient advance notice of them. If the Customer does not agree to any changes made to the terms of a service, they should stop using that service – Continued use of the Services after any such modifications or updates shall constitute the Customer’s consent to such changes.
1.6. Collums constantly changes and improves the services we provide. Collums may add, alter or remove functionality from a service at any time without prior notice. Collums may also limit, suspend or discontinue a service at its discretion. If Collums discontinues a service, we will provide you with reasonable advance notice to provide you with an opportunity to obtain the services elsewhere.

2. DEFINITIONS

2.1. Capitalized terms used herein shall have the meaning set forth below or as ascribed to them in this Agreement.
2.2. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
2.3. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
2.4. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person.
2.5. “Aggregated Data” means data resulting from the aggregation, calculation, analysis or compilation of Customer Data and/or data from other sources, including other clients or customers of Collums provided that such resulting data does not identify the Customer as the source of any such data, and the identities of the Customer and the Customer’s clients are not disclosed by or discernible from the resulting data without an extraordinary amount of time or effort.
2.6. “Application” means the Collums products in Collums’ software suite offerings (“Products”) (e.g., appointments, billing, marketing, inventory, and employees), as specified in the Subscription, including all Updates thereto, and associated Documentation and third-party software embedded therein.
2.7. “Authorised Users” means those Persons, including without limitation, the Customer’s employees, consultants, contractors, and agents who are authorised to access and use the Services under the rights granted to the Customer pursuant to this Agreement; and for whom access to the Services has been purchased hereunder.
2.8. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from the Customer or an Authorised User by or through the Services, or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Aggregated Data, Collums or third-party Data, or any other information reflecting the access or use of the Services by or on behalf of the Customer or any Authorised User.
2.9. “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by the Customer or through the use of third-party services.
2.10. “Data” means any data, information, or other content, or portion or combination thereof, accessed, uploaded, posted, emailed, transmitted or otherwise provided through or associated with the Services, whether publicly posted, privately transmitted, or orally communicated. For the sake of clarity, Data may be from Collums, the Customer, an Authorised User, or a third party.
2.11. “Data Protection Legislation” means any Law in force from time to time which implements the European Community’s Directive 95/46/EC, Directive 2002/58/EC, General Data Protection Regulation 2016/679 (“GDPR”), which shall only apply from 25 May 2018, and/or any equivalent national laws and regulations which otherwise regulate the Processing of Personal Data and is applicable to the Products or Services provided pursuant to this Agreement.
2.12. “Documentation” means any manuals, instructions, or other documents or materials that Collums provides or makes available to the Customer in any form or medium and which describe the functionality, components, features, or requirements of the Application, Site or Collums Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
2.13. “e-Privacy Legislation” means any law or regulation in force from time to time which implements the European Community’s Directive 2002/58/EC and/or the proposed e-Privacy Regulation 2017/0003 (COD), which is intended to replace the Directive 2002/58/EC and/or any equivalent national laws and regulations which otherwise regulate direct marketing to individuals pursuant to this Agreement.
2.14. “Aggregated Data” means data resulting from the aggregation, calculation, analysis or compilation of Customer Data and/or data from other sources, including other clients or customers of Collums provided that such resulting data does not identify the Customer as the source of any such data, and the identities of the Customer and the Customer’s clients are not disclosed by or discernible from the resulting data without an extraordinary amount of time or effort.
2.15. “Effective Date” means the date a Customer’s order for a Subscription comes into effect, and will be the earlier of the date
2.15.1. the Customer submits the initial Order;
2.15.2. of last signature on the initial Order; or
2.15.3. as expressly stated on the initial Order.
2.16. “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to
2.16.1. permit unauthorised access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, or network; or
2.16.2. any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or
2.16.3. prevent the Customer or any Authorised User from accessing or using the Services or Collums Systems as intended by this Agreement.
2.17. “Aggregated Data” means data resulting from the aggregation, calculation, analysis or compilation of Customer Data and/or data from other sources, including other clients or customers of Collums provided that
2.17.1. such resulting data does not identify the Customer as the source of any such data, and
2.17.2. the identities of the Customer and the Customer’s clients are not disclosed by or discernible from the resulting data without an extraordinary amount of time or effort.
2.18. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade secret, database protection, or other intellectual property or proprietary rights laws, and all similar or equivalent rights or forms of protection, recognized or enforceable in any part of the world.
2.19. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
2.20. “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
2.21. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organisation, trust, association, or other entity.
2.22. “Process” has the meaning given in the Data Protection Legislation. “Processing” and “Processed” have correlative meanings.
2.23. “Professional Services” means the set-up, implementation, and initial training services related to the Application, Sites, and Collums Systems, as set forth in the Subscription, along with all maintenance and support of the Application and Sites as specified herein, and any other professional services provided by or on behalf of Collums to the Customer and its Authorised Users.
2.24. “Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, agents, independent contractors and legal advisors.
2.25. “Site” means one or more websites, online portals, applications or other interfaces configured for or made available to the Customer or its Authorised Users.
2.26. “Specifications” means the technical and operational specifications for the Services as specified in the Subscription.
2.27. “Subscription,” unless otherwise expressly agreed by the parties in writing, means the particular Subscription Services offering selected and purchased by the Customer, together with the permitted number of Authorised Users, and the related Professional Services provided by Collums in connection with such Subscription Services.
2.28. “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services or that interoperate with the Services, and that are not proprietary to Collums.
2.29. “Updates” means updates, enhancements, revisions, fixes, patches, or other changes to the Subscription Services that Collums makes generally available to all customers with an active Subscription, but does not include additional modules or components and other applications separately sold. Each Update is deemed a Subscription Service once placed in a production environment.
2.30. “Collums Materials” means the Services, Specifications, Documentation, and Collums Systems and any and all other Data, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Collums or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Collums Systems.
2.31. For the avoidance of doubt, Collums Materials include Aggregated Data and any information, data, or other content derived from Collums’ monitoring of the Customer’s or any Authorised User’s access to or use of the Services, but do not include Customer Data.
2.32. “Collums Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Collums or any Subcontractor.
2.33. “Collums Systems” means the information technology infrastructure used by or on behalf of Collums in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Collums or through the use of third-party services.

3. SERVICES

Delivery
3.1. Subject to and conditioned on the Customer’s and its Authorised Users’ compliance with the terms and conditions of this Agreement, Collums will provide Professional Services, according to the Subscription purchased by the Customer.
3.2. Collums hereby grants to the Customer a non-exclusive, non-transferable (except in compliance with Section 16.13) right to access and use the Subscription Services during the Term, solely for the Customer’s internal business purposes, including access and use by Authorised Users in accordance with the terms and conditions herein, and by the Customer’s Representatives, subject to the restrictions set forth herein.

Documentation License.
3.3. Collums hereby grants to the Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16.13) license to use the Documentation during the Term solely for the Customer’s internal business purposes in connection with its use of the Services.

Reservation of Rights.
3.4. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Collums Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All rights, title, and interest in and to the Services, the Collums Materials, and the Third-Party Materials are and will remain with Collums and the respective rights holders in the Third-Party Materials.

Changes.
3.5. Collums reserves the right, in its sole discretion, to make any changes to the Services and Collums Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Collums’ service to its customers; (ii) the competitive strength of or market for Collums’ services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

Subcontractors.
3.6. Collums may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

Suspension or Termination of Services.
3.7. Collums may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny the Customer’s, any Authorised User’s, or any other Person’s access to or use of all or any part of the Services or Collums Materials, without incurring any resulting obligation or liability, if:
3.7.1. Collums receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Collums to do so; or
3.7.2. Collums believes, in its good faith and reasonable discretion, that the Customer or any Authorised User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights expressly granted under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; or
3.7.3. the Customer or any Authorised User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or
3.7.4. this Agreement expires or is terminated.
3.8. This Section 3.6.1 does not limit any of Collums’ other rights or remedies, whether at law, in equity, or under this Agreement.

4. FEES AND PAYMENT

4.1. The Customer will pay Collums the then-current one-time and/or recurring fees and charges associated with the applicable Subscription that the Customer has ordered (”Fees”) in accordance with this Section 4.
4.2. Collums will submit an invoice to the Customer for payment of applicable Fees, in advance of provision of the Services set forth on the Order, on a monthly or annual basis (as requested by the Customer), payable on receipt (or as stated on the invoice).
4.3. All Fees are non‐refundable (except as otherwise set forth herein).
4.4. The Customer shall make all payments hereunder in Great British Pounds by bank transfer, card payment where offered or an alternative method that Collums may specify in writing from time to time. If the Customer believes Fees have been incorrectly charged, the Customer must contact Collums in writing within thirty (30) days of the Customer’s receipt of the invoice or payment transaction date, whichever is earlier.
4.5. At the conclusion of the Initial Term or any Renewal Term as set forth in Section 14, Collums shall increase the Fees associated with the applicable Subscription by 5% of the then-current Fees for the subsequent Renewal Term. The Initial Term is calculated on the full number of fully-paid subscription fees exclusive of subscription months subject to fee discounts or credits.

Taxes
4.6. All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes, levies, duties and similar assessments imposed by applicable taxing authorities. Without limiting the foregoing, the Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the Customer hereunder, other than any taxes imposed on Collums’ income.

Billing Information.
4.7. The Customer will provide Collums with complete and accurate billing and contact information. This information includes the Customer’s account or name, billing address, postal or zip code, and telephone number. The Customer will update this information within ten (10) days of any change to it. If the contact information the Customer has provided is false or fraudulent, Collums reserves the right to suspend or terminate the Customer’s access to the Services in addition to pursuing any other legal remedies pursuant to Section 3.7.

Late Payment.
4.8. If the Customer fails to make any payment when due then, in addition to all other remedies that may be available, Collums may charge interest on the past due amount at the rate of one and a half percent (1.5%) per month or, if lower, the highest rate permitted under applicable Law. The Customer will reimburse Collums for all reasonable costs incurred by Collums in collecting any late payments or interest, including lawyers’ fees, court costs, and collection agency fees. If the Customer’s failure to timely pay continues for thirty (30) days following written notice thereof, Collums may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to the Customer or any other Person by reason of such suspension.

No Deductions or Setoffs.
4.9. All amounts payable to Collums under this Agreement shall be paid by the Customer to Collums in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

Fee Increases.
4.10. Collums may increase Fees at any time by providing written notice to the Customer at least sixty (60) days prior to the effective date of the Fee change. In the event that Collums increases the Fees in accordance with this Section 4.10, or that the Customer chooses to change its Subscription to enrol in a more expensive Subscription, the following terms will apply:
4.10.1. the Term of this Agreement for the Subscription affected by the Fee change will remain unchanged; and
4.10.2. the Fees for the higher-priced Subscription will be prorated for the remainder of the current billing cycle.

5. USE RESTRICTIONS; SERVICE USAGE AND DATA STORAGE.

Use Restrictions
5.1. The Customer will not, and will not permit any other Person to, access or use the Services or Collums Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, the Customer will not, except as this Agreement expressly permits:
5.1.1. copy, modify, or create derivative works or improvements of the Services or Collums Materials;
5.1.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Collums Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
5.1.3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Collums Materials, in whole or in part;
5.1.4. bypass or breach any security device or protection used by the Services or Collums Materials or access or use the Services or Collums Materials other than by an Authorised User through the use of his or her own then-valid Access Credentials;
5.1.5. input, upload, transmit, or otherwise provide to or through the Services or Collums Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
5.1.6. input, upload, transmit, or otherwise provide to or through the Services or Collums Systems, any information or materials that depict sexually explicit images; promote unlawful violence; or are discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
5.1.7. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Collums Systems, or Collums’ provision of services to any third party, in whole or in part;
5.1.8. remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Collums Materials, including any copy thereof;
5.1.9. access or use the Services or Collums Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of Collums or any third party, or that is inconsistent with the ownership rights in and to the Services or Collums Materials, or that violates any applicable Law;
5.1.10. access or use the Services or Collums Materials for purposes of competitive analysis of the Services or Collums Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Collums’ detriment or commercial disadvantage;
5.1.11. use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper” or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the Services, data or content found on the Services or accessed through the Services; or
5.1.12. use the Services for any purpose that is unlawful or prohibited by this Agreement. Collums reserves the right to immediately suspend or terminate the Customer’s access to the Services, in addition to pursuing any other legal remedies pursuant to Section 3.7, if the Customer violates the terms of this Section 5.

Service Usage.
5.2. The Customer will ensure that only Authorised Users may access and use the Services as provided under the Subscription. The Customer will ensure that its Authorised Users and any Representatives or other Customer personnel comply with all relevant provisions in this Agreement, and the Customer assumes full responsibility for any breach of this Agreement by such Authorised Users, Representatives or other Customer personnel.
5.3. The total number of Authorised Users will not exceed the number permitted under the Subscription, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
5.4. The Customer may increase the number of Authorised Users during the Term by purchasing a new Subscription for the then-current Fees applicable to the new Subscription. The Customer and the applicable Authorised Users will treat such Access Credentials as strictly confidential and not permit any other Customer personnel to access the Services using such Access Credentials. An Authorised User may only access and use the Services using the Access Credentials provided to that Authorised User, and the Customer will be fully responsible for any unauthorised access or use of the Services or Access Credentials by other Customer personnel.
5.5. The Customer will notify Collums promptly of any unauthorised access or use of the Services. the Customer will reasonably cooperate with Collums to remedy any such unauthorised access or use to Collums’ reasonable satisfaction and, at the request of Collums, the Customer will pay Collums additional Fees for such unauthorised access and use that are attributable to such unauthorised user as if such user were an Authorised User.
5.6. The Customer acknowledges and agrees that Subscriptions are location-specific, and that each applies to the Collums location at and from which Collums will provide and perform the Services as set forth in that particular Subscription. Co-location of a single Subscription will not be permitted.

6. CUSTOMER OBLIGATIONS.

Provision of Data.
6.1. The Customer acknowledges and agrees that any and all Data is the responsibility of the Person from whom such Data originated. Thus, the Customer, and not Collums, is solely responsible for:
6.1.1. providing all Customer Data needed from the Customer for Collums to provide and the Customer to use the Services;
6.1.2. all Data that its Authorised Users upload, post, email, transmit, or otherwise make available via the Subscription; and
6.1.3. the accuracy, integrity, completeness and quality of Customer Data, and Collums shall be entitled to rely on such Customer Data.
6.2. The Customer agrees that it shall evaluate, and bear all risks associated with, the use of or reliance on any Data. Under no circumstances will Collums be liable in any way for any Data, including any errors or omissions in any Data, or any loss or damage of any kind incurred as a result of the use of any Data.
6.3. The Customer will:
6.3.1. ensure that all Data uploaded or provided by the Customer or its Authorised Users (including the transfer, disclosure, and provision of any Data (including personal data) to Collums in connection with this Agreement) and all instructions provided to Collums regarding the handling of any Customer Data comply with applicable Law, including without limitation Data Protection Legislation and e-Privacy Legislation, and
6.3.2. ensure that it has obtained all necessary rights to upload, use, transfer and provide any such Customer Data.

Customer Systems and Cooperation.
6.4. The Customer will at all times during the Term:
6.4.1. set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used;
6.4.2. provide Collums Personnel with such access to the Customer’s premises and Systems as is necessary for Collums to perform the Services in accordance with the Availability Requirement and Specifications; and
6.4.3. provide all cooperation and assistance as Collums may reasonably request to enable Collums to exercise its rights and perform its obligations under and in connection with this Agreement.

Effect of Customer Failure or Delay.
6.5. Collums is not responsible or liable for any delay or failure of performance caused in whole or in part by the Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

Corrective Action and Notice.
6.6. If the Customer becomes aware of any actual or threatened activity prohibited by Section 5.1, the Customer will, and will cause its Authorised Users to, immediately:
6.6.1. take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorised access to the Services and Collums Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorised access); and
6.6.2. notify Collums of any such actual or threatened activity.

Compliance with Law.
6.7. The Customer will and will require that its Authorised Users will use the Services only in accordance with the Specifications and Documentation, and in compliance with all applicable Law. Without limiting the foregoing, the Customer will not and will require that its Authorised Users not
6.7.1. transmit, provide access to or display any Data to any Person that the Customer or any of its Authorised Users knows would engage in unfair or deceptive practices using such Data;
6.7.2. use the Services (including any Data) in violation of any Law concerning unsolicited messages or communications, including the national law that implements Data Protection Legislation, e-Privacy Legislation, the CAN-SPAM Act, and other laws applicable to communications with individuals; or
6.7.3. interfere with or disrupt the integrity or performance of the Products or Services or related systems.

7. SERVICE LEVELS.

7.1. Subject to the terms and conditions of this Agreement, Collums will use commercially reasonable efforts to make the Subscription Services Available at least ninety-nine and nine tenths percent (99.9%) of the time as measured over the course of each calendar month during the Term, excluding unavailability as a result of any of the Exceptions.
7.2. “Available” means the Subscription Services are available for access and use by the Customer and its Authorised Users over the Internet and operating in material accordance with the Specifications.
7.3. “Exceptions” means any:
7.3.1. act or omission by the Customer or any Authorised User, or use of the Customer’s or an Authorised User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications;
7.3.2. Customer Failure;
7.3.3. the Customer’s or its Authorised User’s Internet connectivity;
7.3.4. Force Majeure Event (defined in Section 16.15);
7.3.5. failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Collums pursuant to this Agreement;
7.3.6. Scheduled Downtime (defined in Section 7.4); or
7.3.7. disabling, suspension, or termination of the Services pursuant to Section 3.7.

Scheduled Downtime.
7.4. Collums will use commercially reasonable efforts to:
7.4.1. schedule downtime for routine maintenance of the Subscription Services between the hours of 10:00 p.m. and 6:00 a.m., local time for each location of the business; and
7.4.2. give the Customer at least eight (8) hours prior notice of all scheduled outages of the Subscription Services (“Scheduled Downtime”) via the Subscription Services.

Service Support.
7.5. The Services include Collums’ standard customer support services (“Support Services”) in accordance with the Subscription terms then in effect. Collums may amend the Support Services for a Subscription from time to time in its sole discretion.

8. SECURITY.

Information Security.
8.1. Collums will employ security measures in accordance with Collums’ data privacy and security policy as amended from time to time.

Customer Control and Responsibility.
8.2. The Customer has and will retain sole responsibility for:
8.2.1. all Customer Data, including its accuracy, quality, legality, content and use;
8.2.2. all information, instructions, and materials provided by or on behalf of the Customer or any Authorised User in connection with the Services;
8.2.3. the Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by the Customer or through the use of third-party services;
8.2.4. the security and use of the Customer’s and its Authorised Users’ Access Credentials; and
8.2.5. all access to and use of the Services and Collums Materials directly or indirectly by or through the Customer Systems or its or its Authorised Users’ Access Credentials, with or without the Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

Access and Security.
8.3. The Customer will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
8.3.1. securely administer the distribution and use of all Access Credentials and protect against any unauthorised access to or use of the Services; and
8.3.2. control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

9. CONFIDENTIALITY

Confidential Information.
9.1. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.3, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that is designated by a Party as confidential or that reasonably should be understood to be confidential, including information consisting of or relating to the Disclosing Party’s technology, technical information, trade secrets, know-how, business operations, business, product and marketing plans, designs, strategies, business process, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.
9.2. Without limiting the foregoing: the Confidential Information of Collums specifically includes the existence and terms of this Agreement, the Services (and all components thereof), Collums’ Intellectual Property, and as between the parties, is owned solely by Collums. The Confidential Information of the Customer specifically includes the Customer Data.

Exclusions.
9.3. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
9.3.1. was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;
9.3.2. was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement;
9.3.3. was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
9.3.4. the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.

Protection of Confidential Information.
9.4. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
9.4.1. Not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement except as may be permitted by and subject to its compliance with Sections 9.6-9.8, not disclose or permit access to Confidential Information other than to its Representatives who:
9.4.1.1. need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement;
9.4.1.2. have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.7; and
9.4.1.3. are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
9.4.2. Safeguard the Confidential Information from unauthorised use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
9.4.3. Promptly notify the Disclosing Party of any unauthorised use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorised use or disclosure.
9.4.4. Ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
9.5. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

Compelled Disclosures.
9.6. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will:
9.6.1. promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Sections 9.5-9.5; and
9.6.2. provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
9.7. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.6-9.8, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
9.8. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

10. INTELLECTUAL PROPERTY RIGHTS.

Collums Materials.
10.1. The Customer acknowledges and agrees that all rights, title, and interest in and to the Collums Materials, including all Intellectual Property Rights therein, are and will remain with Collums (as the sole and exclusive owner thereof), subject to any applicable rights, title, and interests of the third-party providers of any Third-Party Materials embedded in or provided in connection with the Collums Materials.
10.2. The Customer further acknowledges and agrees that the Services (and all components thereof and information contained therein) are trade secrets of Collums and/or its Affiliates. All Services (including any software contained therein) are licensed, not sold, by Collums to the Customer, and nothing in this Agreement shall be interpreted or construed as a sale or purchase of such Services, any components thereof or Data contained therein.
10.3. The Customer has no right, license, or authorization with respect to any of the Collums Materials except Collums’ rights in the Aggregated Data are subject to the Customer’s rights in the Customer Data, and as expressly set forth in Section 3.1-3.2 or the applicable third-party license, in each case subject to Section 5.1.
10.4. All other rights in and to the Collums Materials are expressly reserved by Collums. In furtherance of the foregoing, the Customer hereby unconditionally and irrevocably grants to Collums an assignment of all right, title, and interest in and to the Aggregated Data, including all Intellectual Property Rights relating thereto.

Enforcement.
10.5. During the Term of this Agreement, Collums will have exclusive right to file or defend the Collums Materials against a third party’s violation of Collums’ Intellectual Property Rights.

Customer Data.
10.6. As between the Customer and Collums, the Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.7.

Consent to Use Customer Data.
10.7. The Customer hereby irrevocably grants Collums a transferable, sublicensable, royalty-free, irrevocable license and all such other rights and permissions in or relating to Customer Data as are necessary or useful to Collums, its Subcontractors, and Collums Personnel to enforce this Agreement and exercise Collums’, its Subcontractors’, and Collums Personnel’s rights and perform Collums’, its Subcontractors’, and Collums Personnel’s obligations hereunder, including, without limitation, the right to
10.7.1. process the Customer Data in connection with providing the Services;
10.7.2. modify and create derivative works from the Customer Data in connection with providing the Services; and
10.7.3. create Aggregated Data. the Customer acknowledges and agrees that Collums may allow providers of Third-Party Materials to access Customer Data as required for the interoperation of such Third-Party Materials with the Services.
10.8. Under no circumstances will Collums be liable in any way for any Customer Data, including any errors or omissions in any such Data, any disclosure, modification or deletion of Customer Data, or any Losses incurred as a result of any such access by providers of Third-Party Materials.

Collums Trademarks.
10.9. Collums and other logos, product and service names are trademarks and service marks owned by or licensed to Collums or its Affiliates (the “Marks”). The Customer agrees not to display or use in any manner, the Marks without the prior written permission of Collums or its applicable Affiliates.

11. REPRESENTATIONS AND WARRANTIES.

Mutual Representations and Warranties.
11.1. Each party represents and warrants to the other party that:
11.1.1. it is duly organised, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organisation;
11.1.2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
11.1.3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorised by all necessary corporate or organisational action of such party; and
11.1.4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

Additional Collums Representations, Warranties, and Covenants.
11.2. Collums represents, warrants, and covenants to the Customer that Collums will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar Services and will devote adequate resources to meet its obligations under this Agreement.
11.3. The Customer represents, warrants, and covenants to Collums that
11.3.1. its Authorised Users are 18 years of age or older;
11.3.2. The Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Collums and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law;
11.3.3. The Customer acknowledges that the pricing provided under this Agreement requires that the Customer must deploy Collums across all locations of the Customer’s business, whether company owned or franchised, unless the parties mutually agree in writing to waive such requirement.

Disclaimer of warranties.
11.4. Except for the express warranties set forth in section 11.1, all services are provided “as is” and “as available.” To the maximum extent permitted by law, Collums specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice.
11.5. Without limiting the foregoing, Collums makes no warranty of any kind that the services, or any products or results of the use thereof, will meet the Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.
11.6. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between the Customer and the third-party owner or distributor of the third-party materials.

12. INDEMNIFICATION.

Collums Indemnification.
12.1. Collums shall indemnify, defend, and hold harmless the Customer and the Customer’s officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by the Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party’s Intellectual Property Rights.
12.2. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
12.2.1. Third-Party Materials or Customer Data;
12.2.2. access to or use of the Collums Materials in combination with any hardware, system, software, network, or other materials or service not provided by Collums or specified for Customer’s use in the Documentation;
12.2.3. modification of the Collums Materials other than:
12.2.3.1. by or on behalf of Collums; or
12.2.3.2. with Collums’ written approval in accordance with Collums’ written specification;
12.2.4. failure to timely implement any Updates made available to the Customer by or on behalf of Collums; or
12.2.5. any act, omission, or other matter described in Section 12.3.1, section 12.3.2, Section 12.3.3, Section 12.3.4 or Section 12.3.5, whether or not the same results in any Action against or Losses by any Collums Indemnitee.

Customer Indemnification.
12.3. The Customer shall indemnify, defend, and hold harmless Collums and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Collums Indemnitee”) from and against any and all Losses incurred by such Collums Indemnitee resulting from any Action by a third party (other than an Affiliate of a Collums Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
12.3.1. Customer Data, including any Processing of Customer Data by or on behalf of Collums in accordance with this Agreement;
12.3.2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of the Customer or any Authorised User, including Collums’ compliance with any specifications or directions provided by or on behalf of Customer or any Authorised User to the extent prepared without any contribution by Collums;
12.3.3. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;
12.3.4. use of the Services by the Customer or any Authorised User not authorised or in accordance with this Agreement; or
12.3.5. gross negligence or more culpable act or omission (including recklessness or wilful misconduct) by the Customer, any Authorised User, or any third party on behalf of the Customer or any Authorised User, in connection with this Agreement.

Indemnification Procedure.
12.4. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1-12.3, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defence and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense.
12.5. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defence of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.
12.6. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.

Mitigation.
12.7. If any of the Services or Collums Materials are, or in Collums’ opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s or any Authorised User’s use of the Services or Collums Materials is enjoined or threatened to be enjoined, Collums may, at its option and sole cost and expense:
12.7.1. obtain the right for the Customer to continue to use the Services and Collums Materials materially as contemplated by this Agreement;
12.7.2. modify or replace the Services and Collums Materials, in whole or in part, to seek to make the Services and Collums Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Collums Materials, as applicable, under this Agreement; or
12.7.3. by written notice to the Customer, terminate this Agreement with respect to all or part of the Services and Collums Materials, and require the Customer to immediately cease any use of the Services and Collums Materials or any specified part or feature thereof.

Sole Remedy.
12.8. This section 12 sets forth the Customer’s sole remedies and Collums’ sole liability and obligation for any actual, threatened, or alleged claims that the services and Collums materials or any subject matter of this agreement infringes, misappropriates, or otherwise violates any intellectual property rights of any Third Party.

13. LIMITATIONS OF LIABILITY.

Exclusion of damages.
13.1. In no event will Collums be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:
13.1.1. loss of production, use, business, revenue, or profit or diminution in value;
13.1.2. impairment, inability to use or loss, interruption or delay of the Services;
13.1.3. loss, damage, corruption or recovery of Data, or breach of Data or system security;
13.1.4. cost of replacement goods or services;
13.1.5. loss of goodwill or reputation; or
13.1.6. consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

Cap on monetary liability.
13.2. In no event will the aggregate liability of Collums with respect to any single incident arising out of or related to this agreement, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory, exceed the lesser of
13.3. one thousand pounds (£1,000.00 gbp); or
13.4. the total amounts paid to Collums under this agreement in the twelve (12) month period immediately preceding the incident, provided that in no event shall Collums’ aggregate liability arising out of or related to this agreement, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory, exceed the total amount paid by the Customer hereunder. The foregoing limitations apply even if any remedy fails of its essential purpose.

Exceptions.
13.5. The liability limits set forth in section 13.1-13.4 shall not apply to:
13.5.1. the parties’ indemnity obligations under section 12 (indemnification);
13.5.2. personal injury, sickness or death; and
13.5.3. the Customer’s payment obligations under section 4 (fees and payment).

14. TERM AND TERMINATION.

Term.
14.1. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of this Agreement’s express provisions, will continue in effect as may be informed or agreed between the parties as set forth in the Order (the “Initial Term”).
14.2. The Initial Term is calculated on the full number of fully-paid subscription fees exclusive of subscription months subject to fee discounts or credits. Thereafter, the Term of this Agreement shall, subject to the terms herein, automatically renew for successive terms of one (1) year each (each a “Renewal Term,” and together with the Initial Term, the “Term”) under the same terms and conditions unless Collums provides the Customer with written notice of any changes to the current terms and conditions, in compliance with this Agreement.
14.3. Collums will renew the terms and conditions after expiration of the Initial Term or a Renewal Term, only after receiving payment of the applicable Fees for the renewed Services from the Customer.

Termination.
14.4. In addition to any other express termination right set forth elsewhere in this Agreement, Collums may terminate this Agreement, effective on written notice to the Customer, if the Customer:
14.4.1. fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after Collums’ delivery of written notice thereof; or
14.4.2. breaches any of its obligations under Section 5.1, Section 9.4, or Section 10;
14.5. Other than a failure to pay, which is governed by Section 14.4, either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach:
14.5.1. is incapable of cure; or
14.5.2. being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
14.6. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party:
14.6.1. becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
14.6.2. files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
14.6.3. makes or seeks to make a general assignment for the benefit of its creditors; or
14.6.4. applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Effect of Termination or Expiration.
14.7. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement all rights, licenses, consents, and authorisations granted by Collums to the Customer hereunder will immediately terminate.
14.8. Collums shall immediately cease all use of any Customer Data or Customer’s Confidential Information and
14.8.1. promptly return to the Customer, or at the Customer’s written request, destroy all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or the Customer’s Confidential Information; and
14.8.2. permanently erase all Customer Data and the Customer’s Confidential Information from all systems Collums directly or indirectly controls, provided that, for clarity, Collums’ obligations under this Section 14.8 do not apply to any Aggregated Data;
14.9. The Customer shall immediately cease and cause all Authorised Users to cease, all use of any Services or Collums Materials and
14.9.1. within thirty (30) days return to Collums, or at Collums’ written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Collums Materials or Collums’ Confidential Information; and
14.9.2. certify to Collums in a signed written instrument that it has complied with the requirements of this Section 14.9;
14.10. Collums may disable all Customer and Authorised User access to the Collums Materials, and to the extent legally permitted, destroy all records, documents and tangible materials relating to Customer’s and the Authorised User’s Data and Access Credentials.
14.11. If the Customer terminates this Agreement pursuant to Section 14.5, the Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Collums will refund to the Customer Fees paid in advance for Services that Collums has not performed as of the effective date of termination.
14.12. If Collums terminates this Agreement pursuant to Section 14.4 or Section 14.5), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and the Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees upon receipt of Collums’ invoice therefor.
14.13. If the Customer requests in writing within thirty (30) days after the effective date of expiration or termination of this Agreement, subject to Section 14.10, Collums shall, within thirty (30) days following receipt of the Customer’s request, deliver to the Customer the then most recent version of Customer Data maintained by Collums in comma separated value (.csv) format or such other pre-defined format mutually agreed by the parties in writing, provided that the Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Collums’ services in transferring such Customer Data.
14.14. After the 30-day period, Collums shall have no obligation to maintain or provide any Customer Data and shall thereafter, at its sole discretion, unless legally prohibited, delete all Customer Data in the Collums Systems or otherwise in Collums’ possession or under Collums’ control.

Surviving Terms.
14.15. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 5.1, Section 9, Section 10.7, Section 12, Section 13, Sections 14.7-16.

15. PAYMENTS PROCESSING.
15.1. The payment processing for your account is handled by Squareup Europe Ltd.

16. MISCELLANEOUS.

Further Assurances.
16.1. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

Relationship of the Parties.
16.2. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

Public Announcements.
16.3. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Collums may, without the Customer’s consent, include the Customer’s name and other indicia in its lists of Collums’ current or former customers of Collums in promotional and marketing materials.

Notices.
16.4. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement will have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4):

If to Collums:
The Pinnacle
170 Midsummer Boulevard
Milton Keynes
MK9 1BP
United Kingdom

Email: [email protected]

If to the Customer:
Address as provided by the Customer upon registration for the software.

16.5. Notices sent in accordance with this Section 16.4-16.5 will be deemed effectively given:
16.5.1. when received, if delivered by hand, with signed confirmation of receipt;
16.5.2. when received, if sent by a nationally recognized overnight courier, signature required;
16.5.3. when sent, if by facsimile or email, in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and
16.5.4. on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

Interpretation.
16.6. For purposes of this Agreement:
16.6.1. the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”;
16.6.2. the word “or” is not exclusive;
16.6.3. the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole;
16.6.4. words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and
16.6.5. words denoting any gender include all genders.
16.7. Unless the context otherwise requires, references in this Agreement to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement;
16.7.1. to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and
16.7.2. to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder.
16.8. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
16.9. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

Headings.
16.10. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

Entire Agreement.
16.11. This Agreement, together with the Order and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
16.12. In the event of any inconsistency between the statements made in the body of this Agreement, the following order of precedence governs this Agreement, excluding its exhibits, schedules, attachments, and appendices; the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and any other documents incorporated herein by reference.

Assignment.
16.13. The Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Collums’ prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganisation involving the Customer (regardless of whether the Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Collums’ prior written consent is required.
16.14. No assignment, delegation, or transfer will relieve the Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.13 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

Force Majeure.
16.15. In no event will either party be liable or responsible to the other party, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, pandemics, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labour stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or national or regional shortage of adequate power or telecommunications or transportation.
16.16. Either party may terminate this Agreement by written notice if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. However, notwithstanding the aforesaid, the Customer will not be entitled to claim a Force Majeure Event to excuse performance of monetary obligations as and when such obligations fall due and have accrued to Collums under the terms of this Agreement.

No Third-Party Beneficiaries.
16.17. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

Lawyers’ Fees.
16.18. If any action or proceeding shall be commenced to enforce or interpret this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party all reasonable lawyers’ fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding and any negotiations to avoid such action or proceeding.

Amendment; Modification; Waiver.
16.19. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Severability.
16.20. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Jurisdiction.
16.21. This Agreement shall be governed by and interpreted in accordance with English Law.

Time for Claim.
16.22. Regardless of any Law to the contrary, any Action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such action arose or be forever barred.

Equitable Relief.
16.23. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 (Confidentiality) or, in the case of the Customer, Section 5.1 (Use Restrictions), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

Counterparts.
16.24. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.