PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITEThese terms and conditions (the “Nodes & Links Terms”) together with the Nodes & Links Subscription Form describe Customer’s rights and responsibilities when using the Services. Please read them carefully.
- Definitions and Interpretation
- Capitalised terms not defined herein, shall have the following meanings:
- In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to writing or written includes e-mail; (d) references to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement; (e) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
“Activity” means a single line within a project schedule uploaded to the Software and given a unique ID.
“Nodes & Links Subscription Form” means the Subscription Form agreed between the Parties setting out the details of the Services being contracted for by Customer and governed by these Nodes & Links Licence Terms.
“Affiliate” means a party, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, the Customer.
“Agreement” means this agreement between Nodes & Links and Customer comprising the Nodes & Links Subscription Form, these Nodes & Links Licence Terms, and any and all additional schedules hereto.
“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and Free Trial Users subject to any restrictions as detailed in the Nodes & Links Subscription Form.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Confidential Information” has the meaning set out in clause 15.
“Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of a company or other entity or organisation, and controls, controlled and the expression change of control shall be construed accordingly.
“Controller, Processor, Data Subject, Personal Data, personal data breach, Processing and appropriate technical and organisational measures” shall have the meaning as defined in the Data Protection Legislation.
“Customer” means the individual or legal entity which is named as the Customer in the Nodes & Links Subscription Form and who is contracting with Nodes & Links for the provision of the Services.
“Customer Data” means the data, which shall include without limitation, all anonymised business data uploaded or submitted to the Software by the Customer or an Authorised User directly or indirectly via any third party application and reports and project content created by an Authorised User while using the Services, excluding any Derived Data.
“Data Subject Request” means a Data Subject request to access, correct, amend, transfer or delete that person’s Personal Data consistent with that person’s rights under the Data Protection Legislation.
“Derived Data” means any data collated and/or created by Nodes & Links which is derived from the Customer’s use of the Services or the Processing of Customer Data, which shall include: statistical or aggregated data, but shall exclude any Personal Data, reports and project content created by an Authorised User while using the Services.
“Data Protection Legislation” means all applicable privacy and data protection laws, including the EU General Data Protection Regulation (Regulation 2016/679) (the “GDPR”), the Data Protection Act 2018 and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data pursuant to this Agreement, as amended, replaced or updated from time to time.
“Deliverables” means any specified bespoke work or materials created by Nodes & Links as part of its provision of Onboarding sessions as described in the Nodes & Links Subscription Form, but excluding Software.
“Guidance” means those printed or online instructions, manuals, guidance videos and diagrams distributed or otherwise provided by Nodes & Links that pertain to the Software or use of the Service.
“Effective Date” means the date on which the Subscription Services are made available to Customer following acceptance of the Nodes & Links Subscription Form unless otherwise specified in the Nodes & Links Subscription Form.
“Force Majeure Event” has the meaning set out in clause 17.7.
“Free Trial Users” means users permitted by Nodes & Links on a case-by-case basis to use the Software on a trial basis and are not required to pay the Subscription Fees for a limited time as stated in their registration.
“Initial Term” means either the monthly or annual subscription period selected by Customer in the Nodes & Links Subscription Form, which period shall commence on the Effective Date.
“Insolvency Event” means, with respect to a Party, (a) entering into a composition or arrangement with its creditors other than for the sole purpose of a solvent reconstruction; (b) an inability to pay its debts as they become due; (c) a person becoming entitled to appoint or appointing a receiver or an administrative receiver over that Party’s assets; (d) a creditor or encumbrancer attaches or takes possession of the whole or any part of that Party's assets which is not discharged within 14 days; or (e) any event occurs, or proceeding is taken, in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in (a) to (d) above.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Nodes & Links” means Nodes & Links Limited (company number 11388602) with registered office address: Salisbury House, Station Road, Cambridge, England, CB1 2LA.
“Onboarding Services” means, where applicable, the training specified in the Nodes & Links Subscription Form provided to assist the Customer’s familiarisation with the Software, subject to this Agreement.
“Force Majeure Event” has the meaning set out in clause 17.7.
“Onboarding Fees” means the fees identified as such on the Nodes & Links Subscription Form payable by the Customer to Nodes & Links for receipt of the Onboarding Services.
“Party” means a party to this Agreement, being either Nodes & Links or Customer, and “Parties” means both of them.
“Payment Method" means a current, valid, accepted method of payment, as may be updated from time to time by Nodes & Links, and which may include payment via a third party payment processor.
“Portal” means the password-protected area on the Site through which Authorised Users access the Software.
“Project Value” The total revenues to be earnt from the financing or delivery of the project in question by the relevant party, or their client, as appropriate.
“Renewal Term” means the period defined as such in clause 12.1.
“Service Credit” has the meaning given to it in clause 8.2.3.
“Services” means the Subscription Services and any Onboarding Services delivered under this Agreement.
“Site” means https://aegiss.nodeslinks.com/ or such other URL as updated by Nodes & Links from time to time.
“Software” means the relevant Nodes & Links software selected by Customer in the Nodes & Links Subscription Form.
“Subscription Fees” means the subscription fees identified as such on the Nodes & Links Subscription Form payable by the Customer to Nodes & Links for use of the Subscription Services.
“Subscription Services” means access to the Software delivered by Nodes & Links via the Portal in return for the Subscription Fees.
“Term” has the meaning set forth in clause 12.2.
“Territory” means that territory or those territories identified as such on the Nodes & Links Subscription Form (If applicable).
“Virus” means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, data or the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Access to Services
- Subject to the Customer paying the Subscription Fees in accordance with this Agreement Nodes & Links hereby grants to the Customer a non-exclusive, non-transferable, non-sub licensable right to permit its Authorised Users to use the Subscription Services during the Term in accordance with the Agreement and any usage restrictions contained within the Nodes & Links Subscription Form.
- The Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. Nodes & Links reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's, or any Authorised User’s, access to any material that breaches the provisions of this clause.
- 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, the Customer shall not, and shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
- The Customer shall not, and shall not attempt to: (a) access all or any part of the Software in order to build a product or service which competes with the Subscription Services; (b) subject to clause 14.1, make the Software or any Deliverables available to any third party except to its Authorised Users, or (c) attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 2.
- The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and, in the event of any such unauthorised access or use, promptly notify Nodes & Links. Each Authorised User shall keep a secure password for his or her use of the Subscription Services and that each Authorised User shall keep his or her password confidential.
- The Customer acknowledges that the uploading and processing of excessive amounts of data to the Subscription services may cause disruption to the functionality of the Software. Accordingly the Customer agrees not to upload excessive quantities of data to the Subscription Services. The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any Affiliate.
Free Trial Users
- Where applicable, and in their absolute discretion, Nodes & Links may make the Subscription Services available to the Free Trial Users on a trial basis free of charge until the earlier of (a) the end of the free trial period agreed between the Parties, (b) the commencement date of the Subscription Services purchased by the Customer, or (c) termination by Nodes & Links in their sole discretion.
- Free Trial Users shall be bound by the terms of this Agreement.
- Any data the Free Trial Users enter into the Software during the Free Trial will be permanently lost for the Free Trial User at the end of the Free Trial unless the Free Trial Users enter into an agreement to purchase the Subscription Services, or exports such data before the end of the Free Trial.
- During the Free Trial the Subscription Services are provided “as-is” without any warranty and Nodes & Links shall have no indemnification obligations with respect to the services for the Free Trial period. Without limiting the foregoing, Nodes & Links do not represent or warrant to Free Trial Users that: (a) use of the Subscription Services during the free trial period will meet your requirements, (b) use of the Subscription Services during the free trial period will be uninterrupted, timely, secure or free from error, and (c) usage data provided during the free trial period will be accurate. Notwithstanding anything to the contrary in clause 13.1, Free Trial Users shall be fully liable under this Agreement to Nodes & Links for any damages arising out of your use of the Subscription Services during the free trial period, any breach by you of this Agreement and any of your indemnification obligations hereunder.
- Where agreed in the Nodes & Links Subscription Form, or as agreed in writing at any point during the Term, and in consideration for the relevant fees paid by the Customer, Nodes & Links shall provide Onboarding Services and any agreed Deliverables with reasonable skill and care.
- Unless otherwise agreed, Onboarding Services shall be provided remotely or from Nodes & Links’ own premises. Where provided at other locations, additional expenses may be incurred by prior agreement.
- Unless stated otherwise in the relevant Nodes & Links Subscription Form, the Customer shall be entitled to use the Deliverables on a non-exclusive, perpetual, worldwide, royalty-free basis for the Customer’s business purposes. All other rights in Deliverables shall be reserved to Nodes & Links.
Fees and Payment
- The Customer shall pay the Subscription Fees and Onboarding Fees (together “the Fees”) set out in the Nodes & Links Subscription Form in accordance with this clause 5. Nodes & Links shall be entitled to increase the Fees at the start of each Renewal Term upon prior written notice to the Customer.
- The Subscription Fees are based on usage and are charged based on the Project Value.
- Nodes & Links will monitor the Customer’s use of the Subscription Services and automatically increase the Customer Subscription Fees if the number of Activities the Customer is uploading to the Software exceeds the limit of the then current Subscription Tier. Customer permits Nodes & Links to monitor the Subscription Services in order to establish the number of Activities the Customer is uploading to the Software.
- If Customer uploads less than the maximum number of Activities permitted in the relevant Subscription Tier, Customer shall be entitled to receive credit equivalent to the pro-rata cost of the difference between the maximum Subscription Tier Activity limit and the actual Activity usage for any relevant month. Credits shall be issued and be redeemable by Customer in accordance with clause 6.
- If Customer believes the number of Activities recorded by Nodes & Links for any given month is incorrect it shall raise such discrepancy within 30 days of the date of the corresponding payment due date with evidence of the number of Activities uploaded. If Customer does not raise any such issues within the 30 day period, Customer shall be deemed to have accepted the number of Activities as recorded by Nodes & Links.
- Unless otherwise specified in the Nodes & Links Subscription Form, the Fees shall be payable monthly in arrears regardless of the Initial Term selected.
- Fees are payable in the currency detailed in the Nodes & Links Subscription Form, and are non-cancellable and non-refundable. Fees are stated exclusive of value added tax and all sales taxes, which shall be added at the appropriate rate where relevant.
- To use the Services, Customer must provide one or more Payment Method which Customer authorises Nodes & Links to charge in accordance with this Agreement. Nodes & Links may refuse to provide the Services if any payment is not successfully settled due to expiration, insufficient funds or otherwise. For some Payment Methods, the issuer may charge certain fees, such as foreign transaction fees or other fees relating to the processing of the Payment Method, which shall be due and payable by Customer. Customer may have to accept the terms and conditions of the issuer of the Payment Method or the third party payment processor used by Nodes & Links to make the relevant payment.
- If during the Term Nodes & Links fails to receive payment of any Fees by the due date, and without prejudice to any other rights and remedies of Nodes & Links, Nodes & Links may, without liability, disable the Customer's and its Authorised Users’ passwords, accounts, access to all or part of the Services and the provision of the Onboarding Services until the invoice(s) concerned are paid in full. Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 5% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
Nodes & Links Credits
- Customer shall accrue credits in accordance with clause 5.4. A Customer’s credits can be used as payment towards subsequent Subscription Fees in accordance with Nodes & Links’ fair pricing policy.
- Any credits that may accrue to Customer’s account will expire on the earlier of: (i) 12 months from the date the credits are issued; and (ii) termination or expiration of the Agreement. Credits will have no currency or exchange value, and will not be transferable or refundable.
Customer Data and Derived Data
- The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
- Nodes & Links may use the Customer Data to improve the performance and functionality of the Software or develop improvements, updates, upgrades, modifications and derivative works thereof. Nodes & Links shall own all rights, title and interest in and to all of the Derived Data.
- Nodes & Links may track and analyse the Customer’s and any Authorised User’s use of the Software for the purposes of security and to help Nodes & Links improve the Services and the Software.
- The Customer shall ensure that the Customer Data is uploaded to the Software in an anonymised and/or aggregated form and shall not contain any Personal Data.
- The Customer represents and warrants that it has the right to use the Customer Data and that the processing and use of the Customer Data in accordance with this Agreement shall not infringe or misappropriate any third party rights or breaches Data Protection Legislation. Nodes & Link shall implement reasonable technical measures, including limiting the type of file formats in which Customer Data is uploaded to the Software to assist the Customer with ensuring the Customer Data does not contain Personal Data. The Customer shall ensure its Authorised Users do not deliberately circumvent these technical measures.
Nodes & Links’ Obligations
- Nodes & Links shall provide the Services to the Customer on and subject to the terms of this Agreement.
- Nodes & Links will use reasonable endeavours to ensure that the Software is available through the Term, but Nodes & Links cannot guarantee that the Subscription Services will be available at all times. Nodes & Links’ obligations with respect to availability of the Service are as follows.
- Nodes & Links will ensure that the Service is available for at least 99% of the time between 8.00am - 6.00pm on a Business Day measured over the course of each calendar month during the Term excluding unavailability arising from: (i) the use of third party hardware or software, (ii) a Force Majeure Event (iii) the Customer’s unauthorised actions or inaction when required, or (iv) due to scheduled downtime in accordance with clause 8.2.2 (the “Availability Target”).
- Nodes & Links will notify Customer of any period of scheduled downtime at least (3) days in advance. During any scheduled downtime, unavailability of the Service will be communicated to Customer via email or Customer’s account login screen. Nodes & Links monitors its servers for outages and material errors and will notify customers promptly of any such event. Nodes & Links also provide 24x7 support for critical outages and will aim to resolve outages promptly.
- Subject to clause 8.2.7, if Nodes & Links fails to meet the Availability Target in any given month, Customer shall be entitled to receive a service credit of an amount equal to 5% of the relevant monthly Subscription Fees (a “Service Credit”).
- In the event that Nodes & Links does not meet the Availability Target, the Client must submit a claim to Nodes & Links in order to receive a Service Credit. Customer must submit the claim to Nodes & Links including all the information necessary for Nodes & Links to manage the claim including (i) a detailed description of the incident; (ii) information regarding the time and duration of the downtime; (iii) the number and location(s) of affected Authorised Users (if applicable); and (iv) descriptions of attempts to resolve the incident at the time of occurrence. This claim must be received by the end of the calendar month following the month in which the incident occurred. Upon receiving the claim Nodes & Links shall evaluate the claim and make a good faith determination of whether a Service Credit is owed in accordance with clause 8.2.3. Customer must be in compliance with this Agreement in order to be eligible for a Service Credit.
- If a Service Credit is due to the Customer in accordance with clause8.2.4, the Service Credit shall be discounted against any Subscription Fees payable by the Customer for the next Renewal Term (if applicable).
- Service Credits are Customer’s sole and exclusive remedy for any availability issues under this Agreement. Customer may not unilaterally offset for any availability issues.
- The Service Credits awarded in any given month will not, under any circumstance, exceed £1000.
- Any Service Credits that may accrue to Customer’s account will expire on the earlier of: (i) 12 months from the date the credits are issued; and (ii) termination or expiration of the Agreement. Service Credits will have no currency or exchange value, and will not be transferable or refundable.
8.3 Nodes & Links shall not be liable for any breach of its obligation in clause 8.2 to the extent any non-conformance is caused by use of the Software contrary to Nodes & Links’ instructions, or modification or alteration of the Software by any party other than Nodes & Links or Nodes & Links’ duly authorised contractors or agents. Notwithstanding the foregoing: (a) the Customer acknowledges and agrees that the Subscription Services will evolve over time and that functionality may be added and removed from time to time; (b) subject to 8.2.1, Nodes & Links does not warrant that the Customer's use of the Software will be uninterrupted or error-free; or that the Software and/or the information obtained by the Customer through the Software will meet the Customer's requirements; and (c) subject to clause 8.2, Nodes & Links 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 Subscription Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.4 This Agreement shall not prevent Nodes & Links 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.
- The Customer shall provide Nodes & Links with all necessary co-operation in relation to this Agreement and all necessary access to information as may be required by Nodes & Links to fulfil its obligations under this Agreement, including granting Nodes & Links full and unrestricted access to Customer’s account in order to provide support or fix any errors. The Customer shall be responsible for setting the access rights for each of its Authorised Users, and shall carry out all of its responsibilities in this Agreement in a timely and efficient manner.
- The Customer shall ensure that all its Authorised Users' use the Subscription Services strictly in accordance with this Agreement and shall be responsible for any Authorised User's breach of this Agreement.
- The Customer shall ensure that its network and systems comply with the relevant specifications provided by Nodes & Links from time to time necessary for the operation of the Service, and shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to Nodes & Links’ data centres.
Compliance with Laws and Regulations
- The Customer shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
Intellectual Property Rights
- As between the Parties, all Intellectual Property Rights in and to the Software and the Derived Data, the Guidance, the Subscription Services and the Onboarding Services shall belong to, and remain vested in, Nodes & Links at all times.
- Without prejudice to the generality of the foregoing or to the provisions of clause 2.4 above, to the extent that the Customer’s or the Authorised User’s use of the Subscription Services or any work produced in the course of the Onboarding Services results in any modifications, adaptations, developments, or any derivative works of or to the Software or the operation of the Software (“Improvements”), then notwithstanding any rights or remedies of Nodes & Links under clause 2.4 above, any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by Nodes & Links.
- Nodes & Links makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software.
- Nodes & Links shall defend Customer against any third party claims that the use of the Subscription Services in accordance with this Agreement infringes any third party Intellectual Property Right in the Territory and shall indemnify Customer for and against any amounts awarded against Customer in judgment or settlement of such claims, provided that (i) Nodes & Links is given prompt notice of such claim; (ii) Customer provides reasonable co-operation to Nodes & Links in the defence and settlement of such claim, at Nodes & Links’ expense; (iii) Nodes & Links is given sole authority to defend or settle the claim; and (iv) Customer makes no admission of liability or fault itself or on behalf of Nodes & Links.
- In the defence or settlement of any claim pursuant to clause 11.4 above, Nodes & Links may at its sole option and expense either:
- procure for the Customer the right to continue using the Subscription Services in the manner contemplated by this Agreement,
- replace or modify the Software or Subscription Services as applicable so that it becomes non-infringing, or
- terminate this Agreement forthwith by notice in writing and without liability to Customer.
11.6 Nodes & Links shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 11.4 if the alleged infringement is based on: (i) modification of the Software by anyone other than Nodes & Links; or (ii) Customer’s or any Authorised User’s use of the Software otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to Customer by Nodes & Links in connection therewith; or (iii) Customer’s or ay Authorised User’s use of the Software after notice of the alleged or actual infringement from Nodes & Links or any appropriate authority; or (iv) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred.
11.7 Customer shall defend Nodes & Links against all or any costs, claims, damages or expenses incurred by Nodes & Links in respect of any third party claims relating to the Customer’s or any Authorised User’s use of the Subscription Services otherwise than in accordance with this Agreement, provided that (i) Customer is given prompt notice of such claim; (ii) Nodes & Links provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer’s expense; and (iii) Customer is given sole authority to defend or settle the claim; and (iv) Nodes & Links makes no admission of liability or fault itself or on behalf of Customer.
Term and Termination
- This Agreement shall commence as of the Effective Date and, unless terminated sooner as provided herein, shall continue for the Initial Term. Unless specified otherwise in the Nodes & Links Subscription Form, thereafter, this Agreement shall automatically renew for: (a) successive thirty (30) day periods where the Initial Term is based on a monthly subscription; or (b) successive one (1) year periods where the Initial Term is based on a yearly subscription (each, a “Renewal Term”), unless:
- either Party provides the other with written notice of at least: (a) two (2) days where the Initial Term is based on a monthly subscription; or
- thirty (30) days where the Initial Term is based on a yearly subscription, prior to the beginning of any such Renewal Term electing to not renew this Agreement for such Renewal Term.
12.2 The Initial Term and all Renewal Terms are referred to collectively as the “Term.” If the Customer seeks to terminate the Agreement during the Initial Term or fails to give the requisite notice of termination to Nodes & Links during a Renewal Term, the Fees due for the remainder of the Initial Term or the Renewal Term shall become due and payable to Nodes & Links immediately, and in respect of an annual subscription this shall be calculated on the basis of the average monthly Subscription Fees paid by the Customer over the course of the then current Initial Term or Renewal Term (as applicable).
12.3 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: (i) 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 two (2) Business Days after being notified in writing to make such payment; or (ii) if the other Party commits a material breach of any terms of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) Business Days after being notified in writing to do so; or (iii) the other Party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof, or suffers an Insolvency Event.
12.4 Without prejudice to any other rights or remedies hereunder to which Nodes & Links may be entitled, if Nodes & Links knows or has reasonable grounds to suspect that the Customer is acting in breach of its obligations under this Agreement (including failure to pay Subscription Fees), Nodes & Links may notify the Customer in writing accordingly and may suspend the Services until such breach can be remedied or until Nodes & Links is satisfied, acting reasonably, that its suspicions are unfounded.
12.5 On termination of this Agreement for any reason (a) all licences granted under this Agreement shall immediately terminate; each party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party; (b) the Onboarding Services will immediately terminate and (c) 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.
Limitation of Liability
- This clause 13 sets out the entire financial liability of Nodes & Links to the Customer arising under or in connection with this Agreement, in respect of any use made by the Customer or its Authorised Users of the Service; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
- Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained by its Authorised Users from the use of the Service, and for conclusions drawn from such use. Nodes & Links shall have no liability for any damage caused by errors or omissions in any information, or any actions taken by Nodes & Links at the Customer's direction. No other party is entitled to rely on Nodes & Links’ reports for any purpose whatsoever, and Nodes & Links disclaims any responsibility to any such third party who has had communicated to him or her the information or advice provided by or on behalf of Nodes & Links to the Customer.
- Except as expressly and specifically provided in this Agreement, 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 the Software, the Services and any information provided by or on behalf of Nodes & Links are provided to the Customer on an "as is" basis.
- Nothing in this Agreement excludes either part’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
- Subject to clause 13.4 neither Party shall be liable to the other for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, loss of profit, loss of business, loss of goodwill or loss of or corruption of data.
- Subject to clause 13.4, Nodes and Links shall not be liable for any loss caused or contributed to by any employee, agent, contractor or representative of the Customer, loss caused as a result of the Services being unavailable as a result of planned downtime for the Services as notified to the Customer, loss arising from any failure of the Customer’s infrastructure and/or utilities, loss caused as a result of the Services being unavailable caused by a Force Majeure Event, loss caused by the failure or delay of any third party application or service or network, however arising under this Agreement. Nodes & Links’ entire, aggregate liability in contract, tort (including negligence) arising out of or relating to this Agreement shall be limited to the lesser of: (i) the total Fees paid during the twelve (12) months immediately preceding the date on which the claim arose, or (ii) twenty five thousand pounds.
- The Customer shall not, without the prior written consent of Nodes & Links, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Nodes & Links may, on notice to the Customer assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Confidential Information and Publicity
- “Confidential Information” means all confidential information (however recorded or preserved) disclosed by one Party or its employees, officers, representatives or advisers (together “Representatives”) to the other Party and the other Party’s Representatives whether before or after the Effective Date, including the terms of this Agreement; the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, the operations, processes, product information, know-how, technical information or trade secrets of the disclosing party.
- Confidential Information of the disclosing party shall not include information which (i) is or becomes generally available to the public, other than as a result of a disclosure by the receiving party or any of its Representatives; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) has been independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.; or (iv) the Parties agree in writing is not confidential or may be disclosed.
- The Confidential Information of the disclosing party will be kept confidential and will not be disclosed or divulged by the receiving party to anyone except with the disclosing party’s prior written permission, or as may be required by law or by the order or demand of a court or government agency or authority.
- Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s Representatives who need to review such Confidential Information pursuant to this Agreement, so long as they are bound by confidentiality obligations no less restrictive than those in this clause 15. The receiving party shall be liable for any breach of these confidentiality obligations by their Representatives.
- Upon expiration or earlier termination of this Agreement for any reason, the receiving party will return to the disclosing party or destroy (at the disclosing party’s sole discretion) all Confidential Information of the disclosing party and all copies thereof (except that Customer may retain any Confidential Information needed to fulfil orders then pending as contemplated by this Agreement only until such orders are fulfilled and then must return or destroy, at Nodes & Links’ sole discretion, all Confidential Information).
- Notwithstanding the foregoing, the Customer permits Nodes & Links to identify the Customer as a client. To this end, the Customer grants Nodes & Links a perpetual, non-exclusive, royalty-free and non-transferable licence during the Term of the Agreement for Nodes & Links to use the Customer’s logo, name and branding on the Site and in any marketing and publication materials. The Customer also agrees to participate in a case study to be published on the Site, the particulars of this case study will be agreed between the parties.
- The relationship between the Parties is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties hereto nor authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
- Conflict: In the event of any conflict between the Nodes & Links Subscription Form, these Nodes & Links Licence Terms or any other Schedules hereto, the provisions of the Nodes & Links Subscription Form shall prevail.
- Entire Agreement: This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all prior and contemporaneous agreements, negotiations, promises, assurances, warranties, understandings and representations between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- Amendment: As the Services evolve, Nodes & Links may need to change these Nodes & Links Licence Terms from time to time. If a material change is made to the Agreement, Nodes & Links will provide Customer with 30 days’ notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Nodes & Links Licence Terms at any time by visiting this page. The changes the Customer has been notified of shall only take effect from the start of the next Renewal Term unless otherwise agreed in writing between the Parties. If Customer (or any Authorised User) accesses or uses the Services after the notified effective date of such change, that use will constitute Customer’s acceptance of any revised terms and conditions.
- Waiver: A waiver by any Party of any of its rights hereunder shall not be binding unless in writing signed by an authorised representative of the Party expressly waiving such rights. The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
- Severability: If any provision or part-provision of this Agreement becomes or is held invalid, illegal, or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary but that shall not affect the validity and enforceability of the rest of this Agreement.
- 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.
- Force Majeure: Neither Party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, beyond its reasonable control, including, without limitation, strikes, acts of God, war, terrorism, riot, denial of service attacks, epidemic, pandemic or compliance with any law or governmental order (“Force Majeure Event”). In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non performance continues for three (3) months, the Party not affected may terminate this Agreement by giving thirty (30) days' written notice to the other Party.
- Third Party Rights: No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms, whether pursuant to the Contracts (Rights of Thirds Parties) Act 1999 or otherwise.
- Notices: Any notice given to a Party under or in connection with this contract shall be in writing and shall be deemed to have been received: (i) if delivered by hand at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and (iii) if sent by fax or email, at 9.00 am on the next Business Day after transmission.
- Governing Law and Jurisdiction: this Agreement shall be governed by and construed in accordance with the laws of England and the Parties agree that the English courts shall have exclusive jurisdiction.