Arken.legal Limited Terms and Conditions
You should read these terms and conditions carefully as they form the basis of the Agreement between you and us (each as defined below) for the provision of access to the Arken service provided by Arken.legal. By registering to use the Arken service you confirm that you accept these terms and conditions and agree to be bound by them. Where you are registering to use the Arken service on behalf of a company, partnership, LLP, firm or other organisation, you confirm that you have the necessary authority to bind that organisation.
1.1. The following definitions apply to these terms and conditions:
“we”, “us” or “our” refer to Arken.legal (UK) Limited (company number 02690082), trading as Arken.legal of General Wolfe House, 83 High Street, Westerham, Kent TN16 1PG.
“you” or “your” means you, the individual (not being a consumer), firm, practice, partnership, company, or organisation who or which registers with us to use the Service.
“Account Profile” means the details of your business completed and maintained by you as part of your use of and subscription to the Service including your company/business name and VAT number.
“Administrators” means each individual User who you designate via the Service from time to time to have administrator access to the Service.
“Agreement” means the agreement between you and us for the use of the Service which comprises these terms and conditions (as amended from time to time in accordance with clause 7.5.2), the Data Protection Policy and any other documents referred to in these terms and conditions.
“API” means an Application Programme Interface and any accompanying or related documentation, source code, executable applications and other materials made available by Arken, without limitation, through its developer website.
“API Fees” means the fees payable by you for access to an API as agreed between us.
“Arken Service” means access to the Software on a Service Plan or a Free Trial.
“Authorised User” means such of your authorised employees and consultants who are registered to use the Service including the Primary User and Administrators.
“Business Hours” means hours of 09.00 to 17.00 Monday to Friday UK time (excluding Public or Bank Holidays in England & Wales).
“Client” means your client in respect of whom you are accessing the Service to prepare Documents or in respect of who you are granting access to a Client Accessible Service.
“Client Accessible Service” means any part of the Service which is intended to be accessed directly by your Client.
“Content” means all information and material contained on the Site and within the Software, Downloaded Software and the Service including, without limitation, code, data, text, software, photographs, pictures, graphics, questionnaires, databases, reports and the Documents and TR Reports but excluding Your Data.
“Data Protection Policy” is the data protection provisions set out in the most recent Data Protection Policy available on our Site.
“Data Protection Legislation” has the meaning given in the Data Protection Policy.
“Documents” means the documents created by you via the Service including without limitation Wills and Powers of Attorney but excluding the TR Reports.
“Document Fees” means the fees payable by you for the creation of Documents in excess of those that may be included in your Service Plan (as detailed on the fees page on the Site as updated from time to time) or as otherwise agreed by you and us in writing and signed by our authorised representative.
“Downloaded Software” means any Software provided by us and downloaded by you onto your or your agent’s hardware for accessing the Service.
“Fees” means the Subscription Fees, the Document Fees and any API Fees.
“Free Trial” means the Free Trial offer as detailed on the Site whereby we will allow you access to the Service free of charge for a limited period for one Primary User for evaluation purposes.
“Intellectual Property Rights” means all copyright, design right, registered designs, patents, trade and service marks, rights in relation to databases, know-how, rights in confidential information and all other intellectual property rights throughout the world, whether registered or unregistered and including all rights to applications, pending registrations, renewals and reversions.
“Primary User” means the individual User who sets up your Account Profile or who you otherwise designate via the Service from time to time to have primary user access to the Service.
“Schedule” is the schedule of data protection provisions set out in the Agreement.
“Service” means any Arken subscription service provided by us via the Site or registered for via the Site or subscribed for directly through our customer services team, or access granted by us to any API.
“Service Plan” means the plan you subscribed to from our Site or as otherwise agreed by you and us in writing and signed by our authorised representative.
“Site” means our website www.arken.legal or any other website notified to you by us from time to time.
“Software” means the software applications made available to you by us via the Service or any Downloaded Software.
“Subscription Fees” means the subscription fees payable by you for your Service Plan as detailed on the fees page on the Site as updated from time to time or as otherwise agreed by you and us in writing and signed by our authorised representative.
“Term” means the annual term commencing on the date on which you purchase your first Service Plan or the anniversary or succeeding anniversaries thereof.
“Third Party Services” means any services provided by third parties through an API with the initial interface being from the Site.
“Trust Referencer” means the Arken.legal Trust Referencer Service.
“TR Reports” means the reports and other documents made available to you via the Trust Referencer Service.
“Your Data” means the information and data provided to us by you or inputted by you or your Authorised Users or your Clients into the Service.
- USER SUBSCRIPTIONS
2.1. Subject to the terms of the Agreement and payment by you of the applicable Fees, we hereby grant to you a non-exclusive, non-transferable right to permit Authorised Users to use the Service during the Term for your internal business operations only.
2.2. Your Primary User or Administrators may, from time to time during any Term, upgrade to a higher Service Plan. The increased cost of the selected plan will be applied immediately on a pro rata basis for the remainder of the Term. For the avoidance of doubt, Service Plans cannot be downgraded partway through a Term.
2.3. In relation to the Authorised Users, you undertake that:
2.3.1. you will not allow or suffer any Authorised User to disclose or share their logon details to any third party, and not allow any other person to access the Service using their logon details;
2.3.2. you will ensure that each Authorised User keeps a secure and confidential password for their use of the Service; and
2.3.3. you will not, and will procure that your Authorised Users will not, attempt to obtain, or assist third parties in obtaining, access to the Service.
2.4. You acknowledge that we are permitted to audit your use of the Service in order to verify your compliance with the Agreement. If an audit reveals that the Service has been used in breach of this Agreement, then, without prejudice to our other rights, we reserve the right to charge you for any unauthorised use.
2.5 You may allow your Clients to have access to particular components of the Service where this is required for the functioning of that particular component, however, you will in no circumstances allow your Clients access to any part of the Service where to do so would require the sharing of your logon details or access to the Service using your logon details.
2.6 Where you have subscribed to a Free Trial:
2.6.1 you may use the Service in accordance with the Agreement as if you had subscribed to a Service Plan, subject to trial limitations which we will advise from time to time;
2.6.2 at the end of the Free Trial, unless you subscribe to the Service, you will cease to have access to the Service and we will destroy or otherwise dispose of your Documents and Your Data without further notice to you;
2.6.3 you may subscribe to the Service at any time during the Free Trial period by paying the Subscription Fees.
3.1. We will, during the Term, provide the Service to you in accordance with the Agreement.
3.2. We will provide technical maintenance of the Software and will provide or procure maintenance of the Service.
3.3. We will use commercially reasonable endeavours to ensure that the Service is available 24 hours a day, seven days a week, except for:
3.3.1. any planned maintenance carried out during the maintenance window of 21.00 to 07.00 UK time; and
3.3.2. any unscheduled maintenance deemed by us to be necessary to perform outside of the maintenance window referred to above. In any such circumstances we will use commercially reasonable endeavours to give you at least 4 hours’ notice in advance where any such unscheduled maintenance occurs during Business Hours.
- THIRD PARTY SERVICES
4.1 From time to time, Arken may partner with third party organisations to provide Third Party Services using an API on the Site. For the avoidance of doubt, such Third Party Services are provided separately from this Agreement and are subject to the terms and conditions of the third party provider.
4.2 Arken is not a party to any agreement for the provision of Third Party Services and expressly disclaims all liability for the provision of any Third Party Services.
4.3 In respect of any Third Party Services, the third party service provider (and not us) will be the Data Processor in respect of any Data Protection Legislation.
4.4 If you access an API, you:
4.4.1 must pay the API Fees;
4.4.2 must abide by a reasonable use standard in respect of any free test documents we allow you to create to test the API;
4.4.3 must not use any test documents for any purpose other than for testing the functioning of the API including for commercial gain, personal use or supplying to any third party;
4.4.4 acknowledge that you use the API at your own risk and that Arken cannot be held responsible in any way for any information that you access or change through the API;
4.4.5 must keep confidential:
22.214.171.124 your unique identifier;
126.96.36.199 your client ID; and
188.8.131.52 your client secret; and
4.4.6 you indemnify us against any loss cause by improper use of the API by you or as a result of any failure to keep confidential information required by clause 4.4.5.
4.5 In providing you access to an API we:
4.5.1 do not warrant that the API will be available for use and will not be liable for any loss whatsoever relating to the API being unavailable; and
4.5.2 will give you written notice of not less than three months if we intend to permanently withdraw access to an API in respect of which you are paying API Fees unless such withdrawal results from your misuse of the API or breach of this Agreement.
- YOUR DATA
5.1 As between you and us, you will own all Intellectual Property Rights and other rights, title and interest in and to Your Data and you will have sole responsibility for the legality, reliability, integrity, accuracy, quality and security of Your Data.
5.2. You warrant that you have all necessary rights, consents and licences to provide Your Data to us in accordance with the Agreement and that use of Your Data will not infringe the Intellectual Property Rights or other rights of any third party.
5.3. We will follow archiving procedures for Your Data as set out in our back-up policy (as may be amended by us at our sole discretion from time to time) a copy of which is available upon request (“Back-Up Policy”). In the event of any loss or damage to Your Data caused by us, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of Your Data maintained by us in accordance with our Back-Up Policy. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by us to perform maintenance and back-up services of Your Data).
5.4. It is your responsibility to maintain your own record and copies of Your Data and of any Documents and TR Reports created via the Service as required by any applicable laws and your own internal data retention policies.
5.5. In providing the Service, we will comply with the Data Protection Legislation as defined in the most recent Data Protection Policy available on the Site. Where there is any inconsistency between the terms of the Data Protection Policy and any term of the Agreement, the terms of the Data Protection Policy shall take precedence only in respect of the processing of Your Data. References to “include”, “includes” and “including” shall be read as being followed by “without limitation” so as to provide a non- exhaustive list of examples.
5.6. You acknowledge that, except in relation to any Third Party Services, in the processing of any personal data contained in Your Data, the intention is that you will be the data controller and we will be the data processor of such personal data (as these terms are defined in Data Protection Legislation) and in any such case:
5.6.1. you will ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with the Agreement;
5.6.2. you will ensure that the relevant Clients and other third parties have been informed of such use, processing and transfer as required by Data Protection Legislation;
5.6.3. we will process the personal data only in accordance with the Agreement; and
5.6.4. both parties will take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
- YOUR OBLIGATIONS
6.1. You undertake and agree that you will at all times during the Term and, where applicable, following termination, comply with the terms of the Agreement.
6.2. You undertake and agree that you will and where applicable you will procure that your Authorised Users will:
6.2.1. keep your Account Profile up to date at all times;
6.2.2. keep secure your password, log on details, client ID, client secret and unique identifier (as applicable);
6.2.3. comply with all applicable laws and regulations with respect to your activities under the Agreement and in the use of the Service;
6.2.4. use the Service, the Documents and the TR Reports in accordance with the Agreement;
6.2.5. be solely responsible for procuring and maintaining hardware and telecommunication links to enable Authorised Users to access and use the Service;
6.2.6. not do anything that would incur any liability on our behalf or that could bring our name or reputation or that of the Software or the Service into disrepute;
6.2.7. notify us immediately should you become aware of any error which renders document output of the Service defective; and
6.2.8. use all reasonable endeavours to prevent any unauthorised, unlawful or improper access to or use of the Service, the Documents and / or the TR Reports and, in the event of any such access or use you will notify us promptly.
6.3. You must ensure that your Authorised Users accessing the Service to process Documents or to produce TR Reports are competent and suitably qualified in all respects. It is your responsibility to ensure the Documents and TR Reports generated are correct. We do not accept responsibility for the correctness or appropriateness of any such Documents and TR Reports or any actions taken by you or your Clients in reliance on the same.
6.4. You are responsible for ensuring your Authorised Users comply with the terms of the Agreement.
6.5. You will not access, store, distribute or transmit any viruses, Trojan horses or worms, or any material during the course of your use of the Service that:
6.5.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
6.5.2. facilitates illegal activity;
6.5.3. depicts sexually explicit images;
6.5.4. promotes unlawful violence;
6.5.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
6.5.6. causes damage or injury to any person or property.
6.6. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, you will not:
6.6.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download (except in the case of Downloaded Software), display transmit, or distribute all or any portion of the Service or the Software in any form or media or by any means;
6.6.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service or the Software; or
6.6.3. access all or any part of the Service, the Software, the Documents or the TR Reports in order to build a competing product or service.
6.7 In allowing your Clients to access a Client Accessible Service, you must bind them to terms and conditions which are no less onerous than the terms and conditions of this Agreement, including (but not limited to) acknowledging that for the purpose of their using the Service that you are the data controller, that we are not a party to any agreement between you and your Client and, to the extent that a document is generated automatically without being submitted to you for checking, that the Client is responsible for assessing the suitability and efficacy of such document.
6.8 To the extent that you have subscribed for Trust Referencer, you must also comply with the specific terms and conditions of the Trust Referencer service. To the extent that the Trust Referencer terms and conditions differ from this Agreement, the Trust Referencer terms and conditions will prevail to the extent that they apply to the Trust Referencer service.
- OUR RIGHTS AND OBLIGATIONS
7.1 We undertake that in providing the Service we will comply with the Agreement and, in so doing, will apply all reasonable skill and care.
7.2. We will use commercially reasonable efforts to rectify any material errors in the Software or the Service as soon as reasonably practicable after becoming aware of or being notified (by you or a third party) of the same. We reserve the right to suspend the Service whilst any such errors are rectified.
7.3. Notwithstanding the foregoing, we:
7.3.1. do not warrant that your use of the Service will be uninterrupted or error-free, nor that the Service, Documents, TR Reports and/or information obtained by you through the Service will meet your requirements;
7.3.2. do not accept responsibility 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 you acknowledge that the Service, Documents and TR Reports may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
7.3.3. do not warrant the functionality or compatibility of the Service or the Software with any particular browser or operating environment including but not limited to Mobile devices or software.
7.4. Nothing in the Agreement will prevent us 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 the Agreement.
7.5. We reserve the right to:
7.5.1. suspend your access to the Service for any reason, at our sole discretion, at any time; and
7.5.2. change these terms and conditions at any time. Any changes to these terms and conditions will be available via the Site.
- FEES AND PAYMENT
8.1 You must pay the Fees to us in accordance with this clause 8.
8.2. The Subscription Fees are payable in advance and may either be paid annually or by 12 equal monthly instalments.
8.3. The Document Fees are payable monthly in arrears.
8.4. The liability for a Document Fee for a Document will be deemed to have been incurred when the Document is first selected and confirmed by the Authorised User. The Document will remain ‘live’ for editing for a set period of time (as detailed via the Service from time to time). At the end of this period the Document will be ‘locked,’ and no further changes will be permitted.
8.5. Payment of all Fees:
8.5.1. will be by Direct Debit, Debit Card, or Credit Card;
8.5.2. is, unless otherwise expressly stated in the Agreement, non-cancellable and non-refundable; and
8.5.3. is exclusive of value added tax, which will be added to the Fees at the appropriate rate from time to time.
8.6. We will be entitled to increase the Fees at any time provided that we will not increase the Fees more than once in any year. Details of the new Fees will be available via the fees page on the Site or notified to you by email or in writing.
8.7. Whilst payment of any Fees remains outstanding, we may, without liability to you and without prejudice to our other rights and remedies, revoke your account and/or disable Authorised Users’ passwords and access to all or part of the Service and we will be under no obligation to provide any or all of the Service.
8.8. If we have not received payment of the Fees by the due date for payment, without prejudice to our other rights and remedies, we may charge interest on a daily basis at the rate of 2% per month commencing on the due date and continuing until fully paid, whether before or after judgment. We reserve the right to escalate attempts to collect any Fees which remain unpaid 30 days after their due date to a legal services organisation and/or to a collection agency and any fees or costs relating to this escalation shall be borne by you in addition to the unpaid Fees and interest charges.9.
INTELLECTUAL PROPERTY RIGHTS
9.1. You acknowledge and agree that we (or our licensors) own all Intellectual Property Rights in the Content. Except as expressly stated herein, the Agreement does not grant you or your Authorised Users any rights to the Intellectual Property Rights or any other rights or licences in respect of the Content.
9.2. In respect of the Documents and TR Reports, you may:
9.2.1. view, copy and print out Documents and TR Reports for your own internal business purposes;
9.2.2. subject to clause 9.3, use each Document and TR Report created for a particular Client, solely for the purposes of the matter on which you are advising such Client; and
9.2.3. not copy into a format other than PDF, revise or alter the Documents and TR Reports.
9.3. You acknowledge that the TR Reports are for your own internal business purposes only and that whilst you can make information from the TR Reports available to your Clients for the purposes of any matter on which you are advising.
- TERM AND TERMINATION
10.1. The Agreement will come into force upon the commencement of any agreed Free Trial or the first Term and, subject to earlier termination in accordance with the Agreement, will automatically renew for further Terms (each lasting for 12 months) unless terminated by either party giving the other not less than 3 months’ notice in writing to end on the last day of the then current Term.
10.2. An Agreement for a Free Trial shall automatically terminate at the end of the Free Trial period unless you subscribe to the Service during the Free Trial period by paying the Subscription Fees.
10.3. We may withdraw the Service from you at any time at our sole discretion by giving you not less than 3 months’ notice. In the event that we withdraw the Service in these circumstances, we will refund to you any Subscription Fees paid by you which relate to the period after such withdrawal.
10.4. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
10.4.1. the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
10.4.2. the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
10.4.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
10.4.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.4.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.4.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
10.4.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
10.4.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10.4.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
10.4.10. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.5. Save as set out in this clause 10, you are not permitted to terminate the Agreement part way through a Term and must pay the Subscription Fees for the whole Term.
10.6. Without prejudice to our other rights and remedies, if we terminate the Agreement in accordance with clause 10.4 prior to the end of a Term, we may invoice you for the Subscription Fees which would have been payable had the Agreement continued until the end of the Term. Such invoice will be payable immediately upon receipt.
10.7. On termination of the Agreement for any reason:
10.7.1. your right to use and access the Service will immediately terminate;
10.7.2 following termination we will give you access to the system for a period of 5 days solely to download a copy of all of your Data and Documents which are then held via the Service. Following such period we will be entitled to securely destroy or otherwise dispose of your Documents and Your Data;
10.7.3 following termination, if you would like us to provide a downloaded report of all Data and Documents held by the Service, this would be by arrangement and would be at your cost. You must make a request for such report within five days of termination.
10.7.4. 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 will not be affected or prejudiced.
10.8. Where you register via the Site to access Trust Referencer in relation to the Arken service, your access to Trust Referencer will terminate upon termination of the Agreement. Where you have registered for Trust Referencer separately (for example via www.trustreferencer.com) your use of Trust Referencer will be separate from the Agreement and termination of the Agreement will not affect continuation of access to Trust Referencer (or vice versa).
- CONFIDENTIAL INFORMATION
11.1. Each party may be given access to business and financial information, technology, trade secrets and any other information of a confidential nature of the other party (“Confidential Information”) in order to perform its obligations under the Agreement. A party’s Confidential Information will not be deemed to include information that:
11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2. was in the other party’s lawful possession before the disclosure;
11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2. Each party will hold the other party’s Confidential Information in confidence and, unless required by law, not make the other party’s Confidential Information available to any third party or use the other party’s Confidential Information for any purpose other than the performance of the Agreement. Nothing in this clause 11 will prevent us from using third party service providers (including hosting providers and contractors) in the provision of the Service subject to compliance with the Data Protection Policy.
11.3. Each party will take reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (including, in your case and for the avoidance of doubt, Authorised Users), in violation of the Agreement. We will not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.4. You acknowledge that details of the Service and the results of any performance tests of the Service constitute our Confidential Information. You further acknowledge that we will be entitled to retain and use both during and after the term of the Agreement any information and data received or generated from the use of the Service on an anonymised, de-identified basis which does not identify you or your Clients for such purposes as we may require including for producing reports, forecasting, monitoring, analysis and operational purposes.
11.5. We acknowledge that Your Data is your Confidential Information.
11.6. This clause 11 will survive termination of the Agreement, however arising.
- LIMITATION OF LIABILITY
12.1. Nothing in the Agreement excludes our liability:
12.1.1. for death or personal injury caused by our negligence; or
12.1.2. for fraud or fraudulent misrepresentation.
12.2. You will have no claim against us arising from any actions brought against you by your Clients or associated third parties arising from the use of the Service or the use or content of any Documents or TR Reports.
12.3. You assume sole responsibility and entire risk as to the suitability of the Service, the Documents, the TR Reports and results obtained therefrom and for any decisions made or actions taken based on information or data contained in the Service or any Documents or TR Reports. You acknowledge that:
12.3.1. we cannot under any circumstances be regarded as supplying tax, legal accounting or any other advice, and in this regard any such advice which ought to be provided by you to your Client, you yourself will provide or procure;
12.3.2. you are not relieved of any responsibility, including to any third party, for the preparation, content, accuracy and review of Documents and TR Reports created; and
12.3.3. the Service, Documents and TR Reports are not intended nor can they be relied upon as a substitute for your exercise of proper professional judgment as may be required.
12.4. Whilst we will take such measures as are consistent with good industry practice to reasonably ensure that the System is fit for purpose and free from viruses, Trojan horses and worms we do not accept liability for:
12.4.1. the transmission of any virus, Trojan horse, worm or other routine or device;
12.4.2. any inaccuracy of information provided as part of the Service, the Documents or the TR Reports;
12.4.3. the content of any Documents or TR Reports created by the Service;
12.4.4. failure in the sending or delivery of e-mails or other data; or
12.4.5. lapses or defects in the security of the Software or the Service.
12.5. Subject to clause 12.1:
12.5.1. we will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of opportunity, loss of business, depletion of goodwill and/or similar losses or loss or corruption of systems, data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
12.5.2. our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement will be limited to an amount equal to the Subscription Fees paid by you during the Term during which the claim arose.
12.6. Except as expressly and specifically provided in these terms and conditions 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 the Agreement including, without limitation, warranties of satisfactory quality or fitness for a particular purpose and the Service, the Documents and TR Reports are provided to you on an “as is” basis.
13.1. These terms and conditions are the only terms and conditions applying to our provision of the Service and apply to the exclusion of any other express or implied conditions including any terms and conditions to which any order of yours may purport to be subject.
13.2. No variation to the Agreement will be binding unless agreed in writing between duly authorised representatives of the parties.
13.3. In these terms and conditions, the introduction the schedules, and any policies referred to by this Agreement any reference:
13.3.1. to any statute or statutory provision includes a reference to that statute or statutory provision as amended, extended or re-enacted and to any regulation, order, instrument or subordinate legislation under the relevant statute or statutory provision;
13.3.2. to the singular includes a reference to the plural and vice versa;
13.3.3. to any gender includes a reference to all other genders; and
13.3.4. headings used in these terms and conditions are for ease of reference only and will not affect its interpretation.
13.4. No delay or forbearance by us in enforcing any provisions of these terms and conditions will be construed as a waiver of such provision or any agreement thereafter not to enforce the said provision on that or any other occasion or another provision on another occasion.
13.5. We will have no liability to you under the Agreement if we are prevented from or delayed in performing our obligations under the Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, denial-of-service/distributed denial-of-service attacks, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
13.6. The Service, the Documents and the TR Reports do not provide legal advice nor represent a legal advisory service.
13.7. If any provision of these terms and conditions is found void and unenforceable, it will not affect the validity of the remainder of the provisions which will remain valid and enforceable.
13.8. We may at any time assign, subcontract, mortgage, charge, declare a trust over or deal in any other manner with any or all of our rights under the Agreement. You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of your rights and obligations under the Agreement without our prior written consent.
13.9. Where two or more legal entities constitute you, their liability will be joint and several.
13.10. The Agreement will be governed by the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).