Terms & Conditions
ONEPLAN TERMS OF SERVICE
Terms of Service last updated: 13 October 2020.
(A) These Terms of Service are entered into by One Plan Limited, with its registered office at Kemp House, 152 – 160 City Road, London, EC1V 2NX) (“OnePlan”) and the customer detailed in the Customer Order (“Customer”) (together referred to as the “parties” and each a “party”). Each Customer Order entered into by the Customer will form a separate agreement, incorporating the OnePlan Terms of Service (together the “agreement”).
(B) OnePlan has developed a platform that is made available to subscribers via the internet to provide tools, customisations and collaboration used to build an event, venue or retail plan. OnePlan is willing to provide access to the authorised users of the Customer on the terms of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Agreement Term: has the meaning given in clause 14.1.
Authorised User: an employee, agent or independent contractor of the Customer who is authorised by the Customer to use the OnePlan Service and the User Instructions with full editing capability, as further described in clause 3.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer Data: all text, information, data, software, executable code, images, audio or video material, in whatever medium or form inputted by the Customer, Authorised Users, or OnePlan on the Customer’s behalf for the purpose of using the OnePlan Service or facilitating the Customer’s use of the OnePlan Service.
Customer Order: the Customer’s order for the OnePlan Service that has been accepted by OnePlan under clause 2.2, which includes the Customer details, the OnePlan Subscription and the Subscription Fees.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Effective Date: has the meaning given in clause 2.2.
Guest Users: Authorised Users with view-only access to the OnePlan Service at no cost.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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, and Intellectual Property Rights include, without limitation, any Marks.
a) any trade marks, trade names, service marks, trade dress, logos, URLs and domain names;
b) any identifying slogans and symbols;
c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b); and
d) the “look and feel”,
of a party to this agreement, whether or not registered.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
OnePlan Platform: certain software applications and platform that are made available to OnePlan customers via the internet on a subscription basis, as found at https://www.oneplanevents.com/.
OnePlan Service: the OnePlan subscription service provided by OnePlan to the Customer under this agreement via the OnePlan Platform, to provide the tools, customisations and collaboration used to build an event, venue or retail plan.
OnePlan Subscription: the applicable OnePlan Service price plan selected by the Customer as set-out in the Customer Order and more particularly described in the User Instructions.
Subscription Fees: the subscription fees payable by the Customer to OnePlan for the User Subscriptions, as set out in the Customer Order.
Trial Service: the provision of the OnePlan Service on a trial basis or provided without charge for the period identified in the OnePlan Service or the Customer Order.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
User Instructions: any relevant instructions and guides as to how to use the OnePlan Service, made available by OnePlan to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.2 which entitle Authorised Users to access and use the OnePlan Service and the User Instructions in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2. Interpretation. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement. A reference to writing or written includes email but not faxes. 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. 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.
2. Customer Order
2.1. The Customer’s request for access to the OnePlan Service is submitted through the OnePlan Platform and is subject to these Terms of Service.
2.2. OnePlan’s acceptance of the Customer’s request takes place when it sends an email to Customer containing the Customer Order, at which point and on which date (the “Effective Date”) the agreement between OnePlan and the Customer will come into existence.
2.3. If OnePlan cannot accept Customer’s request for whatever reason, OnePlan will inform Customer of this by email and will not process the Customer Order.
3. User subscriptions
3.1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 4.3 and clause 9.2, the restrictions set out in this clause 3, and the other terms and conditions of this agreement, OnePlan grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the OnePlan Service and the User Instructions during the Agreement Term solely for the Customer’s business operations.
3.2. In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the OnePlan Service and the User Instructions shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the OnePlan Service; and
(c) each Authorised User shall keep a secure password for his use of the OnePlan Service, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential.
3.3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the OnePlan Service that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and OnePlan reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.4. The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the OnePlan Platform (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the OnePlan Platform; or
(b) access all or any part of the OnePlan Service and the User Instructions in order to build a product or service which competes with the OnePlan Service; or
(c) use the OnePlan Service and/or the User Instructions to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the OnePlan Service and/or the User Instructions available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the OnePlan Service and/or the User Instructions, other than as provided under this clause 3.
3.5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the OnePlan Service and/or the User Instructions and, in the event of any such unauthorised access or use, promptly notify OnePlan.
3.6. Authorised Users may provide Guest Users with access to the OnePlan Service in read-only form. Guest Users shall not count towards the number of User Subscriptions.
3.7. The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4. Additional user subscriptions
4.1. Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during the Agreement Term, purchase additional User Subscriptions in excess of the initial number allowed under the OnePlan Subscription and OnePlan shall grant access to the OnePlan Service and the User Instructions to such additional Authorised Users in accordance with the provisions of this agreement.
4.2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify OnePlan in writing. OnePlan shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where OnePlan approves the request, OnePlan shall activate the additional User Subscriptions within five (5) days of its approval of the Customer’s request.
4.3. If OnePlan approves the Customer’s request to purchase additional User Subscriptions, the Customer shall pay to OnePlan the relevant fees for such additional User Subscriptions as set out on the OnePlan Platform. The relevant fees shall be paid according to clause 9 as if they were part of the Subscription Fees.
5. The OnePlan Service
5.1. OnePlan shall, during the Agreement Term, provide the OnePlan Service and make available the User Instructions to the Customer on and subject to the terms of this agreement.
5.2. OnePlan shall use commercially reasonable endeavours to make the OnePlan Service available 24 hours a day, seven (7) days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
(b) unscheduled maintenance performed, provided that OnePlan has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance.
5.3. OnePlan may collect, store and use information on the use and performance of the OnePlan Service in order to:
(a) detect threats or errors to the OnePlan Service and/or its operations;
(b) better understand how the OnePlan Service is being used by, and the value it provides to, the Customer; and
(c) for the purposes of improvement of the OnePlan Service.
6. Data Protection
6.1. 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 all such Customer Data.
6.2. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against OnePlan shall be for OnePlan to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by OnePlan in accordance with its archiving procedures.
6.4. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
6.5. The parties acknowledge that:
(a) if OnePlan processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and OnePlan is the processor for the purposes of the Data Protection Legislation.
(b) Clause 6.10 sets out the scope, nature and purpose of processing by OnePlan, the duration of the processing and the types of personal data and categories of data subject.
(c) the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the OnePlan Service and OnePlan’s other obligations under this agreement.
6.6. Without prejudice to the generality of clause 6.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to OnePlan for the duration and purposes of this agreement so that OnePlan may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
6.7. Without prejudice to the generality of clause 6.4, OnePlan shall, in relation to any personal data processed in connection with the performance by OnePlan of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless OnePlan is required by the laws of any member of the European Union or by the laws of the European Union applicable to OnePlan and/or Domestic UK Law (where “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (“Applicable Privacy Laws”). Where OnePlan is relying on Applicable Privacy Laws as the basis for processing personal data, OnePlan shall promptly notify the Customer of this before performing the processing required by the Applicable Privacy Laws unless those Applicable Privacy Laws prohibit OnePlan from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or OnePlan has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) OnePlan complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) OnePlan complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Privacy Laws to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 6.
6.8. Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
6.9. OnePlan will only permit certain third-party processors to process the Customer’s personal data whom, in OnePlan’s reasonable opinion, possess the appropriate expertise to carry out the relevant processing activities in respect of the personal data. The Customer acknowledges that OnePlan uses certain subcontractors for the purpose of cloud hosting, error logging and transactional email services in order to provide the OnePlan Service. OnePlan shall only subcontract any of its obligations to process personal data if the proposed subcontractor has entered into a contract with OnePlan that provides substantially equivalent safeguards for the personal data as set out here. As between the Customer and OnePlan, OnePlan shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.9.
6.10. Details of the Processing of Personal Data under the agreement are as follows: Subject matter and nature and purpose of the Processing: to fulfil the requirements of the agreement and/or the Customer Order. Duration of Processing: The Agreement Term unless otherwise agreed by the parties. Type of Personal Data: Incidental Personal Data that may need to be made accessible during the Agreement Term such as personal details and contact details. Other Personal Data will likely also be Processed from time to time, the nature and extent of which would depend on the type and particular circumstances of the matter on which you use the OnePlan Service. Categories of Data Subjects: partners, members, directors, officers, employees, shareholders, or contractors of Customer.
7. OnePlan’s obligations
7.1. OnePlan warrants that:
(a) the OnePlan Service will conform substantially in accordance with its description in the User Instructions; and
(b) it will provide the OnePlan Service with reasonable care and skill.
(a) does not warrant that: (i) the Customer’s use of the OnePlan Service will be uninterrupted or error-free; (ii) that the OnePlan Service, the User Instructions and/or the toolkits, plans, or other information obtained by the Customer through the OnePlan Service will meet the Customer’s requirements; or (iii) the OnePlan Service will ensure that a Customer’s event or venue will comply with any government regulation or law; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the OnePlan Service and the User Instructions may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3. This agreement shall not prevent OnePlan from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.4. OnePlan warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8. Customer’s obligations
The Customer Shall:
(a) provide OnePlan with: (i) all necessary co-operation in relation to this agreement; and (ii) all necessary access to such information as may be required by OnePlan in order to provide the OnePlan Service, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, OnePlan may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the OnePlan Service and the User Instructions in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) ensure that its network and systems comply with the relevant specifications provided by OnePlan from time to time; and
(f) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to OnePlan’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9. Charges and payment
9.1. No fees shall be payable for the Trial Service.
9.2. From the fourteenth (14th) day after the end of the Trial Period, for the duration of the Agreement Term, the Customer shall pay to OnePlan the Subscription Fees for the User Subscriptions in accordance with this clause 9.
9.3. The Customer shall, on the Effective Date, provide to OnePlan (a) valid, up-to-date and complete credit card details or (b) an approved purchase order information and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to OnePlan, the Customer hereby authorises OnePlan to bill such credit card for the Subscription Fees in advance on a monthly basis during the Agreement Term; or
(b) its approved purchase order information to OnePlan, OnePlan shall invoice the Customer in advance for the Subscription Fees payable for each month of the Agreement Term and the Customer shall pay each invoice on receipt.
9.4. If OnePlan has not received payment on the due date, and without prejudice to any other rights and remedies of OnePlan:
(a) OnePlan may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the OnePlan Service and OnePlan shall be under no obligation to provide any or all of the OnePlan Service while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5. All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of Charges, which shall be added to OnePlan’s invoice(s) at the appropriate rate. In this clause 9.5(c), “Charges” means any tax (including VAT), levy, impost, duty or other charge, fee, deduction or withholding of a similar nature (including any penalty, surcharge or interest payable) paid or payable by OnePlan in connection with the amounts or fees received from the Customer under this agreement.
9.6. OnePlan shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 4.3, upon thirty (30) days’ prior written notice to the Customer and this agreement shall be deemed to have been amended accordingly.
10. Intellectual property
10.1. The Customer acknowledges and agrees that OnePlan and/or its licensors own all Intellectual Property Rights in the OnePlan Platform, the OnePlan Service and the User Instructions. Except as expressly stated herein, this agreement does not grant the Customer any Intellectual Property Rights or any other rights or licences in respect of the OnePlan Service or the User Instructions.
10.2. OnePlan confirms warrants that it owns all the Intellectual Property Rights in relation to the OnePlan Service and the User Instructions that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10.3. The Customer (or its licensors) shall own all Intellectual Property Rights in the Customer Data (together the “Customer IPRs”). The Customer hereby grants to OnePlan a non-exclusive, non-transferable right during the Agreement Term to use the Customer IPRs to provide the OnePlan Service to the Customer in accordance with this agreement.
10.4. The Customer hereby assigns (or shall or procure the assignment) with full title guarantee to OnePlan all of the Intellectual Property Rights in any feedback and suggestions for improvement of the OnePlan Service given by the Customer or its Authorised Users (including by way of present assignment of future Intellectual Property Rights).
11.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2. Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
11.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5. The Customer acknowledges that details of the OnePlan Service, and the results of any performance tests of the OnePlan Service, constitute OnePlan’s Confidential Information.
11.6. OnePlan acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7. The Customer acknowledges and agrees that OnePlan may include the Customer’s name or logo in a list of OnePlan’s customers and refer to the Customer, orally or in writing, as a customer of the OnePlan Service for promotional, marketing and financial reporting purposes.
11.8. Save for clause 11.7, no party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.9 The above provisions of this clause 11 shall survive termination of this agreement, however arising.
12.1. The Customer shall defend, indemnify and hold harmless OnePlan against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) resulting from:
(a) any claim by a third party that the Customer IPRs or their use infringes the Intellectual Property Rights of that third party; or
(b) Customer’s breach of Applicable Privacy Laws in relation to this agreement.
12.2. OnePlan shall defend, indemnify and hold harmless the Customer against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) resulting from:
(a) any claim by a third party that the OnePlan Service or its use infringes the Intellectual Property Rights of that third party; or
(b) OnePlan’s breach of Applicable Privacy Laws in relation to this agreement.
12.3. In relation to the indemnified claims under clauses 12.1 and 12.2, the indemnified party shall use reasonable endeavours to:
(a) give the indemnifying party prompt notice of any such claim;
(b) provide reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party’s expense; and
(c) give the indemnifying party sole authority to defend or settle the claim.
12.4. In the defence or settlement of any claim under clause 12.2(a), OnePlan may procure the right for the Customer to continue using the OnePlan Service, replace or modify the infringing aspect of the OnePlan Service so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.5. In no event shall OnePlan, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement under clause 12.2(a) is based on:
(a) a modification of the OnePlan Service or the User Instructions by anyone other than OnePlan; or
(b) the Customer’s use of the OnePlan Service or the User Instructions in a manner contrary to the instructions given to the Customer by OnePlan; or
(c) the Customer’s use of the OnePlan Service or the User Instructions after notice of the alleged or actual infringement from OnePlan or any appropriate authority.
12.6. This clause 12.6 states the Customer’s sole and exclusive rights and remedies, and OnePlan’s (including OnePlan’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
13. Limitation of liability
13.1. Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the OnePlan Service and the User Instructions by the Customer, and for conclusions drawn from such use. OnePlan shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to OnePlan by the Customer in connection with the OnePlan Service, or any actions taken by OnePlan at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
(c) the Customer assumes sole responsibility for interruption to or errors in the OnePlan Service due to failure of or interruption to the Customer’s IT systems or due to the Customer’s systems not meeting the minimum technical requirements notified by OnePlan from time to time; and
(d) the OnePlan Service and the User Instructions are provided to the Customer on an “as is” basis.
13.2. Nothing in this agreement excludes the liability of OnePlan:
(a) for death or personal injury caused by OnePlan’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3. Subject to clause 13.2:
(a) OnePlan shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
(b) OnePlan’s total aggregate liability in respect of the Trial Service (howsoever arising under or in connection with the Agreement) shall not exceed £1,000 (GBP one thousand); and
(c) OnePlan’s total aggregate liability in all other cases in contract (excluding in respect of the indemnities at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the twelve (12) months immediately preceding the date on which the claim arose.
14. Term and termination
14.1. This agreement shall commence on the Effective Date and shall continue until terminated (the “Agreement Term”) by:
(a) the Customer giving OnePlan written notice at any time during the Trial Service to immediately discontinue with the OnePlan Service after the end of the Trial Service period;
(b) the Customer giving OnePlan written notice at any time after the Trial Service period to immediately discontinue with the OnePlan Service;
(c) OnePlan giving the Customer sixty (60) days’ written notice; or
(d) either party in accordance with the provisions of this agreement.
14.2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fifteen (15) days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party is unable to pay its debts or becomes insolvent or an order or an application is made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any of its assets or an application or a filing for a moratorium is made in respect of the other party under Schedule A1 Insolvency Act 1986 or the other party enters into or proposes any composition or arrangement with its creditors generally, or anything analogous to the foregoing occurs in any applicable jurisdiction); or
(e) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3. On termination of this agreement for any reason:
(a) all rights granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the OnePlan Service and/or the User Instructions;
(b) each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
(c) OnePlan may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 6.7(c), unless OnePlan receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. OnePlan shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by OnePlan in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
OnePlan shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of OnePlan or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16.1. The agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
16.2. Notices and other communications under this agreement shall be sent by hand, recorded delivery post or by email to: (a) in the case of those to OnePlan, for the attention of Paul Foster, Founder & CEO, at OnePlan’s registered office from time to time or by email to [email protected]; and (b) in the case of notices to the Customer, to any email or physical address or contact details notified to OnePlan.
16.3. No variation of the agreement shall be valid or effective unless it is: (a) an update made in accordance with the agreement; or (b) made in writing, refers to the agreement and is duly signed or executed by, or on behalf of, each party.
16.4. Except as expressly approved the other party, neither party shall assign, sub-contract or deal in any other manner with any or all of its rights or obligations under the agreement.
16.5. The agreement does not establish any joint venture, partnership, trust, fiduciary or other relationship between the parties, other than the contractual relationship expressly provided for in it.
16.6. If any provision of the agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the agreement shall not be affected.
16.7. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
16.8. A person who is not a party to the agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
16.9. Each party represents and warrants to the other that it has the right, power and authority to enter into the agreement and grant to the other the rights (if any) contemplated in the agreement and to perform its obligations under the Agreement.
16.10. The agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
16.11. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the agreement, its subject matter or formation (including non-contractual disputes or claims).