Terms of Service

Publication Date: 9 July 2024

Effective Date: 1 September 2024

Previous Versions: 13 October 2020

1. Introduction
   OnePlan provides a service that provides event and venue planning, design, and management tools to its subscribers through the internet.  OnePlan is willing to provide access to the service to its Customers on a subscription basis.  If you are an individual accessing or using the Services on behalf of the Customer, you represent that you are authorised to accept this Agreement on behalf of Customer.
   
   Defined/capitalised terms have the meaning given in clause 16 of these Terms of Service. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases of the Services made by Customer. OnePlan may modify the Agreement from time to time as permitted in clause 15.5 (Modifications to Agreement).
   
   By indicating your acceptance of the Agreement or accessing or using the Services, Customer is agreeing to be bound by the terms and conditions of the Agreement. Each party expressly agrees that the Agreement is legally binding upon it.
   
   Purchase from Reseller: If Customer purchases the Services from an authorised reseller of OnePlan (“Reseller”), Customer’s use of the Services will be governed by the Agreement, subject to clause 15.15 (Reseller Orders) below.
2. The Subscription Service
   1. Use of Subscription Service. Subject to payment of the Subscription Fees and to the Seat limitations in clause 4, OnePlan grants to Customer a non-exclusive, non-transferable right during the Subscription Term to access and use the Subscription Service solely for use by Customer and its Users.  Customer’s use of the Subscription Service must be in accordance with the Agreement and the User Guides.  Customer acknowledges that to access the Subscription Service it must comply with the Recommended System Requirements.
   2. Customer Affiliates. (a) An Affiliate of Customer may enter an Order, which will create a separate agreement between the Customer Affiliate and OnePlan, with the Affiliate treated as “Customer” under the Agreement. Neither Customer nor any Customer Affiliate has any rights under each other’s Agreement with OnePlan, and breach or termination of any such Agreement is not a breach nor termination under any other. Where reasonably required by the location of Customer Affiliate, the Affiliate’s Order may include modifications to the Agreement. (b) Alternatively Users from an Affiliate of Customer may access the Subscription Service as Users of Customer under clause 1.
   3. Compliance with Applicable Law. OnePlan will provide the Subscription Service in accordance with OnePlan’s obligations under Applicable Law (applicable to OnePlan’s provision of the Subscription Service to OnePlan’s customers generally).
   4. Restrictions on use of Services. To the maximum extent permitted by law, and except as expressly granted in the Agreement or where a normal feature of the Subscription Service used in accordance with the Agreement otherwise permits, Customer shall not (and will procure that Users will not): (a) copy, reproduce, publish, distribute, broadcast, transmit, modify, adapt, edit, abstract, store, archive, display publicly or to a third party, sell, license, lease, rent, assign, transfer, disclose (in each case whether or not for charge) or in any way commercially exploit any part of the Subscription Service; (b) permit use of the Subscription Service in any manner by a third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar software to third parties or making any OnePlan Software (or any part) available to any third party, or allow or permit a third party to do any of the foregoing); (c) combine, merge or otherwise permit OnePlan Software to become incorporated in any other program or similar software, or arrange or create derivative works based on it (in whole or in part); (d) attempt to scrape, data mine, reverse engineer, or test the functioning of or decompile OnePlan Software (or any part) or otherwise seek to obtain the source code or non-public APIs to any OnePlan Software, except to the extent expressly permitted by Applicable Law (and then only with prior notice to OnePlan); (e) remove or obscure any proprietary or other notices contained in the OnePlan Software; (f) use the Subscription Service to develop a similar or competing product or service; (g) use the Subscription Service to store or transmit viruses or material which contains illegal content; (h) allow Users to share Seats; or (i) use the Subscription Service for any Prohibited Activity (OnePlan has no liability for use of the Subscription Service for a Prohibited Activity).  Customer is expressly prohibited from reselling any of the Services without OnePlan’s express written consent.
   5. Subscription Service Availability. The Subscription Service will be available to Users at least 99.5% of the time measured per calendar month based on the monthly average percentage availability and calculated as the total actual uptime minutes divided by total possible uptime minutes in the month x 100, excluding Permitted Downtime  (“Availability”). “Permitted Downtime” includes: (a) scheduled maintenance, which will be notified to Customer at least three Business Days in advance; (b) emergency maintenance required as a result of conditions outside of OnePlan’s reasonable control, provided that it gives Customer written notice of the emergency maintenance as soon as is reasonably practicable; (c) downtime caused in whole or part by Force Majeure or by a failure of upstream or downstream services, networks, equipment, or circuits not under the direct control of OnePlan; (d) service interruptions of less than 30 seconds; (e) issues resulting from Customer’s failure to follow agreed procedures, or caused by unauthorised changes to the OnePlan Software by Customer; (f) material breach by Customer or its Users of the terms of the Agreement; or (g) a suspension of the Subscription Service in accordance with the Agreement.  For any reduced Availability, OnePlan will make all reasonable endeavours to notify Customer and minimise any downtime.
   6. Trial Service. OnePlan may provide Customer with access to the Subscription Service as a Trial Service.  All Trial Services are subject to the terms of the Agreement, unless otherwise notified by OnePlan.  A Trial Service is for Customer’s internal evaluation during the period designated on the Order (or otherwise by OnePlan in writing). Either party may terminate Customer’s use of any Trial Service at any time for any reason.
   7. Support Services. OnePlan will provide the Customer with the Support Services (subject to the Customer paying the Fees for the Support Services where such fees apply and are detailed in the Order).
   8. Updates to Subscription Service. Customer acknowledges that OnePlan will be entitled, upon written notice to Customer to change and update the Subscription Service, using reasonable endeavours to ensure that any such modification does not materially adversely affect Customer’s use of the Subscription Service.
3. Users
   1. Permitted Users. Except for view-only access referred to in clause 6.3, only Users may access or use the Subscription Service. Users from an Affiliate of Customer may access the Subscription Service as Users of Customer. Customer may permit its Contractors to serve as Users provided that any use of the Subscription Service by each such Contractor is solely for the benefit of Customer. Customer manages its User accounts through its Administrator(s), and Customer is responsible and liable for its Users’ actions through the Subscription Service and for their compliance with the Agreement. Customer will ensure that Users keep their login credentials and password confidential and will promptly notify OnePlan upon learning of any compromise of User accounts or credentials. Customer shall procure that each User is aware of, and complies with, the obligations and restrictions imposed on Customer under the Agreement, including all obligations and restrictions relating to OnePlan’s Confidential Information.  OnePlan uses User account information as described in its Privacy Policy.
   2. Administrators.  The User that manages payment of the Fees is the “Administrator”, and the Administrator has the ability to manage the Customer’s use of the Subscription Service, including: management of Users and User Permission Levels; ability to access, disclose, restrict, or remove information from the User account; or restrict or terminate a User’s access to the Subscription Service, each as described in the User Guides. Customer is fully responsible any actions such Administrator(s) take.
   3. User Permission Levels. User access to the Services is subject to the User Permission Levels given to a User by Customer’s Administrator(s). Users may provide access to events in the Subscription Service in view-only form to any individual (whether a User or not).  Access by individuals in view-only form will not count towards Customer’s number of Seats.
   4. Maximum number of Users. In relation to the Users, Customer undertakes that: (a) the maximum number of Users who concurrently use the Services at any given time will not exceed the number of Seats included in Customer’s Subscription Service or otherwise bought by Customer; and (b) it will not allow any Seat to be used by more than one user unless it has been reassigned in its entirety to another individual User, in which case the prior user shall no longer have any right to access or use the Services.
   5. Additional Users. Subject to this clause 5, Customer may from time to time during the term of this Agreement purchase additional Seats and OnePlan will grant such additional Users access to the Subscription Service in accordance with the provisions of the Agreement. If Customer wishes to purchase additional Seats, Customer will notify OnePlan through the Subscription Service or by contacting an account manager. Where OnePlan approves the request, OnePlan will activate the additional Seats within five (5) days of its approval of Customer’s request.  Where an Administrator adds additional Users to the Customer’s account above the number of Seats included in Customer’s current subscription, such addition will be treated by OnePlan as a request to purchase additional Seats, and OnePlan will amend the Customer’s subscription accordingly. The applicable fees for such additional Seats will form part of the Subscription Fees invoiced by OnePlan and payable by Customer during the next billing cycle.
   6. Unauthorised Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, Subscription Service and/or the User Guides and, in the event of any such unauthorised access or use, promptly notify OnePlan.  OnePlan may reasonably audit Users’ use of the Service to ensure it is in compliance with this Agreement.
   7. Age Requirement for Users. The Subscription Service is not intended for, and may not be used by, anyone under the age of 16. Customer is responsible for ensuring that all Users are at least 16 years old.
4. Term and Renewals
   1. Agreement Term. The Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.
   2. Subscription Term. Each subscription to the Subscription Service will commence on the Start Date in the Order and continue for the Subscription Term.
   3. Renewals.  Unless the Order specifies otherwise, upon its expiry the initial Subscription Term will renew for a further period equal to the initial Subscription Term (“First Renewal Date”) and thereafter renew for the same period on each anniversary of the First Renewal Date (the First Renewal Date and each such anniversary being a “Renewal Date”).  If either party wishes for the Subscription Term to expire immediately after the last day of the initial Subscription Term or on the next Renewal Date thereafter, it will provide not less than 30 days’ written notice to the other party prior to such date. If notice is not served within the timeframes set out in this clause 4.3, the Subscription Term will renew at the next Renewal Date in accordance with this clause 4.3.
5. Technical Services
   1. Provision.  Where applicable, OnePlan will perform the Technical Services for Customer (a) as detailed in the Order or (b) as may be requested by Customer in writing and confirmed by OnePlan, subject to the terms and conditions of the Agreement. Where Customer requests changes to agreed Technical Services, OnePlan may require that the parties sign a separate Order or change order to reflect such changes, including an amendment to the applicable Fees. Any time periods given in an Order for the delivery of Technical Services are estimates unless otherwise specified.  The parties may mutually agree to Orders with additional terms related to Customer’s use of Technical Services deliverables provided as part of a project, in which case those terms will be included in the Agreement and apply for purposes of those deliverables only.
   2. Assistance and Dependencies. Customer acknowledges that timely access to applicable Customer Data, resources, personnel, equipment or facilities may be necessary for the provision of Technical Services. Customer agrees to provide such access and to reasonably cooperate with OnePlan in all matters related to the provision of the Technical Services. OnePlan will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this clause 2. If any unmet Dependencies result in a need for OnePlan to spend additional time to deliver the Technical Services, OnePlan will not be required to perform additional work unless the parties have agreed in writing to changes to the agreed scope and/or additional fees.
6. Fees
   1. Fees.  Fees and any other charges are as described in the relevant Order or as otherwise agreed between the parties in writing. In consideration of the Fees, OnePlan will provide the Services to Customer in accordance with the Agreement. Customer will reimburse OnePlan for pre-approved (in writing) travel and lodging expenses it incurs in providing Technical Services. Other than as set out in the Agreement, all payment obligations are non-cancellable, and Fees are non-refundable once invoiced. OnePlan is entitled to increase the Subscription Fees at any time by giving 30 days’ written notice to Customer, provided that such increased Fees will (a) not be higher than OnePlan’s then-current standard rates and (b) will not take effect before expiry of the then-current Subscription Term. No fees will be payable for the Trial Service unless otherwise agreed in writing.
   2. Additional Fees Any non-standard Subscription Service features that are not included in the scope of an Order may be ordered by Customer during the Subscription Term and, if approved by OnePlan, will be activated subject to payment of additional fees agreed by the parties in writing. Until an additional feature has been activated, it is not included in the Subscription Service. Fees for agreed Technical Services that have not been included in an Order will be agreed between the parties in writing before delivery of such services.  For changes in scope of the Technical Services by Customer, OnePlan will be entitled to reasonably increase the Fees, such increase to be agreed in writing before delivery of such Technical Services.
   3. Invoicing and payment. OnePlan will invoice Customer for the Fees in accordance with the relevant Order or as otherwise agreed.  Customer agrees that OnePlan may charge Customer’s credit card or other payment method that has been provided by Customer for the Fees, the approved expenses, and any other unpaid fees, as applicable.  Where agreed by OnePlan, Customer may pay the Fees by electronic funds transfer.  OnePlan does not accept payment by cheque. Customer may change its payment method information by entering updated information through the user interface of the Subscription Service.  Unless otherwise specified in the relevant Order, all Fees and any approved expenses will be paid by Customer in full and without deduction within 30 days of the date of the relevant invoice. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Applicable Law, whichever is less. Customer is responsible for any sales, use, goods, and services, value-added, withholding, or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than taxes based on OnePlan’s net income, property, or employees. Fees and expenses are exclusive of Taxes.
7. Warranties and disclaimers
   1. Limited warranty  OnePlan warrants that: (a) the Subscription Service will operate materially in accordance with its description in the User Guides when used in accordance with the Agreement and under normal circumstances during the relevant Subscription Term; (b) OnePlan will not materially decrease the functionality of the Subscription Service during the Subscription Term; (c) its personnel that perform the Technical Services will be professional and qualified in the performance of the applicable Technical Services; and (d) the Technical Services will be provided with reasonable care and skill, and in accordance with good industry practice.
   2. Warranty Remedy. If OnePlan breaches a warranty in clause 1, and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, OnePlan will use reasonably commercial efforts to correct the issue or provide Customer with substitute services.  If OnePlan cannot so within 60 days of Customer’s warranty claim, either party may terminate the applicable Services, and Customer, as its sole remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services after the date of termination. The warranties in clauses 7.1 will not apply to the extent that any error arises as a result of (as applicable): (a) incorrect operation or use of the Subscription Service by Customer or a User; (b) use of the Subscription Service with other software or services or on equipment with which it is incompatible or that are provided by a third party; (c) any unapproved modification of the Subscription Service; (d) any failure by Customer to meet any Dependencies; (e) a Trial Service; or (f) a breach of the Agreement by Customer (or by any User). This clause 7.2 sets out Customer’s sole and exclusive remedies, and OnePlan’s sole and exclusive liability, for any breach of the warranties in clause 7.1.
   3. Disclaimers.  Other than as expressly stated in the Agreement, the Services are provided ‘as is’ and without warranty, whether express or implied, statutory or otherwise, to the maximum extent permitted by law.  Customer  agrees  that  its  purchase of the Services  is  not  contingent  on  the  delivery  of  any  future  functionality  or  features,  or  dependent on any oral or written public comments made by OnePlan regarding future functionality or features. Customer accepts that the functionality of the Subscription Service may be subject to delays, interruptions, errors or other problems. Customer acknowledges that such risks are inherent in the nature of the Subscription Service and that OnePlan will have no liability for any such delays, interruptions, errors or other problems. Customer acknowledges that OnePlan accepts no liability or obligation that: (a) the Services will meet Customer’s individual needs or purpose, whether or not such needs/purpose have been communicated to OnePlan; (b) the use of the Services will ensure that a Customer’s event or venue will comply with any government regulation or law; (c) the operation of Subscription Service will be free of minor errors or defects; (d) Subscription Service will be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the User Guides; or (d) that Customer Data is accurate or complete. Customer is solely responsible for the planning and execution of its event(s).
8. Intellectual property and publicity
   1. OnePlan IP. Other than as expressly stated in the Agreement, neither party grants the other any right, title or interest.  OnePlan (or its licensor(s), as applicable) own all Intellectual Property Rights in and to the OnePlan Technology and Technical Services (and any deliverables of the Technical Services). Customer acknowledges that the Subscription Service is offered as an online, hosted solution, and therefore Customer has no right to obtain a copy of the underlying computer code of the OnePlan Software.
   2. Customer IP. Customer (or its licensor(s), as applicable) owns all Intellectual Property Rights in and to Customer Data and Customer Content (at all times excluding any OnePlan Technology). Accordingly, subject to receipt by OnePlan of all Subscription Fees owed by Customer, OnePlan hereby assigns all Intellectual Property Rights in Customer Content (excluding any OnePlan Technology) to Customer. Customer grants OnePlan a limited, royalty-free, non-transferable, non-exclusive licence to use, copy, store, transmit, and display Customer Data and Customer Content (including making copies, modifying and creating derivative works) to the extent necessary for OnePlan to perform the Services for the benefit of Customer. Customer warrants that Customer has and will continue to have all necessary Intellectual Property Rights and other rights, or licences, consents, or waivers necessary to provide Customer Data and to grant the rights to OnePlan under the Agreement.
   3. Feedback.  OnePlan may freely use and incorporate into its Services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users relating to OnePlan’s Services (“Feedback”), it being acknowledged that any such Feedback will form part of OnePlan’s proprietary services and products and will be owned exclusively by OnePlan.
   4. Usage Data. Subject to its obligations under clause 11, OnePlan may collect and use Usage Data to develop, improve, support, and operate its products and services.  OnePlan will not share any Usage Data with a third party unless such data is aggregated and anonymized such that Customer and the Users cannot be identified, except where such data is shared with a third party that reasonably needs to identify Customer or Users as part of that third party’s role in the provision of the Subscription Service to Customer.
   5. Customer Marks. The Technical Services provided by OnePlan may include applying Customer’s Marks to the user interface of Customer’s version of the Subscription Service.  Customer will at all times retain rights, title and interest (including all Intellectual Property Rights) in Customer’s Marks. Customer grants OnePlan a royalty-free, non-transferable, non-exclusive licence to use Customer’s Marks (including making copies) only to the extent necessary to carry out such Technical Services referred to in this clause 5.
   6. Publicity.  OnePlan may use and display Customer’s name, logo, trade marks, and service marks on OnePlan’s website and in OnePlan’s marketing materials in connection with identifying Customer as a client/customer of OnePlan. Upon Customer’s written request, OnePlan will promptly remove any such marks from OnePlan’s website and newly created marketing materials. If OnePlan requests, Customer will not unreasonably refuse consent to participate in a case study and/or will cooperate with OnePlan in speaking to the media or making a press release.
9. Confidentiality
   1. Obligations.  Each party that receives Confidential Information will: (a) maintain the confidentiality of the Confidential Information and will not disclose it to third parties excepted as permitted in the Agreement; and (b) not use the Confidential Information other than as necessary for the performance or receipt of the Services.  The receiving party may disclose the Confidential Information to its employees, agents, contractors, and sub-contractors that have a legitimate need to receive such information.  Receiving party shall remain responsible to the other party for the compliance with this clause 9 of such persons and undertakes that such persons will be bound to confidentiality obligations no less protective than this clause 9.
   2. Excluded information. The provisions of this clause 9 will not apply to information that the receiving party can demonstrate: (a) becomes publicly known through no fault of the receiving party, its employees, agents, contractors, or sub-contractors; (b) is lawfully received by receiving party from a third party free of any obligation of confidence at the time of its disclosure; (c) is independently developed by the receiving party without using the disclosing party’s Confidential Information; or (d) is required by law, by court or governmental or regulatory order to be disclosed.
10. Customer Data and Customer Content
    1. Customer Data. Customer licenses Customer Data to OnePlan under clause 2. Customer will ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of Customer Data. Customer warrants and represents that that it has made all disclosures and has all necessary appropriate rights, consents, and permissions necessary to lawfully transfer Customer Data to OnePlan for the duration and purposes of the Agreement, all without violating or infringing Applicable Law, third-party rights (including Intellectual Property Rights, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Data. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy against OnePlan will 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.
    2. Customer Content. During the Subscription Term, Customer may export its Customer Content from the Subscription Service using the export features described in the User Guides. After termination of the Agreement, OnePlan may delete Customer Data and Customer Content in accordance with its standard procedures. If Customer elects to delete its account at any time, all associated Customer Content will be deleted permanently and cannot be retrieved.
11. Data Protection and Security
    1. Data protection. Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements. To the extent that personal data is processed when the Customer or Users use the Services, the parties acknowledge that OnePlan is a data processor, and the Customer is a data controller and the parties shall comply with their respective obligations under the terms of the DPA. Where OnePlan collects and processes personal data of the Customer, as a data controller, when providing the Services, such collection and processing shall be in accordance with the Privacy Policy.
    2. Security.  OnePlan will implement appropriate technical and organisational security measures to protect the Subscription Service and Customer Data in accordance with Applicable Law.
12. Indemnity
    1. OnePlan indemnity. OnePlan will defend, indemnify and hold Customer harmless from and against all claims, losses, damages, fines, expenses and liability incurred by Customer (including court costs and reasonable legal costs) resulting from any claim by a third party that the Subscription Service infringes the Intellectual Property Rights of that third party. OnePlan will have no liability under this clause 1, in respect of any claim which arises in whole or in part from: (a) any modification of the Subscription Service other than by OnePlan; (b) use or integration of Customer Data or any materials not provided by OnePlan; (c) use of the Subscription Service (or any part) by Customer otherwise than in accordance with the Agreement; or (d) the combination of the Subscription Service with products or processes not provided by OnePlan. This clause sets out Customer’s sole remedy with respect to any claim of Intellectual Property Rights infringement in relation to the Subscription Service.
    2. Customer indemnity. Customer will defend, indemnify and hold OnePlan harmless from and against all claims, losses, damages, fines, expenses and liability incurred by OnePlan (including court costs and reasonable legal costs) resulting from any claim by a third party arising from any Customer Data, Customer’s Marks or any Customer-offered product or service used in connection with the Subscription Service (together “Customer Materials”).  The indemnification obligation of Customer in this clause 2 will not apply to the extent the applicable claim is attributable to unauthorised use or modification by OnePlan of Customer Materials.
    3. Indemnification Procedures. In the event of a potential indemnity obligation under the Agreement, the indemnified party will: (a) promptly (and in any event within five Business Days) notify the indemnifying party in writing of any actual or threatened claim; (b) make no comment or admission and takes no action that may adversely affect the indemnifying party’s ability to defend or settle the claim; (c) provide all assistance reasonably required by the indemnifying party; and (d) give the indemnifying party sole authority to control, defend or settle the claim. Any indemnification obligation under the Agreement will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.  Nothing in the Agreement will restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under the indemnification obligations in the Agreement.
13. Limitation of liability
    1. The parties acknowledge that the Fees payable by Customer are based in part on the limitations in this clause 13 and further agree that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
    2. Liability cap. Subject to clause 4 and except with respect to (a) a party’s liability under the indemnities in clauses 12.1 and 12.2, (b) either party’s breach of clause 9 (Confidentiality), and (c) Fees owed by Customer to OnePlan, each party’s total aggregate liability in respect of respect of any loss or damage suffered by the other party (whether due to breach of contract, tort (including negligence) or otherwise) under or in connection with the Agreement or the Services, will not exceed the value of the Fees under the relevant Order paid or payable by Customer to OnePlan in the 12-month period immediately preceding the first incident giving rise to the relevant claim. OnePlan’s total aggregate liability in respect of any Trial Service (howsoever arising under or in connection with the Agreement) will not exceed £1,000 (GBP one thousand).
    3. Excluded losses. Subject to clause 4, neither party will be liable in respect of the Services (howsoever arising under or in connection with the Agreement) for: (a) consequential, indirect or special losses; or (b) any of the following (whether direct or indirect): loss of profit; destruction, loss of use or corruption of data; loss of use; loss of contract; loss of opportunity; and/or harm to reputation or loss of goodwill. Customer assumes sole responsibility for results obtained from its use of Subscription Service and the User Guides, and for conclusions drawn from such use. OnePlan will have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to OnePlan by Customer in connection with the Services, or any actions taken by OnePlan at Customer’s direction.
    4. Unlimited liability. Notwithstanding any other provision of the Agreement, neither party’s liability will be limited in any way in respect of the following: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other losses which cannot be excluded or limited by Applicable Law.
    5. Third party services. Customer acknowledges that OnePlan provides no warranty for and will have no liability to Customer in relation to any third party service, product, or content that is accessed by or linked to the Subscription Service (all of which is provided “as is”). Customer may be able to share aspects of Customer’s Subscription Service or Customer Content with third parties.  OnePlan has no liability for how such third party may use the service or content as a result of Customer’s or a User’s decision to share it.
14. Termination
    1. Termination for cause. Either party may terminate the Agreement immediately at any time by giving notice in writing to the other party if: (a) the other party commits a material breach of the Agreement and such breach is not remediable; (b) the other party fails to remedy a material breach of the Agreement (including non-payment of Fees) within 30 days of written notice; (c) ceases operation without a successor; or (d) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
    2. Termination for convenience. OnePlan may terminate this Agreement at any time for any reason upon 90 days’ notice to Customer and will refund any pre-paid Fees. Customer may terminate this Agreement at any time for any reason by cancelling the Subscription Service, provided: (a) Customer will not be entitled to a refund of any pre-paid Fees and (b) if Customer has not already paid all applicable Fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.
    3. Effect of termination. Immediately on termination or expiry of the Agreement (for any reason), the rights granted by OnePlan under the Agreement will terminate and Customer will (and will procure that each User will) stop using the Subscription Service. Termination or expiry of the Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry.
    4. Surviving clauses. The following clauses will survive any expiration or termination of the Agreement: 4 (Restrictions on use of Subscription Service), 3 (Responsibility for Users), 7.3 (Warranty Disclaimer), 6 (Fees), 8 (Intellectual Property), 9 (Confidentiality), 10.2 (Security), 12 (Indemnity), 13 (Limitation of Liability), 15 (General), 16 (Definitions), and any other clauses that expressly or by implication are intended to continue beyond termination.
    5. Suspension of the Subscription Service. OnePlan may suspend access to the Subscription Service to all or some of the Users if: (a) Customer breaches clause 3, 2.4, or 3; (b) OnePlan reasonably suspects that Customer’s or User’s actions threaten the confidentiality, integrity or availability of the Subscription Service; (c) overdue Fees have not been paid within 14 days’ of the relevant due date; or (d) required by law or at the request of governmental entities. OnePlan will provide notice of suspension as is commercially reasonable under the circumstances. Where any of the above events has been cured, OnePlan will, without undue delay, reinstate the affected the Subscription Service.
15. General
    1. Authority. Each party represents and warrants to the other that it has: (a) the right, power and authority to enter into an Order and to perform its obligations under the Agreement; and (b) all necessary rights, licences and consents to grant to the other the rights (if any) as set out in the Agreement.
    2. Conflict.  In case of any conflict between the provisions of the documents referred to in the Agreement, and OnePlan’s Master Services Agreement or other agreement that may be later entered into by Customer in connection with its use of the Services (“MSA”), the following order of priority will apply (in descending order of priority): (a) MSA and associated order form; (b) the Schedules to the Agreement; (c) these Terms of Service; and (d) the Order (except where the Order explicitly amends (b) or (c)).
    3. Entire agreement. The Agreement (and each Order) 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.  If Customer issues a purchase order in relation to the Order: (a) such purchase order will be for Customer’s internal or administrative purposes; and (b) no additional purchase order terms will apply to the Order or the Fees.
    4. Notices.  Notices and other communications under the Agreement will be sent by email to: (a) in the case of those to OnePlan, to OnePlan Limited for the attention of the Legal Department to [email protected] and (b) in the case of notices to Customer, to any email or physical address notified to OnePlan. This clause 15.4 does not apply to notices given in legal proceedings or other dispute resolution proceedings, for which email is not valid.
    5. Modifications to Agreement. OnePlan may modify these Terms of Services and its standard Subscription Service pricing and plans from time to time. Unless a shorter period is specified by OnePlan by giving notice to Customer by email or through the Subscription Service, modifications become effective upon renewal of Customer’s current Subscription Term or entering into a new Order. If OnePlan gives notice that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order, and Customer notifies OnePlan of its objection to the modifications as soon as possible and at least within 14 days after the date of such notice, OnePlan (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of the Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate the Agreement and receive a refund of any pre-paid Services fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Subscription Service, and, in any event, continued use of the Subscription Service after the updated version of the Agreement goes into effect will constitute Customer’s acceptance of such updated version.
    6. Waivers.  No failure, delay, or omission by either party in exercising any right, power or remedy provided by law or under the Agreement will operate as a waiver of that right, power or remedy, nor will it preclude or restrict any future exercise of that or any other right, power or remedy.
    7. Assignment.  Neither party may assign or otherwise transfer the Agreement (or any part of it) without the advance written consent of the other party, except (a) in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting shares to such party’s successor; and/or (b) to any Affiliate of that party. Each party will promptly provide notice of any such assignment or transfer. The parties hereby irrevocably agree in advance to provide their cooperation to such assignment or transfer and will perform any formality to complete such assignment or transfer. Any non-permitted assignment is void.
    8. No joint venture. 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. The Agreement will 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 the Agreement.
    9. Force majeure. Neither party will be in breach of the Agreement or otherwise liable to the other party for any delay in performance or non-performance of any of its obligations under the Agreement to the extent that the delay or non-performance is caused, in whole or in part, by an event of Force Majeure.  The corresponding obligations of the other party will be relieved or reduced to the same extent and where the relevant corresponding obligation relates to payment of a fixed amount, it will be apportioned appropriately.
    10. Severability; headings. If any provision of the Agreement is held to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement will otherwise remain in effect. Clause headings are inserted for convenience only and will not affect the construction of the Agreement.
    11. Third party rights. A person who is not a party to the Agreement will not have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any of its provisions.
    12. Export.  Customer agrees that it will not submit the Subscription Service, Services or User Guides to any government agency for licensing consideration or other regulatory approval without the prior written consent of OnePlan. Each party (a) will comply with all applicable export and import laws in performing the Agreement and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” country. Customer will not submit to the Subscription Service any data controlled under the U.S. International Traffic in Arms Regulations.
    13. Anti-Bribery. Each party will comply with all applicable laws, statues and regulations relating to anti-bribery and anti-corruption.
    14. Governing law; Disputes. The Agreement is be governed by the laws of England and Wales. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Agreement.
    15. Reseller Orders. This clause applies to any access to the Services purchased by Customer through a Reseller. (a) Commercial Terms. Instead of paying OnePlan, Customer will pay applicable amounts to the Reseller as agreed between Customer and the Reseller. Customer’s order details will be as stated in the Order placed by the Reseller with OnePlan on Customer’s behalf. The Reseller is responsible for the accuracy of such Order. OnePlan may suspend or terminate Customer’s rights to use the Services if it does not receive the corresponding payment from the Reseller. If Customer is entitled to a refund under the Agreement, OnePlan will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise specified. (b) Relationship with OnePlan. The Agreement is directly between OnePlan and Customer and governs all use of the Services by Customer. Resellers are not authorised to modify the Agreement or make any promises or commitments on OnePlan’s behalf, and OnePlan is not bound by any obligations to Customer other than as set forth in the Agreement. OnePlan is not party to (or responsible under) any separate agreement between Customer and Reseller and is not responsible for the Reseller’s acts, omissions, products, or services. The amount paid or payable by the Reseller to OnePlan for Customer’s use of the applicable Subscription Service under the Agreement will be deemed the amount paid or payable by Customer to OnePlan under the Agreement for purposes of Clause 13 (Limitations of Liability).
16. Definitions
    
    
    Affiliate: an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, own means the beneficial ownership of more than fifty percent (50%) of the voting equity shares or other equivalent voting interests of an entity and control means the power to direct the management or affairs of an entity.
    
    Agreement: the agreement between the parties consists of these Terms of Service and any Orders.
    
    Applicable Law: all local, state, federal and international laws, regulations and conventions relevant to the Services, including those related to data privacy.
    
    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 disclosed to the receiving party under the Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure (including information relating to the parties’ technology, know-how, Intellectual Property Rights, pricing, assets, finances, strategy, products and customers). OnePlan’s Confidential Information includes any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.

    
    Contractor: an individual who is an independent contractor or consultant permitted by Customer to serve as a User.
    
    Customer: the legal entity or person placing an Order for and/or accessing the Services.
    
    Customer Content: all content exported by Customer from the OnePlan Software (or by OnePlan on Customer’s behalf), including but not limited to images, presentation export, and bill of quantities.
    
    Customer Data: all text, information, data, software, executable code, images, audio or video material, computer files, or other materials in whatever medium or form provided to OnePlan by or on behalf of Customer, which OnePlan is required to host, use or modify in the provision of Services to Customer. Customer Data may include AEC (Architecture Engineering Construction) files/assets, blueprints and other documentation relating to the Customer stadium, arena, or venue. Customer Data may be detailed in an Order.
    
    Dependencies: those dependencies (if any) to by delivered or fulfilled by Customer as stated on the Order.
    
    DPA: OnePlan’s data processing addendum found at Schedule 1.
    
    Effective Date: the date which is the earlier of (a) Customer’s initial access to the Services through any online provisioning, registration or order process or (b) the start date of the first Order.
    
    Feedback: has the meaning given in clause 8.3.
    
    Fees: (each as applicable) the Subscription Fees, and any fees payable by Customer for the Technical Services, the Support Services, and any other additional fee or charge payable by Customer under the Agreement.
    
    Force Majeure: an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Agreement (provided that an inability to pay is not Force Majeure), including (a) an act of God, flood, storm, drought, earthquake, or other natural disaster; (b) adverse weather conditions; (c) any cause or event arising out of or attributable to war, civil commotion or terrorist activity (or threat thereof); (d) any law, or any governmental order, rule or regulation; (e) fire or explosion; (f) labour dispute including strikes, industrial action, lockouts or boycott; (g) a shortage of raw materials; (h) any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet; and (i) any epidemic or pandemic, including the COVID-19 pandemic, and compliance with any applicable governmental guidelines designed to prevent the spread of the relevant disease.
    
    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.
    
    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 the brand of a party to the Agreement, whether or not registered.
    
    OnePlan: means One Plan Limited, with its registered office at Kemp House, 152 – 160 City Road, London, EC1V 2NX.
    
    OnePlan Software: means OnePlan Studio and any proprietary applications or software that are provided by OnePlan and accessed by Customer through the use of the Subscription Service, as further described in the User Guides and/or an Order.
    
    OnePlan Technology: any software, tools, databases, data, methodologies or other materials that are owned by, or licensed from a third party to OnePlan and that have been created independently of the Agreement (whether prior to the Effective Date or otherwise), including: (a) the OnePlan Software and the User Guides; (b) the technology behind the Services and their features; (c) all proprietary tools, libraries, know-how, techniques and expertise used by OnePlan to provide the Services, and all related and underlying code, software, technology and documentation (including any derivative works, modifications, or improvements of any of the foregoing); and (d) all associated know-how.
    
    Order: (a) an ordering document placing an order for Services signed by OnePlan; or (b) any form of request to access the Services that is confirmed or accepted by OnePlan, including through the Subscription Service. Each Order is subject to and incorporates these Terms of Service.
    
    party: each of OnePlan and Customer (together referred to as the “parties”).
    
    Prohibited Activity: means activities where use or failure of the Subscription Service could reasonably foreseeably lead to death, personal injury or environmental damage, including without limit: emergency or other medical services, nuclear facilities, or air traffic control.
    
    Recommended System Requirements: the recommended requirements for Customer’s operating system in order for Customer to access and use the Subscription Service, as updated from time to time. The current Recommended System Requirements are: browser – Google Chrome; RAM – >8GB; disk type – SDD hard drive; internet connection download bandwidth >12mbps; internet provider must allow WebRTC streaming; and computer must be able to run WebGL.
    
    Seat: the right granted by OnePlan to Customer for a single User to use the Subscription Service in accordance with the Agreement.
    
    Services: (each as applicable) the Trial Services, Subscription Service, Support Service(s), and Technical Services, each as further described in the Agreement.
    
    Subscription Fees: the subscription fees payable by Customer to OnePlan for Customer’s and its User’s use of the Subscription Service, based on OnePlan’s standard Subscription Service pricing and plans from time to time and/or as set out in the relevant Order (as amended in accordance with the Agreement).
    
    Subscription Service: the provision of the OnePlan Software by OnePlan to its customers as software-a-service.  The features and details of Customer’s Subscription Service are determined by the plan subscribed for by Customer.
    
    Subscription Term: in respect of the Subscription Service, the period for which Customer agrees to subscribe to the Subscription Service, as set-out in the relevant Order.
    
    Support Services: the technical support provided by OnePlan to Customer during the relevant Subscription Term, as may be detailed in the Order and the User Guides.
    
    Technical Services: technical or consultancy services relating to the implementation, configuration, or use of the Subscription Service, provided by OnePlan to Customer under the Agreement from time to time, as specified in the relevant Order(s) or as otherwise agreed between the parties in writing.

    Trial Service: the provision of Subscription Service on a trial or proof of concept basis.
    
    Usage Data: any data (other than Customer Data) derived from the operation, support and/or use by Customer or Users of the Subscription Service, including configurations, log data, and the performance results for Subscription Service.
    
    User: an individual, who is an employee or Contractor of Customer (or its Affiliate where the Affiliate User is given access under clause 3.4), that has been allocated a Seat and who is permitted by an Administrator to use the Subscription Service under the Customer’s account, subject to User Permission Levels.
    
    User Guides: OnePlan’s user guides, technical documentation, online help center and knowledge hub, and other resources for the Subscription Service made available to Customer and updated by OnePlan from time to time.
    
    User Permission Levels: certain permission levels for the Subscription Service allocated to a User by an Administrator, as further described in the User Guides or otherwise provided to Customer by OnePlan. The scope of such permission levels and the number of Users that may be granted certain permission levels are determined by the Customer’s Subscription Service.