1. You shall not use PhixFlow in excess of the parameters specified in the Service Form;
2. You may not reverse engineer, decompile, or disassemble PhixFlow or any of its components, except to the extent that we cannot prohibit such acts by law;
3. PhixFlow is our valuable property and shall be treated as confidential as described under Clause 16;
4. you are expressly prohibited (except where expressly permitted in writing by us) from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of PhixFlow for any purpose including error correction or any other type of maintenance. This does not prevent your Config Users from using PhixFlow to create or modify Apps.

Your Config Users may contact the Helpline via any of the contact mechanisms provided within PhixFlow.

We shall use our reasonable endeavours to respond to queries made via the Helpline.

You hereby agree that any ideas for PhixFlow improvements, enhancements or new functionality  that may be submitted by you or your Config Users, via the Helpline or otherwise, shall be our exclusive intellectual property and that you hereby grant, by way of a present and future assignment, any and all rights that you may have in such ideas to us (and procure the same in respect of your Config Users). We shall not be liable to pay any royalties or other fees to you or to any Config User in respect of any such idea, whether or not we subsequently incorporate it into PhixFlow or any other product or service.

Without in any way restricting the right of an employee freely to accept employment and change employment, if either party (the “Hiring Party”) induces the other party’s employee engaged in the performance of the relevant Contract to enter its service at any time during the term of the relevant Contract or during a period of six months thereafter, then the Hiring Party shall pay to the other party an amount being equivalent to fifty percent (50%) of the employee’s net annual salary, such sum being a genuine pre-estimate of the cost of the disruption that such inducement would cause to the efficient conduct of the affected party’s business.

We shall invoice you for the Fees as set out in the applicable Service Form.

At reasonable time prior to the expiry of your current Subscription Block, we shall invoice you for the subsequent Subscription Block and you shall promptly pay the corresponding Fees in order to secure continuity of your Subscription.

In the event that you fail to make payment of the Fees in full prior to the end of your then-current Subscription Block, we may in our sole discretion:

1. suspend your access to PhixFlow (including all Apps) until the Fees are paid in full; or

2. treat such as a material breach and terminate the relevant Contract in accordance with Clause 12.3 (a).

For the avoidance of doubt, in the event of suspension and resumption of your Subscription in accordance with clause 8.3a, your new Subscription Block shall be deemed to have commenced immediately after the end of the expired Subscription Block.

Your Subscription shall begin when you accept the corresponding Service Form in accordance with Clause 2, and shall continue unless and until terminated in accordance with Clause 12.3 or Clause 12.4, or until your latest Subscription Block expires.

For the avoidance of doubt, in the event of a Contract being terminated, any other Contracts still in existence shall continue subject to these Terms until such Contracts are themselves terminated.

Either party (the “Initiating Party”) may forthwith terminate a Contract at any time upon giving written notice to the other party, if that other party:

1. commits any material breach of these Terms or any term of the relevant Contract other than to the extent that such breach is due to a material breach of these Terms by the Initiating Party and, in the case of a breach that is reasonably capable of being remedied shall have failed, within sixty (60) days of such notice from the Initiating Party, to so remedy the breach to the reasonable satisfaction of the Initiating Party (such notice to contain a request to remedy the breach and to contain a warning of the Initiating Party’s intention to terminate); or

2. has a receiver or administrative receiver appointed over it or any of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bone fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business or if any substantially similar event shall take place under the laws of another jurisdiction.

You may give us written notice to terminate a Contract at any time without cause.  The Contract and your Subscription shall continue for the remainder of any Subscription Block paid for as at the date of your notice of termination, whereupon it shall terminate without further notice to you. For the avoidance of doubt, you shall receive no refund of any Fee paid in respect of the period of Subscription remaining at the time of giving notice.

Upon the expiry or termination of a Contract, you will return and/ or destroy any PhixFlow materials or Documentation in your possession and all copies thereof at your expense and will certify in writing to us that all copies thereof have been returned and/or destroyed.

For a period of 30 days from the expiry or termination of the Contract, we shall permit you to access PhixFlow for the sole purpose of exporting and downloading your data. After the expiry of this 30 day period we may we may delete such data upon giving notice to you.

The expiry of a Contract or the termination thereof for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of the parties accrued prior to such termination.

We shall defend at our own expense any claim brought against you alleging that PhixFlow infringes a third-party patent, copyright, or similar right (“Intellectual Property Claim”) and we shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that you:

1. furnish us with prompt written notice of the Intellectual Property Claim;

2. provide us with reasonable assistance in respect of the Intellectual Property Claim; and

3. give to us the sole authority to defend or settle the Intellectual Property Claim.

If in our reasonable opinion PhixFlow is or may become the subject of an Intellectual Property Claim then we shall either:

1. obtain for you the right to continue using the elements of PhixFlow which are the subject of the Intellectual Property Claim;

2. replace or modify the elements of PhixFlow which are the subject of the Intellectual Property Claim so they become non-infringing; or

3. if such remedies are not in our opinion reasonably available, then your Contract shall terminate and we shall refund to you any pro-rata portion of the Fees related to the unused period of your Subscription.

We shall have no liability for any Intellectual Property Claim resulting from the combination of PhixFlow with other products which were neither supplied nor combined with PhixFlow by us.

The provisions of this clause 14 set out our entire liability and your sole remedy in the event of an Intellectual Property Claim.

1. act solely on the instructions of the Data Controller;
2. ensure that (i) the appropriate technical and organisational measures are in place to comply with the Data Protection Legislation and protect the rights of the Data Subjects, and (ii) persons authorised to access the Personal Data are subject to appropriate confidentiality undertakings;
3. not transfer the Personal Data outside of the Approved Countries, or to any third party without the Data Controller’s consent and, if required, the parties will enter into the applicable Standard Contractual Clauses and/or the UK IDTA prior to the transfer of Personal Data and take all other actions required to legitimise the transfer;
4. give the Data Controller reasonable assistance and information in relation to either parties compliance with the Data Protection Legislation;
5. at the end of the processing, (i) either delete or return the Personal Data to the Data Controller, and (ii) delete copies of the Personal Data unless subject to a legal obligation to store the copies
6. not engage another processor of the Personal Data without the prior written consent of the Data Controller.

Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to a party’s business affairs or activities and which: (i) has been marked as confidential or proprietary, (ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.

Each party undertakes that for a period of five (5) years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under these Terms or the relevant Contract. In any event, each party hereby agrees that it shall treat the other’s information marked “confidential” or which may reasonably be supposed to be confidential with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with good current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of these Terms or the relevant Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this Clause 16.2. Each party agrees that it shall be liable for any breach of this Clause 16.2 by any employee, consultant or professional advisor to whom it has disclosed the other party’s Confidential Information as though it had committed the breach itself.

The provisions of Clause 16.2 shall not apply to:

1. any information in the public domain otherwise than by breach of these Terms or the relevant Contract;

2. information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party, as evidenced by written documents;

3. information lawfully obtained without restriction from a third party, as evidenced by written documents; and

4. information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.

We may not publicise our involvement with you  without your prior written consent, such consent not to be unreasonably withheld or delayed.

You may not assign any Contract or otherwise transfer any rights or obligations under it except with our prior written consent, and any such prohibited assignment shall be void. We shall have the right, without your consent, to assign all or part of your payments under this Agreement, and to assign our rights and obligations hereunder to another party who purchases all or substantially all of our business, stock or assets, except that we will ensure that none of these unilateral actions will affect your already paid for rights hereunder.

Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder.  Dates or times by which each party is required to render performance under any Contract shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.

All notices made pursuant to any Contract must be made in writing.  Any written notice to be given or made pursuant to the provisions of these Terms and the Contract shall be sent postage prepaid by registered or recorded mail, or reputable courier, or express service, addressed to the other party’s address stated above or in the Service Form, or by email to the party’s nominated email address set out below, and shall be marked for the attention of the directors. Unless otherwise provided in the Service Form, all notices shall be deemed as given on the day of their receipt by the receiving party.
For PhixFlow: legal@phixflow.com

For you: to the email address set out on your Service Form.

These Terms together with the corresponding Service Forms constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written.

In the event of any dispute arising under these Terms or any Contract the parties will attempt to settle it by mediation. The mediator shall be selected from the Ministry of Justice Civil Mediation Directory, subject to the agreement of both parties. Save in respect of late or non-payment of undisputed invoices, no party may commence court proceedings in respect of any dispute arising out of these Terms or any Contract until it has attempted to settle the dispute by mediation and either the parties have been unable to agree on a mediator or the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. Unless agreed otherwise the mediator’s costs and expenses shall be shared equally between the parties.

Subject to Clause 23, each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute, controversy or claim arising out of or relating to these Terms or any Contract and that the laws of England and Wales shall govern such dispute, controversy or claim. You and we each agree that our respective rights and obligations under these Terms are not subject to or governed by the United Nations Convention on Contracts for the International Sale of Goods.

Notwithstanding the provisions of Clause 23, nothing in this agreement shall limit either party’s right to seek injunctive relief.

The following clauses shall continue to be in effect after the termination or expiration of this Agreement and each Contract: 1, 2, 8, 11, 12.5, 14, 16-23 inclusive.

If any provision of these Terms or any Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions of this Agreement shall not be affected thereby, and that the remainder of these Terms or the relevant Contract shall remain valid and enforceable. The expiry of a Contract or the termination thereof for whatever reasons shall be without prejudice to the respective rights and liabilities of either of the parties hereto accrued prior to such termination. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto. No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof or the exercise of any such power or right under this. Neither these Terms nor any Contract may be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of you and us. A person who is not a party to a Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of such Contract except as expressly set out herein, but this does not affect any right or remedy that such third party may have without reference to the Contracts (Rights of Third Parties) Act 1999.