Terms and Conditions

A) Claroo Ltd. incorporated and registered in England and Wales with company number 13032052 whose registered office is at 7 Bell Yard, London, England, WC2A 2JR, United Kingdom (the “Supplier”) has developed the NMBLR platform which it makes available to subscribers online on a pay-per-user basis for the purposes of the Customer (and its respective brands) launching new products and/or services.
B) The Customer wishes to use the Supplier’s Services in launching new products and/or services.
C) The Supplier has agreed to provide, and the Customer has agreed to take and pay for the Supplier’s Services subject to the terms and conditions of these terms and conditions (the “Conditions”).

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

Account Manager: the Supplier’s account manager as set out in the Order Form.

Additional Users: the users using the Services in addition to the Number of Users specified in the Order Form.

Agreed Currency: the currency which payment of Subscription Fees (and other charges due pursuant to the Order Form) shall be made, as set out in the Order Form.

Archiving and Back-Up Procedures: the source code is backed up on a daily basis to Amazon Web Services S3 (“AWS S3”); packaged applications are backed up at deployment in AWS S3 over three devices; databases are backed up on a daily basis on a seven-day rolling retention period.

Authorised Users: those employees, agents and independent contractors of each of the brands (or assets, as the case may be), owned or controlled by the Customer, who are authorised by the Customer to use the Services and the Documentation.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Commencement Date: the commencement date stated in the Order Form.

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.

Customer: as defined in the Data Protection Legislation.

Customer Contact: the individual named in the Order Form who is authorised to enter into these Conditions ((and execute any Order Forms) on behalf of the Customer.

Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

Documentation: includes the documents and Training Material made available to the Customer by the Supplier in any manner, which, among other things, set out a description of the Services and the user instructions for the Services, together with any engagement or communication with the Customer to finalise the content of the Training Material, also available to the Customer as part of the Service.

Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

EEA: the European Economic Area consisting of member states of the European Union and the three countries of the European Free Trade Association.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

EU Law: the law of the European Union or any member state of the European Union.

Feedback Data: data that can be collected from NMBLR that can and shall be used for the purposes of providing feedback to the Supplier in relation to the Services.

NMBLR: a digital platform developed by the Supplier that provides strategic and business development support to a Company (and its brands) to launch new products and services.

Normal Business Hours: 8:00AM to 6:00PM, which are the normal business hours of the Customer for each Business Day.

Number of Users: the number of users of the Service as set out in each Order Form.

Order Form: the form provided and drafted by the Supplier, which is sent to the Customer by email for review and approval, setting out the commercial terms of any order. A template Order Form can be accessed via support@nmblr.co.

Parties: the Supplier and the Customer.

Payment Terms: payment terms as set out in the Order Form.

Process Data: data communicated to the Customer based on Customer Data, for the purposes of the supply (and delivery) of the Services.

Services: the subscription services provided by the Supplier to the Customer under these Conditions via app.nmblr.co or any other website notified to the Customer by the Supplier from time to time, as more particularly described below and in the Order Form, including the use of NMBLR and access to Support Services.

Software: the online software applications provided by the Supplier as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Order Form.

Subscription Term: has the meaning given in the Order Form.

Support Services: includes technology support services, and business development support services, limited to fifteen (15) hours of use per brand per Customer.

Training Material: any material, information, data, and other services to be used for the purposes of training and supporting NMBLR, prepared by the Parties, in relation to the Services.

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions.

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.

Invoice: any invoice raised by the Supplier to the Customer for the provision of the Services.

2.1 Subject to the Customer purchasing the User Subscriptions on behalf of each of its relevant brands (or assets, as the case may be), in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2, the Customer providing valid contact information for each Authorised User and the other terms and conditions of these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2 In relation to the Authorised Users, the Customer undertakes that:
a) only designated individuals, each of whom is a key person in relation to the launching and development of the product and/or service (each, a “Designated Representative“), shall have access to the information contained on the platform for the purposes of downloading and otherwise, exporting such information.
b) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
c) 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 Services and/or Documentation;
d) each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than three (3) months and that each Authorised User shall keep their password confidential;
(e) if the Supplier determines that the Customer has not paid the Subscription Fees (in part or in full) to the Supplier as a result of a breach of clauses (a) and (c), the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the relevant Order Form within three (3) Business Days of such demand made to the Customer.

2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services 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 the Supplier 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.

2.4 The Customer shall not:
a) permit any party that is not a Designated Representative access to the information contained on the platform for the purposes of downloading and otherwise, exporting such information;
b) 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 these Conditions:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (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 Software;
c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services;
d) use the Services and/or Documentation to provide services to third parties;
e) subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users;
f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
g) introduce or permit the introduction of, any Virus into the Supplier’s network and information systems in any manner.

2.5 Notwithstanding clause 2.4(a), the Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, the Customer must promptly notify the Supplier and shall bear any liabilities arising out of such unauthorised access or use.

2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any affiliate, subsidiary or holding company of the Customer.

3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions for additional brands (or assets, as the case may be) and the Supplier shall grant access to the Services and the Documentation to such Additional Users in accordance with the provisions of these Conditions.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier 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 the Supplier approves the request, the Supplier shall activate the User Subscriptions of the Additional Users within three (3) Business Days of its approval of the Customer’s request, unless agreed otherwise.

3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within thirty (30) days of the date of the Supplier’s Invoice, pay to the Supplier the relevant Subscription Fees for such Additional Users. Unless agreed otherwise, the Subscription Fees for Additional Users shall be Subscription Fee agreed in the most recent Order Form between the Parties.

4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Conditions.

4.2 The Supplier shall use commercially reasonable endeavours to make the Services available during Normal Business Hours.

4.3 The Supplier will, as part of the Services and at no additional cost to the Customer provide the Customer with Support Services during Normal Business Hours at its discretion and upon request by the Customer. Any further Support Services shall be provided subject to separate terms and conditions agreed between the Supplier and the Customer.

General

5.1 Each party shall comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

5.2 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.3 The Supplier shall own all right, title and interest in and to all of the Feedback Data, Process Data, and data contained in (or otherwise in relation to) Training Materials and the supply of the Services (including but not limited to the Support Services).

5.4 The Supplier shall follow its Archiving and Back-Up Procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use commercially reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. Subject to clause 5.11, the Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

5.5 The Supplier shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

Processing of Personal Data

5.6 If the Supplier processes any Personal Data on the Customer’s behalf when performing its obligations under these Conditions, the parties acknowledge and agree that for purposes of Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.

5.7 As such, the Customer acknowledges and agrees that 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 Services and the Supplier’s other obligations under these Conditions.

5.8 Notwithstanding clause 5.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of the Services and of its obligations under these Conditions:
a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Domestic Law or EU Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law or EU Law as the basis for processing Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits the Supplier from so notifying the Customer;
b) ensure that (as far as reasonably possible) 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 (as far as reasonably possible) 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 and ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident);
c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
d) assist the Customer, as far as reasonably possible and at the Customer’s expense, in responding to any request from a Data Subject;
e) notify the Customer as soon as practicable on becoming aware of a Personal Data Breach;
f) notwithstanding the provisions of the Privacy Policy, after receipt of a demand in writing from the Customer and at the Customer’s expense, delete or return (or if in electronic form, take all reasonably practicable steps to permanently erase from computer media) Personal Data and copies thereof to the Customer on the termination of these Conditions; and
g) together with the Customer, take appropriate technical and organisational measures and safeguards against any unauthorised or unlawful processing or transfer of Personal Data or its accidental loss, destruction or damage.

5.9 Notwithstanding the provisions of clause 5.8(f), the Supplier shall not be required to destroy or, where in electronic form, erase:
a) any Personal Data that it is required to retain by Domestic Law or EU Law;
b) electronic records on back-up storage tapes or a similar medium where to destroy such electronic records would be significantly impractical or prohibitively costly; or
c) any information contained in papers submitted to, or minutes made of, any decision-making committee (including, but not limited to, the board of directors) of the Supplier.

5.10 In order to assist the Supplier in effectively carrying out its obligations pursuant to this clause 5, the Customer shall:
a) ensure that it is entitled to transfer the relevant Personal Data to the Supplier so that the Supplier may lawfully use, process and transfer the Personal Data on the Customer’s behalf; and
b) ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by Data Protection Legislation.

5.11 The Customer consents to the Supplier appointing any person of its choice as a third party processor of Personal Data under these Conditions. In such instance, the Supplier confirms that it will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation.

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.7.2

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.

7.3 The Supplier:
a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free;
(ii) the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses.

7.4 These Conditions shall not prevent the Supplier 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 these Conditions.

The Customer shall:
a) notwithstanding other provisions in this clause 8.1, pay the Subscription Fee by the due date for such payment;
b) provide the Supplier with:
(i) all necessary co-operation in relation to these Conditions; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
c) comply with all applicable laws and regulations with respect to its activities under these Conditions;
d) carry out all other Customer responsibilities set out in these Conditions 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
e) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these Conditions and shall be responsible for any Authorised User’s breach of these Conditions;
f) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Conditions, including without limitation the Services;
g) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
h) be, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’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.

9.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9 and the Order Form.

9.2 Unless otherwise agreed between the Parties, the Supplier shall invoice the Customer on or after the Commencement Date for the Subscription Fees payable in respect of the Subscription Term and the Customer shall pay each Invoice within the Payment Terms.

9.3 If the Supplier has not received payment within 10 days after the due date of the Invoice, and without prejudice to any other rights and remedies of the Supplier:
a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services 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 Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4 All amounts and fees stated or referred to in these Conditions:
a) shall be payable in the Agreed Currency;
b) are, subject to clause 13.4(b), non-cancellable and non-refundable;
c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.

9.5 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, the additional charges for further Support Services pursuant to clause 4.3 upon 10 Business Days’ prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.

10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Conditions does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Conditions.

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Conditions. 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 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 these Conditions.

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 these Conditions.

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 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 Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7 No party shall make, or permit any person to make, any public announcement concerning these Conditions 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.

11.8 The above provisions of this clause 11 shall survive termination of these Conditions, however arising.

12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
a) the Customer is given prompt notice of any such claim;
b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
c) the Customer is given sole authority to defend or settle the claim.

12.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with these Conditions infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
a) the Supplier is given prompt notice of any such claim;
b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
c) the Supplier is given sole authority to defend or settle the claim.

12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Conditions on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a) a modification of the Services or Documentation by anyone other than the Supplier;
b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

12.5 The foregoing and clause 13.4(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12.6 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights, actual or alleged defamation, or otherwise, arising out of or in connection with use of the Training Material and/or Customer Data by the Supplier in the course of providing the Services.

13.1 This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
a) arising under or in connection with these Conditions;
b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and
c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions.

13.2 Except as expressly and specially provided in these Conditions:
a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier 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 these Conditions; and
c) the Services and the Documentation are provided to the Customer on an “as is” basis.

13.3 Nothing in these Conditions excludes the liability of the Supplier:
a) for death or personal injury caused by the Supplier’s negligence; or
b) for fraud or fraudulent misrepresentation.

13.4 Subject to s 13.1 to 13.3:
a) the Supplier 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 these Conditions; and
b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity 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 these Conditions shall be limited to an amount equal to the Subscription Fees paid by the Customer to the Supplier.

13.5 Nothing in these Conditions excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.

14.1 These Conditions shall, unless otherwise terminated as provided in this clause 14, commence on the Commencement Date and shall continue for Subscription Term and thereafter, these Conditions shall continue until either Party provides the other Party with three (3) months written notice of termination, unless otherwise agreed in the Order Form.

14.2 Without affecting any other right or remedy available to it, either party may terminate these Conditions with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any amount due under these Conditions on the due date for payment and remains in default not fewer than 10 days after being notified in writing to make such payment;
b) the other party commits a material breach of any other term of these Conditions and (if such breach is remediable) fails to remedy that breach within a period of 20 days after being notified in writing to do so;
c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to 14.2 (j) (inclusive);
l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
m) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

14.3 On termination of these Conditions for any reason:
a) all licences granted under these Conditions shall immediately terminate;
b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession; 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.

The Supplier shall have no liability to the Customer under these Conditions if it is prevented from or delayed in performing its obligations under these Conditions, 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 the Supplier 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.

If there is an inconsistency between any of the provisions in the main body of these Conditions and the Schedules, the provisions in the main body of these Conditions shall prevail.

No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.1 Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

18.2 Without prejudice to any other rights or remedies that the Supplier may have, the Customer hereby accepts that damages alone may not be an adequate remedy for any breach of the terms of these Conditions. Without proof of actual damages, injunctive relief, specific performance or other equitable relief in favour of the Supplier may be sought as a remedy for breach of the terms of these Conditions.

19.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions.

19.2 If any provision or part-provision of these Conditions is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20.1 These Conditions supersedes all prior agreements and representations between the Parties regarding the Services. Any terms and conditions inconsistent with these Conditions contained in any Order Form will be of no force or effect, even if the Order is accepted by the Supplier. The Supplier may make changes to these Conditions from time to time. If the Supplier makes a material change to any of the foregoing, the Supplier will inform the Customer by e-mail to the e-mail address(es) noted on the Order Form, or through a banner or other prominent notice on the relevant online portal, or through the Supplier’s online support platform. If the Customer does not agree to the change, the Customer must so notify the Supplier by e-mail to support@nmblr.co within 30 days after the Supplier’s notice. If the Customer so notifies the Supplier, then the Customer will remain governed by the most recent Conditions applicable to the Customer until the end of the then-current year of the Subscription Term and the updated Conditions shall apply upon the commencement of the subsequent Subscription Term.

21.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.

21.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.

Nothing in these Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

These Conditions does not confer any rights on any person or party (other than the parties to these Conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

These Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).