Software as a Service Agreement

Elen Financial Software – Software as a Service Agreement

Background

We are Elen Financial Software Ltd, a company incorporated in England and Wales (with company number 11680470) whose registered office is at Sophia House, 28 Cathedral Road, Cardiff Wales CF11 9LJ) (Elen).

This software as a service agreement sets out the terms and conditions on which Elen supplies you (the Customer) with a digital back office platform specifically designed for financial advisers to interact with their clients. The platform is made available to subscribers via the internet on a pay-per use basis. Elen has agreed to provide and the Customer has agreed to take and pay for Elen’s service subject to the terms and conditions of this agreement

Agreed terms

Interpretation
1. The definitions and rules of interpretation in this clause apply in this agreement. Advisers: the financial advisers, paraplanners or administrators who are authorised by the Customer to use the Services and the Documentation. Adviser Subscriptions: the user subscriptions purchased by the Customer pursuant to 10.1 which entitle Advisers to access and use the Services and the Documentation in accordance with this agreement.
  
  Applicable Laws: means
  - - 1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
      2. To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Elen is subject.
  Applicable Data Protection Laws : means:
  - - 1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
      2. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Elen is subject, which relates to the protection of personal data.
  Business Day: a day other than a Saturday, Sunday or public holiday in England and Wales when banks in London are open for business.
  
  Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
  
  Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or clause 12.6.
  
  Customer Data: the data inputted by the Customer, Advisers, FA Clients or Elen on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
  
  Documentation: the description of the Services, user instructions for the Services, data back-up procedures and security procedures made available to the Customer by Elen online via such web address notified by Elen to the Customer from time to time.
  
  DPA: the data processing agreement entered into between Elen and the Customer on the date of this agreement.
  
  Effective Date: the date of this agreement.
  
  EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
  
  FA Clients: clients of the Advisers who use the Software to interact with the Advisers.
  
  Initial Subscription Term: the initial subscription term as set out in the order pages of the Software where the Customer placed its initial order.
  
  Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
  
  Purpose: the purposes for which the Customer Data is processed, as set out in 6.8 (a).
  
  Renewal Period: the period described in clause 15.1.
  
  Services: the subscription services provided by Elen to the Customer under this agreement via www.elen.co/ or any other website or mobile application notified to the Customer by Elen from time to time, as more particularly described in the Documentation.
  
  Software: the online back office software platform provided by Elen as part of the Services.
  
  Subscription Fees: the subscription fees payable by the Customer to Elen for the Adviser Subscriptions, which will be the price indicated on the order pages of the Software where the Customer placed an order.
  
  Subscription Term: has the meaning given in clause 15.2 (being the Initial Subscription Term together with any subsequent Renewal Periods).
  
  Support Services Policy: Elen’s policy for providing support in relation to the Services as made available at the website address as may be notified to the Customer from time to time.
  
  UK GDPR: has the meaning given to it in the Data Protection Act 2018.
  
  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.
  
  Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
7. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
8. A reference to writing includes e-mail.
9. References to clauses are to the clauses of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
User subscriptions
1. Subject to the Customer purchasing the Adviser Subscriptions in accordance with clause 3.3 and clause 10.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Elen hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Advisers to use the Services and the Documentation during the Subscription Term.
2. In relation to the Advisers and FA Clients, the Customer undertakes that:
  1. the maximum number of Advisers that it authorises to access and use the Services shall not exceed the number of Adviser Subscriptions it has purchased from time to time;
  2. it will not allow or suffer any Adviser Subscription to be used by more than one individual Adviser unless it has been reassigned in its entirety to another individual Adviser, in which case the prior Adviser shall no longer have any right to access or use the Services and/or Documentation;
  3. each Adviser and shall keep a secure password for his use of the Services and Documentation and that each Adviser shall keep his password confidential;
  4. it shall permit Elen or Elen’s designated auditor to audit the Services. Each such audit may be conducted at Elen’s expense, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and
  5. if any of the audits referred to in clause 2.2(d) reveal that multiple users have been using the same Advisor Subscription, then without prejudice to Elen’s other rights, Elen shall promptly disable such accounts.
3. The Customer shall not (and the Customer shall procure that the Advisors shall not) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
  1. 1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
    2. facilitates illegal activity;
    3. depicts sexually explicit images;
    4. promotes unlawful violence;
    5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
    6. is otherwise illegal or causes damage or injury to any person or property;
  and Elen 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.
4. The Customer shall not (and shall procure that the Advisers shall not):
  1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
    1. 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
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
  2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
  3. subject to clause 23.1, 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 Advisers and FA Clients, or
  4. 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
  5. introduce or permit the introduction of, any Virus or Vulnerability into Elen’s network and information systems.
5. The Customer shall use all reasonable 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, promptly notify Elen.
6. The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Additional user subscriptions
1. Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional Adviser Subscriptions in excess of the number set out and agreed between the parties in the order form of the Software where the Customer placed its order and Elen shall grant access to the Services and the Documentation to such additional Advisers in accordance with the provisions of this agreement.
2. If the Customer wishes to purchase additional Adviser Subscriptions, the Customer shall submit an order to Elen on the order pages of the Software
3. If Elen approves the order made by the Customer to purchase additional Adviser Subscriptions in accordance with clause 3.2, the Customer shall pay to Elen the relevant fees for such additional Adviser Subscriptions.
Services
1. Elen shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
2. Elen shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
  1. planned maintenance carried out during the maintenance window of 12.00am to 4.00am UK time;
  2. unscheduled maintenance performed outside Normal Business Hours, provided that Elen has used reasonable endeavours to give the Customer at least one Business Day’s notice in advance; and
  3. any emergency maintenance.
3. Elen will, as part of the Services and at no additional cost to the Customer provide the Customer with Elen’s standard customer support services during Normal Business Hours in accordance with Elen’s Support Services Policy in effect at the time that the Services are provided. Elen may amend the Support Services Policy in its sole and absolute discretion from time to time.
Customer data
1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
2. Elen shall follow its archiving procedures for Customer Data as set out in the website addresses as may be notified to the Customer from time to time. The archiving procedures may be amended by Elen in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Elen shall be for Elen to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Elen in accordance with the archiving procedure described in the Documents. Elen 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 Elen to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 6.10).
3. Elen shall, in providing the Services, comply with the then-current version of Elen’s privacy policy available at the website address as may be notified to the Customer form time to time (Privacy Policy) and shall comply with its security measures relating to the security of the Customer Data as set out in the the website addresses as may be notified to the Customer from time to time. The security policies may be amended from time to time by Elen in its sole discretion.
Data Protection
1. For the purposes of this clause 6, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
2. Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Applicable Data Protection Laws.
3. The parties have determined that, for the purposes of Applicable Data Protection Laws if Elen processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and Elen is the processor for the purposes of the Applicable Data Protection Laws.
4. Should the determination in clause 6.3 change, then each party shall work together in good faith to make any changes which are necessary to this clause 6 or the related schedules.
5. By entering into this agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Elen in connection with the processing of Customer Data, provided these are in compliance with the Privacy Policy (Privacy Policy) In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
6. Without prejudice to the generality of clause 6.5, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Data to Elen for the duration and purposes of this agreement so that Elen may lawfully use, process and transfer the Customer Data in accordance with this agreement on the Customer’s behalf.
7. In relation to Customer Data, the DPA sets out the scope, nature and purpose of processing by Elen, the duration of the processing and the types of personal data and categories of data subject.
8. Without prejudice to the generality of se clause 6, Elen shall, in relation to any personal data processed in connection with the performance by Elen of its obligations under this agreement:
  1. process that personal data only on the documented written instructions of the Customer, which shall be to process the Customer Data for the purposes providing the Services (as set out in more detail in the DPA) (Purpose), unless Elen is required by the Applicable Laws to otherwise process that Customer Data. Where Elen is relying on Applicable Laws as the basis for processing Customer Data, Elen shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Elen from so notifying the Customer;
  2. assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  3. notify the Customer without undue delay on becoming aware of a personal data breach;
  4. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
  5. maintain complete and accurate records and information to demonstrate its compliance with this e clause 6 and inform the Customer if, in the opinion of Elen, an instruction infringes the Data Protection Laws.
9. Each party shall ensure that it has in place appropriate technical and organisational measures, , to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
10. The Customer hereby provides its prior, general authorisation for Elen to:
  1. appoint processors to process the Customer Data, provided that Elen:
    1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Elen in this clause 6;
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Elen; and
    3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Elen’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Elen for any losses, damages, costs (including legal fees) and expenses suffered by Elen in accommodating the objection.
  2. transfer Customer Data outside of the UK as required for the Purpose, provided that Elen shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Elen, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
Third party providers. 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. Elen 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 Elen. Elen 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.
Elen’s obligations
1. Elen undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
2. The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Elen’s instructions, or modification or alteration of the Services by any party other than Elen or Elen’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Elen 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 8.1.
3. Elen:
  1. does not warrant that:
    1. the Customer’s use of the Services will be uninterrupted or error-free; or
    2. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
    3. the Software or the Services will be free from Vulnerabilities.
  2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. This agreement shall not prevent Elen from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5. Elen warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
Customer’s obligations. The Customer shall:
1. provide Elen with:
  1. 1. all necessary co-operation in relation to this agreement; and
    2. all necessary access to such information as may be required by Elen;
  in order to provide the Services, including but not limited to Customer Data, security access information and configuration datas;
2. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
3. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Elen may adjust any agreed timetable or delivery schedule as reasonably necessary;
4. ensure that the Advisers use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Adviser’s breach of this agreement;
5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Elen, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
6. ensure that its network and systems comply with the relevant specifications provided by Elen from time to time;
7. be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Elen’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; and
8. procure that each FA Client will keep a secure password for the FA Client’s use of the Software and shall keep such password confidential.
Charges and payment
1. The Customer shall pay the Subscription Fees to Elen for the Adviser Subscriptions in accordance with clause 10.
2. The Customer shall on the Effective Date provide to Elen valid, up-to-date and complete credit card details or approved purchase order information acceptable to Elen and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details to Elen, the Customer hereby authorises Elen to charge such credit card:
  1. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
  2. subject to lause clause 15.1, on each renewal of this agreement, pay the the Subscription Fees payable to Elen in respect of the next Renewal Period;
3. If Elen has not received payment on the renewal of the agreement in accordance with clause 10.2, without prejudice to any other rights and remedies of Elen, Elen may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Elen shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
4. All Subscription Fees, additional Subscription Fees or any other amounts payable by the Customer to Elen:
  1. shall be payable in pounds sterling or any other currency chosen by Elen; and
  2. are, subject to clause 14.3(b), non-cancellable and non-refundable.
5. If, at any time whilst using the Services, the Customer exceeds the permitted amount of storage space, or any other limitations indicated on the order forms of the Software where the Customer placed its order, Elen shall charge the Customer, and the Customer shall pay, Elen’s then current excess data storage fees or any other applicable fees as set out in the order forms of the Software where the Customer placed its order.
6. Elen shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Adviser Subscriptions purchased pursuant to clause 3.3 and/or the excess storage fees payable pursuant to clause 10.5 at the start of each Renewal Period upon 90 days prior notice to the Customer.
Proprietary rights
1. The Customer acknowledges and agrees that Elen and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
2. Elen 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 this agreement.
Confidentiality and compliance with policies
1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other party’s lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving party, which independent development can be shown by written evidence.
2. Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
5. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Elen’s Confidential Information.
6. Elen acknowledges that the Customer Data is the Confidential Information of the Customer.
7. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8. The above provisions of this clause 12 shall survive termination of this agreement, however arising.
Indemnity
1. The Customer shall defend, indemnify and hold harmless Elen against any 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 or the FA Client’s use of the Services and/or Documentation, provided that:
  1. the Customer is given prompt notice of any such claim;
  2. Elen provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
  3. the Customer is given sole authority to defend or settle the claim.
2. Elen 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 this agreement infringes any United Kingdom 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:
  1. Elen is given prompt notice of any such claim;
  2. the Customer provides reasonable co-operation to Elen in the defence and settlement of such claim, at Elen’s expense; and
  3. Elen is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Elen 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 this agreement 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.
4. In no event shall Elen, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  1. a modification of the Services or Documentation by anyone other than Elen; or
  2. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Elen; or
  3. the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Elen or any appropriate authority
5. The foregoing and use clause 14.3(b) states the Customer’s sole and exclusive rights and remedies, and Elen’s (including Elen’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of liability
1. Except as expressly and specifically provided in this agreement:
  1. 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. Elen shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Elen by the Customer in connection with the Services, or any actions taken by Elen at the Customer’s direction;
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
  3. the Services and the Documentation are provided to the Customer on an “as is” basis.
2. Nothing in this agreement excludes the liability of Elen:
  1. for death or personal injury caused by Elen’s negligence; or
  2. for fraud or fraudulent misrepresentation.
3. Subject to clause 14.1 and clause 14.2:
  1. Elen shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
  2. Elen’s total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the Adviser Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Term and termination
1. This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for equal successive periods as set out on the order pages of the Software where the Customer placed its order (each a Renewal Period), unless:
  1. either party notifies the other party of termination, in writing, before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
  2. otherwise terminated in accordance with the provisions of this agreement,
  and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
  1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default after being notified in writing to make such payment;
  2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so; and
  3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
  4. 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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
  5. 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;
  6. 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;
  7. 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;
  8. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
  11. 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 15.2(d) to clause 15.2(j) (inclusive).
3. On termination of this agreement for any reason:
  1. all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services
  2. 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;
  3. Elen may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 6.8(d), unless Elen receives, no later than 30 days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Elen shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Elen in returning or disposing of Customer Data; and
  4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Force majeure. Elen shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Elen or any other party), failure of a utility service or transport or telecommunications network, act of God, epidemic or pandemic, 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 Elen or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
Conflict. If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
Variation. No variation of this agreement shall be effective unless it is agreed by the parties (or their authorised representatives) on the admin pages of the Software.
Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
Rights and remedies. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance
1. If any provision or part-provision of this agreement 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 this agreement.
2. If any provision or part-provision of this agreement is deemed deleted under clause 21.1 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.
Entire agreement
1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement
4. Nothing in this clause shall limit or exclude any liability for fraud.
Assignment
1. The Customer shall not, without the prior written consent of Elen, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
2. Elen 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 this agreement.
No partnership or agency. Nothing in this agreement 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).
Third party rights. This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Notices. Any notice required to be given under this agreement shall be made via admin pages of the Software.
Governing law. This agreement 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.
Jurisdiction. 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 this agreement or its subject matter or formation (including non-contractual disputes or claims).

Clause 12.5

Clause 12.6