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Terms of service

Software Licence Agreement

Welcome to the terms of service for our Kanoppi WordPress plugin.

Please read this Terms of Service for our Software Licence Agreement.

These terms are provided in a layered format so you can also click through to the specific areas set out below. Please also use the Interpretation to understand the meaning of some of the terms used in this software licence agreement.

  1. Interpretation
  2. Subscription & Grant Of Licence
  3. Kanoppi Software & Maintenance Releases
  4. Data Protection
  5. Third Party Providers
  6. Kanoppi’s Warranties & Obligations
  7. Customer’s Obligations
  8. Charges & Payment
  9. Intellectual Property Rights
  10. Confidentiality
  11. Indemnity
  12. Limitation Of Liability
  13. Term & Termination
  14. Force Majeure
  15. Variation
  16. Waiver
  17. Rights & Remedies
  18. Severance
  19. Entire agreement
  20. Assignment
  21. No Partnership Or Agency
  22. Third Party Rights
  23. Notices
  24. Governing Law
  25. Jurisdiction

Background

a) Kanoppi has developed and is the entire legal and beneficia owner and licensor of the Kanoppi Software, which it makes available to Customers via Kanoppi’s Website for the purpose of carrying out a variety of activities in relation to the Customer’s digital carbon footprint.

b) The Customer wishes to use the Kanoppi Software in connection with the Customer’s website and the Customer’s business operations.

c) Kanoppi has agreed to grant and the Customer has agreed to pay for a licence for the use of the Kanoppi Software in connection with the Customer’s website and the Customer’s business operations subject to these Terms & Conditions.

d) The Kanoppi Software is licensed under and subject to the terms & conditions as set out in the GNU General Public License v3.0 or later, in addition to these Terms & Conditions.

Agreed Terms

1. Interpretation

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

Applicable Data Protection Laws”: (a) 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, including all applicable laws, statutes, regulations and codes from time to time in force relating to the UK GDPR; and (b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer is subject, which relates to the protection of personal data, including all applicable laws, statutes, regulations and codes from time to time in force relating to the EU GDPR.

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

Confidential Information”: Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.

Customer”: The entity contracting with Kanoppi on a B2B basis for the use of Kanoppi Software and the Documentation during the Licence Term in accordance with these Terms & Conditions.

Customer Data”: The data owned by the Customer which may be required by Kanoppi to carry out a variety of activities in relation to the Customer’s digital carbon footprint.

Documentation”: The documentation made available to the Customer by Kanoppi online via Kanoppi’s Website which sets out a description of the Software Plugin and the user instructions for the Software.

Effective Date”: The date on which the Customer accepts these Terms & Conditions.

EU GDPR”: The General Data Protection Regulation, Regulation (EU) 2016/679.

Functionality”: The functionality of the Kanoppi Software as set out on Kanoppi’s Websiteor as notified to the Customer from time to time.

Initial Period”: A period of either one month or one year depending on the nature of the User Subscription and beginning on the Effective Date.

“Intellectual Property Rights”: Copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.

Kanoppi”: Kanoppi Limited, a company incorporated and registered in England & Wales (Company Registration Number: 14438510) and whose registered office is situated at 2nd Floor Sutton Court, Church Yard, Tring, Hertfordshire, United Kingdom, HP23 5BB.

Kanoppi Software”: The software plugin owned and operated by Kanoppi which it makes available to Customers for the purpose of carrying out a variety of activities in relation to the Customer’s digital carbon footprint.

Licence Term”: Has the meaning given in clause 13.1 (being the Initial Period together with any subsequent Renewal Periods).

Maintenance Release”: Release of the Kanoppi Software that corrects faults, adds functionality or otherwise amends or upgrades the Kanoppi Software, but which does not constitute a New Version.

New Version”: Any new version of the Kanoppi Software which from time to time is publicly marketed and offered for purchase by Kanoppi in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Normal Business Hours”: 9.00 am to 5.00 pm local UK time, each Business Day.

Renewal Period”: The period described in clause 13.1, being a period of either one month or one year depending on the nature of the User Subscription and beginning on the date on which the Initial Period expires.

Subscription Fees”: The subscription fees payable by the Customer to Kanoppi for the User Subscription, as set out on Kanoppi’s Website.

Support Services Policy”: Kanoppi’s policy for providing support in relation to the Kanoppi Software as made available on Kanoppi’s Website.

UK GDPR”: Has the meaning given to it in the Data Protection Act 2018.

User Subscription”: The user subscription purchased by the Customer pursuant to clause 8.1, details of which are available on Kanoppi’s Website, which entitles the Customer to access and use the Kanoppi Software and the Documentation in accordance with these Terms & 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.

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 interpreted accordingly.

Website”: Means https://kanoppi.co.

1.2 Clause headings shall not affect the interpretation of these Terms & Conditions.

1.3 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.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.

1.9 A reference to “writing” or “written” excludes fax but not e-mail.

1.10 References to clauses are to the clauses of these Terms & Conditions.

2 Subscription & Grant Of Licence

2.1 Subject to the Customer purchasing the User Subscription in accordance with clause 8.1, the  restrictions set out in this clause 2 and these Terms & Conditions, and in consideration of the Subscription Fees paid by the Customer to Kanoppi, Kanoppi hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Customer to:

a) Use the Kanoppi Software and the Documentation during the Licence Term solely for the for the purpose of carrying out a variety of activities in relation to the Customer’s digital carbon footprint; and/or

b) Use the Kanoppi Software and the Documentation during the Licence Term for the purpose of carrying out a variety of activities in relation to the Customer’s clients’ digital carbon footprint in circumstances where the Customer maintains an ongoing relationship with such clients of the Customer as a consultant or third party contractor. For the avoidance of doubt, and in such circumstances, the Customer is prohibited from:

i) Providing the Kanoppi Software or Documentation as a service; or

ii) Providing the Kanoppi Software or Documentation as part of a web hosting solution;

And the Customer acknowledges and agrees that the above prohibited activities do not constitute an ongoing relationship with such clients for the purposes of this clause 2.1.

2.2 In relation to the Customer’s User Subscription, the Customer warrants and undertakes that:

a) It will not allow or suffer the Customer’s User Subscription to be used by any individual other than the Customer;

b) The Customer shall keep a secure password for their use of the Kanoppi Software and Documentation, and that the Customer shall keep their password confidential;

c) The Customer will not use more than the permitted number of licences granted in accordance with clause 2.1 than has been purchased in connection with the Customer’s User Subscription.

2.3 In relation to scope of use:

a) For the purposes of clause 2.1, use of the Kanoppi Software shall be restricted to use of the Kanoppi Software for carrying out a variety of activities in relation to the Customer’s digital carbon footprint or the Customer’s clients’ digital carbon footprint for the normal business purposes of the Customer;

b) The Customer may not use the Kanoppi Software other than as specified in clause 2.1 and clause 2.3(a) without the prior written consent of Kanoppi, and the Customer acknowledges that additional fees, which would be added to any Subscription Fees, may be payable on any change of use approved by Kanoppi;

c) The Customer may make backup copies of the Kanoppi Software as may be necessary for its lawful use. The Customer shall record the number and location of all copies of the Kanoppi Software and take steps to prevent unauthorised copying;

d) Except as expressly stated in this clause 2, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, or adapt the Kanoppi Software in whole or in part, and the Customer may not use any information provided by Kanoppi or obtained by the Customer during its use of the Kanoppi Software to create any software whose expression competes or is substantially similar to that of the Kanoppi Software nor use such information in any manner which would be restricted by any copyright subsisting in the Kanoppi Software.

2.4 The Customer shall not (via the Customer’s website in connection with the which the Kanoppi Software is being used) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Kanoppi Software 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 Kanoppi reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Kanoppi Software in the event that the Customer accesses, stores, distributes or transmits any material that breaches the provisions of this clause.

2.5 The Customer shall not:

a) Sub-license, assign or novate the benefit or burden of the licence granted in accordance with clause 2.1 in whole or in part;

b) Allow the Kanoppi Software to become the subject of any charge, lien or encumbrance;

c) Deal in any other manner with any or all of its rights and obligations under these Terms & Conditions;

d) 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 Terms & 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 Kanoppi 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 Kanoppi Software;

e) Use the Kanoppi Software and/or Documentation in breach of the restrictions set out in clause 2.1; or

f) Subject to clause 2.1 and to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Kanoppi Software and/or Documentation available to any third party except the Customer; or

g) Attempt to obtain, or assist third parties in obtaining, access to the Kanoppi Software and/or Documentation, other than as provided under this clause 2; or

h) Introduce or permit the introduction of, any Virus or Vulnerability into Kanoppi’s network and information systems.

2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Kanoppi Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Kanoppi.The rights provided under this clause 2 are granted to the Customer only.

2.7 The Customer acknowledges and agrees that Kanoppi is not responsible or liable for any activities carried out by the Customer via the Kanoppi Software.

3. Kanoppi Software & Maintenance Releases

3.1 Kanoppi shall, during the Licence Term, use commercially reasonable efforts to make available the Kanoppi Software and Documentation to the Customer on and subject to these Terms & Conditions.

3.2 Kanoppi shall, during the Subscription Term, use reasonable endeavours to maintain the Functionality of the Kanoppi Software.

3.3 Kanoppi will provide the Customer with Kanoppi’s standard customer support services within a reasonable response time during Normal Business Hours in accordance with Kanoppi’s Support Services Policy. Kanoppi may amend the Support Services Policy in its sole and absolute discretion from time to time.

3.4 Kanoppi may provide the Customer with up to date details as to the Functionality of the Kanoppi Software from time to time.

3.5 Kanoppi will provide the Customer with all Maintenance Releases generally made available to its customers. Kanoppi warrants that no Maintenance Release will adversely affect the then existing facilities or Functionality of the Kanoppi Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.

4. Data Protection

4.1 For the purposes of this clause 4, the terms “controller”, “processor”, “data subject”, “personal data”, “personal data breach” and “processing” shall have the meaning given to them in the UK GDPR.

4.2 Kanoppi and the Customer will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Applicable Data Protection Laws.

4.3 The parties have determined that, for the purposes of the Applicable Data Protection Laws:

a) The Customer shall act as controller of personal data; and

b) Kanoppi shall process personal data.

4.4 Without prejudice to the generality of clause 4.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data and lawful collection of the same for the duration and purposes of these Terms & Conditions.

4.5 Without prejudice to the generality of clause 4.2 Kanoppi shall, in relation to any personal data:

a) Process that personal data as required by the Applicable Data Protection Laws;

b) Implement the 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, which the Customer has reviewed and confirms are 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;

c) Ensure that any personnel engaged and authorised to process personal data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

d) Respond to any request from a data subject and ensure Kanoppi’s compliance with its obligations under the Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

e) Notify any data subjects without undue delay on becoming aware of a personal data breach involving the personal data;

f) At the written direction of a data subject, delete or return personal data and copies thereof on termination of these Terms & Conditions; and

g) Maintain records to demonstrate its compliance with this clause 4.

4.6 For the avoidance of doubt, all personal data held by Kanoppi as required for Kanoppi to adhere to its obligations in connection with these Terms & Conditions is stored in an encrypted format.

5. Third Party Providers

5.1 The Customer acknowledges that the Kanoppi Software may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via links to third-party websites and that it does so solely at its own risk.

5.2 Kanoppi has no control over, and assumes no responsibility for, the content, privacy policies, or products or services of any third-party websites, and Kanoppi does not endorse or approve any third-party website nor the content of any of any third-party website.

5.3 Kanoppi 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. The Customer acknowledges and agrees that Kanoppi shall not be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the Customer’s use of, or reliance on, any such content, privacy policies, or products or services available on or through any third-party websites.

5.4 Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Kanoppi. Kanoppi 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. 

6. Kanoppi’s Warranties & Obligations

6.1 Kanoppi warrants that it shall provide the Kanoppi Software substantially in accordance with the Documentation and with reasonable skill and care.

6.2 The warranty at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Kanoppi Software contrary to Kanoppi’s instructions, or modification or alteration of the Kanoppi Software by any party other than Kanoppi or Kanoppi’s duly authorised contractors or agents. If the Kanoppi Software does not conform with the foregoing warranty, Kanoppi 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 warranty set out in clause 6.1. 

6.3 Kanoppi:

a) Does not warrant that:

i) The Customer’s use of the Kanoppi Software will be uninterrupted or error-free; or

ii) The Functionality of the Kanoppi Software will not be amended during the Subscription Term;

iii) That the Kanoppi Software, Documentation and/or the information obtained by the Customer through the Kanoppi Software will meet the Customer’s requirements; or

iv) The Kanoppi Software will be free from Vulnerabilities or Viruses.

b) Is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Kanoppi Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.4 These Terms & Conditions shall not prevent Kanoppi 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 Terms & Conditions.

6.5 Kanoppi warrants that:

a) It has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms & Conditions;

b) It shall notify the Customer of any forthcoming Renewal Period from time to time.

6.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these Terms & Conditions or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.

7. Customer’s Obligations

7.1 The Customer shall:

a) Provide Kanoppi with:

i) All necessary co-operation in relation to these Terms & Conditions; and

ii) All necessary access to such information as may be required by Kanoppi;

In order to provide the Kanoppi Software;

b) Without affecting its other obligations under these Terms & Conditions, comply with all applicable laws and regulations with respect to its activities under these Terms & Conditions;

c) Carry out all other Customer responsibilities set out in these Terms & Conditions in a timely and efficient manner;

d) Ensure that the Customer uses the Kanoppi Software and the Documentation in accordance with these Terms & Conditions and shall be responsible for the Customer’s breach of these Terms & Conditions;

e) Obtain and shall maintain all necessary licences, consents, and permissions necessary for Kanoppi, its contractors and agents to perform their obligations under these Terms & Conditions;

f) Ensure that its network and systems comply with the relevant specifications provided by Kanoppi from time to time; and

g) Be, to the extent permitted by law and except as otherwise expressly provided in these Terms & Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Kanoppi’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.

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

8. Charges & Payment

8.1 The Customer shall on the Effective Date pay by debit or credit card, or via invoice, via the Website the Subscription Fees in respect of the Initial Period to Kanoppi for the User Subscription in accordance with this clause 8.

8.2 The Customer acknowledges and agrees that Kanoppi shall automatically procure payment of the Subscription Fees in respect of any Renewal Period on the date on which such Renewal Period begins, unless these Terms & Conditions are terminated prior to such date in accordance with clause 13.1(a) or clause 13.1(b).

8.3 If Kanoppi does not receive payment in respect of any Renewal Period in accordance with clause 8.2, and without prejudice to any other rights and remedies of Kanoppi, Kanoppi may, without liability to the Customer, disable the Customer’s access to all or part of the Kanoppi Software and Kanoppi shall be under no obligation to provide access to all or part of the Kanoppi Software while the Subscription Fees in respect of any such Renewal Period remains unpaid.

8.4 All amounts and fees stated or referred to in these Terms & Conditions:

a) Shall be payable in pounds sterling;

b) Are non-cancellable and non-refundable;

c) Are exclusive of value added tax, which shall be added to Kanoppi’s VAT receipt(s) provided to the Customer at the appropriate rate.

8.5 Kanoppi shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 20 Business Days’ prior notice to the Customer.

9. Intellectual Property Rights

9.1 The Customer acknowledges and agrees that Kanoppi owns all Intellectual Property Rights in the Kanoppi Software and the Documentation and any Maintenance Releases and any data generated internally by the Kanoppi Software. Except as expressly stated herein, these Terms & Conditions do 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 Kanoppi Software or the Documentation.

9.2 Kanoppi confirms that it has all the rights in relation to the Kanoppi Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms & Conditions.

9.3 Further to clause 2.1, in consideration of the Subscription Fees payable under these Terms & Conditions Kanoppi grants to the Customer a non-exclusive licence to use for the purposes of these Terms & Conditions the Intellectual Property Rights arising out of or in connection with the Kanoppi Software and the Documentation, and all other materials created by Kanoppi pursuant to these Terms & Conditions.

9.4 Except as expressly agreed in this clause 9, no Intellectual Property Rights of either party are transferred or licensed as a result of these Terms & Conditions.

9.5 Kanoppi agrees that all Intellectual Property Rights arising out of or in connection with the Kanoppi Software or the Documentation do not infringe the Intellectual Property Rights belonging to any third party.

10. Confidentiality

10.1 Each party shall, during the Licence Term and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of these Terms & Conditions) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

11. Indemnity

11. The Customer shall defend, indemnify and hold harmless Kanoppi 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 Kanoppi Software and/or Documentation, provided that:

a) The Customer is given prompt notice of any such claim;

b) Kanoppi 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.

11.2 Kanoppi shall defend the Customer against any claim that the Customer’s use of the Kanoppi Software or Documentation in accordance with these Terms & Conditions infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, or any Intellectual Property Rights of any third party and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

a) Kanoppi 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 Kanoppi in the defence and settlement of such claim, at Kanoppi’s expense; and

c) Kanoppi is given sole authority to defend or settle the claim.

11.3 In the defence or settlement of any claim, Kanoppi may procure the right for the Customer to continue using the Kanoppi Software, replace or modify the Kanoppi Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate these Terms & Conditions on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer, except as may be agreed between the parties.

11.4 In no event shall Kanoppi, 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 Kanoppi Software or Documentation by anyone other than Kanoppi; or

b) The Customer’s use of the Kanoppi Software or Documentation in a manner contrary to the instructions given to the Customer by Kanoppi; or

c) The Customer’s use of the Kanoppi Software or Documentation after notice of the alleged or actual infringement from Kanoppi or any appropriate authority.

11.5 The foregoing and clause 12.3(c) state the Customer’s sole and exclusive rights and remedies, and Kanoppi’s (including Kanoppi’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. Limitation Of Liability

12.1 Except as expressly and specifically provided in these Terms & Conditions:

a) The Customer assumes sole responsibility for results obtained from the use of the Kanoppi Software and the Documentation by the Customer, and for conclusions drawn from such use. Kanoppi shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kanoppi by the Customer in connection with the Customer’s use of the Kanoppi Software, or any actions taken by Kanoppi 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 Terms & Conditions; and

c) The Kanoppi Software and the Documentation are provided to the Customer on an “as is” basis.

12.2 Nothing in these Terms & Conditions excludes the liability of Kanoppi:

a) For death or personal injury caused by Kanoppi’s negligence; or

b) For fraud or fraudulent misrepresentation.

12.3 Subject to clause 12.1 and clause 12.2:

a) Kanoppi shall not in any circumstances relating to the Customer’s use of the Kanoppi Software have any liability for any losses or damages, including liquidated damages, which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

i) Special damage even if Kanoppi was aware of the circumstances in which such special damage could arise;

ii) Loss of profits;

iii) Loss of anticipated savings;

iv) Loss of business opportunity;

v) Loss of goodwill;

vi) Loss or corruption of data;

b) Further to clause 12.3(a), Kanoppi 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, liquidated damages, charges or expenses however arising under these Terms & Conditions, including any losses incurred by the Customer due to Viruses or Vulnerabilities beyond the control of Kanoppi; and

c) Kanoppi’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms & Conditions shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

12.4 Nothing in these Terms & Conditions excludes the liability of the Customer for any breach, infringement or misappropriation of Kanoppi’s Intellectual Property Rights.

13. Term & Termination

13.1 These Terms & Conditions and the Licence Term, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Period and thereafter shall be automatically renewed for successive Renewal Periods, unless:

a) The Customer cancels the automatic renewal upon being notified of a forthcoming Renewal Period, in which case these Terms & Conditions shall terminate upon the expiry of the applicable Initial Period or Renewal Period; or

b) Kanoppi provides the Customer with 10 Business Days’ written notice; or

c) Otherwise terminated in accordance with the provisions of these Terms & Conditions;

And the Initial Period together with any subsequent Renewal Periods shall constitute the “Licence Term”.

13.2 Without affecting any other right or remedy available to it, either party may terminate these Terms & Conditions with immediate effect by giving written notice to the other party if (as applicable):

a) The other party fails to pay any amount due under these Terms & Conditions on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;

b) The other party commits a material breach of any other term of these Terms & Conditions and (if such breach is remediable) fails to remedy that breach within a period of 10 Business 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;

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 10 Business 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 13.2(c) to clause 13.2(j) (inclusive);

i) The other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

j) The other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Term & Conditions is in jeopardy.

13.3 On termination or expiry of these Terms & Conditions for any reason:

a) All licences granted under these Terms & Conditions shall immediately terminate and the Customer shall immediately cease all use of the Kanoppi Software and/or the Documentation;

b) Kanoppi may destroy or otherwise dispose of any of the Customer Data in its possession unless otherwise agreed between the parties; and

c) 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 these Terms & Conditions which existed at or before the date of termination shall not be affected or prejudiced.

13.4 Where these Terms & Conditions are terminated in accordance with clause 13.1(b), Kanoppi may issue a refund to the Customer as may be agreed between the parties.

14. Force Majeure

14.1 Neither party shall be in breach of these Terms & Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Terms & Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.

14.2 For the avoidance of doubt, the Customer’s inability to pay any sums due under these Terms & Conditions does not constitute a force majeure event for the purposes of clause 14.1.

15. Variation

15.1 No variation of these Terms & Conditions shall be effective unless it is in writing and notified to the Customer by Kanoppi.

16. Waiver

16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

17. Rights & Remedies

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

18. Severance

18.1 If any provision or part-provision of these Terms & 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 Terms & Conditions.

18.2 If any provision or part-provision of these Terms & Conditions is deemed deleted under clause 18.1 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.

19. Entire agreement

19.1 These Terms & Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

19.2 Each party acknowledges that in entering into these Terms & Conditions 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 these Terms & Conditions.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms & Conditions.

19.4 Nothing in this clause shall limit or exclude any liability for fraud.

20. Assignment

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

20.2 Kanoppi 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 Terms & Conditions.

21. No Partnership Or Agency

21.1 Nothing in these Terms & 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).

22. Third Party Rights

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

23. Notices

23.1 Any notice given to a party under or in connection with these Terms & Conditions shall be in writing and shall be:

a) Delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

b) Sent by e-mail to the relevant e-mail address for each party.

23.2 Any notice shall be deemed to have been received:

a) If delivered by hand, at the time the notice is left at the proper address;

b) If sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

c) If sent by e-mail, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

24. Governing Law

24.1 These Terms & Conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England & Wales.

25. Jurisdiction

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