Terms - capium

Terms

Capium Terms of Service

Please read these Terms of Service carefully. By registering for the Capium service by means of the online Registration Form, you are agreeing to these terms. If you do not agree with these terms, do not register for the Capium service.
Capium has developed certain accountancy software applications which it makes available to subscribers via the internet for the purpose of helping finance professionals produce accounts; manage payroll, tax and bookkeeping tasks; and assist in practice management.
The Customer wishes to use Capium’s service in its accountancy business operations.
Capium has agreed to provide (and the Customer has agreed to take and pay for) Capium’s service subject to the terms and conditions of this agreement.
The Customer’s attention is drawn in particular to the following clauses:
- 2, in which Capium recommends that the Customer use the local back up facility to avoid loss of data;
- 3, under which the Customer makes certain commitments regarding its rights to use its data on the Capium service;
- 2, under which the Customer acknowledges that it, not Capium, is responsible for the product of its use of Capium, including any submissions to HMRC and Companies House. Capium is a useful tool – but it is not tailored to the Customer’s circumstances and cannot be a substitute for professional skill, judgment and expertise. Always check any calculations and deadlines generated in Capium.

Agreed terms

Interpretation
1. The definitions and rules of interpretation in this clause apply in this agreement.
  Accountant: a Customer who is identified as an Accountant in the Order Form.Agreement: these Terms of Service and the Order Form, and all documents referenced in them.Authorised Users: those employees, agents and independent contractors of the Customer and (for Accountants only) those of any Client, who are authorised by the Customer to use the Services.
  
  Business: means a Customer who is not an Accountant, and is using the Services solely for its own internal purposes.
  
  Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
  
  Capium: Capium Ltd, a company registered in England and Wales under company number 08438321, which has its registered office at 3rd Floor 86-90 Paul Street, London, England, EC2A 4NE. Email: info@capium.com. Capium Ltd is registered with the Information Commission Office (ICO number ZA070927).
  
  Client: a business to which an Accountant provides accountancy services, specified as a Client in the Dashboard.
  
  Client Employee: an individual staff member of a Client in respect of which the Services are used by the Customer.
  
  Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14.6 or clause 14.7.
  
  Credentials: the Customer’s or (as the case may be) Client’s user or account credentials with HMRC, Companies House or any payment institution.
  
  Customer: the entity whose details are set out in the Order Form. Each Customer is either an Accountant (who may use the Services in respect of its Clients) or a Business (who uses the Services for its own internal purposes).
  
  Customer Data: the data inputted by the Customer, or Authorised Users for the purpose of using the Services or facilitating the Customer’s use of the Services.
  
  Dashboard: the Customer’s private account area comprised in the Services.
  
  Documentation: the document made available (as amended from time to time) online via https://www.capium.com/knowledge-base/ or such other web address notified by Capium to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
  
  Effective Date: the date of completion of the Order Form.
  
  Free Plan: is as defined in clause 11.
  
  Initial Subscription Term: the initial term of a paid agreement is a 12 month contract period, unless specified differently.
  
  Normal Business Hours: 8.00 am to 5.00 pm local UK time, each Business Day.
  
  Order Form: the online subscription process by which the Customer agrees to subscribe to the Services for the Subscription Term, for payment of the Subscription Fees.
  
  Registration Form: the online form by means of which the Customer registers to use the Free Plan in respect of the Services.
  
  Renewal Period: the period described in clause 17.2.
  
  Services: the online accountancy software subscription services provided by Capium to the Customer under this agreement via www.capium.com or any other website notified to the Customer by Capium from time to time, as more particularly described in the Documentation.
  
  Software: the online accountancy software applications provided by Capium as part of the Services.
  
  Subscription Fees: the subscription fees payable by the Customer to Capium for the User Subscriptions, as set out in the Order Form.
  
  Subscription Term: has the meaning given in clause 17.2 (being the Initial Subscription Term together with any subsequent Renewal Periods).
  
  Subscription: the subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services in accordance with this agreement.
  
  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.
2. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
3. 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.
4. 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.
5. A reference to writing or written includes e-mail.
6. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
Subscriptions
1. Subject to the Customer purchasing the Subscriptions in accordance with clause 3.2 and clause 12.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Capium hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations and (for Accountants only) the purpose of providing accountancy services to its Clients. Businesses are not permitted to use the Services in respect of any third party.
2. In relation to the Authorised Users, the Customer undertakes that:
  - the maximum number of Client Employees per Client in respect of which Customer may use the Services shall not exceed 50 (fifty) or such greater number as may be agreed between the parties in writing;
  - it will not allow the Services to be used by or on behalf of more than the number of Clients specified in the Order Form;
  - each Authorised User shall keep a secure password for its use of the Services, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential and ensure that all Clients do the same;
  - it shall permit Capium to audit the Services in order to verify the number and identity of the Clients and Client Employees. Such audit may be conducted no more than once per quarter, at Capium’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
  - if any of the audits referred to in clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Capium’s other rights, the Customer shall promptly disable such passwords and Capium shall not issue any new passwords to any such individual; and
  - if any of the audits referred to in clause 2.2(d) reveal that the Customer has underpaid Subscription Fees to Capium, then without prejudice to Capium’s other rights, the Customer shall pay to Capium an amount equal to such underpayment as calculated in accordance with the prices currently in force for the Services within 10 Business Days of the date of the relevant audit.
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:
  - is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  - facilitates illegal activity;
  - depicts sexually explicit images;
  - promotes unlawful violence;
  - is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  - is otherwise illegal or causes damage or injury to any person or property;and Capium 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:
  - 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:
    - 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
    - attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
  - access all or any part of the Services in order to build a product or service which competes with the Services and/or the Documentation; or
  - use the Services and/or Documentation to provide services to third parties; or
  - subject to clause 25.1, 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, or
  - attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
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 Capium.
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 Client allocation
1. The Customer may, from time to time during any Subscription Term, by means of the Dashboard purchase an additional Subscription allocation in excess of the number set out in the Order Form and Capium shall grant access to the Services to such additional Subscription allocation in accordance with the provisions of this agreement.
2. The Customer shall as a pre-condition of receiving any additional Client allocation, pay to Capium the relevant fees then currently in force for such additional Subscription allocation and, if such additional allocation is purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Capium for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
Credentials
1. The Customer acknowledges that it is responsible for the accuracy and continued currency of all Credentials and authorises Capium to use the Credentials for the purposes of providing the Services.
2. Accountants shall ensure that they have written consent from the Client to use the Credentials in respect of the Services. In the event that such consent is no longer current or is withdrawn, the Accountant shall immediately cease all use of the Credentials on the Services.
3. Accountants shall indemnify Capium against any damages, losses, costs (including reasonable legal costs) in respect of any claim made by any third party arising out of the use of any Credentials by means of the Services.
Services
1. Capium shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
2. Capium shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
  - planned maintenance carried out during the maintenance window of 12.00 am to 4.00 am UK time; and
  - unscheduled maintenance performed outside Normal Business Hours, provided that Capium has used reasonable endeavours to give the Customer at least6 Normal Business Hours’ notice in advance.
3. Capium will, as part of the Services and at no additional cost to the Customer, provide the Customer with Capium’s standard email customer support services and will endeavour to respond to queries within 1 Business Day.
4. In the event that the Customer has any questions regarding the Documentation, or the operation of the Services, the Customer should raise a query by means of the support ticket facility in the Services.
5. The Services are intended for use solely in connection with financial operations in the United Kingdom.
6. The Customer acknowledges that the Documentation changes over time and Capium recommends that the Customer consult the Documentation before undertaking any new kind of activity by means of the Services.
Customer data
1. 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.
2. Capium provides Customers with the facility to back up the result of actions completed by means of the Services. Capium recommends the Customer make use of such facility to ensure a local copy of important data is retained by the Customer. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Capium to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Capium. Capium does not warrant that any level or frequency of back-up shall be undertaken in respect of any Customer Data or Customer activity undertaken in respect of the Services. Capium 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 Capium to perform services related to Customer Data maintenance and back-up).
3. If Capium processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Capium shall be a data processor and in any such case:
  - the Customer acknowledges and agrees that the 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 Capium’s other obligations under this agreement;
  - the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Capium so that Capium may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
  - the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
  - the Customer shall ensure that the relevant third parties have given their consent to SMS and email alerts required by all applicable data protection legislation;
  - Capium shall process the personal data only in accordance with the terms of this agreement, the Documentation and any lawful instructions reasonably given by the Customer from time to time; and
  - each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4. The Customer shall indemnify Capium in respect of any loss, damages, or costs (including reasonable legal costs) arising out of any breach of this clause 6 by the Customer.
Third Party Integrations & Services
1. By means of use of the Credentials, the Customer acknowledges that the Services may enable or assist it to access third-party websites and that it does so solely at its own risk. These third parties may include HMRC and Companies House. Capium 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 notification or correspondence or contact entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Capium. Capium 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 and/or service. Capium does not endorse or approve any third-party website nor the content of any third-party website made available via the Services.
2. Where the Customer enquires or elects third-party services offered by Capium, Capium will share the Customer email address and phone number with the third-party for the purposes of a demonstration and support of the Service offered. Customer data or sensitive information will not be shared for marketing purposes.
3. Company Secretarial services provided by ZoomNet Limited and FCLS Group Limited: The Services include company secretarial services provided by ZoomNet Limited and FCLS Group Limited subject to their terms. A link to their terms can be found here
4. For Capium “conversations” users only: whenever an email is linked with Capium “conversations” manually by you, we collect information you filled in the fields From, To, CC, Subject, Thread ID, Message ID and Label ID. We will create a copy of the email thread in the inbox of all your team members. If any team member access is revoked by you, we will delete the created email from the corresponding team member’s conversation inbox. We will never delete the original email which was linked to Capium conversations inbox originally. Capium uses third party Sendgrid and Twilio to permit such services that help us to provide our business activities, which may include assisting us with marketing, advertising our product/service offerings, or providing, maintaining and improving the features and functionality of the Services, among other things. The data shared is limited to your name, email address, the company information and your communication history. A link to their terms can be found here
5. Anti Money Laundering services provided by Veriphy Limited: The Services include anti money laundering services provided by Veriphy Limited subject to their terms. A link to their terms can be found here
Feeds from Payment Service Providers – TrueLayer
1. The Services include a feature facilitating importing bank data feeds from the Customer’s (or Client’s) existing banking services. Capium uses a service provided by TrueLayer, a bank feed aggregator, to facilitate this service. It is the Customer’s responsibility to verify in advance that this TrueLayer-powered service does not breach the terms and conditions of any bank or account provider. The Customer acknowledges that Credentials for the relevant bank will need to be provided for this service.
2. The bank data feed service powered by TrueLayer is subject to the additional terms specified at https://capium.com/truelayer-terms/and are incorporated into this agreement by reference. These terms should be read alongside the Customer’s own internet banking provider’s terms.
3. The bank data feeds are generally provided for free but Capium reserves the right to charge in some circumstances. If a charge is to be made, the Customer will be notified in advance by email and may opt out of obtaining the bank data feeds.
4. Capium will contact the Customer by email to the address provided by the Customer in the event a notice is required under the Payment Service Regulations 2017 (Regulations) or in the cases of suspected fraud or security incidents. All communications from Capium will made be in English to the email address provided by the Customer.
5. Capium will provide a copy of these terms on request in accordance with Reg 49 of the Regulations and these terms will apply for the duration of the Subscription.
6. Capium will disclose to Customers any changes to the information required to be given by Customers in Schedule 4 of the Regulations 2 months before any such changes come into effect.
7. Capium may update these terms from time to time. The Customer will be required to accept such new terms in order to continue with the Subscription.
8. Capium will request Customer’s express consent for bank account data to be accessed by TrueLayer. Customer may withdraw such consent at any time by cancelling the consent via Capium’s bookkeeping module. Customers need to navigate to “Bank” and “Bank Feeds” – select “Action” and select “Delete”.
9. In order to access the services provide by TrueLayer the Customer will require an internet enabled device with an internet connection and a valid Capium account.
Capium’s obligations
1. Capium undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
2. The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Documentation, or contrary to Capium’s instructions, or by any modification or alteration of the Services by any party other than Capium or Capium’s duly authorised contractors or agents. If the Services do not conform with the undertaking in clause 9.1, Capium 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 9.1. Notwithstanding the foregoing, Capium:
  - does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
  - does not make any warranty in respect of the use of the Services in respect of any financial data pertaining to any territory outside the United Kingdom or any accountancy standard outside the United Kingdom;
  - does not warrant that the financial or accounting formulae, data, timescales, deadlines or calculations in the Services will be correct at any point in time; and
  - 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3. This agreement shall not prevent Capium 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.
4. Capium warrants that it has and will maintain all licences, consents, and permissions necessary for the performance of its obligations under this agreement.
Customer’s obligation
1. The Customer shall:
  - provide Capium with:
    - all necessary co-operation in relation to this agreement; and
    - all necessary access to such information as may be required by Capium;
      in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
  - comply with all applicable laws and regulations with respect to its activities under this agreement;
  - 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, Capium may adjust any agreed timetable or delivery schedule as reasonably necessary;
  - ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and the Customer shall be responsible for any Authorised User’s breach of this agreement;
  - obtain and shall maintain all necessary licences, consents, and permissions necessary for Capium, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
  - ensure that its network and systems comply with the relevant specifications provided by Capium from time to time; and
  - be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Capium’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.
2. The Customer acknowledges that the Services have not been tailored to the Customer’s (or any Client’s) individual needs and that:
  - the Services are no more than a tool to assist financial professionals in their carrying out their duties with their own professional care, skill and due diligence;
  - nothing in the Services is intended to be a substitute for the Customer to carry out its own checks and verifications on the accuracy of any data, reports or other product generated by use of the Services;
  - The Customer, not Capium is responsible for the content of any submission made by means of the Services to HMRC, Companies House, or any third party.
Free Plan
1. The Bookkeeping module of the Services and (in respect of a maximum of 3 employees) the Payroll module of the Services is available for subscription on a free of charge basis (“Free Plan”). Capium can terminate any such Free Plan that the Customer may subscribe to, at any time and for any reason, without notice or liability to the Customer.
2. The Free Plan is provided without warranty of any kind, to the fullest extent permitted by law. In particular, neither the warranty in clause 9.1 or the intellectual property rights defence obligation in clause 15.2 shall apply to any Free Plan.
Charges and payment
1. The Customer shall pay the Subscription Fees to Capium for the Subscriptions in accordance with this clause 12 and the support fees in accordance with clause 5.3.
2. The Customer shall on the Effective Date provide to Capium valid, up-to-date and complete credit card details or approved purchase order information acceptable to Capium and any other relevant valid, up-to-date and complete contact and billing details. If the Customer provides:
  - its credit card details to Capium, the Customer hereby authorises Capium to bill such credit card:
    - on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
    - subject to clause 17.2, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
  - its approved purchase order information to Capium, Capium shall invoice the Customer:
    and the Customer shall pay each invoice within 30 days after the date of such invoice.
    - on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
    - subject to clause 17.2, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
3. If Capium has not received payment within 24 hours of the due date, and without prejudice to any other rights and remedies of Capium:
  - Capium may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Capium shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
  - 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 Barclays Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
4. All amounts and fees stated or referred to in this agreement:
  - shall be payable in pounds sterling;
  - are, subject to clause 16.3(b), non-cancellable and non-refundable;
  - are exclusive of value added tax, which shall be added to Capium’s invoice(s) at the appropriate rate.
5. Capium shall be entitled to increase the Subscription Fees, and the fees payable in respect of the additional Client allocation purchased pursuant to clause 3.2, at the start of each Renewal Period upon 7 days prior notice to the Customer.
6. Capium shall be entitled to increase the Subscription Fees, and the fees payable in respect of its SMS and Storage Services pursuant to clause 3.2, subject to Fair Usage Caps of:
  - 5GB for Storage Services;
  - 5000 SMS for 100 Client package, 15000 SMS for 300 Client package and 25000 SMS for 500 Client package.
Proprietary rights
1. The Customer acknowledges and agrees that Capium and/or its licensors own all intellectual property rights in the Services. 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, trademarks(whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
2. Capium confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
Confidentiality
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:
  - is or becomes publicly known other than through any act or omission of the receiving party;
  - was in the other party’s lawful possession before the disclosure;
  - is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  - is independently developed by the receiving party, which independent development can be shown by written evidence.
2. Subject to clause 14.4, each party shall hold the other’s Confidential Information in confidence and not actively 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 14.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
6. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Capium’s Confidential Information.
7. Capium acknowledges that the Customer Data is the Confidential Information of the Customer.
8. 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.
9. The above provisions of this clause 14. shall survive termination of this agreement, however arising.
Indemnity
1. The Customer shall defend, indemnify and hold harmless Capium 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:
  - the Customer is given prompt notice of any such claim;
  - Capium provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
  - the Customer is given sole authority to defend or settle the claim.
2. Capium shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation 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:
  - Capium is given prompt notice of any such claim;
  - the Customer provides reasonable co-operation to Capium in the defence and settlement of such claim, at Capium’s expense; and
  - Capium is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Capium 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 Capium, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  - a modification of the Services or Documentation by anyone other than Capium; or
  - the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Capium; or
  - the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Capium or any appropriate authority.
5. The foregoing and clause 16.3(b) state the Customer’s sole and exclusive rights and remedies, and Capium’s (including Capium’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:
  - the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Capium shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Capium by the Customer in connection with the Services, or any actions taken by Capium at the Customer’s direction;
  - 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
  - the Services are provided to the Customer on an “as is” basis.
2. Nothing in this agreement excludes the liability of Capium:
  - for death or personal injury caused by Capium’s negligence; or
  - for fraud or fraudulent misrepresentation.
3. Subject to clause 16.1 and clause 16.2:
  - Capium 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
  - Capium’s total aggregate liability in contract (including in respect of the indemnity at clause 15.2), 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 greater of £200 (two hundred pounds) and the total Subscription Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
Term and termination
1. In respect of the Free Plan, this agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue until terminated by Capium.
2. In respect of any Subscription, this agreement shall, unless terminated earlier in accordance with this clause 17, commence on the Effective Date and shall continue for the Initial Subscription Term. Upon expiration of the Initial Subscription Term, the agreement shall automatically renew for a further period of 12 months (Renewal Period) unless either party provides notice of termination at least 30 days prior to the end of the Initial Subscription Term. Capium reserves the right to cancel the renewal by providing notice accordingly. The parties may, before the end of the Initial Term (or any Renewal Period agreed under this clause), agree in writing that the term of the agreement shall be extended for an additional 12-month period. The Initial Subscription Term, together with any subsequent Renewal Periods, shall constitute the Subscription Term.
3. 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:
  - the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
  - 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 14 days after being notified in writing to do so;
  - 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;
  - 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;
  - 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;
  - 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;
  - 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;
  - 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;
  - 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;
  - 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;
  - 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 17.2(d) to clause 17.2(j) (inclusive); or
  - the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
4. On termination of this agreement for any reason:
  - all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
  - 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;
  - Capium may destroy or otherwise dispose of any of the Customer Data in its possession unless Capium receives, no later than ten days after the 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. Capium 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 Capium in returning or disposing of Customer Data. Capium recommends that the Customer make use of the facility in the Services to download Customer data for local back up on Customer’s own computing facilities; and
  - 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
1. Capium 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 Capium 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.
Conflict
1. 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
1. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver
1. 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
1. 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.
2. The Customer is entitled to address complaints it may have about the Services to info@capium.com.
3. Customer acknowledges that Capium does not have in place a relationship with an alternative resolution provider where the Customer is non-eligible complainant and cannot be referred to the Financial Ombudsman.
Severance
1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
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 Capium, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
2. Capium 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
1. 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
1. 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
1. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party as set out in this agreement.
2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the commencement of the next Business Day.
Governing law
1. 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
1. 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).