BY SIGNING THE SIGNED ORDER OR OTHERWISE BY ACCESSING AND USING THE SERVICES IN ANY WAY, YOU AGREE TO BE BOUND BY THE AGREEMENT, INCLUDING WITHOUT LIMITATION THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE AGREEMENT, DO NOT USE THE SERVICES OR OUR SITE.
Firefish Software may update or change this Agreement, including (but not limited to) the fees and charges associated with the use of our Services. We will notify you in writing of any such changes we do via an email or in-app notification. Any changes we make regarding pricing for the Services will be governed by Condition 3.3. Any such amendments to the Agreement will become effective and binding on the fifth business day after which they are posted. We encourage you to review this Agreement periodically.
Last updated: June 2021
Firefish Software provides a hosted recruitment service, incorporating Applicant Tracking Software (ATS), Customer Relationship Management (CRM), Content Management System (CMS), social sharing tools, analytics, APIs, and other resources for recruiters made available to you on a software as a service basis (the "Services"). The Services to which you have access depends on the subscription (“Subscription”) that you choose in the Signed Order or otherwise by agreement in writing with us and includes the features further described on the Firefish Software website (the “Features”). The Services and Features that are available may change from time to time, and Firefish Software may choose to discontinue some or all of the Services and/or Features at its sole discretion.
You understand and agree that the Services may include certain communications from Firefish Software, such as service announcements and/or administrative messages. These communications are considered part of your Subscription and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new Features that augment, enhance or change the existing Servicesshall be subject to this Agreement.
To commence using our Services, you warrant that you have the right, authority, and capacity to agree to and abide by the Agreement and that you are not prohibited by law from using the Services. Any representative of your company or business must provide Firefish Software with your information (“Your Information”) including your name, your company name, a valid mailing address, an email address and payment information. By agreeing, and in consideration of the use of the Services, you represent and warrant that: (i) Your Information is true, accurate, current, and complete; (ii) you are at least 18 years of age; and (iii) you will maintain and promptly update your Information to ensure it is always true, accurate, current and complete. You authorise Firefish Software to confirm the truthfulness and accuracy of your Information. In addition, you must ensure that the details of all authorised Users are valid.
If you provide any information that is untrue, inaccurate, not current or incomplete, or if Firefish Software has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete then Firefish Software has the right to suspend or terminate your Subscription and refuse any and all current or future use of the Services.
3.1 Duration – The Agreement between us and you will come into force on the date you sign the Signed Order. Your Subscription will commence from the date that your first User Licence(s) is activated (if later), and billing will commence from this date. For Monthly and Annual Subscriptions, your duration will be as agreed on the Signed Order (the “Minimum Term”). Thereafter your Subscription and the Agreement shall automatically renew for successive further period(s) equal to the Minimum Term (each a “Renewed Term”) if you do not give us notice of your intention to terminate this Agreement at the end of the Minimum Term of any Renewed Term in accordance with Condition 10.3.
3.2 Subscription and User Licences – Your Subscription and the fees and charges for your Subscription shall be based on the number of User Licences you subscribe for. You must have a valid User Licence in place for each of your employees, workers or contractors that accesses our Services (each a “User”). Such Users shall be issued with account details and a password which they must keep secret and secure. No User may access or use our Services unless you have a valid User Licence in place for that individual. Your authorised Users may not share account details or passwords with any other individual. You shall remain at all times responsible for the acts and conduct of your Users. Your agreed User Licence(s) will be activated and your Subscription will commence on the agreed Go Live Date and billing will commence on that date. If the Go Live Date is delayed for any reason that is not our fault, we may delay activation of your first User Licence(s) and the commencement of your Subscription by up to fourteen (14) days from the agreed Go Live Date, but thereafter billing will commence.
3.3 Payment – Our fees and charges for the Services you have chosen to take shall be as set out in the Signed Order or as otherwise notified to you from time to time by us by written notice, but any price change may only take effect at the end of the Minimum Term or the end of the then current Renewed Term of your agreed Subscription. If you choose to upgrade your contact then a new Signed Order Form will be agreed between us and you and different fees and charges may apply. You may subscribe to be billed monthly or annually for at least the Minimum Number of User Licences identified in the Signed Order or the number of User Licences you subscribe for as agreed in writing between us and you from time to time. Payment of subscription fees shall be due monthly or annually in advance and all fees and charges are due and must be paid in advance for the period of usage; payment of all other fees and/or onboarding charges shall be payable prior to the date of delivery of the service in question. All payments are accepted through Direct Debit via Online Direct Debit provider GoCardless or by Credit Card (Visa or Mastercard).
3.4 Additional User Licence(s) - Where you pay your Subscription on an annual basis, you may purchase Additional User Licences at any time by paying the pro rata fees and charges for such Additional User Licences up to the end of the then current Year of your Subscription. Where you pay your Subscription on a monthly basis, you may purchase Additional User Licences at any time and such Additional User Licence(s) will be billed pro rata from the date the relevant User is subscribed to your next billing date. The fees and charges for Additional User Licences will then be charged on a monthly or annually basis (as appropriate) in line with your Subscription thereafter. Payment for our Services is made in advance of the period of usage. Payment for any Additional User Licences shall be due from the date any corresponding application for login details are received and will be charged within seven (7) days of the issuance of such login details.
3.5 Unpaid Charges – If you fail to pay any fees or charges due under the Agreement, then we shall be entitled to disable your access to our Services after 14 days of non-payment. Access will be reinstated once payment is received in full together with an administration fee of thirty (£30) pounds Sterling. If the account remains unpaid for 30 days your account will be fully offboarded and all data will be deleted from the system after a further 5 days from the offboarding date. We shall be entitled to charge you for any unpaid or overdue invoices at an interest rate of 8% per annum above the base rate of the Bank of England (or 8%, if the Bank of England’s base rate falls below zero), or the maximum permitted by law, whichever is less, until paid in full, plus all expenses of collection including court fees, debt collection fees and solicitors’ fees (on a solicitor-client basis).
3.6 Fraudulent Payment - If you pay by fraudulent means, Firefish Software reserves the right to immediately and permanently terminate your access to the Services, with no liability to you, no obligation to return your data, and we reserve the right to report the matter to the Police (and it is our policy to do so).
3.7 Secure Sockets Layer (“SSL Certificate)” - For Professional and Enterprise clients, when your recruitment website goes live we will apply an SSL Certificate which will be valid for 12 months (this is included in your initial onboarding fee). When your SSL Certificate is due for renewal we will renew and install the new SSL Certificate at a price of £100. You will be issued with an invoice for this approximately 4 weeks before the renewal is due. If this invoice is not settled in full before the renewal date, Firefish Software may, at its sole discretion, refuse to renew the SSL Certificate.
3.8 SMS & VOIP Subscriptions – Similar to the User Licence subscriptions, SMS & VOIP subscriptions must be paid for via direct debit or credit card. Payment for SMS & VOIP Subscriptions will also be collected on a monthly basis in advance. If you are setting up a subscription for the first time, charges will be billed pro rata in line with your renewal date. SMS & VOIP Top Ups can be purchased at any time and will be billed within 7 days of purchase.
3.9 VAT & Refunds - All Fees and charges are non-refundable, and any fees charges are exclusive of VAT which if applicable shall be payable by you in addition.
We offer reasonable Support as part of our Service which shall comprise general advice on routine use of and ways of maximizing your benefit from our Services. Our Support shall also compose advice on any technical issues encountered during the implementation and administration of our software or Services. All requests for Support to Firefish Software must be related to the functionality or use of our Services and will be subject to “fair use”. We do not provide general IT support to customers as part of our Services.
4.1 Business Hours - The operating hours for support are Monday to Thursday 09:00 GMT to 17:30 GMT and Friday 09:00 GMT to 16:30 GMT, with the exception of New Year's Day, Good Friday, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Christmas Day and Boxing Day, when the support desk will be closed.
4.2 Support Channels - Support shall be provided through our online community, the Fish Tank (our online customer knowledge base), phone and email (firstname.lastname@example.org). It is our aim to resolve all support queries in line with our Service Level Agreement - SLAs.
4.3 Support Provided - For the avoidance of doubt, no on-site maintenance or consultancy support is provided unless separately agreed with Firefish Software
4.4 Support Requests - Support can only be provided to authorised Userswho have valid and active account details.
5.1 Links to Third Party Sites - The Services may contain links to third-party websites (“Linked Sites”). Linked Sites are not under our control and we are not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. We are not responsible for any form of transmission received from any Linked Site. The Linked Sites are provided to you only as a convenience, and the inclusion of any Linked Site does not imply endorsement by us of the Linked Site or any association with its operators.
5.2 Application Programming Interfaces (APIs) - The Services may include access to third party APIs. You acknowledge and agree that Firefish Software may, in its sole discretion, limit, throttle, suspend or terminate your access to or usage of APIs, or change any of the API specifications, protocols, or methods of access for any or no reason, and Firefish Software will bear no liability for such decisions. It is solely your responsibility at all times to backup your data and to be prepared to manage your accounts and conduct your business without access to the APIs. FIREFISH SOFTWARE DOES NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIMS, THAT ANY APIs WILL BE AVAILABLE WITHOUT INTERRUPTION OR WITHOUT ERRORS OR BUGS.
6.1 Ownership - You retain all right, title and interest to any and all data provided, inputted or uploaded to our Services by you or by us on your behalf. Firefish Software has no right, title or interest in any personally identifiable data related to your candidates or employers. Firefish Software shall retain all right, title and interest in the our software, system and Services and Features and any related documentation and all modifications and/or enhancements to the same, regardless of the source of inspiration for any such enhancement or modification and regardless of whether you have provided input regarding such modifications and/or enhancements. You acknowledge that Firefish Software will retain all right, title and interest to transactional and performance data related to use of our Services which Firefish Software may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal any of your confidential information or any personally identifiable candidate information that belongs to you.
6.2 Storage – Each Subscription comes with a storage allowance of 10,000 people records (includes contacts and candidates). Each User Licence (other than free User Licences) includes an allowance of an additional 5,000 people records. Any additional records beyond your Subscription allowance will be charged at the monthly rate of £5 per 5,000 records. All Storage charges are billed on a monthly basis and if you exceed your Subscription storage allowance. a charge for the overage will be applied at that time.
6.3 Data SQL Export – If you wish to receive a full SQL export of your data, please note that the first export is complimentary however there is a charge of £650 + VAT for all future requests.
6.4 Data Restore– If at any time you want to restore any data (or query previous data records) within your backup period (28 days), this can be done for an administrative cost of £550 + VAT.
We and you shall comply with all applicable data protection and privacy legislation in force from time to time in the UK including, as applicable, the Data Protection Act 2018 and the UK GDPR (as defined in the Data Protection Act 2018) and any primary or secondary legislation implementing or supplementing it, the EU General Data Protection Regulation (Regulation EU 2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications) and any legislation that, in respect of the United Kingdom, replaces, or enacts into domestic law any other law relating to data protection, the processing of personal data and privacy as a consequence of the United Kingdom leaving the European Union (the “Data Protection Legislation”). In this Agreement the terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the Data Protection Legislation. . You shall be the “controller” of all personal data you input into our Services and we shall be the “processor” and we shall process all such personal data on your behalf in accordance with the Data Processing Agreement and which you shall be deemed to have agreed to by using our Services.
7.1 Customer Obligations - You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to Firefish Software so that Firefish Software may lawfully process and transfer the personal data in accordance with these Terms and the Data Processing Agreement.
7.1.1 Data Subjects - You shall ensure that relevant data subjects have been informed of such use, processing, and transfer as required by all applicable Data Protection Legislation and you have sole responsibility for the accuracy, quality and legality of personal data processed by Firefish Software in the provision of the Services. You shall further ensure that you have established a lawful basis under the Data Protection Legislation for processing all personal data which is transferred to Firefish Software.
7.1.2 Unauthorized Access - You shall notify Firefish Software immediately of any unauthorized use of your accounts (including, if applicable, the passwords and accounts of each User accessing the Services by means of an account established by you) or any other breach of security. Firefish Software will not be liable for any loss or damage arising from your failure to comply with these requirements.
7.1.3 Passwords - You will choose or be given all applicable passwords to use in connection with the Services. You are responsible for maintaining the confidentiality of your passwords and account (including, if applicable, the passwords and accounts of each user accessing the Services by means of an account established by you). Furthermore, you are responsible for any and all activities that occur under your account (including, if applicable, the accounts of each User accessing the Service by means of an account established by you). Each password may be used by one individual named person only. Passwords may not be used concurrently or shared by more than one individual named
7.2 Firefish Obligations - Where Firefish Software is processing personal data on your behalf, it will:
7.2.1 Documented Instructions - Only do so on your documented instructions and in accordance with applicable law;
7.2.2 Confidentiality - Ensure that all Firefish Software personnel involved in the processing of personal data have committed themselves to confidentiality;
7.2.3 Compliance - Where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the UK GDPR, where such information is held by Firefish Software and is not otherwise available to you through your system with at least 14 days’ written notice of such an information request;
7.2.4 Deletion - Upon deletion by you, not retain personal data from within our Services other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 28 days after data is deleted from our Services); and
7.2.5 Impact Assessment - To the extent we are reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services.
8.1 Privacy by Design - Firefish Software has implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data and has specified in our Trust Statement,. At reasonable intervals, Firefish Software tests and evaluates the effectiveness of these technical and organizational measures for the purpose of ensuring the security of our Services.
8.2 Security Incident - If Firefish Software becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data (“Security Incident”), we will take reasonable steps to notify you without undue delay and shall do so in accordance with the Data Protection Legislation. Firefish Software will also reasonably cooperate with you with respect to any investigations relating to a Security Incident; assisting you with the preparation of any required notices and providing any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your system or online through updates provided by Firefish Software.
8.3 Security Audit Requests - You will allow one month for Firefish Software to respond to any security audit request that you make and to authorise you to carry out security tests that may otherwise be prohibited by Condition 9.5. No person/party conducting an audit on your behalf shall be, or shall act on behalf of, a competitor of Firefish Software (“Auditor”). You will only be entitled to conduct an audit once in any period of twelve (12) months (a “Year”) of your Subscription unless we are otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than 1 audit in that same Year (in which circumstances you and Firefish Software will, in advance of any such audits, agree upon a reasonable reimbursement rate for Firefish Software’s audit expenses).
The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Services to vary this format for audit):
8.3.1 Documentation - Firefish Software agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of Firefish Software’s (or Firefish Software affiliates’) most recent penetration tests, which summary shall include remedial actions taken by Firefish Software resulting from such penetration tests.
8.3.2 Penetration Test & Audits - The scope of the certifications and penetration tests provided will be limited to Firefish Software systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Services obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by Firefish Software.
8.3.3 Security Concerns - You will promptly notify and provide Firefish Software with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.
The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this condition sets out the entire scope of your audit rights.
9.1 Restrictions - You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of our software or Services; modify, translate, or create derivative works based on our software or Services or authorize any third party to do so; rent, lease, assign, or otherwise transfer rights to our Services; use our software or Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trade marks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in our software or Services or the related documentation; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Because our software and Services are proprietary, you agree not to publish or disclose to third parties any evaluation of our software or Services without our prior written consent.
9.2 Prohibited Users - You agree to only use the Service for lawful purposes, in compliance with all applicable laws including (without limitations) copyright, trade mark, obscenity and defamation laws. Unlawful activities may include (without limit) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm. You agree to defend, indemnify and hold Firefish Software harmless against any claim or action that arises from your use of our Services in an unlawful manner or in any manner inconsistent with the Agreement or any of the restrictions and policies stated therein.
9.3 Third-Party Suppliers - You may make the Services available for use by third-party contractors used by you solely to assist in your business, such as external marketing consultants ("Third-Party Contractor"), within the limits of the usage rights and restrictions set forth in the Agreement. You are responsible for the use of the Services by such Third-Party Contractors, including compliance with the Agreement to the same extent as if the Third-Party Contractor were your employee. You agree that any password provided to a Third-Party Contractor will be disabled immediately upon conclusion of such Third-Party Contractor's work for you.
9.4 Malicious Files – Firefish Software does not guarantee the integrity of any content uploaded or downloaded by Users of the Services. This includes corrupt files and files or data that contain viruses, malware, malicious script or macros. It is your responsibility to ensure that your IT infrastructure is fully up to date to provide the relevant protection when uploading and downloading content from the Services.
9.5 Ethical Hacks – Subject to Condition 8.3, you shall not and shall not allow anyone working on your behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without Firefish Software's prior written consent, or (ii) attempt to access the data of another Firefish Software customer. You shall not and shall not allow anyone working on your behalf to use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Bots") in conjunction with the Firefish Software Service. Such programs are commonly used for the purpose of data entry, data loading, data migration, load testing, performance testing, performance monitoring, performance measuring and stress testing. If you or anyone working on your behalf uses a Bot, including those listed above or other similar programs, with the Firefish Software Service for the purposes listed above or any other purpose, it shall constitute a material breach of the Agreement. You shall indemnify and hold Firefish Software harmless without limitation from any damages, losses, claims, costs, expenses or liabilities arising from downtime, production incidents or other technical problems arising during the time period in which you are in breach of this provision or as a result of your breach of this provision, including (without limitation) damages or credits to Firefish Software customers arising from downtime and costs, including third party costs, related to the correction of such downtimes, production incidents or other technical problems.
9.6 Anti-Spam - Our Services incorporates email marketing functionality. In using these features, you warrant that you are aware of and will adhere to all applicable laws governing spam email including but not limited to the Data Protection Legislation. You may not use our Services for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such lists. You agree not to transmit, or permit your employees to transmit, through the Service any unlawful, harassing, libellous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Firefish Software may suspend or terminate your access to our Services without notice if you are found to be using the Services in a way that breaks applicable law, regulation, or the Agreement.
9.7 Intellectual Property – Firefish Software shall retain ownership of all copyright, trade mark, patent or other intellectual property rights in and to Firefish Software and the Service and shall acquire all intellectual property rights howsoever arising in connection with your use of the Services other than any personally identifiable data related to your candidates or employers that you may own pursuant to Condition 6.1.
Firefish Software allows you to flex the number of User Licences you take as part of your Subscription, but always subject to the terms of Condition 3.2. You must subscribe for at least the minimum number of User Licences identified in the Signed Order (the “Minimum Number of User Licences”). The number of User Licences included as part of your Subscription may not fall below the Minimum Number of User Licences set out in the Signed Order at any time. If the number of your Users using the Services falls below the Minimum Number of User Licences then we shall continue to be entitled to charge you on the basis of the Minimum Number of User Licences. Subject to the provisions of this Condition 10, User Licences may not be transferred between customers, or between your employees, workers or contractors unless you obtain our written consent to change the identity of the individual Users using each User Licence from time to time.
10.1 Monthly Subscription – Where you pay your Subscription on a monthly basis, if you choose to terminate an individual User Licence then termination of that User Licence only will take effect thirty (30) days after you give us written notice of your intention to terminate that User Licence and you will be billed pro rata for that User Licence. Subject to the foregoing, you can increase or decrease the number of individual User Licences by providing thirty (30) days’ notice in writing to us. . Monthly subscribers cannot be swapped to another user Licence and must go on 30 days’ notice. When a User Licence is cancelled, that Licence must go on 30 days' notice. Notice charges will be applied pro rata and charged on the renewal date by your preferred payment method. A User Licence cannot be swapped to another User Licence in a Monthly Subscription.
10.2 Annual Subscription – Where you pay your Subscription on an annual basis you may transfer an individual User Licence that you have paid for to a new User on no more than one occasion per month but you must give us notice in writing. If you pay your Subscription on an annual basis, you cannot terminate a User Licence and obtain a refund. Subject to the foregoing, you can increase or decrease the number of individual User Licences by providing thirty (30) days’ notice in writing to us.
10.3 Subscription Changes and Cancellations - If you do not wish to renew your Subscription or if you want to reduce the number of User Licence(s) or amend the duration of your Subscription then you may do so by giving us a minimum of sixty (60) days’ notice such notice to take effect at the end of the Minimum Term of the relevant Renewed Term then you must give us a minimum of 60 days’ notice otherwise, your Subscription will automatically be renewed at your current Subscription level.
10.4 Bankruptcy or Insolvency - Firefish Software will automatically and immediately end your subscription without refund if you become bankrupt or sequestrated or if you become insolvent or are unable to pay your debts as and when they become due, or if an order is made or a resolution is passed for the winding up of the customer (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if a liquidator, administrator, administrative receiver, receiver or trustee is appointed in respect of the whole or any part of your assets or business, or if you make any composition with your creditors, or if you cease to continue your business (or threaten to do so), or as a result of debt and/or maladministration you take or suffers any similar or analogous action; or, if we are notified that any finance arrangement you have made with another party in relation to the Service has ended for any reason other than the finance being paid in full.
10.5 Material Breach - We shall be entitled to terminate the Agreement immediately on giving written notice to you if you are in material breach of the Agreement which breach is irremediable or, if remediable, is not remedied by you within fourteen (14) days of being requested to do so, in writing, by us.
10.6 Communication - We and you agree that any notices of a dispute or other communications addressed to us will be sent by certified or registered mail, return receipt requested to the Registered company address of Firefish Software and deemed delivered as of the date of signing of the return receipt or the first date of a refusal to sign.
On termination, Firefish Software will delete all your data, images, content, in line with our Data Processing Agreement.
11.1 Disclaimer - The Services are provided "as is" without warranty of any kind, and Firefish Software disclaims all warranties, either express or implied. Any material downloaded or otherwise obtained through use of the Services is at your own risk and you will be solely responsible for any damage to your computer system or network, or any loss of data that results from your use of the service.
FIREFISH SOFTWARE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
11.2 Limitation of Liability – Nothing in the Agreement shall limit or exclude any liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation or for any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982, or for any other matter for which it would be unlawful for the Parties to exclude liability. Subject to the foregoing, the total liability of Firefish Software in respect of the Agreement (including, but not limited to, liability arising out of the Agreement, delict, strict liability, and breach of warranty) will be limited to the fees paid or payable by you to Firefish Software for the Services in any Year.
Neither we nor you shall be liable to the other in any event for loss or inaccuracy of data, or indirect, special, incidental, or consequential damages (including, without limitation, the cost of any substitute procurement), whether or not foreseeable and even if the party has been advised of the possibility of such damages.
11.3 Infringement and Indemnity - Firefish Software shall, at its expense, defend or, at its option, settle any claim, action or allegation brought against you that the use of our Services or any Feature or other deliverable infringes any valid copyright, patent, trade mark, or any other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that you give prompt written notice to Firefish Software of any such claim, action or allegation of infringement, give Firefish Software the authority to proceed as contemplated herein; and that any steps to defend or settle any claim, action or allegation shall be only be taken with the full knowledge and written consent of Firefish Software.
Firefish Software will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and you may not settle or compromise such claim, action or allegation, except with prior written consent of Firefish Software. You shall assist and provide information as Firefish Software may reasonably require in settling or opposing such claims. In the event any infringement claim, action or allegation is brought or threatened, Firefish Software may, at its sole option and expense (i) procure for you the right to continue use of the Services and/or Features or infringing part thereof; or (b) modify or amend the Services and/or Features or infringing part thereof; or (c) replace the Services and/or Features or infringing part thereof with other software having substantially the same or better capabilities; or (d) terminate these terms and refund to you the prorated amount of the fees prepaid by you that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.
The foregoing obligations will not apply to the extent the infringement arises as a result of (a) any use of the Services and/or Features in a manner other than as specified in these terms; (b) any use of the Services and/or Features in combination with other products, equipment, devices, software, systems or data not supplied by Firefish Software to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the Services and/or Features made by any party other than Firefish Software or the authorised Firefish Software representative if such infringement would not have occurred without such modification or combination. This condition states the entire liability of Firefish Software with respect to infringement of any patent, copyright, trade mark or other intellectual property right.
12.1 We or you (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Condition 12 shall survive termination of the Agreement.
12.2 The provisions contained in Condition 12.1 shall not apply:
(a) to any of the information which is in or enters the public domain other than as a result of a breach of the Agreement;
(b) where the Receiving Party receives the information from a third party which is not under any obligation of confidence to the Disclosing Party;
(c) where the information has been developed by the Receiving Party independently of the disclosure; and/or
(d) to any information which is required to be disclosed by any court of competent jurisdiction or by any law or regulation and the party required to make that disclosure has informed the other of the requirement and the information required to be disclosed.
12.3 The Receiving Party shall give notice to the Disclosing Party of any unauthorised misuse, disclosure, theft or other loss of the Disclosing Party’s Confidential Information promptly upon becoming aware of the same.
12.4 Upon termination of the Agreement or upon the Disclosing Party’s written request, the Receiving Party will return all the Confidential Information supplied to the Receiving Party by the Disclosing Party within twenty eight (28) days of such request. Each party may retain one copy of the Confidential Information but only if it requires to hold such information to ensure legal compliance with its obligations under the Agreement including regulatory compliance.
13.1 Except as otherwise expressly provided in the Agreement none of the terms and conditions of the Agreement shall be enforceable by any person who is not a party to it.
13.2 Each provision of the Agreement shall be construed separately and, save as otherwise expressly provided herein, none of the provisions hereof shall limit or govern the extent, application or construction of any other of them and the remaining provisions of the Agreement shall continue in full force and effect.
13.3 No waiver by either party of any of the requirements hereof or of any of its rights hereunder shall be effective unless given in writing and signed by or on behalf of that party and no forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party nor shall any waiver by either party of any of the requirements hereof or any of its rights hereunder release the other from full performance of its obligations stated herein.
13.5 The Agreement and any documents referred to herein constitutes the entire understanding between the parties in relation to the subject matter of the Agreement and supersedes and extinguishes all (if any) prior drafts, agreements, understandings, undertakings, representations, warranties and/or arrangements of any nature whatsoever (whether or not in writing) between the parties in connection therewith.
13.5 Nothing in the Agreement shall be construed as establishing or implying any partnership or joint venture between us or you and nothing in the Agreement shall be deemed to constitute one of the parties as the agent of the other.
13.6 Those provisions of the Agreement which by their nature or implication are required to survive expiry or termination of the Agreement shall so survive and continue in full force and effect, together with any other provisions of the Agreement necessary to give effect to such provisions.
13.7 We shall not be deemed to be in breach of the Agreement if we are unable to carry out any provision of it for any reason beyond our control including (without limiting the generality of the foregoing) acts of God, legislation, fuel shortages, war, fire, flood, drought, virus outbreak, pandemic, failure of power supply embargo, civil commotion and employee action.
13.8 You shall not be entitled to assign or transfer any or all of your rights and/or obligations under the Agreement (or purport to do so) including any User Licences; or to sub-license or sub-contract any or all of your obligations under the Agreement (or purport to do so); save, in either case, with our prior written consent.
14.1 The Agreement and any disputes or claims arising out of or in connection with their subject matter or formation shall be governed by and construed in accordance with the laws of Scotland and you and Firefish Software submit to the exclusive jurisdiction of the Scottish courts in respect of any disputes.