TERMS OF SERVICE
- FOLIO SERVICES.
- This Agreement defines the contractual terms and conditions under which Folio will supply Services to the Customer. Capitalized terms have the meanings given to them in at the end of these terms.
- Provision of Services. Folio shall, from the Go-Live Date and during the Term, use commercially reasonable endeavours to make the Services available 24 hours a day seven days a week, except for: (a) planned maintenance; and (b) unscheduled or emergency maintenance. Folio shall provide the Customer with reasonable advance notice of no less than 7 days of any scheduled maintenance and as soon as possible for unscheduled or emergency maintenance, which will have a material effect on the use of the Services. In each case Folio shall take all reasonable steps to minimize any interruption to the Services.
- Support Services. Folio will, as part of the Services, use its reasonable endeavours to provide the Customer with email support in office hours Monday to Friday, 9am to 5pm . Folio makes available support packages for purchase on request.
- Updating Service. As part of its updating service Folio shall provide error correction, patches, fixes and updates to the Services as generally made available to its customers. Where requested, the Customer may be required to update the Customer’s IT infrastructure in order to continue to comply with any required Minimum Specification for the Services. Folio shall provide the Customer with written notice prior to any updates requiring the Customer to update its IT infrastructure. In such an event, Customer may terminate this Agreement without liability. For the avoidance of doubt, no additional charge is made for updates. Folio shall have no liability whatsoever for any failure of Customer infrastructure to comply with the Minimum Specification.
- Service Improvements. The Customer acknowledge that Folio may change or modify the Services from time to time. Folio shall only be required to provide the Customer with thirty (30) days’ prior written notice of a change or modification to the Services in advance if the change of modification is material and does not extend or enhance the functionality or architecture of the Services or may adversely affect the Customer’s use of the Services in any material respect.
- Time not of the Essence. Any dates quoted for delivery of Services are approximate only.
- Variation to this Agreement. The Customer acknowledges that the Services have not been developed to meet the Customer’s individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Services as described in the Service Documentation meet the Customer’s requirements.
- ACCESSING AND USING FOLIO SERVICES.
- The Customer’s responsibility to understand Folio Services. The Customer acknowledges and agrees that whilst the Services are designed for ease of use, it is the Customer’s responsibility to ensure that: (a) any individuals involved in accessing and using the Services on behalf of the Customer are appropriately trained in the use of any applicable technology and understand and are familiar with the Services and any training materials or Documentation made available to the Customer relating to them; (b) all complaints by Individuals are appropriately managed. Folio shall have no responsibility to provide support if support issues are deemed by Folio to be the result of misuse or lack of appropriate training by the Customer in the use of Services. Folio shall be responsible for providing Documentation that supports such training.
- The Customer acknowledges that the provision of Services to the Customer is based on the Customer meeting the system requirements specified by Folio from time to time.
- Folio is not liable for any delay or inability to use or access the Services in whole or part directly or indirectly caused by a delay by the Customer or Customer’s failure to comply with the Customer obligations under this Agreement.
- LICENCE TO USE THE FOLIO SERVICES AND PLATFORM.
- Licence. Subject to the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Folio hereby grants to the Customer a personal non-exclusive, non-transferable, non-sub-licensable, revocable right: (a) to permit Authorised Users to use the Services and the Documentation during the Term solely for its business operations; and (b) to access and use the Folio Platform, Services and the Documentation within the limits of the Services agreed by the parties in writing from time to time. User Licenses are transferable, but the Customer may not exceed the agreed number of User Licenses.
- Limitations on Use. The rights provided under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company unless otherwise agreed in writing (and if Folio agrees to use by Customer’s Affiliates, Customer agrees that it shall be responsible for the actions or omissions of those Affiliates).
- Exceeding the limits of the Services. If the Customer’s use of the Services exceeds any agreed limits, Folio shall be entitled to automatically update its Fees to reflect such additional use. The Customer agrees to pay any applicable increase in Fees for such additional use within 30 days of notification. If at any time it becomes apparent to Folio that the Customer has underpaid Fees, all Fees applicable to the Customer’s actual historical use will be immediately payable to account for any shortfall. Folio may audit the Customer’s use of the Services at any time to ensure compliance with this Agreement.
- Additional Services. Where the Customer amends the scope of Services part way through any Term including by the addition of Add-On Services or additional Authorised Users, such additional Fees as may be payable shall be pro-rated from the date of activation by Folio for the remainder of the then current Term.
- FOLIO’S OBLIGATIONS.
- Warranty. Folio warrants that it will perform the Services substantially in accordance with the terms of the Documentation and with industry-standard skill and care. It undertakes to use reasonable skill and care in verifying or authenticating Attributes provided by Individuals at the time of provision, but does not warrant the accuracy, reliability or timeliness of the Attributes or any other information or data made accessible via the Folio Platform which is provided by a third party (together, Platform Information) and does not undertake to update or re-verify any Attributes unless requested to do so by the Customer.
- Exceptions from warranty. Except as provided for hereunder, Folio: (a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; (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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities; (c) does not warrant that the Attributes or any product provided to the Customer will be compliant with, or make the Customer compliant with, laws or regulations which may be applicable to the Customer; and (d) gives no representation, warranty or undertaking in respect of the suitability of the Attributes or any combination of them for any purpose whatsoever, including any decisions made or processes (whether automated or otherwise) used by the Customer, all of which the Customer undertakes at its sole risk.
- Customer responsibilities. Folio shall have no obligation to provide any services where faults or support requests arise from: (a) misuse, incorrect or unauthorised use of the Services; (b) failure of the Customer’s or an Individual’s hardware or software or any part of it; (c) use of the Services not in accordance with guidance provided by, or in combination with any hardware or software not approved by, Folio; (d) any breach of the Customer’s obligations under this Agreement.
- No implied warranties etc. The warranties, representations (and where applicable, warranties) set out in this clause are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this Agreement. Without limitation, Folio specifically denies any implied or express representation that the Services will be fit for any purpose or use other than that specifically stated by Folio in writing.
- INTEGRATION WITH THIRD PARTIES.
- The Customer may integrate Folio APIs and/or Folio SDKs detailed in the Customer Order Form with its own systems on the terms here <insert URL> from time to time.
- It is the Customer’s sole responsibility to ensure that the Folio APIs and/or SDKs are properly integrated with the Customer platform. Unless otherwise agreed in writing, beyond providing Documentation, Folio does not commit to providing support or assistance with the integration of the Folio Platform with the Customer’s systems.
- Folio will inform the Customer of any planned or actual changes to Folio APIs or any other part of the Folio Platform by notifying the Customer directly.
- RESTRICTIONS OF USE AND ACCEPTABLE USE POLICY.
- The Customer is responsible for any Authorised User’s breach of this Agreement and undertakes that each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed regularly and that each Authorised User and Individual shall keep their password confidential. To the extent permissible by law, Folio will not be liable for any loss that the Customer, an Authorised User or an Individual may incur as a result of any use or misuse of any username or password or any part of the Services.
- Except to the extent expressly permitted under this Agreement and to the maximum extent permitted by law, the Customer shall not: (a) (i) attempt to copy, reproduce, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or; (b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or (c) use the Services and/or Documentation to provide services to third parties or offer any part of the Services for sale or distribution over any other medium; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to anyone except Authorised Users or Individuals; or (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation; or (f) permit any third party to benefit from the use or functionality of the Services.
- THE CUSTOMER OBLIGATIONS.
- The Customer shall: (a) provide Folio with all necessary and timely co-operation in relation to this Agreement; including all necessary access to such information as may be required by Folio in order to render the Services, including but not limited to, data and documentation requested for the provision of the Services (and ensure that such data and documentation is accurate in all material respects) and Folio is not liable for any inability to use the Services caused (directly or indirectly) in whole or part by the Customer; (b) appoint an individual who shall have the authority to contractually bind the Customer on matters relating to the Services; (c) be responsible for procuring any third party co-operation reasonably required for the receipt of Services (d) comply with all applicable laws and regulations applicable to the Customer’s use of the Services.
- The Customer shall be responsible for:
- Safeguarding and Security – procuring and maintaining the Customer network connections and telecommunications links from its systems to the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer network connections or telecommunications links or caused by the internet; operating best practice and ensuring appropriate security precautions are taken in connection with its use of the Services. The Customer is responsible for taking all reasonable steps to mitigate the risks inherent in the provision and receipt of the Services, including data loss due to Customer’s IT infrastructure and taking all reasonable and usual precautions to safeguard the Customer IT infrastructure, including operating firewalls and virus checks and implementing effective and appropriate data security in respect to the provision and receipt of Services.
- Compliance with Legal Requirements – ensuring that the Customer’s use of the Services complies with any legal or regulatory requirements (including but not limited to money laundering) and is not fraudulent. The Customer must only use the Folio Platform solely for proper and lawful business purposes and otherwise in accordance with this Agreement where applicable only to receive or exchange Attributes with Individuals. The Customer acknowledges and agrees that (where applicable) it is responsible for ensuring that it selects the appropriate identity documents and accepts direct responsibility to each Individual in respect of the Customer’s use, processing and extraction of Attributes.
- Transfers and Transactions. Folio is a service provider and does not engage in any correspondence or participate in the relationship between users of the Services or in any part of any transaction, transfer or fulfilment of any contract between users. The Customer agrees to indemnify Folio, in full in respect to any claim made against Folio by any party accessing and/or using the Services made available to or by the Customer under this Agreement except to the extent due solely to breach of this Agreement by Folio. Any contract entered into, and any transaction completed through the Services, is between the Customer and the relevant third party. The Customer accepts all responsibility for and agrees to release Folio entirely from any claims, liabilities, disputes, actions or proceedings arising from or connected to the Customer interactions with the Services or any third party as a result of Folio’s provision of Services or in respect to any Transaction except to the extent directly due to breaches of this Agreement by Folio.
- 8.DATA AND DATA PROTECTION AND ATTRIBUTES
- The parties acknowledge and agree that unless they agree otherwise in writing, Folio is the Controller of Attributes provided by an Individual until they are shared with the Customer by an Individual, when the Customer becomes the Controller of those Attributes. The parties acknowledge that if Folio processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and Folio is the processor for the purposes of the Data Protection Legislation. The Data Processing Addendum here <insert URL> sets out the obligations of the parties in respect of the processing of personal data.
- Each party will comply with all applicable requirements of the Data Protection Legislation (including, without limitation, the “data minimisation” principle in the EU GDPR). This clause 8is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- Due to the privacy safeguards in the Folio App, an Individual cannot recover access to his/her account unless he/she has chosen to save a ‘Backup Key’. If an Individual does not save a ‘Backup Key’, Folio shall not be liable to the Customer for any cost, expense or liability suffered or incurred by the Customer as a result.
- The number and type of Attributes that can be shared via the Folio App, and the extent to which Folio verifies any Attributes, will be determined by Folio in its sole discretion from time to time. Folio does not guarantee to provide any particular category of Attribute and may remove or amend any category of Attribute in respect of some or all Individuals at any time provided that this does not adversely impact the Customer’s use of the Services.
- SUSPENSION OF SERVICES.
- The Customer shall not upload, access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; (f) causes damage or injury to any person or property; and Folio reserves the right, without liability to the Customer, to disable the Customer access to Services as a result of a breach of the provisions of this.
- Folio will, except to the extent restricted by law, court order or law enforcement, give the Customer 5 days’ advance notice of a suspension under this clause 9 to cure the cause of suspension. If such cause is not cured within such period, Folio ma y take such action as stated in this clause, unless Folio determines in its reasonable commercial judgement that an immediate suspension is necessary to protect Folio or its customers from imminent and significant operational or security risk, or if to do so would be unlawful or Folio ha s grounds to suspect fraudulent or any other form of criminal use of the Services.
- For the avoidance of doubt, any suspension of Services due to Customer’s breach of this Agreement shall not suspend the Customer’s obligation to pay any recurring Fees.
- CHARGES AND PAYMENT.
- The Customer shall pay the Fees agreed by the parties to Folio in accordance with this clause 10.
- The Customer shall provide to Folio relevant valid, up-to-date and complete contact and billing details and Folio shall invoice the Customer on the Start Date for the Fees payable for the Services and the applicable Initial Term, as detailed in the Customer Order Form.
- Folio may invoice the Customer monthly in arrears at the beginning of the next month. The Support Fee shall be invoiced in advance of Services being provided.
- If Folio has not received payment within thirty (30) days after the due date for any Fees, then without prejudice to any other rights and remedies of Folio: (a) Folio may, without liability to the Customer, disable the Customer account and suspend access to all or part of the Services and Folio shall be under no obligation to provide any or all of the Services while the invoice(s) concerned, any interest, administrative and legal costs of collecting payment and any further sums payable, remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 4% over Folio’s bank’s base rate from time to time.
- Invoice Disputes. Customer shall have thirty (30) days from receipt of an invoice to dispute any portion of the invoice. The parties shall work together in good faith to resolve any disputes within ten (10) days. The Customer shall pay any amount that is no longer in dispute within thirty (30) days after such dispute is resolved.
- Except for breach of this Agreement or any other agreement between the parties, all amounts and fees stated or referred to in this Agreement: (a) are non-cancellable and non-refundable; and (b) are exclusive of applicable tax, which shall be added to Folio’s invoice(s) at the appropriate rate.
- Folio shall be entitled to increase the Fees on thirty days’ prior written notice to the Customer. In the event that the Customer does not agree to such increase, the Customer may terminate this Agreement with thirty (30) days’ written notice. In the event that the Customer does not notify Folio that the Customer object to any increase, continued use of the Services is taken as acceptance of the amended Fees.
- Folio will keep complete and accurate books and records concerning this Agreement for at least three years following the year to which they pertain. The Customer may or its representative may, at the Customer’s expense and no more than once per year, audit and copy Folio’s records at Folio’s location.
- PROPRIETARY RIGHTS.
- The Customer acknowledges and agrees that Folio and/or its licensors are the sole and exclusive owners of all intellectual property and other proprietary rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the Documentation.
- As between the parties, Folio acknowledges that all intellectual property and other proprietary rights in all Data and Attributes are owned and shall continue to be owned by the Customer.
- The Customer grant to Folio a non-exclusive, perpetual, irrevocable, royalty free license to use any Data (provided that such data is anonymised) for the purpose of: (a) statistical analysis and monitoring, querying and analysing such data for the purpose of providing the Services and improving the quality of services Folio provides to its customers; (b) exercising its rights and fulfilling its other obligations under this Agreement; (c) complying with any applicable governmental or regulatory requirements.
- 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: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence. The receiving party may disclose confidential information if it is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body, provided that to the extent practicable and permitted by law, the receiving party shall promptly notify the disclosing party in advance of such requested disclosure and provide the disclosing party with an opportunity to object to such request.
- Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than this Agreement.
- Each party shall 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.
- The Customer acknowledge that details of the Services, and the results of any performance, security, penetration, vulnerability or other logical, analytical, data or information gathering tests carried out on the Services, constitute Folio’s Confidential Information.
- This clause 12 shall survive termination of this Agreement, however arising.
- INDEMNITY BY CUSTOMER.
Without prejudice to the provisions of clause 1 3, the Customer shall defend, indemnify and hold harmless Folio against claims, actions, liabilities, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (“Losses”) arising out of or in connection with: (i) the Customer’s or any Authorised User’s use of the Services and/or Documentation; or (ii) the Customer’s collection, use, processing and/or transfer of any Data or other personal data; or (iii) any claim of any of any kind including legal fees arising from any claim, demand or action alleging that any use the Customer makes of the Services is contrary to any law, code or regulation in any country.
- INDEMNITY BY FOLIO.
- Folio’s indemnity if Services infringe any third party IP. In the event that the Services infringe any patent, copyright, trade mark, or right of confidentiality, Folio shall, subject to clause 1 5.4, indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (i) Folio is given prompt notice of any such claim; (ii) the Customer provide reasonable co-operation to Folio in the defence and settlement of such claim, at Folio’s expense; and (iii) Folio is given sole authority to defend or settle the claim. In the defence or settlement of any claim, Folio 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, and Folio is unable, after best efforts, to procure for the Customer the right to continue using the Services or to provide functionally equivalent Services, either party may terminate this Agreement on 14 b usiness days’ notice without Folio incurring further liability to the Customer.
- Exclusions to Folio’s IP Indemnity. In no event shall Folio, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services by anyone other than Folio; or (b) the Customer use of the Services in a manner contrary to the instructions given to the Customer by Folio; or (c) the Customer use of the Services after notice of the alleged or actual infringement from Folio or any appropriate authority.
- The foregoing state each party’s sole and exclusive rights and remedies, and each party’s (including that party’s employees’, agents’ and sub-contractors’) entire obligations and liability for infringement of any patent, copyright, trade mark right of confidentiality or other intellectual property right.
- LIMITATION OF LIABILITY.
- This clause 15 sets out the entire financial liability of Folio (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of this Agreement; (b) any use made by the Customer of the Services and Documentation or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
- Except as expressly and specifically provided in this Agreement, (a) Folio shall have no liability for: (i) any damage caused by errors or omissions in any information, instructions or scripts provided to Folio by the Customer in connection with the services, or any actions taken by Folio at the Customer’s direction; (ii) any damage or loss caused by Customer’s reliance on the Platform Information (whether obtained by API or otherwise and whether provided in response to requests by Folio or otherwise); (iii) any damage caused by any action taken by the Customer or an Individual in reliance upon information resulting from such data or materials ; (iv) any inaccuracy, error or delay in, or omission of any data or information entered into the Services by the Customer or any third party; (v) any error or delay in the transmission of such data or information; or (vi) any interruption in any such data or information; (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, disclaimed and excluded from this agreement including, without limitation, any warranties of title, merchantability, or fitness for a particular use or purpose; and (c) the Services and the Documentation are provided to the Customer on an “as is” basis.
- Nothing in this Agreement excludes the liability of either party: (a) for death or personal injury caused by Folio’s negligence; (b) for fraud or fraudulent misrepresentation; or breach of clause 12.
- Subject to clause 15.3: (a) to the maximum extent permitted by law, Folio 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, punitive, exemplary or consequential loss, costs, damages, charges or expenses however arising under or relating to this agreement, even if Folio has been advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based; and (b) Folio’s total aggregate liability in contract, 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 three times the total amount of Fees paid by the Customer to Folio during the 12 months immediately preceding the date on which the claim arose. As the Fees for the service properly reflect the delineation of risk between the parties, each party agrees to ensure that it will be responsible for making its own arrangements for the insurance of any loss in excess of its accepted legal liability as necessary.
- Under no circumstances shall Folio be responsible or liable for any harm caused by the transmission, through the Services of a computer virus, or other computer code or programming device that might be used to access, modify, delete, damage, corrupt, deactivate, disable, disrupt, or otherwise impede in any manner the operation of the Services or any of the Customer software, hardware, data or property.
- TERM AND TERMINATION.
- This Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Start Date and shall continue thereafter, unless: (a) either party notifies the other party of termination, in writing, at least 60 days before an anniversary of the Start Date in which case this Agreement shall terminate that anniversary; or (b) otherwise terminated in accordance with the provisions of this Agreement.
- Without affecting any other rights that it may be entitled to, either party may terminate this Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this Agreement (or any other agreement between the parties) and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) the other party has a receiver or administrative receiver appointed over it or over any part of its business or assets or passes a resolution for winding up (except for the purposes of a genuine scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect, or becomes subject to an administration order or enters into any voluntary arrangement with its creditors, or it ceases or threatens to cease or carry on business.
- Without affecting any other rights that it may be entitled to, Folio may terminate the Agreement if: (a) payment of any invoiced amount (except to the extent such invoice is disputed in good faith) or Fee payable is overdue and following 30 (thirty) day notification to the Customer and the Customer does not pay the overdue amount within fourteen (14) days of a written notice from Folio; there is a change in law or legislation or a territory in which the Customer operates introduces a data localisation requirement that affects the Attributes Folio stores or where Folio must store them or introduces any law that could require Folio to build a ‘back door’ to any data Folio stores or processes, provided that Folio provides the Customer with thirty (30) days’ written notice prior to termination.
- On termination of this Agreement for any reason: (a) all licences and access to the Services granted under this Agreement shall immediately terminate ; and (b) Folio may destroy or otherwise dispose of any of the Customer Data in its possession unless Folio receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data at no cost to the Customer and in the format agreed between the parties in advance . This will be delivered 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); (c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; (d) Folio shall delete all personal data which it is processing on behalf of the Customer at the date of termination.
- Following termination and subject to payment by the Customer for those Services in advance, Folio shall provide the Services for 30 days (or sixty days if agreed by the parties in writing in response to a request by the Customer).
- FORCE MAJEURE. Folio 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 Folio 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 Folio’s or sub-contractors for so long as said cause persists, provided that the Customer is notified of such an event and its expected duration.
- No variation or modification of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorized representatives).
- 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.
- 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.
- 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. 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.
- This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
- The Customer shall not, without the prior written consent of Folio, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
- During the term of the Agreement and for twelve (12) months thereafter, neither party shall, alone or in association with others, solicit any employee or contractor of the other party to terminate its employment or contracting relationship with the other party or its subsidiaries. Nothing herein shall preclude either party from hiring employees or contractors of the other party to the extent such employees or contractors respond, without any solicitation by or on behalf of the hiring party, to advertisements or job openings published or otherwise made generally available to the public by the hiring party.
- Nothing in this Agreement is intended to or shall operate to create a partnership, joint venture, agency, franchise or employment relationship 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).
- 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).
- Those clauses intended by the parties to survive termination of this Agreement shall so survive any termination of this Agreement.
- NOTICES. 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 as set out in this Agreement. 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 e-mail shall be deemed to have been received at 9 am on the first day following delivery. Where Folio is required under this Agreement to give the Customer any notice in writing, Folio may give this notice by letter or by email.
- GOVERNING LAW AND JURISDICTION. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the law of England and each party irrevocably agrees that, in the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding the foregoing, either party may bring proceedings for an injunction in any jurisdiction or to enforce any judgment of the courts of England.
- MARKETING. The parties shall allow each other to publicise the existence of this Agreement and to use the other party’s then current trade mark logo and name on its web site. The parties may from time to time collaborate with each other to produce and publish customer comments, endorsements, case studies and other instances of advocacy, for the purposes of marketing, which the other party shall have the right to amend and / or approve before publication.
Affiliates: as applied to Customer, means those entities, businesses, facilities, and enterprises that are controlled by, controlling, or under common control with Customer, including, without limitation, all parent corporations and their respective subsidiaries and affiliates.
Attribute: means an item of personal data or document image relating to an Individual.
Agreement: these Terms of Service and any terms agreed by the parties in writing.
Authorised Users: the employees and independent contractors who are authorised by the Customer to access and use the Services in accordance with this Agreement up to the number agreed by the parties.
Customer: the party to this Agreement which is not Folio.
Data: the data inputted by the Customer, or by Folio on the Customer’s behalf or otherwise generated in respect to the Customer’s use of the Services.
Data Protection Legislation: 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 and 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 or Folio is subject, which relates to the protection of personal data.
Documentation: any documentation made available to the Customer by Folio from time to time, whether in electronic form or otherwise, which sets out a description and user instructions for the Services.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Fees: the fees payable by the Customer to Folio for the Services as agreed by the parties via the Folio Platform including the Transaction Fees.
Folio: means Folio Limited.
Folio API: means an application programming interface provided by Folio to allow the Customer to use the Folio Platform.
Folio App: the app owned and made available by Folio from time to time on the Apple App Store, Google Play and other platforms from time to time.
Folio Platform: means www.folio.id and Folio’s software for receiving or delivering Attributes including but not limited to the Folio App, Folio APIs and Folio SDKs or other Folio products which may be integrated with the Customer systems.
Folio SDK(s): means one or more software development kits or libraries or application programming interfaces of Folio which allow the Customer to communicate with and use other components of the Folio Platform.
Go-Live Date: the Start Date or, if later, the date on which any onboarding services provided by Folio are complete.
Individual: means a person with an Individual Folio Account or a person who interacts with a Folio product.
Individual Folio Account: means an account created by an individual to access and use the Folio Platform.
Minimum Specification: means the specification which the Customer hardware is required to meet in order to use the Services, as revised from time to time.
Start Date: the date of this Agreement.
Services: means the Services to be provided to the Customer, including access to the Folio Platform as agreed by the parties via the Folio Platform.
Term: the term of this Agreement.
Third Party Services: means the products or services of third parties which Folio may make available to the Customer via the Folio Platform from time to time such as, for example only, address check, credit check or anti-money laundering check services.
Transaction: means the receipt or exchange of one or more Attributes between the Customer and an Individual via the Folio Platform.
Transaction Fee: means the charges payable by the Customer in respect of Transactions.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
User License: each user subscription purchased by the Customer under this Agreement which entitles an Authorised User to access and use the Services in accordance with this agreement.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking into account any amendment, extension, or re-enactment and includes any subordinate, interim or provisional legislation for the time being in force made under it. Any words following the terms including, include, in particular, for example or any other similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or terms preceding those terms. References to clauses are to the clauses of this Agreement .