Terms & Conditions
THESE TERMS AND CONDITIONS TOGETHER WITH THE APPLICABLE ORDER FORM ("ORDER FORM") CONSTITUTE A LEGAL AGREEMENT WHICH CONTAINS THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER DETAILED IN THE RELEVANT ORDER FORM ("CUSTOMER") AND THE RELEVANT Instanda ENTITY SET OUT BELOW ("Instanda"), WITH RESPECT TO THE SUBJECT MATTER DESCRIBED HEREIN (TOGETHER THE "AGREEMENT"). IN CONSIDERATION FOR THE MUTUAL PROMISES AND COVENANTS THAT EACH PARTY MAKES TO THE OTHER UNDER AND IN CONNECTION WITH THIS AGREEMENT, EACH OF Instanda AND CUSTOMER HEREBY AGREE AS FOLLOWS:
Master SaaS Terms
The Customer will contract with a different Instanda corporate entity and different governing laws will apply to the Agreement depending on where the Customer is registered, as follows:
| If the Customer is an entity registered anywhere outside of the USA and Canada, but excluding Japan | F2X Group Ltd, a company incorporated and registered in England and Wales with company number 05236974, whose registered office is at 70 Gracechurch Street, London, United Kingdom, EC3V 0HR (or otherwise referred to in these Instanda Master SaaS Terms as “Instanda UK”). | The laws of England and Wales, and the courts of London, England and Wales have non-exclusive jurisdiction. |
| If the Customer is an entity registered anywhere inside the USA and Canada | Instanda Inc., a corporation incorporated and registered in Delaware with file number 6573254, which is located at 300 Opelika Rd, Unit 1524, Auburn AL 36830 (or otherwise referred to in these Instanda Master SaaS Terms as “Instanda USA” in this Contract). | United States Federal and the State of Delaware laws, and the jurisdiction of the state or Federal courts located in, or for, the City of Wilmington in the State of Delaware, shall have exclusive jurisdiction. |
| If the Customer is an entity registered in Japan | Instanda Japan Corp, a limited liability corporation incorporated and registered in Japan (or otherwise referred to in these Instanda Master SaaS Terms Instanda Japan in this Contract). | The laws of Japan and the Japanese courts shall have exclusive jurisdiction |
In each case “Instanda” shall mean the appropriate corporate entity to the Agreement. The Agreement is formed with the Customer upon the earlier of the following events taking place (i) the Customer accepts the Master SaaS Terms using Instanda’s online order process; (ii) the Customer signs its first Order Form for Instanda’s services; (iii) the Customer uses, receives or accesses any of Instanda’s Services; or (iv) the Customer indicates acceptance to the Master SaaS Terms via email.
The following definitions apply in this Agreement:
1.1. "Access Fee" means the fee paid in advance of each Billing Period to Instanda by the Customer as set out in the Order Form.
1.2. "Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to access and use the Services.
1.3. "Billing Period" means the monthly period defined in the Order Form against which the Access Fee and Processing Fee are calculated and paid.
1.4. "Build Fees" means the fixed costs agreed between the Parties relating to development or configuration of the Platform, as set out in the applicable Order Form.
1.5. "Business Day" if your contract is with Instanda UK or Instanda Japan, means a day other than a Saturday, Sunday or public holiday in England when the banks in London are open for business, OR if your contract is with Instanda USA a day other than a Saturday, Sunday or scheduled United States stock market holiday.
1.6. "Change of Control" means any merger, acquisition, sale of all or substantially all of the assets of the Customer, consolidation, reorganisation or other transaction or series of related transactions which results in a competitor of Instanda (being any person that provides, develops or markets products or services that are substantially similar to or competitive with the Services) directly or indirectly acquiring Control of the Customer.
1.7. "Confidential Information" means any information which is marked as confidential or which may reasonably be regarded as confidential, including the subject matter of this Agreement, the Platform, the Services and any Intellectual Property Rights.
1.8. "Control" means the beneficial ownership of more than fifty per cent (50%) of the issued share capital of the Customer, or the legal power to direct or cause the direction of the management and policies of the Customer, whether through ownership of voting securities, by contract or otherwise, and "Controlled" shall be construed accordingly.
1.9. "Customer Data" means the data and information input by the Customer or Authorised Users for the purpose of using the Services, excluding Usage Data.
1.10. "Customer Personal Data" means any Personal Data contained within the Customer Data that is Processed by Instanda on the Customer's behalf as a Processor in connection with the Services.
1.11. "Data Protection Legislation" means all applicable data protection and privacy legislation in force in the UK from time to time, including the UK GDPR, the Data Protection Act 2018, and any successor legislation.
1.12. "Documentation" means document(s) made available to the Customer by Instanda from time to time setting out a description of the Services and user instructions.
1.13. "Effective Date" means the date of this counter-signed Agreement.
1.14. "Force Majeure Event" means any cause beyond a Party's reasonable control, including acts of terrorism, fire, flood, storm, earthquake or failure of a utility service.
1.15. "GWP" means gross written premium charged to the policyholder including all commission and fees (except insurance premium tax).
1.16. "Initial Service Term" means the initial term of this Agreement as set out in the Order Form.
1.17. "Intellectual Property Rights" means all existing and future intellectual property rights of any kind, including copyright, trademarks, patents, designs and rights in Confidential Information.
1.18. "Order Form" means the ordering document specifying the Services to be provided, entered into between the Customer and Instanda.
1.19. "Platform" means the proprietary Instanda software and platform applications developed and made available by Instanda as part of the Services.
1.20. "Processing Fee" means the fee paid in arrears for the Billing Period by the Customer as set out in the Order Form.
1.21. "Renewal Period" has the meaning given in Clause 11.1.
1.22. "Service Fee" means the overall fee comprising the Access Fee, the Processing Fee and any other fees payable by the Customer to Instanda for the Service Subscription in accordance with this Agreement and the Order Form.
1.23. "Service Subscription" means the subscription which entitles Authorised Users to access and use the Services and the Documentation.
1.24. "Service Term" means in the case of a trial by the customer of the Services, the Trial Period, or in the event of a full subscription, the Initial Service Term together with any subsequent Renewal Periods.
1.25. "Services" means the subscription services provided by Instanda to the Customer as described in the Order Form.
1.26. "Sub-processor" means any natural or legal person engaged by Instanda to Process Customer Personal Data on behalf of the Customer.
1.27. “Trial Period” means the limited trial period during which Instanda is granting to the Customer to evaluate whether to purchase the Services as further specified in the Order Form.
1.28. “Trust Portal” means the online trust centre in which Instanda provides and the Customer can access certain Documentation that may be incorporated into this Agreement by explicit reference to the document name or ID.
1.29. "Usage Data" means anonymised, aggregated or statistical data derived from use of the Platform or Customer Data.
2.1. In consideration of payment of the Service Fee as detailed in the Order Form, Instanda hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit Authorised Users to access and use the Services during the Service Term solely for the Customer's internal business operations in the territory set out in the Order Form.
2.2. The Customer will be responsible for Authorised Users' compliance with this Agreement. The Customer shall not permit access to the Services by anyone other than Authorised Users.
2.3. The Customer shall not:
2.3.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Platform or Documentation in any form or by any means;
2.3.2. attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform (except as permitted by applicable law which cannot be excluded by agreement);
2.3.3. access all or any part of the Services in order to build a product or service which competes with the Services;
2.3.4. licence, sell, rent, lease, transfer, assign, distribute, disclose or otherwise commercially exploit the Services or Documentation to any third party except Authorised Users;
2.3.5. use the Services to store or transmit any material that is infringing, unlawful, harmful, threatening, defamatory, obscene, discriminatory, sexually explicit, harassing or otherwise tortious in nature, or to store or transmit any material containing viruses, worms, Trojan horses or other malicious code;
2.3.6. attempt to conduct your own penetration testing or other security level testing on the Platform;
2.3.7. make a competitive or functional assessment of any element of the Services (other than assessing Instanda’s ability to meet Your own internal business purposes) on behalf of third parties (including any of Instanda’s competitors) or with the intention of publishing or making information about the Services available to third parties that we have not previously consented to in writing; or
2.3.8. attempt to obtain, or assist third parties in obtaining, unauthorised access to the Services.
2.4. Without prejudice to any other right or remedy available to Instanda, where Instanda reasonably determines that any material stored or transmitted by the Customer or any Authorised User through the Services is in breach of Clause 2.3.5, Instanda may immediately disable access to such material without prior notice and without liability to the Customer.
2.5. The Platform needs to be integrated into the Customer’s domain and products configured onto the Platform (“SI Work”). The Customer can elect for either (i) Instanda to perform such SI Work; (ii) the Customer to complete the SI Work itself; or (iii) exceptional circumstances only, at the sole discretion of Instanda, and subject to completion of training on the Platform, for a third party service provider to perform such SI Work. Any SI Work conducted by Instanda is subject to the terms of this Agreement and will be documented in an Order Form or SOW. Instanda has no liability for any SI Work conducted by the Customer or a third party. Time shall not be of the essence for any SI Work performed by Instanda and Instanda cannot be held liable for delays to SI Work caused by the Customer.
2.6. Instanda shall provide a support service to the Customer which is appropriate to the selected service tier or as otherwise described in the Order Form. In any event, service levels shall not apply to, while Instanda shall not be obliged to provide any support for:
2.6.1. incidents or requests in any Trial Periods;
2.6.2. incidents due to the Customer or any Authorised Users failing to comply with this Agreement or Instanda’s instructions;
2.6.3. incidents due to third party technologies or features, including the Customer’s domain, or any connections beyond the demarcation point of the Platform;
2.6.4. incidents due to the Customer’s misuse or unauthorised combination of any part of the Service;
2.6.5. requests that are non-standard professional or implementation services that Instanda would not ordinarily provide in the course of providing the Services to its other customers;
2.6.6. requests that relate to the provision of the Services to Customer affiliates not expressly granted permission to access the Services in an Order Form;
2.6.7. requests that are excessive in number or nature and/or ought reasonably to be resolved by the Customer itself.
2.7. The rights granted under this Clause 2 are personal to the Customer and may not be extended to any third party without the prior written consent of Instanda.
3.1. Instanda shall, during the Service Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
3.2. Instanda undertakes that the Services shall be provided:
3.2.1. in accordance with all applicable laws and regulations; and
3.2.2. with reasonable skill and care consistent with generally accepted standards for equivalent software as a service provision.
3.3. Instanda does not warrant that the Customer's use of the Services will be uninterrupted or error-free, or that the Services will meet the Customer's particular requirements. The Services are provided on an "as is" basis save as expressly set out in this Agreement.
3.4. Instanda may sub-contract any work to a partner or sub-contractor as it deems necessary for the provision of the Services. Instanda shall remain liable for the acts and omissions of any such sub-contractor.
3.5. Instanda will maintain its compliance with the Payment Card Industry Data Security Standard (PCI DSS) and will comply with all applicable PCI DSS requirements insofar as Instanda stores, processes or transmits cardholder data on the Customer's behalf.
3.6. Unless the Customer is receiving the Services in a Trial Period (in which case no service levels shall apply), Instanda will exert reasonable endeavours to meet the Service Levels set out in the Order Form, or in the absence of any in the Order Form, Instanda’s standard SLA Regime accessible in the Trust Portal.
4.1. The Customer shall:
4.1.1. provide Instanda with all reasonably required co-operation and access to information necessary for the provision of the Services;
4.1.2. comply with all applicable laws and regulations with respect to its activities under this Agreement;
4.1.3. ensure that Authorised Users use the Services and Documentation in accordance with this Agreement and be responsible for any breach of this Agreement by Authorised Users;
4.1.4. ensure that all usernames and passwords required to access the Platform are kept secure and confidential, and immediately notify Instanda upon becoming aware of any unauthorised use or breach of security;
4.1.5. obtain and maintain all necessary licences, consents and permissions necessary for Instanda to perform its obligations under this Agreement;
4.1.6. be solely responsible for procuring and maintaining its network connections and telecommunications links to the Platform; and
4.1.7. maintain a written, up-to-date list of all Authorised Users (including each Authorised User's name, role and contact details) and provide a copy of such list to Instanda within five (5) Business Days of a written request from Instanda.
4.2. The Customer shall not (and shall ensure that Authorised Users do not) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or in any manner that is unlawful, fraudulent or which interferes with or disrupts the integrity or performance of the Services.
4.3. The Customer covenants that it shall not (without the prior written consent of Instanda), during the Service Term and for a period of twelve (12) months following termination or expiry, attempt to solicit or entice away, or employ or engage, any employee or contractor of Instanda who has been engaged in the provision of the Services.
4.4. Discovery and Design. Instanda will often perform a discovery and design exercise (“D&D”) after signing the Agreement, which is based upon all of the information the Customer has provided about its use cases, platform requirements, sales models and any other information or data relevant to providing our Services to the Customer in pre-sales and technical pre-sales stages (“Pre-Contract Information”). Instanda issues quotes for Services based upon this Pre-Contract Information, and the Customer makes an offer to buy Instanda’s Services for the price stated in such quotes. Instanda may then accept the Customer’s offer, relying upon the data and representations made in the Customer’s Pre-Contract Information to make that decision. If during a D&D it transpires that the Customer’s Pre-Contract Information was not accurate, or the Customer’s requirements or use cases have changed in any way, which means there is a materially different scope of Service (including Platform configuration) to that which Instanda understood from the Pre-Contract Information, then Instanda shall not be obliged to continue provision of the Services until such time that the parties have agreed an appropriate and accurate revised scope and (if applicable) charges, which for the avoidance of doubt may include an increase in the Access Fee, Processing Fee or any other ancillary fees during the Service Term.
5.1. The Customer shall own all right, title and interest in and to the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2. Both Parties shall comply with all applicable requirements of the Data Protection Legislation. The Parties record their understanding that, for the purposes of Customer Personal Data, the Customer shall be the Controller and Instanda shall be a Processor.
5.3. Without prejudice to the generality of Clause 5.2, Instanda shall in relation to any Customer Personal Data:
5.3.1. process Customer Personal Data only on the written instructions of the Customer unless otherwise required by applicable law;
5.3.2. ensure that all personnel who access Customer Personal Data are obliged to keep it confidential;
5.3.3. implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data;
5.3.4. notify the Customer without undue delay on becoming aware of a Personal Data Breach;
5.3.5. at the Customer's written direction, delete or return Customer Personal Data on termination of this Agreement, unless required by applicable law to retain it; and
5.3.6. make available to the Customer, at the Customer's cost, information reasonably necessary to demonstrate compliance with this Clause 5.
5.4. The Customer consents to Instanda engaging Sub-processors for the processing of Customer Personal Data. Instanda's principal Sub-processor is Microsoft Azure. Instanda shall ensure that any Sub-processor is subject to data protection obligations substantially equivalent to those set out in this Clause 5.
5.5. Instanda shall not transfer any Customer Personal Data outside the United Kingdom and/or European Economic Area without the prior written consent of the Customer, save where an adequate level of protection is ensured in accordance with the Data Protection Legislation.
5.6. Subject to its obligations under Data Protection Legislation and its confidentiality obligations, Instanda may use anonymised, aggregated and statistical Usage Data derived from use of the Platform to validate, modify and improve the Platform. Instanda shall not use any Customer Data to enhance third-party artificial intelligence models.
6.1. The Service Fee is calculated in accordance with the Order Form. Instanda shall invoice the Customer in accordance with the payment schedule set out in the Order Form.
6.2. All invoices are payable within thirty (30) days of the date of invoice.
6.3. If Instanda has not received payment of any undisputed invoice within thirty (30) days of the invoice date, Instanda may, without liability to the Customer, disable the Customer's access to all or part of the Services, and Instanda shall be under no obligation to provide the Services whilst such invoice remains unpaid. Interest shall accrue on overdue amounts both before and after any court judgment, which:
6.3.1. If your Agreement is with Instanda UK, at an annual rate equal to 3% over the Bank of England base rate from the due date until fully paid; and
6.3.2. If your Agreement is with Instanda USA, at the lower rate of 18% per annum or the highest rate allowed by applicable laws in the USA.
6.4. The Customer may dispute an invoice in good faith by providing written notice to Instanda of the dispute and the reasons for it not less than ten (10) Business Days before the due date. The Parties shall use reasonable endeavours to resolve any invoice dispute promptly.
6.5. All amounts:
6.5.1. are payable in Pounds Sterling (GBP) unless otherwise agreed in the Order Form;
6.5.2. are non-cancellable and non-refundable;
6.5.3. are payable without withholding or deduction of, or in respect of, any bank processing or administrative fees or any taxes unless required by law. If any such withholding or deduction is required then, the Customer shall, when making the payment to which the withholding or deduction relates, pay to Instanda such additional amount as will ensure that Instanda receives the same total amount that it would have received if no such withholding or deduction had been required. and
6.5.4. are exclusive of VAT, which shall be added at the applicable rate.
6.6. Unless otherwise agreed or documented in an Order Form for a Renewal Period, Instanda may increase the Access Fee by up to 15% by giving at least 30 days’ written notice to you prior to the date of expiry of either the Initial Service Term or the relevant Renewal Period. Instanda may also increase the Service Fee annually by no more than five per cent (5%) upon ninety (90) days' prior written notice.
6.7. If the Customer's usage of the Services exceeds the thresholds or parameters of the licence tier set out in the applicable Order Form during any Billing Period, Instanda shall notify the Customer in writing and the Customer shall be automatically upgraded to the next applicable licence tier. The revised Access Fee corresponding to such upgraded licence tier shall apply from the commencement of the next Billing Period following such notification. The Customer shall pay the revised Access Fee in accordance with the payment terms set out in this Agreement. In the event of any dispute as to whether the Customer's usage has exceeded the applicable licence tier, the Parties shall discuss the matter in good faith and Instanda shall provide such reasonable evidence of usage as the Customer may request.
7.1. The Customer acknowledges that Instanda and/or its licensors own all Intellectual Property Rights in the Platform, the Services and the Documentation, including all upgrades and modifications. Except as expressly stated in this Agreement, the Customer is granted no rights in respect of any Intellectual Property Rights.
7.2. The Customer grants Instanda a limited licence to host, copy, transmit and display Customer Data as reasonably necessary to provide the Services.
7.3. The Customer grants to Instanda a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into Instanda's services any enhancement request, recommendation, correction or other feedback provided by the Customer relating to the configuration or operation of the Services.
8.1. Each Party may be given access to Confidential Information from the other Party in connection with this Agreement.
8.2. Each Party shall:
8.2.1. hold the other Party's Confidential Information in strict confidence;
8.2.2. not use the other Party's Confidential Information for any purpose other than performing its obligations or exercising its rights under this Agreement; and
8.2.3. not disclose the other Party's Confidential Information to any third party without prior written consent, save to employees, officers, representatives or advisers who need to know such information for the purposes of this Agreement and who are bound by equivalent confidentiality obligations.
8.3. The obligations under this Clause 8 shall not apply to information that:
8.3.1. is or becomes publicly known other than through breach of this Agreement;
8.3.2. was already known to the receiving Party as evidenced by its written records; or
8.3.3. is required to be disclosed by law, court order or any regulatory or administrative body.
8.4. The Customer acknowledges that all details of the Platform and Services constitute Instanda's Confidential Information. This Clause 8 shall survive termination or expiry of this Agreement.
9.1. Subject to the Customer's prior written approval (such approval not to be unreasonably withheld, conditioned or delayed), Instanda may use the Customer's name, trade names and logos in Instanda's marketing materials, case studies, website and promotional content for the purpose of identifying the Customer as a user of the Services.
9.2. The Parties shall cooperate in good faith to prepare and issue: (a) a joint press release announcing the entry into this Agreement, to be issued on or promptly following the Effective Date; and (b) a joint press release to coincide with the initial launch of the Customer's first product utilising the Services. The content and timing of each such press release shall be subject to the prior written approval of both Parties, such approval not to be unreasonably withheld, conditioned or delayed.
9.3. Instanda shall be entitled to display the "Powered by Instanda" mark (or such equivalent branding as Instanda may reasonably designate from time to time) on the Customer's published web front end utilising the Platform. The Customer shall not remove, obscure, modify or disable the display of such mark without Instanda's prior written consent.
9.4. Each party shall use the other’s marks, logos or branding provided pursuant to this Clause strictly in accordance with any brand guidelines notified by the owning Party from time to time. All goodwill arising from the use of a Party's marks shall accrue to the benefit of the owning Party.
10.1. The Customer shall indemnify and defend Instanda against all claims, losses, damages, expenses and costs (including reasonable legal fees) arising out of or in connection with: (a) the Customer's breach of Clause 2; (b) the Customer's reckless or wilful misconduct; and/or (c) any Customer Data, including any claim that such Customer Data or its processing infringes any third-party rights or violates any applicable law.
10.2. Instanda shall defend the Customer against any third-party claim that the supply or use of the Services, Platform or Documentation in accordance with this Agreement infringes any third-party Intellectual Property Right, and shall indemnify the Customer for any amounts awarded against it in judgment or settlement of such claims, provided that the Customer: (a) notifies Instanda promptly upon becoming aware of the claim; (b) provides reasonable co-operation to Instanda in the defence and settlement of the claim; and (c) grants Instanda sole authority to defend or settle the claim.
10.3. In the event that the Services, Platform or Documentation infringe or may infringe any third-party Intellectual Property Right, Instanda may, at its option and expense: (a) procure the right for the Customer to continue using the Services; (b) replace or modify the Services to avoid the infringement; or (c) where such remedies are not reasonably available, terminate this Agreement on five (5) Business Days' notice without additional liability.
11.1. This Agreement shall commence on the Effective Date and shall continue for the Service Term. Excluding any Trial Periods, unless either Party gives written notice to the other of termination at least sixty (60) days before the end of the Initial Service Term or any Renewal Period, this Agreement shall automatically renew for successive periods of twelve (12) months (each a "Renewal Period"). If the Customer receives a Trial Period it shall automatically expire at the end of the stated Trial Period but the Customer may terminate a Trial Period on fourteen (14) days’ notice at any time. In the event that a Trial Period expires and the Customer wishes to utilise the Services, then in the absence of an Order Form stating anything to the contrary, the Trial Period shall automatically roll into an Initial Service Term of one (1) year with automatic one (1) year Renewal Periods and a minimum Access Fee of the greater of (i) £10,000 GBP per month or (ii) the Access Fee stated in the relevant Order Form for the Trial Period.
11.2. Either Party may terminate this Agreement with immediate effect by written notice if:
11.2.1. the other Party commits a material breach of any term of this Agreement which is irremediable, or (if remediable) fails to remedy that breach within thirty (30) days of written notice to do so; or
11.2.2. the other Party becomes insolvent, is unable to pay its debts, enters or threatens to enter any form of insolvency process, or suspends or ceases to carry on all or a substantial part of its business.
11.3. This Agreement will terminate automatically if the Customer fails to comply with any of the material restrictions set out in Clause 2.
11.4. Instanda may terminate this Agreement with immediate effect by giving written notice to the Customer if there is a Change of Control of the Customer.
11.5. The Customer shall notify Instanda in writing within five (5) Business Days of becoming aware of any proposed or completed Change of Control.
11.6. On termination or expiry of this Agreement for any reason:
11.6.1. all Service Subscriptions and licenses granted under this Agreement shall immediately terminate;
11.6.2. each Party shall return or destroy the other Party's Confidential Information and Documentation;
11.6.3. the Customer shall cease all access to and use of the Services; and
11.6.4. Instanda may destroy or otherwise dispose of Customer Data in its possession unless it receives a written request for return of such data within thirty (30) days of the effective date of termination. On receipt of such a request, and subject to payment of all outstanding fees, Instanda shall use reasonable commercial endeavours to deliver the Customer Data in an agreed format within thirty (30) days.
11.7. Clauses 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination or expiry of this Agreement.
12.1. Nothing in this Agreement excludes or limits either Party's liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any liability that cannot be excluded by applicable law.
12.2. Subject to Clause 12.1, neither Party shall be liable (whether in contract, tort, misrepresentation, restitution or otherwise) for any loss of profits, loss of business, loss of anticipated savings, depletion of goodwill, or for any indirect, special or consequential loss or damage, however arising.
12.3. Subject to Clauses 12.1, 12.2, and 12.6 each Party's total aggregate liability arising in connection with this Agreement shall not exceed the greater of: (i) £500,000 if contracting with Instanda UK, USD$650,000 if contracting with Instanda USA, and 100 million Japanese YEN if contracting with Instanda Japan; or (ii) 150% of the total Service Fee paid in the twelve (12) months preceding the event giving rise to the claim.
12.4. Subject to clause 12.6, Instanda's total aggregate liability in respect of any breach of its confidentiality obligations or data protection obligations, or in connection with any claim under Clause 10.2, shall not exceed the greater of: (i) £1,000,000 if contracting with Instanda UK, USD$1.2m if contracting with Instanda USA, and 180 million Japanese YEN if contracting with Instanda Japan; or (ii) 150% of the total Service Fee paid in the twelve (12) months preceding the event giving rise to the claim.
12.5. The Customer assumes sole responsibility for results obtained from its use of the Services and for all conclusions drawn from such use. Instanda shall have no liability for any damage caused by errors or omissions in information or instructions provided by the Customer in connection with the Services.
12.6. If the Customer has trialled the Services during a Trial Period and during such Trial Period any events give rise to a claim, Instanda’s total aggregate liability arising in connection with a claim relating to the Trial Period shall not exceed £10,000 if contracting with Instanda UK, USD$15,000 if contracting with Instanda USA, and 2 million Japanese YEN if contracting with Instanda Japan.
12.7. To the extent that the Customer breaches the restrictions set out clause 2 on penetration testing, the Customer shall pay to Instanda an amount equivalent to £50,000 GBP, USD$60,000 or 10 million Japanese YEN (as applicable to the Agreement) in respect of each of Instanda’s other customers adversely affected by any unauthorised penetration testing conducted by the Customer (or on its behalf). The parties acknowledge that the foregoing is a genuine pre-estimate of potential loss in respect of each affected Instanda customer and that the Customer shall be liable to Instanda on a liquidated damages basis in relation to each such breach.
13.1. Relationship of the Parties. This Agreement does not create any agency, partnership or joint venture between the Parties. Neither Party has authority to bind the other.
13.2. Assignment. Instanda may assign, transfer, novate or subcontract any of its rights or obligations under this Agreement without the Customer's prior written consent. The Customer may not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under this Agreement without Instanda's prior written consent.
13.3. Entire Agreement. This Agreement (together with the Order Form) constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, representations and understandings between them relating to the subject matter.
13.4. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute a single instrument.
13.5. Variation. No variation of this Agreement shall be effective unless it is in writing and signed by authorised representatives of both Parties.
13.6. Waiver. No failure or delay by either Party in exercising any right or remedy shall constitute a waiver of that right or remedy, nor prevent or restrict its further exercise.
13.7. Severance. If any provision of this Agreement is found to be invalid, unenforceable or illegal, the remaining provisions shall continue in full force and effect.
13.8. Third Parties. [Only applicable if the Agreement is with Instanda UK]. Save as expressly provided, no person other than a Party to this Agreement shall have any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.9. Force Majeure. Neither Party shall be responsible for any failure to perform its obligations under this Agreement to the extent caused by a Force Majeure Event, provided that the affected Party promptly notifies the other and takes all reasonable steps to mitigate the effects of such event.
13.10. Notices. Any notice required under this Agreement shall be in writing and delivered by hand, pre-paid first-class post or recorded delivery to the other Party's address as set out in this Agreement or the Order Form. Notices delivered by hand shall be deemed received on delivery (or if outside business hours, at 9:00 am on the next Business Day); notices sent by post shall be deemed received at the time of normal delivery.
