4.13 If a party receives a compensation claim from a person relating to the Processing of Protected Data, it shall promptly provide the other party with notice and full details of such claim and the party with conduct of the action shall make no admission of liability nor agree any settlement without prior written consent of the other party and shall consult fully with the other party in relation to any such action.

5. KERFUFFLE™'S OBLIGATIONS

5.1 Kerfuffle™ undertakes that the Services will be performed substantially in accordance with the Artefacts and with reasonable skill and care.

5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Kerfuffle™'s instructions, or modification or alteration of the Services by any party other than Kerfuffle™ or Kerfuffle™'s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, Kerfuffle™ is not obliged to correct any such non-conformance, nor provide the Customer with an alternative means of accomplishing the desired performance. Kerfuffle™:

(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Artefacts and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and

(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 Artefacts may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.3 Kerfuffle™ warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

6. CUSTOMER'S OBLIGATIONS

6.1 The Customer shall:

(a) provide Kerfuffle™ with:

(1) all necessary co-operation in relation to this Agreement; and

(2) all necessary access to such information as may reasonably be required by

Kerfuffle™, in order to render the Services, including but not limited to Customer Data, security access information and configuration services;

(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;

(c) carry out all other Customer responsibilities set out in this Agreement in a timely and

efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Kerfuffle™ may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users use the Services and the Artefacts in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

(e) manage their Users’ login details and set appropriate access permissions for their Users;

(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for Kerfuffle™, its contractors and agents to perform their obligations under this Agreement, including the Services;

(g) ensure that its network and systems comply with the relevant specifications provided by Kerfuffle™ from time to time; and

(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Kerfuffle™’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

6.2 The Customer shall use all reasonable efforts (including the use of reasonable technical and organisational security measures) to prevent any unauthorised access to, or use of, the Services and/or the Artefacts and, in the event of any such unauthorised access or use, promptly notify Kerfuffle™.

7. FEES AND PAYMENT

7.1 The Customer shall in consideration of the Services pay the Fees as applicable from time to time in accordance with this clause 7 and the Subscription Details.

7.2 The Customer will pay all invoices:

(a) in full and without deduction or set-off, in clear funds within 30 days of the date of each invoice; and

(b) to the bank account nominated by Kerfuffle™.

7.3 If sums due under this Agreement are not paid in full by the due date:

(a) Kerfuffle™ may, without limiting its other rights, charge interest on such sums at 5% a year above the base rate of the Bank of England from time to time in force, and;

(b) interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

7.4 If the Customer fails to pay an invoice, in accordance with clause 7.2, within 30 days of the date of the invoice, Kerfuffle™ reserves the right to provide the Customer with 7 days’ notice of disconnection of the Services. Failure to make payment within the 7 days’ notice period will result in the Services being disconnected on expiry of the 7 day notice period.

7.5 The Services will remain disconnected until all invoices due under clause 7.2 are paid in full together with any interest accrued in accordance with clause 7.3.

7.6 If subsequent to any suspension of the Services in accordance with this clause 7.4 the Customer requests that the Services be restored, Kerfuffle™ will be entitled to charge a reconnection fee of £250, or such other sum as Kerfuffle™ deem reasonable, to reconnect the Services.

7.7 If any invoices remain outstanding and are not paid in full in accordance with this Agreement, Kerfuffle™ shall be entitled without prejudice to any right:

(a) to terminate this Agreement under clause 12; and/or

(b) to engage debt collectors to pursue outstanding invoices.

7.8 The Customer shall also be liable to pay all costs, fees, disbursements and charges including legal fees and costs reasonably incurred by Kerfuffle™ in the recovery of any unpaid invoices regardless of the value of the claim.

7.9 All amounts and Fees stated or referred to in this Agreement:

(a) shall be payable in advance in pounds sterling by direct debit;

(b) are exclusive of value added tax, which shall be added to Kerfuffle™'s invoice(s) and payable at the rate and in the manner prescribed by law;

(c) are non-refundable, and the Customer’s failure to make use of the Services or any part thereof will not entitle the Customer to any refund of such Fees.

7.10 No payment will be effective unless and until received by Kerfuffle™ in cleared funds.

7.11 Kerfuffle™ shall be entitled to increase the Subscription Fees with not less than thirty (30) days' prior notice to the Customer.

7.12 The Customer will not be entitled to access or use the Service without first paying all applicable Fees.

7.13 The Customer will notify Kerfuffle™ of any change to its identification and contact details as soon as reasonably practicable, and in any event within 28 days.

7.14 The Customer shall promptly inform Kerfuffle™ of any changes to the Number of Registered Branches.

7.15 Kerfuffle™ may make reviews at intervals it deems appropriate of the Number of Registered Branches and a review will be undertaken by Kerfuffle™ if there is a change to the number of Sites using the Software. Any changes to the Number of Registered Branches will be charged for retrospectively from the date of the change in accordance with this clause 7.

7.16 If the Customer is not licenced to provide Branches and, therefore, cannot provide a Number of Registered Branches, a Branch rated figure will be agreed between the parties based on projected usage to calculate the Fees.

7.17 If the Customer requires their database to be amended by the removal or separation of Data, Kerfuffle™ shall be entitled to charge for the work required at a rate equal to the then current rate for one day’s on-site training.

8. PROPRIETARY RIGHTS

8.1 The Customer acknowledges and agrees that Kerfuffle™ and/or its licensors own all Intellectual Property Rights in the Software, the Services and the Artefacts. 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 licences in respect of the Software, the Services or the Artefacts.

8.2 Kerfuffle™ confirms that it has all the rights in relation to the Software, the Services and the Artefacts that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

8.3 Kerfuffle™ shall be granted a perpetual irrevocable royalty-free, worldwide license to use or incorporate into the Services, the Software, the Site or the Artefacts any proposals, requests, or ideas in respect of the Services (“Customer Input”) provided by or for the Customer, and to use or incorporate any Customer Input in products or services made available from time to time by Kerfuffle™ or its affiliates to their customers at large.

9. CONFIDENTIALITY

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the receiving party's lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d) can be shown by written evidence to have been independently developed by the receiving party; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, shall not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the proper discharge of its obligations under this Agreement.

9.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party which is not a contractor of that party or otherwise under that party’s direction or control.

9.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Software and/or the Services, constitute Kerfuffle™'s Confidential Information.

9.6 Kerfuffle™ acknowledges that the Customer Data is the Confidential Information of the Customer.

9.7 The provisions of this clause 9 shall survive termination of this Agreement, however arising.

10. LIMITED WARRANTY

10.1 We warrant that we have the rights to grant you the use of Kerfuffle™, however all contents and services provided on Kerfuffle™ or otherwise are provided “as-is” with no warranties or conditions whatsoever, whether express, implied, statutory or otherwise.

10.2 Kerfuffle™ is accessed and delivered over the internet, and therefore subject to efficiently, reliability, and other problems inherent in the use of the internet and electronic communications. we will not be responsible for any delays, delivery failures, viruses, hacker intrusions, or damage resulting from such issues.

10.3 We give no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of Kerfuffle™, or that (a) the use of Kerfuffle™ will be secure, uninterrupted or error free; or (b) Kerfuffle™ or the servers that make the services available are free of viruses or other harmful components, or (c) that all products, features, functions or operations will be available or perform as described, or (d) that any errors will be corrected.

10.4 We will not be responsible for failure to provide Kerfuffle™ or fulfil our obligations due to any cause beyond our reasonable control that directly or indirectly delay or prevent timely performance.

10.5 The warranties set out in this clause are the only warranties that apply. We hereby exclude all other conditions, warranties, representations or other terms that might otherwise be implied or incorporated into these terms by law, such as (but not limited to) those of satisfactory quality, fitness for a particular or any purpose or ability to achieve any particular result.

11. LIMITATION OF LIABILITY

11.1 This clause 11 prevails over all other clauses in this Agreement.

11.2 Nothing in these terms will exclude or limit our liability for (i) fraud or other criminal act, (ii) personal injury or death caused by our negligence, (iii) fraudulent misrepresentation, or (iv) any other liability that cannot be excluded by law.

11.3 Subject to Clause 11.2:

(a) in no event will we be liable for any damages resulting from: loss of, damage to or corruption of data, loss of use, lost profits, loss of revenue, loss of anticipated savings, loss of goodwill, loss of reputation, and any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen, and

(b) our maximum aggregate liability to you howsoever arising and for any cause whatsoever will be for direct costs and damages only and will be limited to the aggregate of the subscription fees paid and payable by you in the preceding three months.

11.4 Except as expressly and specifically provided in this Agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Artefacts by the Customer, and for conclusions drawn from such use. Kerfuffle™ shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kerfuffle™ by the Customer in connection with the Services, or any actions taken by Kerfuffle™ at the Customer's direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

(c) the Services and the Artefacts are provided to the Customer on an "as is" basis.

11.5 Kerfuffle™ shall not be liable for any deletion, destruction, damage, or other loss of Customer Data, including but not limited to on termination or suspension of the Customer’s access to the Service in accordance with clause 12.

12. TERM AND TERMINATION

12.1 This Agreement shall come into force on the Effective Date, shall continue in force until terminated by the Customer on 3 months’ notice in writing in advance and by Kerfuffle™ on 6 months’ notice in writing in advance.

12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, Kerfuffle™ may terminate this Agreement on 7 days’ notice without liability if any Fees are not paid when due.

12.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:

(a) the other party commits a material breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the breach within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or

(b) upon the other party passing a resolution for winding-up or having a petition to wind up presented against it or going into liquidation, whether voluntary or compulsory (save for the purposes of amalgamation or reconstruction where the amalgamated or reconstructed company agrees to adhere to this Agreement) or suffering a winding-up order being made against it or going into administration; or

(c) the other party proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an interim order is made in relation to the Supplier under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by that party or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors;

(d) a receiver or administrative receiver or administrator is appointed or an encumbrancer takes possession of the undertaking or assets (or any part thereof) of the other party; or

(e) the other party is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 or any statutory re-enactment or modification thereof) or ceases to or threatens to cease to carry on its business or enters into a composition with its creditors; or

(f) the other party takes or suffers any action similar or analogous to the events described in clauses 12.2 (b), (c), (d) or (e) in any jurisdiction in consequence of debt; or

(g) the other party ceases, or threatens to cease, to trade.

12.4 Kerfuffle™ shall be entitled to terminate this Agreement with immediate effect if the Customer undergoes a change of Control which Kerfuffle™ considers at its discretion to be detrimental to Kerfuffle™’s commercial interests. For the purposes of this clause 12.3, “Control” shall have the meaning given it by Section 1124 of the Corporation Taxes Act 2010.

12.5 On termination of this Agreement for any reason:

(a) all licences granted under this Agreement shall immediately terminate;

(b) each party shall return and make no further use of any equipment, property, Artefacts and other items (and all copies of them) belonging to the other party;

(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; and

(d) Kerfuffle™ may destroy or otherwise dispose of any of the Customer Data in its possession unless Kerfuffle™ receives, no later than fourteen (14) 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. Kerfuffle™ shall use reasonable commercial efforts to deliver the back-up to the Customer within thirty (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).

12.6 If this Agreement is terminated for any reason prior to expiry of the Subscription Period, the Customer will pay to Kerfuffle™ all Subscription Fees due up to the date of termination and those payable for the full Subscription Period under this Agreement within fourteen (14) days from the date of termination.

12.7 Kerfuffle™ shall in respect of any material breach of this Agreement by the Customer be entitled to take whatever action it considers appropriate including any or all of the following:

(a) issue of a warning to the Customer;

(b) immediate, temporary or permanent withdrawal of the Customer’s right to use the Service;

(c) immediate, temporary or permanent removal of any data, posting or other material uploaded to the Site by the Customer;

(d) legal proceedings against the Customer for reimbursement on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) of all costs incurred by Kerfuffle™ resulting from the breach.

13. VARIATION

13.1 Kerfuffle™ reserves the right to change these Terms or any policy or procedure relating to the Service (a “Variation”) at any time, provided that any such Variation will only have effect from the date 14 days after Kerfuffle™ serves notice thereof on the Customer in accordance with clause 21.

13.2 Any continued use of the Service by the Customer more than 14 days after notification of any Variation in accordance with clause 13.1 will constitute the Customer’s consent to such Variation. If the Customer does not consent to the Variation then notice must be served on Kerfuffle™ to terminate this Agreement within 14 days after notification of any Variation and clause 12.6 shall not apply.

14. FORCE MAJEURE

14.1 Neither Kerfuffle™ nor any of its employees, agents or sub-contractors shall be deemed in breach of this Agreement or under any liability whatsoever to the Customer for any failure or delay in performing the Services or any obligation under this Agreement resulting from circumstances beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Kerfuffle™ or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

14.2 Kerfuffle™ will not be liable for any defect in or failure of any product or services not provided by or on behalf of Kerfuffle™ (a “Third Party Default”), and shall not be liable for any delay to or interruption or failure of the Service to the extent that such delay, interruption or failure is attributable to a Third Party Default.

15. WAIVER

15.1 No waiver by any party of any breach or non-fulfilment by any other party of any provisions of this Agreement shall be deemed to be a waiver of any subsequent or other breach of that or any other provision and no failure to exercise or delay in exercising any right or remedy under this Agreement shall constitute a waiver of that right or remedy. No single or partial exercise of any such right, power or remedy shall preclude or impair any other or further exercise of it or the exercise of any other right, power or remedy provided by law or under this Agreement.

15.2 Any waiver of any right, power or remedy under this Agreement must be in writing and may be given subject to any conditions thought fit by the grantor. Unless otherwise expressly stated, any waiver shall be effective only in the instance and only for the purpose for which it is given.

16. SEVERANCE

16.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17. ENTIRE AGREEMENT

17.1 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.

17.2 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.

18. ASSIGNMENT

18.1 The Customer shall not, without the prior written consent of Kerfuffle™, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

18.2 Kerfuffle™ may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

19. NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

20. THIRD PARTY RIGHTS

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

21. NOTICES

21.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Subscription Details, or such other address as may have been notified by that party for such purposes, or sent by PDF document attached to the email address as set out in the Subscription Details.

21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of receipt.

21.3 Kerfuffle™ may notify the Customer of any Variation made in accordance with clause 13 by notices sent by means of the Service or posted on the Site.

22. DISPUTE RESOLUTION

22.1 Except as otherwise provided, in the event of any dispute arising out of or in relation to this Agreement, the parties must first use their respective best efforts to consult and negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a settlement of the dispute satisfactory to both parties. To such end the parties must within 10 Business Days of a dispute arising convene a meeting between their authorised representatives and any other relevant members of management having regard to the matter under discussion (together, Appointed Persons) to attempt to resolve the dispute.

22.2 If the Appointed Persons agree upon a settlement of the dispute, they will sign a statement setting out its terms and the parties will ensure that it is fully and promptly carried out. If the Appointed Persons do not reach such a settlement within 10 Business Days of the meeting convened in accordance with clause 22.1, the parties will refer the dispute to mediation before having recourse to litigation. The mediation shall be conducted in accordance with an Alternative Dispute Resolution procedure recommended by the Centre for Effective Dispute Resolution, London (the “ADR Procedure”).

22.3 If the matter has not been resolved by the ADR Procedure within 30 Business Days of the initiation of that procedure, or if either party will not participate in the ADR Procedure, the dispute shall be decided by the English Courts in accordance with clause 25.

23. GENERAL

The Customer hereby acknowledges that:

(a) Kerfuffle™’s obligations under this Agreement accord with the Customer’s expectations and are fair and reasonable;

(b) some limitation of liability is to be expected; and

(c) the limitations of liability are fair and reasonable in the light of the Fees to be paid and the nature of the Services supplied.

24. GOVERNING LAW AND JURISDICTION

24.1 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.

24.2 The parties irrevocably agree that 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).

APPENDIX 1

DATA PROCESSING DETAILS

1. SUBJECT-MATTER OF PROCESSING:

Any Protected Data input by the Customer into the Software.

2. DURATION OF THE PROCESSING:

Subscription Period of this Agreement.

3. NATURE AND PURPOSE OF THE PROCESSING:

Provision of software for the performance of Kerfuffle™’s obligations under this Agreement.

4. TYPE OF PERSONAL DATA:

Data in relation to data subjects including (but not limited to):

• Name(s)

• Postal address(es)

• E-mail address(es)

• Telephone number(s)

• Fax number(s)

• Bank account details

• Gender

• Photo(s)

• Employment details

• Qualifications

5. CATEGORIES OF DATA SUBJECTS:

• Customer professional contacts

• Customer prospective contacts

• Customer employees

• Customer suppliers

6. PROCESSING INSTRUCTIONS

Kerfuffle™ to have the following security measures in place:

• adherence with Kerfuffle™’s data protection policy;

• adherence with Kerfuffle™’s security/back-up policy;

• staff training as and when required;

• internal audits of processing activities as and when required;

• controlled access to Kerfuffle™'s premises.