TERMS OF SERVICE
This Software as a Service Subscription Agreement ("Agreement") is entered into on the date you ("Customer") and Go Turify, S.L. of Almirante Lobo, 2 41001 Seville, Spain ("Turify") both sign an order form referencing this Agreement ("Order Form"), and such date shall be the "Effective Date".
(A) Turify has developed a online booking system that can be accessed through the web and its mobile app, which it makes available to subscribers via the internet on a subscription basis.
(B) The Customer wishes to use the Turify- Service in its internal & external business operations.
(C) Turify has agreed to provide and the Customer has agreed to subscribe to and pay for TurifyÂ´s service subject to the terms and conditions of this Agreement.
Capitalized terms not otherwise defined in the Agreement shall have the meaning set out below:
an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, "control" means the ownership of (i) greater than fifty per cent (50%) of the voting power to elect directors of the entity, or (ii) greater than fifty per cent (50%) of the ownership interest in the entity.
Authorised Users: those employees, agents and independent contractors of Customer who are authorised by Customer to use the Services, as further described in clause 2.3;
Authorised User Data: the personal data and information Authorised Users provide to Turify and/or inputted by Customer into the Service for the purpose of creating an account for an Authorised User, but excluding the Customer Data and Turify Data;
Turify Data: means (i) such information or data provided by Turify to Customer as part of the Services; (ii) any meta data extracted by Turify from Customer's use of the Services to be used to provide the Services; and (iii) any feedback or suggestions from Customer or Authorized Users to Turify relating to the Services;
Customer Data: the data and information provided by Customer to Turify and/or inputted by Customer, Authorised Users, or Turify on Customer's behalf for the purpose of using the Services or facilitating Customer's use of the Services or data collected and processed by or for Customer through Customer's use of the Services, but excluding Turify Data and Authorized User Data;
Claim Year: means each successive period of twelve (12) months commencing on the Effective Date of this Agreement;
Confidential Information: information of a party that is proprietary or confidential and is either clearly labelled as such; identified as Confidential Information in clause 10; and/or a reasonable person would understand to be confidential or proprietary at the time of disclosure;
Business Day: any day which is not a Saturday, Sunday or statutory public holiday in Spain;
Business Hours: 9.00 am to 5.00 pm central European time each Business Day;
Disaster Recovery Policy: the Turify disaster recovery policy currently in place as may be amended by Turify from time to time;
Fees: means the Subscription Fees and any additional fees or expenses as set out in the Order Form;
Initial Subscription Term: the initial term of the subscription as set out in the Order Form;
Inappropriate Content: content which (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 unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property;
Intellectual Property Rights: including without limitation, rights in patents, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights;
Order Form: the Order Form submitted by Customer to Turify with details of the Services and forming part of this Agreement;
Renewal Period: has the meaning set out in clause 14.1 below;
Services: means (i) use of the Software in accordance with this Agreement, (ii) use of Turify Data; (iii) the provision of the Support Services and (iv) access to the Turify hosting platform;
Software: the internal communications software applications provided by Turify as part of the Services and as set out in the Order Form;
Subscription Fees: the subscription fees payable by Customer to Turify for the User Subscriptions, as set out in the Order Form;
Subscription Term: means the Initial Subscription Term and any subsequent Renewal Periods;
Support Services: means the Turify standard support services provided by Turify in accordance with the Support Services Policy in respect of the Software, including any applicable Software maintenance upgrades;
SLA Support Services Policy: Turify's policy for providing the Support Services to Customer and where applicable, any enhanced support services which may be purchased by Customer, as made available to Customer from time to time;
including without limitations, withholding, sales, use, excise, value added tax and similar taxes but shall not include taxes based on
TurifyÂ´s gross income;
means online applications and offline software products that are provided by third parties and interoperate with the Services;
User Subscriptions: the user subscriptions purchased by Customer in accordance with the Agreement for the number of Authorised Users as set out in the Order Form which entitle such Authorised Users to access and use the Services in accordance with this Agreement; and
Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.
2. User Subscription
2.1 Turify shall provide the Services during the Subscription Term in accordance with the terms set out in this Agreement.
2.2 Subject to the Customer purchasing the User Subscription(s), the restrictions set out in this clause 2 and the terms and conditions of this Agreement, Turify hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term.
2.3 In relation to the Authorised Users, Customer undertakes that:
2.3.1 the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time. Customer further undertakes that it will not allow any User Subscription to be used by more than one per individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
2.3.2 each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed frequently and that each Authorised User shall keep his password confidential.
2.4 Customer shall not access, store, distribute or transmit any Viruses, or any material, including without limitation Customer Data and the Authorised User Data, during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity; or
2.4.3 in a manner that is otherwise illegal or causes damage or injury to any person or property; and Turify reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer's access to any material that
breaches the provisions of this clause.
2.5 Customer shall not:
2.5.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2.5.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.5.3 access all or any part of the Services in order to build a product or service which competes with the Services; or
2.5.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or
2.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.6 Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Turify.
3. Additional User Subscriptions
Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form for the additional fees set out in the Order Form and Turify shall grant access to the Services to such additional Authorized Users in accordance with the provisions of this Agreement.
4. Services Availability and Support
4.1 Turify shall use commercially reasonable endeavors to make the Services (excluding any Third Party Applications) available 24 hours a day, seven days a week and for at least 99.5 per cent of the time, excluding:
4.1.1 any planned downtime out of Business Hours which may occur on every first wednesday of the Month between 06:00 - 07:00 (CET);
4.1.2 any unplanned downtime provided to Customer.
4.1.3 congestion whereby high traffic levels result in service disruption, caused by the Customer exceeding any agreed capacity;
4.1.4 Customer inaccessibility: if, for any reason, the Customer cannot be reached to correct an availability issue, then time will be frozen until Turify can make contact with the Customer to begin fixing the availability issue;
4.1.5 issues resulting from problems caused by Customer's failure to follow agreed procedures, or caused by unauthorized changes to the Services by the Customer;
4.1.6 material breach by Customer of the terms of this Agreement; or
4.1.7 a force majeure event.
4.2 Turify will, as part of the Services and at no additional cost to Customer, provide Customer with Turify's standard Support Services during Business Hours in accordance with Turify's SLA Support Services Policy for standard Support Services in effect at the time that the Support Services are provided. Turify may amend the SLA Support Services Policy in its sole and absolute discretion from time to time.
4.3 Customer may purchase enhanced support service packages separately, as may be offered by Turify from time to time, as detailed in an Order Form, at Turify's then current rates for any such additional support services (as notified to Customer by Turify from time to time).
5. Charges and payment
5.1 Customer shall pay the Subscription Fees and any additional applicable fees related to the Services as set out in the Order Form to Turify in accordance with this clause 5. Unless otherwise agreed in the Order Form, Turify may invoice Customer for the Subscription Fees yearly in advance on or after the Effective Date and thereafter on each anniversary of the initial invoice date for the duration of the Subscription Term.
5.2 Unless otherwise specified in the Order Form, all Fees and approved expenses shall be due immediately.
5.3 If Turify has not received payment for any invoices by the due dates and without prejudice to any other rights and remedies of Turify, Turify
5.3.1 by giving thirty (30) Business Days prior written notice to Customer, without liability to Customer, disable Customer's password, account and access to all or part of the Services and Turify shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
5.3.2 charge interest which shall accrue on such due amounts at the higher of (i) an annual rate equal to 5% or (ii) the standard statutory delay interest rate under applicable law.
5.4 All amounts and Fees stated or referred to in this Agreement are non-refundable and are exclusive of all Taxes. Customer shall be solely responsible for, and paying all applicable Taxes relating to this Agreement, and the use or access to the Services.
5.5 Turify shall be entitled to increase the fees or add new fees for extended services for User Subscriptions with effect from the start of each Renewal Period and the Agreement shall be deemed to have been amended accordingly.
6. Customer Obligations
6.1 Customer shall:
6.1.1 provide all necessary co-operation and information as may be reasonably required by Turify in order to provide the Services. In the event of any delays in Customer's provision of such assistance, Turify may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.2 ensure that its Authorised Users use the Services in accordance with the terms and conditions of this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement and only use the Services for lawful purposes. Customer shall be liable for any Authorised User's breach of this Agreement;
6.1.3 be solely responsible for procuring and maintaining its network connections and telecommunications links and all problems, conditions, delays and delivery failures arising from or relating to Customer's network connections or telecommunications links;
6.1.4 use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Turify;
6.1.5 not include any Inappropriate Content or Viruses or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offense or otherwise unlawful including the breach of any Intellectual Property Rights of any other party. Turify reserves the right, but is not obliged, to remove such content from where, in its sole and reasonable discretion, Turify suspects such content to be Inappropriate Content, upon notice to Customer;
6.1.6 be solely responsible for moderating any content posted by Authorised Users and advising Authorised Users what they may and may not post through the Services by means of Customer's own policies;
6.1.7 be solely responsible for the accuracy, completeness, design, appropriateness, creation, maintenance, and updating thereof of all Customer Data in the use of the Services. Turify shall not be liable for any errors or inaccuracies in any Customer Data or beyond its responsibility to accurately reproduce such Customer Data on Customer's instruction; and
6.1.8 be responsible for obtaining all necessary licenses and consents required to use Customer Data (if any, and including but not limited to those from the owners or licensees of any third party information) and as part of the Services and Customer warrants and represents that such licenses and consents have been obtained.
6.1.9 Opt-In for Automatic Emails: Customer may "opt-in" to request Turify to facilitate the contact of Merchantâ€™s customers on Merchantâ€™s behalf by email via the Turify platform. All emails subsequently sent to Merchantâ€™s customers via the Turify platform will be sent from the email address provided by the Customer originating the booking. Such emails may include, but are not limited to, booking confirmation emails, pre-trip reminder emails, post-trip emails and/or review request emails.
6.2 Opt-In for Distribution Channels:Turify further offers different distribution channels as an "opt-in" option for Customer in the Turify platform. In case a Customer chooses to "opt-in" into a distribution channel in the Turify platform, Customer is obliged to ensure that it meets the minimum requirements of the respective distribution channels (as defined in the Turify platform). Furthermore, by "opting-in" to extended distribution, Customer agrees to pay a channel specific commission rate as defined for each channel and acknowledges that this channel specific commission rate is different from the standard Turify commission rate. In the case of bookings generated via a distribution channel ,Turify only enables a direct transaction between the distribution channel and the Merchant. For all bookings generated via the channel manager,Turify processes payments to the Customer on a monthly basis based on the trip departure date. Payouts for bookings made via the channel manager are made in the indicated currency of the distribution channel. Customer is responsible for all customer complaints and their safety. By no means is Turify a party to such transactions and/or contractual relationships, nor liable in any way in connection therewith.
6.2.1 Merchants Obligations to Inform Customers: It is Merchantâ€™s sole responsibility to ensure that recipients of any "opt-in" emails are appropriately informed about such use of their email address and, where necessary, appropriately consent to such use. Unless otherwise defined, customer data from bookings generated via the Turify platform or the Turify channel manager shall go into each of the databases of the selling partner as well as the Merchant. Each owner and/or user of such a database shall be solely responsible for ensuring that the acquisition, processing and dissemination of its data is in compliance with applicable laws and data protection standards.
7.1 Turify warrants that the Services (excluding any Third Party Application) will be performed with reasonable skill and care for the Subscription Term.
7.2 The warranty provided in clause 7.1 shall not apply to the extent of any non-conformance which is caused by Customer's use of the Services contrary to Turify's instructions, or modification or alteration of the Services by any party other than Turify or Turify's duly authorized contractors or agents. If the Services do not conform with the warranty provided in clause 7.1, Turify will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy, and Turify's sole and exclusive liability for any breach of the warranty. Notwithstanding the foregoing, Turify:
7.2.1 does not warrant that Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by Customer through the Services will meet Customer's requirements;
7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from Customer's access to and use of the Services through third party applications (such as Google) or the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
7.2.3 is not responsible for any Virus which was not detected by Turify using reasonable current commercial methods of detection;
7.2.4 nor its suppliers, shall have any liability whatsoever for the accuracy, completeness, or timeliness of Customer Data, or for any decision made or action taken by Customer, any Authorized User, or any third party in reliance upon any Customer Data.
7.3 Except as expressly provided for in this clause 7, Turify (and its Associated Companies and its suppliers) disclaim all other warranties, express, implied or statutory, including warranties, terms and conditions of merchantability, accuracy, correspondence with description, fitness for a particular purpose or use and satisfactory quality, and non-infringement.
7.4 If Customer installs or enables Third-Party Applications for use with Services, Customer acknowledge that Turify may allow providers of those Third-Party Applications to access Customer Data and Authorised User Data as required for the interoperation of such Third-Party Applications with the Services. Turify shall not be responsible for any disclosure, modification or deletion of Customer Data and Authorised User Data resulting from any such access by Third-Party Application providers, and any such access and use of Customer Data and Authorised User Data shall be subject to the privacy policies of such Third-Party Application provider. The Services shall allow Customer to restrict such access by restricting Authorized Users from installing or enabling such Third-Party Applications for use with the Services.
7.5 Services may be subject to other limitations as indicated on the Order Form, such as, for example, limits on the used storage, on the used bandwidth and/or on the size of attachments such as photos or files.
8. Customer Data.
8.1 Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, appropriateness, completeness, reliability, integrity, accuracy and quality of the Customer Data and Authorized User Data.
8.3 Customer acknowledges that responsibility for all Customer Data and any communications with others or between Authorized Users using the Services is the sole and exclusive responsibility of Customer and that Turify will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person's rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to Customer Data. Customer agrees to indemnify and hold harmless Turify from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Customer Data, to the extent not caused by Turify's willful misconduct.
8.4 Turify shall follow its safeguarding procedures for Customer Data and Authorized User Data as set out in its Disaster Recovery Policy as such document may be amended by Turify in its sole discretion from time to time, which shall be made available to Customer upon request. In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be for Turify to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Turify in accordance with the archiving procedure described in its Disaster Recovery Policy. Turify shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, (except those third parties sub-contracted by Turify to perform services related to Customer Data maintenance and back-up) unless solely caused by Turify' negligence or willful misconduct.
8.5 Customer acknowledges that Turify is not obliged to edit, moderate or modify Customer Data (including third party information). However, Turify reserves the right to remove any Customer Data (or third party information) which Turify reasonably believes breaches any laws or regulations or any third party's rights or this Agreement and/or is deemed Inappropriate Content. Turify will notify Customer if it removes any Customer Data (or third party information) in accordance with this clause. Turify disclaims all liability of any kind in respect of Customer Data, third party information and any other material which can be accessed using the Services. Turify expressly disclaims all liability for any fraud committed in connection with the Services.
9. Data Protection
9.1 Turify acknowledges that the Customer is acting as a data controller in respect of any Authorized User Data (or Customer Data containing personal data). To the extent that Turify has access to and processes any such Authorized User Data (or Customer Data containing personal data) in the provision of the Services, Turify shall use reasonable endeavors to:
9.1.1 keep all personal data of Customer and Customer's Authorized Users secure and have in place appropriate technical and organizational measures to ensure an appropriate level of security for the processing of such personal data of Customer and Customer's Authorized Users and to protect such personal data of Customer and Customer's Authorized Users against unauthorized or unlawful processing or accidental loss, destruction or damage;
9.1.2 preserve the integrity of such personal data of Customer and Customer's Authorized Users and to prevent the loss or corruption of the personal data of Customer and Customer's Authorized Users;
9.1.3 only process such personal data of Customer and Customer's Authorised Users in accordance with the instructions and directions of the Customer and Customer's Authorised Users; and
9.1.4 immediately inform Customer of any security breach, potential security breach, loss, data leak, or unauthorized disclosure with respect to any personal data (collectively, â€śData Breachâ€ť), investigate the Data Breach, take all necessary steps to close the cause of the Data Breach and prevent recurrence (to the extent such cause is within the control of Turify); and
9.1.5 provide such reasonable assistance and information to the Customer as it may reasonably require to allow the Customer to comply with its obligations under the General Data Protection Regulation (EU) 2016 / 679.
9.2 For the purposes of this Clause 9 the terms "data controller", "personal data", "process" and "processing" shall have the meaning set out in the General Data Protection Regulation (EU) 2016 / 679.
9.3 Turify shall comply at all times with all applicable privacy laws.
10.1 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 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; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 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 the implementation of this Agreement. 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. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.3 Customer acknowledges that details of the Software, Services, Turify Data and the results of any performance tests of the Services, constitute Turify's Confidential Information. Trekksoft acknowledges that the Customer Data is the Confidential Information of Customer.
10.4 Turify has the right to name Customer as a reference for marketing purposes except where Customer explicitly informs Turify otherwise in writing, provided Customer is acting reasonably.
11. Turify IP Ownership
Customer acknowledges and agrees that Turify and/or its licensors own all Intellectual Property Rights in the Software, Services and Turify Data. Except as expressly stated herein, this Agreement does not grant 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 Software, Maintenance Releases, Services or Turify Data.
12.1 Turify will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a purchased Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a " Claim"), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of a Claim, provided Customer (a) gives Turify written notice of any Claim, (b) give Turify sole control of the defense and settlement of the Claim (except that Turify may not settle any Claim unless it unconditionally releases Customer of all liability), and (c) give Turify all reasonable assistance, at Turify's expense. If Turify receives information about a Claim, Turify may in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, without breaching the warranty under Section 7.1 (Warranties), (ii) obtain a license for Customer's continued use of that Service in accordance with this Agreement, or (iii) terminate Customer's subscription for that Service and refund Customer any prepaid Fees covering the remainder of the Subscription Term. The above defense and indemnification obligations do not apply to the extent a Claim arises from:
(a) the Third Party Applications or Customer's use thereof;
(b) a modification of the Services by anyone other than Turify or its subcontractors;
(c) Customer's use of Services otherwise than in accordance with the Agreement and/or Order Form;
(d) Customer's use of the Services in connection with Third Party Applications or any other third party services or products where such services or products cause the Claim; or
(e) Customer's use of the Services after notice of the alleged or actual Claim from Turify or the appropriate authority.
12.2 Customer will defend Turify against any claim, demand, suit or proceeding made or brought against Turify by a third party alleging that Customer Data, or Customer's use of any Service infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against Turify"), and will indemnify Turify from any damages, attorney fees and costs finally awarded against Turify as a result of, or for any amounts paid by Turify under a court-approved settlement of, a Claim Against Turify, provided Turify (a) promptly gives Customer written notice of the Claim Against Turify, (b) gives Customer sole control of the defence and settlement of the Claim Against Turify (except that Customer may not settle any Claim Against Turify unless it unconditionally releases Turify of all liability), and (c) gives Customer all reasonable assistance, at Customer's expense.
13. Limitation of liability
13.1 The exclusions in this section 13 shall apply to the fullest extent permissible at law but neither party excludes liability for death or personal injury caused by its negligence or that of its officers, employees, contractors or agents; fraud or fraudulent misrepresentation; or any other liability which cannot be excluded by law.
13.2 Except with respect to amounts owed by Customer to Turify hereunder and save in the event of a claim under clause 10 or clause 12, the aggregate liability of each party for or in respect of any loss or damage suffered by the other party (whether due to breach of contract, tort (including negligence) or otherwise) under or in connection with this Agreement in any Claim Year shall be limited to the total amount of Fees paid by Customer during such Claim Year.
13.3 To the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of data (including corruption of data), or costs of procurement of substitute goods or services arising of this Agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages.
13.4 In addition to the other exclusions set out in this clause 13, Turify has no liability where any failure to provide the Services is caused by:
13.4.1 a network, hardware or software fault in equipment which is not under the control of Turify;
13.4.2 any act or omission of Customer;
13.4.3 use of the Services contrary to this Agreement; or
13.4.4 any unauthorised access to the Services including a malicious security breach.
13.5 In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be as set out in clause 8.4.
14. Term and Termination
14.1 This Agreement shall, unless otherwise stated in the Order Form or terminated as provided in clause 12.1 or this clause
14, commence on the Effective Date and shall continue for the Initial Subscription Term. Thereafter, unless stated to the contrary in an Order Form or from a previous contract, this Agreement automatically renews for successive periods as stated in the Order Form or contract (each a "Renewal Period"), unless either party terminates with sixty (60) days written notice prior to the end of the Initial Subscription Term or relevant Renewal Period or otherwise terminates in accordance with the provisions of this Agreement. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the " Subscription Term". Without a Renewal Period in place, Customer's access and use of the Service shall automatically terminate.
14.2 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 at any time with immediate effect upon written notice if the other party:
14.2.1 is in material breach of any of its obligations under this Agreement and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days following notice of the breach; or
14.2.2 voluntarily files a petition under bankruptcy or insolvency law; shall have a receiver or administrative receiver appointed over it or any of its assets; or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
14.3 On termination of this Agreement for any reason:
14.3.1 all right of use granted under this Agreement shall immediately terminate;
14.3.2 Customer shall cease the use of the Services;
14.3.3 Customer shall promptly pay all monies due under this Agreement;
14.3.4 each party shall return and make no further use of any equipment, property, Software and Services and other items (and all copies of them) belonging to the other party;
14.3.5 Turify may destroy or otherwise dispose of any of Customer Data in its possession unless Turify receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data. Turify shall deliver the back-up to Customer following its receipt of such a written request. After such 30 day period, Turify shall have no obligation to maintain or provide Customer Data, and shall thereafter delete and destroy all copies of Customer Data in Turify's control, unless prohibited by law.
15.1 Entire Agreement. This Agreement together with any Order Form sets out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing this Agreement applies in place of and prevails over any terms or conditions contained in or referred to in any correspondence or elsewhere or implied by trade custom or course of dealing. Any general terms of business or other terms and conditions of any order or other document issued by Customer in connection with this Agreement shall not be binding on Turify. In entering into this Agreement each party acknowledges and agrees that it has not relied on any representations made by the other except as set forth in this Agreement. Any such representations are excluded. Nothing in this clause shall limit liability for any representations made fraudulently.
15.2 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.3 Invalid provisions. 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.
15.4 Governing Law and Jurisdiction. All disputes arising out of or in connection with this Agreement shall be governed by substantive Spanish law excluding the conflict of law rules and the Laws in treaties including but not limited to the Uniform Law on Purchases (Vienna treaty). The Commercial Court of the city of Seville shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.
15.5 Third Party Rights. A person who is not a party to this Agreement has no rights to enforce, or to enjoy the benefit of, any term of this Agreement.
15.6 Sub-contracting and Assignment. Neither Turify nor Customer may assign or otherwise transfer this Agreement or any of its rights or obligations or purport to do any such acts under it to any third party without prior written consent from the other party, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary, Turify shall have the right, upon written notice to Customer, to assign this Agreement to any of its Associated Companies, or to an entity resulting from a merger, acquisition or other business reorganization of Turify. In addition, Turify shall have the right to sub-contract any of its obligations hereunder to a third party, provided that Turify shall continue to remain responsible for the performance of the Services hereunder. Any attempted assignment, sub-contracting or other transfer in violation of this provision shall be null and void.
15.7 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize 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).
15.8 Force Majeure. Turify shall have no liability to 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 Trekksoft or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, fire, flood or storm. Turify shall provide Customer with notice of such an event and its expected duration.
15.9 Notices. All notices to be given under this Agreement shall be given in English in writing to the address as shall be given by either Party to the other in writing. Any notice involving non-performance, termination, or renewal shall be hand-delivered or sent by recognized overnight courier or by certified mail, return receipt requested. Notices given by Turify regarding price changes, discount category changes, product discontinuance, product changes, and logistics centre changes may in addition be sent by e-mail to the person(s) specified by Customer from time to time. All other notices not referred to elsewhere in this clause 15.9 may be sent by (i) post or (ii) e-mail. All notices shall be deemed to have been given and received on the earlier of actual receipt or three (3) days from the date of postmark or date and time an email is sent.
15.10 Variations. Save as otherwise expressly stated in this Agreement, this Agreement may only be modified or varied in writing executed by duly authorized representatives of both parties.
15.11 Survival. In addition to those provisions which by their nature are intended to survive any termination of this Agreement, clauses 9, 10, 11, 12, 13, 14.3 and 15, of this Agreement shall survive such termination or expiration of this Agreement.
15.12 Export Control. The Service, Software and other Turify materials are subject to the export control laws of various countries, including without limitation the laws of the United States, Switzerland and the UK. Customer agrees that it will not submit the Service or other Turify materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of Turify, and will not export the Service, Software, Turify Data and Turify materials to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service or other Turify materials by Customer and its Authorized Users. Customer will not engage in any activity that would cause Turify to be in violation of any such export control laws and regulations.