Under this Monthly Recurring Plan, the Customer (“you”, “your”) agrees and acknowledges that:
This loyalty programme is designed for small and medium enterprises to engage their customers in a loyalty programme by subscribing to the Services via thePlatform which is made available to you by Boogi Technologies (“us”, “we”,“our”).
We provide you with the Platform to buy Marketing Credits that can be used to send loyalty rewards to, or obtain CRM or other feedback from, your customers or Contacts.
One block of Marketing Credits is equivalent to 500 Sends. Further MarketingCredits can be purchased in blocks of 500. The price per block of MarketingCredits is shown on the Platform dashboard and under your registered account.
There is a minimum number of Marketing Credits per month which can be purchased by you, which is 500 (five hundred). There is no maximum number of Marketing Credits which can be purchased each month, however we reserve the right to place a limit on the number of Sends that maybe performed for your business where it is unreasonable for us to deliver the number of Sends purchased for the relevant month. For illustration purposes only, if one block of Marketing Credits costs £25.00, then if there are 500 or fewer Sends, you will be invoiced £25.00. For no Sends at all, you will be invoiced £25.00. For 570 Sends, you will be invoiced £50.00. For 900 Sends, you will be invoiced £50.00, and so on.
We may update the price per block of Marketing Credits from time to time. We will give reasonable notice via the Platform of any changes to our Charges.
At the end of each month, we will calculate the number of Sends made and invoice you based on usage.
Sends, plus any attempted Sends, automations, and emails that were stopped or bounced owing to incorrect Contact details being provided or following a failure to comply with the terms of the Acceptable Use Policy are calculated at the end of each month. Your invoice at the end of each month will therefore be based on usage or the minimum number of Marketing Credits that can purchased, whichever is the higher amount.
UnusedMarketing Credits from one month will not be carried forward to the next month. Accordingly, if less than the minimum Marketing Credits are used by you, they shall expire at the end of the relevant month.
BY ENTERING INTO THIS MONTHLY RECURRING PLAN, YOU AGREE TO SUBSCRIBE TO THE LOYALTY SCHEME DESCRIBED ABOVE AND COMPLY WITH THESE TERMS AND CONDITIONS. WE RESERVE THE RIGHT TO AMEND THESE TERMS ANDCONDITIONS AT ANY TIME ON REASONABLE NOTICE. YOU HAVE THE RIGHT TO TERMINATETHIS MONTHLY RECURRING PLAN FOR CONVENIENCE AT THE END OF EACH MONTH.
Terms and Conditions
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Acceptable Use Policy: the rules under which the Customer is permitted to access the Services and use the Platform as set out in clause 2.3.
Authorised Users:those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Boogi Technologies’ Data: the data in relation to End Users collected by Boogi Technologies via provided software, whether or not entered in the Platform and as modified and/or anonymised by Boogi Technologies from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges comprising monthly fees for the Monthly Recurring Plan.
Confidential Information: information that is proprietary or confidential and that is clearly labelled as such.
Contact: this is an individual that has earned enough loyalty rewards or points to receive a Send, or an End User from whom feedback or other information is requested via a Send.
Customer Data: the data inputted by the Customer or Authorised Users for the purpose of using the Services or facilitating the Customer's use of the Services but does not include Boogi Technologies’ Data.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 (DPA 2018) (and regulations made there under) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
Documentation: the document made available to the Customer by Boogi Technologies on the Platform which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date on which the Customer starts using the Services by subscribing to the Monthly Recurring Plan.
End User: any person that register’s with LinkLoyalty's consumer services and who may be eligible to receive a Send.
Marketing Credits: this is what is purchased by the Customer under the Monthly Recurring Plan for the volume of Sends.
Monthly Recurring Plan: this is the plan for which Charges are payable by the Customer to access the loyalty software which the Customer is subscribing to.
Normal Business Hours: 9.00am to 5.00 pm local UK time, each Business Day.
Personal Data: as defined in the Data Protection Legislation.
Platform: Boogi Technologies’ platform at linkloyalty.com or any other website notified to the Customer by Boogi Technologies from time to time.
a Send: is the word(s) used to measure the number of emails sent to a Contact under the Monthly Recurring Plan. Each email that is sent to a Contact, counts as one Send. For instance, an email sent to 500 Contacts is equivalent to 500 Sends.
Services:the subscription services provided by Boogi Technologies to the Customer under this agreement via the Platform.
Software:the online software applications provided by Boogi Technologies as part of the Services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code)found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.2 Clause headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 References to clauses are to the clauses of this agreement.
2. Authorised Users
2.1 Subject to the Customer paying the Charges, and the terms and conditions of this agreement, Boogi Technologies hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sub licences, to permit the Authorised Users to use the Services and the Documentation during the term of this agreement solely for the Customer's internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) each Authorised User shall keep a secure password for their use of the Services and Documentation;
(b) it shall maintain a written, up to date list of current Authorised Users and provide such list to Boogi Technologies within 5 Business Days of Boogi Technologies' written request at any time;
(c) it shall permit Boogi Technologies or Boogi Technologies' designated auditor to audit the Services in order to establish the name and password of eachAuthorised User and the Customer's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at Boogi Technologies' expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; and
(d) if any of the audits referred to in clause 2.2(c)reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Boogi Technologies' other rights, the Customer shall promptly disable such passwords and Boogi Technologies shall not issue any new passwords to any such individual.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
(f) is used to transmit, or procure the sending of, any unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
(g) is otherwise illegal or causes damage or injury to any person or property, and Boogi Technologies reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause. The prohibitions under this clause 2.3 shall be referred to as the Acceptable Use Policy.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of theSoftware and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or other wise commercially exploit, or otherwise make the Services and/orDocumentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/orDocumentation, other than as provided under this agreement; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into Boogi Technologies' network and information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Boogi Technologies.
2.6 The rights provided under this agreement are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Services
3.1 Boogi Technologies shall, during the term of this agreement, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
3.2 Boogi Technologies shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 9am to 5pm UK time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that Boogi Technologies has used reasonable endeavours to give the Customer at least 6Normal Business Hours' notice in advance.
3.3 BoogiTechnologies will, as part of the Services provide the Customer with BoogiTechnologies' standard customer support services during Normal Business Hours.
4. DataProtection
4.1 Each party shall comply with all applicable requirements of the Data ProtectionLegislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
4.2 TheCustomer acknowledges that no Personal Data should be entered on the Platform by it or the Authorised Users and that Boogi Technologies will not share personal data of End Users with the Customer.
5. Third party providers
The Customer acknowledges that theServices may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Boogi Technologies makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Boogi Technologies. Boogi Technologies recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Boogi Technologie sdoes not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
6. Boogi Technologies’ obligations
6.1 Boogi Technologies undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Boogi Technologies' instructions, or modification or alteration of the Services by any party other than Boogi Technologies or Boogi Technologies' duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Boogi Technologies will, at its expense, use all reasonable commercial endeavours 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 the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 Boogi Technologies:
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 This agreement shall not prevent Boogi Technologies from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
6.5 Boogi Technologies warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6.6 Boogi Technologies shall follow its standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Boogi Technologies shall be for Boogi Technologies to use reasonable commercial endeavours to restore the lost or damaged CustomerData from the latest back-up of such Customer Data maintained by Boogi Technologies in accordance with its archiving procedures. Boogi Technologies 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 Boogi Technologies to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.)
7. Customer's obligations
7.1 The Customer shall:
(a) provide Boogi Technologies with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Boogi Technologies,
in order to provide the Services, including but not limited to Customer Materials, Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, 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;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Boogi Technologies, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Boogi Technologies from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Boogi Technologies’ 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.
8. Charges and payment
8.1 The Customer shall pay to Boogi Technologies using card payment 1st on the start date of the agreement and then every monthly recurring date.
8.2 If Boogi Technologies has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of Boogi Technologies:
(a) Boogi Technologies may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Boogi Technologies shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Boogi Technologies' bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.3 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 12.3(b),non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Boogi Technologies' invoice(s) at the appropriate rate.
9. Proprietary rights
9.1 The Customer acknowledges and agrees that Boogi Technologies and/or its licensors own all intellectual property rights in the Boogi Technologies Data, the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Boogi Technologies Data, the Services or the Documentation.
9.2 Boogi Technologies confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.3 The Customer shall own all right, title and interest in and to all of the Customer Data and the Customer Material.
10. Confidentiality
10.1 Each party shall keep the other party's Confidential Information secret and confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement; or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.2 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
11. Indemnity
11.1 The Customer shall defend, indemnify and hold harmless Boogi Technologies against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Boogi Technologies provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 Boogi Technologies shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any patent effective as of theEffective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) BoogiTechnologies is given prompt notice of any such claim;
(b) theCustomer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Boogi Technologies in the defence and settlement of such claim, at Boogi Technologies' expense; and
(c) Boogi Technologies is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, Boogi Technologies may procure the right for the Customer to continue using the Services, replace or modify theServices so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event shall Boogi Technologies, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Boogi Technologies; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Boogi Technologies; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Boogi Technologies or any appropriate authority.
11.5 The foregoing and clause 12.3(b)state the Customer's sole and exclusive rights and remedies, and Boogi Technologies' (including Boogi Technologies' employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of liability
12.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for any Customer Data entered into the Platform and the results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Boogi Technologies shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Boogi Technologies by the Customer in connection with the Services, or any actions taken by Boogi Technologies 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 Documentation are provided to the Customer on an "as is" basis.
12.2 Nothing in this agreement excludes the liability of Boogi Technologies:
(a) for death or personal injury caused by Boogi Technologies' negligence; or
(b) for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.1and clause 12.2:
(a) Boogi Technologies shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or other wise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) Boogi Technologies' total aggregate liability in contract (including in respect of the indemnity at clause 11.2),tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to an amount equal to the total Charges paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
13. Term and termination
13.1 Forthe purposes of this clause 13:
(a) eachmonthly period starting on the Effective Date shall be referred to as “a Term”;
(b) any renewal period shall be dealt with in accordance with clause 13.5.
13.2 This agreement shall, unless otherwise terminated as provided in this clause 13, shall commence on the Effective Date. It shall continue until either party notifies the other party of termination under clauses 13.3 or 13.4:
13.3 During a Term, either party may serve written notice at any time to terminate the agreement at the end of the then-current Term.
13.4 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and(if such breach is remediable) fails to remedy that breach within a period of30 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the InsolvencyAct 1986 (IA 1986)as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of theIA 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party(being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, ora distress, execution, sequestration or other such process is levied oren forced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(j)(inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
13.5 If the agreement has not been terminated:
(a) at any time during the Term pursuant to clause 13.3;
(b) at any time under clause 13.4; or
(c) at any time for a Force Majeure under clause 14;
then it shall renew automatically at the end of a Term for further periods of one month at a time(each a Term).
13.6 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and theCustomer shall immediately cease all use of the Services and/or theDocumentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13.7 If the Customer decides to cancel the subscription at the end of the then-current Term, the Customer shall be invoiced accordingly based on the Sends up to the end of the then-current Term.
14. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this agreement by giving seven days' written notice to the affected party.
15. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. Waiver
16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18. Severance
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
18.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. Entire agreement
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.4 Nothingin this clause shall limit or exclude any liability for fraud.
20. Assignment
20.1 TheCustomer shall not, without the prior written consent of Boogi Technologies,assign, novate, transfer, charge, sub-contract or deal in any other manner withall or any of its rights or obligations under this agreement.
20.2 BoogiTechnologies may at any time assign, transfer, charge, sub-contract or deal inany other manner with all or any of its rights or obligations under thisagreement.
21. No partnership oragency
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).
22. 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 theContracts (Rights of Third Parties) Act 1999.
23. Notices
23.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address habitually used by the recipient.
23.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outsideBusiness Hours in the place of receipt, when Business Hours resume.
23.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
25. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
By subscribing to theMonthly Recurring Plan and using the Services, the Customer accepts, agrees toand acknowledges the above terms and conditions.