Terms of Service

These FlatPeak Terms of Service (the ‘Agreement’) are entered into by and between FlatPeak Technology Ltd, a Company registered in England and Wales, Company number 08021484 (‘FlatPeak’), whose business address is 24 Greville Street London, EC1N 8SS, United Kingdom, and the entity agreeing to these terms (‘Customer’).

This Agreement is effective as of the date that you create the Subscription or, if applicable, the date that the Agreement is countersigned (the ‘Effective Date’).

If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have the full legal authority to bind your employer or the applicable entity to these terms and conditions; (ii) you have read and understood this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not start the Subscription (or, if applicable, do not sign this Agreement). This Agreement governs the Customer’s access to and use of the Services as ordered in the Dashboard.

From time to time, FlatPeak may modify this Agreement. Unless otherwise specified by FlatPeak, changes become effective for the Customer upon renewal of the Customer’s current Subscription (as defined below) or entry into a new Subscription.

FlatPeak will use reasonable efforts to notify the Customer of the changes via the notices displayed in the Dashboard, email or other means. The Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription or entering into a new Subscription, and in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute the Customer acceptance of such updated version.

If FlatPeak specifies that changes to the Agreement will take effect prior to the Customer’s next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY Services. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

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1. Definitions

1.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Account” means the Customer’s identification entry with FlatPeak.

”Contractor” means an independent contractor or consultant who is not a competitor of FlatPeak.

”Customer Data” means any data of any type that is submitted to the Services by or on behalf of the Customer, including without limitation: (a) data submitted, uploaded, imported or manually entered into the Services by the Customer and (b) data collected from the Customer Properties via the use of the Services.

”Customer Properties” means Customer’s venues, websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with End-Users.

“End-User” means an organisation or physical natural person whose information is stored in the Account.

“Dashboard” means FlatPeak’s interface through which the Customers may manage the Services. The Dashboard is available at https://dashboard.flatpeak.com or a successor URL.

”Documentation” means the documentation, manuals and specifications describing the operation, use, characteristics, capabilities and performance of the Services as issued by FlatPeak from time to time. The Documentation is available at https://docs.flatpeak.com or at a successor URL.

”FlatPeak Code” means certain software code, software development kits (SDKs) or other code provided by FlatPeak for deployment on Customer Properties.

”Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and exportation of technical or personal data.

”Dashboard User” means an employee or Contractor of the Customer who is authorised to access the Services.

”Services” means FlatPeak’s proprietary software-as-a-service solution(s), including but not limited to the Dashboard, application programming interfaces (APIs) and FlatPeak Code.

”Taxes” means any sales, use, GST, VAT, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of FlatPeak.

”Third-Party Platform” means any software, software-as-a-service, data sources or other Services or services not provided by FlatPeak that are integrated with the Services as described in the Documentation.

“Billable Item” means any billable resource such as but not limited to customers, locations and devices. The definitions of all billable items are set out on the Subscription as accessed through the Dashboard from time to time.

“Subscription” means a non-exclusive term license in respect of provisioning of the Services for the Subscription Period.

“Subscription Fee” means any such fee, in whichever currency payable, in respect of a Subscription as shall be set out in the Subscription management page as accessed through the Dashboard from time to time.

“Subscription Period” means such period as specified in the relevant Subscription plan as accessed through the Dashboard or, if unspecified, one month.

“Payment Method” means payment card bank transfer or any other payment method as set for the Customer by FlatPeak.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC.

1.2. Clause headings shall not affect the interpretation of this Agreement.

1.3. Words in the singular shall include the plural and vice versa.

1.4. A reference to one gender shall include a reference to the other genders.

1.5. A reference to any party shall include that party’s personal representatives, successors or permitted assigns.

1.6. A reference to a statute, statutory provision or any subordinate legislation made under a statute is a reference to such statute, provision or subordinate legislation as in force at the date of this Agreement.

1.7. References to clauses and Appendices are to the clauses and Appendices of this Agreement.

1.8. Any phrase introduced by the terms including, include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

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2. Services

2.1. Services Overview. FlatPeak’s Services are a suite of software-as-a-service solutions offered through a single platform. The Services are designed to enable the Customer to identify the energy tariff of End-Users, provide cost of energy analytics and optimise scheduling of energy consumption and exports. The Customer may import and export Customer Data between the Services, its own systems and Third-Party Platforms through supported integrations and FlatPeak APIs.

2.2. Provision of Services. The Services are provided by FlatPeak to the Customer on a subscription basis as set out in the Subscription that is accessible via the Dashboard.

2.3. Access to Services. The Customer may consume the Services solely for its own benefit and in accordance with this Agreement, the Documentation and any scope of use restrictions designated in the applicable Subscription. If the Customer is given API keys or passwords to access the Services on FlatPeak’s systems, the Customer will require that all Dashboard Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized persons. User IDs are granted to individuals and named persons and may not be shared. If the Customer is accessing the Services using credentials provided by a third party (e.g., Google, Apple or Microsoft auth), then the Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. The Customer will be responsible for any and all actions taken using the Customer’s accounts and passwords.

If any Dashboard User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of the Customer, then the Customer will immediately delete such user ID and otherwise terminate such Dashboard User’s access to the Service.

2.4. Deployment of FlatPeak Code. Subject to all of the terms and conditions of this Agreement, FlatPeak grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Period to copy the FlatPeak Code in the form provided by FlatPeak on Customer Properties solely to support Customer’s use of the Services and otherwise in accordance with the Documentation and this Agreement. Customer must implement FlatPeak Code on the Customer Properties in order to enable features of the Services. The Customer will implement all FlatPeak Code in strict accordance with the Documentation and other instructions provided by FlatPeak. Customer acknowledges that any changes made to the Customer Properties after the initial implementation of FlatPeak Code may cause the Services to cease working or function improperly and that FlatPeak will have no responsibility for the impact of any such Customer changes.

2.5. Contractors. Customer may permit its Contractors to serve as Dashboard Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.

2.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to FlatPeak); (c) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the “Powered by FlatPeak” designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.

2.7. FlatPeak APIs. If FlatPeak makes access to any APIs available as part of the Services, FlatPeak reserves the right to place limits on access to such APIs (e.g., limits on number of calls or requests). Further, FlatPeak may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if FlatPeak believes that Customer’s usage is in breach of this Agreement or may negatively affect the Services.

2.8. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Services (a “Trial Subscription”), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period granted by FlatPeak (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a Paid Subscription. If Customer does not enter into a paid Subscription, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FlatPeak WILL HAVE NO WARRANTY, INDEMNITY, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

2.9 Modifications to Services. FlatPeak shall have the right to change, suspend or discontinue any aspect of the Services at any time, without notice. If FlatPeak makes a material change to the Services, FlatPeak will inform Customer, provided that Customer has an active Subscription with FlatPeak at the time of the announcement of such change.

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3. Customer Data

3.1. FlatPeak Privacy Statement (“Privacy Statement”), which outlines how we protect our Customer’s data, forms an integral part of this Agreement and is available at https://docs.flatpeak.com/commercials/legal/privacy or a successor URL.

3.2. FlatPeak Data Processing Agreement (“Data Processing Agreement”), which outlines how we store and process our Customer’s data, forms an integral part of this Agreement and is available at https://docs.flatpeak.com/commercials/legal/data-processing-agreement or a successor URL.

3.3. FlatPeak Data Disclosure Policy (“Data Disclosure Policy”), which outlines how we may disclose Customer’s data, forms an integral part of this Agreement and is available at https://docs.flatpeak.com/commercials/legal/disclosure-request or a successor URL.

3.4. Rights in Customer Data. As between the parties, the Customer will retain all rights, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to FlatPeak or collected by use of FlatPeak Services. Subject to the terms of this Agreement, Customer hereby grants to FlatPeak a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to the Customer.

3.5. Storage of Customer Data. FlatPeak does not provide an archiving service. FlatPeak agrees only that it will not intentionally delete any Customer Data from Services prior to termination of Customer’s applicable Subscription Period. FlatPeak expressly disclaims all other obligations with respect to storage.

3.6. Customer Obligations. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.

3.7. Indemnification by Customer. Customer will indemnify, defend and hold harmless FlatPeak from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence, or settlement of such claim; and (iii) all necessary cooperation of FlatPeak at Customer’s expense.

Notwithstanding the foregoing sentence, (a) FlatPeak may participate in the defense of any claim by counsel of its own choosing, at its cost and expense, and (b) Customer will not settle any claim without FlatPeak’s prior written consent unless the settlement fully and unconditionally releases FlatPeak and does not require FlatPeak to pay any amount, take any action, or admit any liability.

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4. Security and Compliance

4.1. All reasonable measures. FlatPeak uses all commercially reasonable technical and organisational measures to prevent unauthorised access, use, alteration or disclosure of any Services or Customer Data. However, FlatPeak will have no responsibility for errors in transmission, unauthorised third-party access or other causes beyond FlatPeak’s control.

4.2 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to security standards no less protective than those at facilities where FlatPeak stores and processes its own information of a similar type. FlatPeak has implemented at least industry-standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorised access to or use of Customer Data. As part of providing the Services, FlatPeak may transfer, store and process Customer Data in accordance with the Data Processing Agreement. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.

4.3. Choice of the country where data is stored. The Customer can request that their Customer Data be stored in a specific country. When the feature is active, FlatPeak will store Customer Data which belongs to that Customer on servers based in the requested country, in addition to FlatPeak’s existing data centres. Use of this feature may carry additional charges. The Customer will be contacted by FlatPeak Support before this request is processed.

4.4 Acceptable Use. FlatPeak Acceptable Use Policy (“Acceptable Use Policy”), describes rules that apply to any party using the Services, forms an integral part of this Agreement and is available at https://docs.flatpeak.com/commercials/legal/acceptable-use-policy or a successor URL.

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5. Third-Party Platforms

The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms.

By enabling the use of the Services with any Third-Party Platform, Customer authorises FlatPeak to access Customer’s accounts with such Third-Party Platform for the purposes described in this Agreement. The customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms.

Customer acknowledges and agrees that FlatPeak has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. FlatPeak does not guarantee that the Services will maintain integrations with any Third-Party Platform and FlatPeak may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer.

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6. Ownership

6.1. FlatPeak Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it obtains only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale”, or similar terms in this Agreement, no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that FlatPeak or its suppliers retain all rights, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing (collectively, “FlatPeak Technology”). Except as expressly set forth in this Agreement, no rights in any FlatPeak Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an online, hosted solution and that Customer has no right to obtain a copy of any of the Services, except for FlatPeak Code in the format provided by FlatPeak.

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7. Fees, charges, payments and taxes

7.1. Subscriptions and Renewals. Unless specified otherwise, each Subscription will automatically renew for an additional Subscription Period unless either party gives the other written notice of termination prior to the expiration of the then-current Subscription.

7.2. Fees and Payment. All fees are as set forth in the applicable Subscription and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Subscription. Except as expressly set forth in Section 9 (Limited Warranty) and Section 13 (Indemnification), all fees are non-refundable. The customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Subscription. If Customer is required by Law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, FlatPeak receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments may be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

7.4. Payment Via Payment Card. If you are purchasing the Services via credit card, debit card or other payment card (“Payment Card”), the following terms apply:

7.4.1. Recurring Billing Authorisation. By providing Payment Card information and agreeing to purchase any Services, Customer hereby authorises FlatPeak (or its designee) to automatically charge Customer’s Payment Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Period for all fees accrued as of that date (if any) in accordance with the applicable Subscription. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of the Services and may include subscription fees for the remainder of Customer’s applicable billing period and overage fees for the prior month.

7.4.2. Foreign Transaction Fees. Customer acknowledges that for certain Payment Cards, the issuer of Customer’s Payment Card may charge a foreign transaction fee or other charges.

7.4.3. Invalid Payment. If a payment is not successfully settled due to expiration of a Payment Card, insufficient funds, or otherwise, the Customer remains responsible for any amounts not remitted to FlatPeak and FlatPeak may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Payment Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.

7.4.4. Changing Payment Card Information. At any time, Customer may change their Payment Card information by entering updated Payment Card information via the “Subscriptions” page on the Dashboard.

7.4.5. Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription by sending FlatPeak notice of non-renewal to support@flatpeak.com or via the Dashboard in accordance with Section 7.1 (Subscriptions and Renewals). As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription following a Trial Period, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period, and Customer’s Payment Card will not be charged.

7.4.6. Payment of Outstanding Fees. Upon any termination or expiration of the Subscription, FlatPeak will charge Customer’s Payment Card (or invoice Customer directly) for any outstanding fees for Customer’s use of the Services during the Subscription Period, after which FlatPeak will not charge Customer’s Payment Card for any additional fees.

7.5. Invoice Payments. If you are purchasing the Services by paying the invoices issued by FlatPeak via bank transfer (“Invoice Payments”), the following terms apply:

7.5.1. Variable Charges. Customer acknowledges and agrees that the amount billed each month may vary depending on Customer’s use of the Services and may include subscription fees for the remainder of Customer’s applicable billing period and overage fees for the prior month.

7.5.2. Transaction Fees. Fees and charges may be applied by the banks and other institutions to the payments made by Customer to the FlatPeak. Customer agrees that it is its sole responsibility to pay these fees and charges.

7.5.3. Payment of Outstanding Fees. Upon any termination or expiration of the Subscription, FlatPeak will invoice the Customer for any outstanding fees for the Customer’s use of the Services during the Subscription Period, after which FlatPeak will not invoice for any additional fees.

7.6. Suspension of Services. Unless specified otherwise, if Customer’s account is seven (7) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), FlatPeak reserves the right to suspend Customer’s access to the applicable product (and any related Services or/and services) without liability to Customer until such amounts are paid in full. FlatPeak also reserves the right to suspend Customer’s access to the Services without liability to Customer if Customer’s use of the Services is in violation of the AUP.

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8. Term and Termination

8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscriptions.

8.2. Termination for Cause. Either party may terminate this Agreement (including all related Subscriptions) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related FlatPeak Technology) and delete (or, at FlatPeak’s request, return) any and all equipment which may have been provided to Customer by FlatPeak, copies of the Documentation, any FlatPeak’s passwords or access codes and any other FlatPeak Confidential Information and property in its possession. Customer may retain and use internally copies of all reports exported from any Services prior to termination. Customer acknowledges that following the termination it may have no further access to any Customer Data input into any Product and that FlatPeak may delete any such data as may have been stored by FlatPeak at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.6 (General Restrictions), 2.8 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.7 (Indemnification by Customer), 6 (Ownership), 7.3 (Fees and Payment), 7.4 (Payment Via Payment Card), 7.5 (Invoice Payments), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information) and 16 (General Terms).

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9. Limited Warranty

9.1. Limited Warranty. FlatPeak warrants, for the Customer’s benefit only, that each Product will operate in substantial conformity with the applicable Documentation. FlatPeak’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for FlatPeak to use commercially reasonable efforts to correct the reported non-conformity, or if FlatPeak determines such remedy to be impracticable, either party may terminate the applicable Subscription and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for the use of such Product for the terminated portion of the applicable Subscription Period. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorised modifications or third-party hardware, software, Services or services, or (iii) to use provided on a no-charge, trial or evaluation basis.

9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL Services ARE PROVIDED “AS IS”. NEITHER FlatPeak NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FlatPeak does not warrant that Customer’s use of the Services will be uninterrupted or error-free, nor does FlatPeak warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss or corruption. FlatPeak SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE Services. FlatPeak SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FlatPeak. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

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10. Support

During the Subscription Period, FlatPeak will provide the Customers with technical support in accordance with FlatPeak’s Support Policy available at https://docs.flatpeak.com/commercials/legal/support-policy or a successor URL (“Support Policy”).

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11. Availability

The Services are subject to FlatPeak’s Service Level Agreement, which is available at https://docs.flatpeak.com/commercials/legal/service-level-agreement or a successor URL (“SLA”).

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12. Limitation of Remedies and Damages

12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

12.2. Liability Cap. FlatPeak’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO FlatPeak DURING THE PRIOR SIX (6) MONTHS UNDER THIS AGREEMENT.

12.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.6 (General Restrictions); (b) under Section 3.6 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party’s breach of its obligations in Section 14 (Confidential Information) (but excluding claims arising from operation or non-operation of any Product).

12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

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13. Indemnification

FlatPeak will defend Customer from and against any claim by a third party alleging that the Services, when used as authorised under this Agreement, infringes a UK patent, UK copyright, or UK trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by FlatPeak (including reasonable attorneys’ fees) resulting from such claim, provided that FlatPeak will have received from Customer: (i) prompt written notice of such claim (but in any event notice insufficient time for FlatPeak to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defence and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of a Product is (or in FlatPeak’s opinion is likely to be) enjoined, if required by settlement or if FlatPeak determines such actions are reasonably necessary to avoid material liability, FlatPeak may, in its sole discretion: (a) substitute substantially functionally similar Services or services; (b) procure for Customer the right to continue using such Product; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Period that was paid by Customer but not rendered by FlatPeak. The foregoing indemnification obligation of FlatPeak will not apply: (1) if such Product is modified by any party other than FlatPeak, but solely to the extent the alleged infringement is caused by such modification; (2) if such Product is combined with Services or processes not provided by FlatPeak, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorised use of such Product; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Product; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Product but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without FlatPeak’s prior written consent. THIS SECTION 13 SETS FORTH FlatPeak’S AND ITS SUPPLIERS SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

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14. Confidential Information

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.

Any FlatPeak Technology, performance information relating to any Product, and the terms and conditions of this Agreement will be deemed Confidential Information of FlatPeak without any marking or further designation. Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.

The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for FlatPeak, the subcontractors referenced in Section 16.7 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14.

The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

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15. Co-Marketing

At the request of FlatPeak, Customer agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. The customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use the Customer’s name and logo on FlatPeak’s website and in FlatPeak promotional materials. Customer agrees that FlatPeak may disclose the Customer as a customer of FlatPeak.

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16. General Terms

16.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganisation, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorised under this Section 16.1 will be null and void.

16.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

16.3. Governing Law and Dispute Resolution.

16.3.1. Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise (“Dispute”), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled “Initial Notice of Dispute” specifically setting forth the precise nature of the dispute (“Initial Notice of Dispute”). If an Initial Notice of Dispute is being sent to FlatPeak, it must be emailed to legal@flatpeak.com and sent via mail to: FlatPeak, 24 Greville Street, London, EC1N 8SS, United Kingdom. Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognising their mutual interests, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution”). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved as set forth below.

16.3.2. Governing Law and Jurisdiction. The Customer agrees that any claim which is now subject to the dispute resolution as set out in this section 16.3 will be governed by and construed in accordance with the laws of England and Wales. By using FlatPeak Services, Customer irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Services (including non-contractual disputes or claims).

16.4. Amendments and Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorised representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorised representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

16.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are online, subscription-based Services and that in order to provide an improved customer experience, FlatPeak may make changes to the Services, and FlatPeak will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practises (but the modifications will not materially decrease FlatPeak’s obligations as compared to those reflected in such terms as of the Effective Date).

16.6. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

16.7. Subcontractors. FlatPeak may use the services of subcontractors and permit them to exercise the rights granted to FlatPeak in order to provide the Services under this Agreement, provided that FlatPeak remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.

16.8. Summons. Nothing in this Agreement prevents FlatPeak from disclosing Customer Data to the extent required by law or court orders, but FlatPeak will use commercially reasonable efforts to notify Customer where permitted to do so.

16.9. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.