Terms and Conditions

TURTL LICENCE TERMS AND CONDITIONS

These Turtl Licence Terms and Conditions (the “Terms and Conditions”) are entered into between the customer (“Customer”) named in the Turtl Order Form (the “Order Form”) and Turtl Surf & Immerse Limited (Company no. 09142724) 22-25 Farringdon Street, London, EC4A 4AB (“Turtl”). Turtl and Customer agree these Terms and Conditions together with all the Documentation and the Order Form represent the entire agreement (the “Agreement”) between the parties with respect to the subject matter of the Agreement.

All terms capitalised but not defined in these Terms and Conditions shall have the meanings ascribed to them in the Order Form.

  1. Interpretation

    1. The definitions and rules of interpretation in the Order Form and below apply in this Agreement.

      Acceptable Use Policy:Turtl’s Acceptable Use Policy relating to prohibited content and actions made available by Turtl online via the link provided and as varied from time to time.
      Affiliate:includes, in relation to a party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company.
      Agreement:the agreement between Turtl and the Customer for the provision of Services in accordance with the Order Form and these Terms and Conditions.
      Authorised Users:those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, subject to clause 2.3 and in accordance with the Order Form.
      Base Product:means those elements of the Services described as standard features in the Documentation which are provided as standard under this Agreement at no additional cost.
      Brand Template:a Turtl Doc created for the Customer by Turtl, which may include trade marks, branding or text specific to the Customer’s requirements.
      Business Day:a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
      Cloud Storage Account:Amazon Web Services S3.
      Confidential Information:information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.
      Content Analytics Data:the analytics data collected by Turtl which can be both anonymous aggregated data on multiple Readers or individualised analytics on a single Reader.
      Control:the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
      Customer Data:the data inputted by (i) the Customer, (ii) Authorised Users, or (iii) Turtl on the Customer’s behalf, for the purpose of using the Services or facilitating the Customer’s use of the Services and/or containing information about Readers including personal data.
      Data Protection Legislation:means any applicable legislation on the protection of personal data, including where applicable: statutes, decisions, regulations, guidelines, guidance notes and codes of practice issued from time to time by courts, competent data protection supervisory authorities and other applicable government authorities (including but not limited to the Data Protection Act 2018, and GDPR).
      Derivative Documents:documents consisting of existing Surf and Immerse Pages from one or more Original Documents which have been created by an Authorised User through use of the Personalization tool.
      Documentation:the document or documents made available by Turtl online which set out a description of the Services and the user instructions for the Services as varied from time to time.
      GDPR:the General Data Protection Regulation (EU 2016/679).
      Immerse Pages:the pages within a Turtl Doc which are accessed from a Surf Page, labelled as “Immerse” pages within the Turtl content editor and which typically include flexible, column-based layouts, multi-column and interactive elements, including polls, quotes, video, audio elements, maps, charts and, as described in further detail in the Documentation.
      Normal Business Hours:9 am to 4 pm local UK time, each Business Day.
      Optional Chargeable Features:those optional elements of the Services over and above the Base Product for which an additional charge is payable.
      Original Document:a document, the content of which is originally created by the Customer or Turtl (on the Customer’s behalf) and is primarily regarded as a master document over which an Authorised User has full creative access.
      Personalization:the content assembly tool which enables Authorised users to pull together content from a pre-defined library in order to produce personalised content for Readers, as described in further detail within the Documentation.
      Privacy Policy:Turtl’s Privacy Policy as set out in the document or documents made available by Turtl online via the link provided and as varied from time to time.
      Published Turtl Doc:a Turtl Doc that no longer sits in draft format
      Readers:readers of Turtl Docs, ie employees, clients, customers or prospective customers to whom links to Turtl Docs are distributed by the Customer.
      Security Policy:Turtl’s Security Policy as set out in the document or documents made available by Turtl online via the link provided and as varied from time to time and currently comprising data security; system and network security; information security; physical location; and architecture and development.
      Services:Turtl’s Services as set out in the document or documents made available by Turtl online via the link provided and as varied from time to time.
      Software:the online software applications provided by Turtl as part of the Services.
      Standard Contractual Clauses:the controller to processor standard contractual clauses in Decision 2010/87/EU.
      Support Services Policy:Turtl’s Support Services Policy for providing support in relation to the Services as set out in the document or documents made available by Turtl online via the link provided and as varied from time to time.
      Surf Pages:the pages labelled as “Surf” pages within the Turtl content editor, typically consisting of a full-page image, a heading and a subheading, and as described in further detail in the Documentation.
      Third Party Material:the third-party images or videos which the Customer may use (subject to complying with the Third Party Material Terms) in the course of using the Services.
      Third Party Material Terms:the Third Party Material Terms as made available by Turtl online via the link provided and as updated by Turtl from time to time to include other applicable third party terms
      Third Party Software:the Third Party Software used in the Turtl platform as set out in the document or documents made available by Turtl online via the link provided and as varied from time to time.
      Turtl Doc:the electronic document created by Authorised Users in the course of using the Services, which may include, text, images and/or videos and the primary purpose of which is to promote the goods and/or services of the Customer.
      User Subscriptions:the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
    2. In this Agreement the following rules apply:

      (i) clause headings shall not affect the interpretation of this Agreement; (ii) references to clauses are to the clauses of these Terms and Conditions; (iii) a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality); (iv) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (v) unless the context otherwise requires, words in the singular shall include the plural and vice versa; (vi) 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 it; (vii) a reference to writing or written includes e-mail; (viii) 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; (ix) “personal data”, “controller”, “processor”, “data subject” and “processing” have the meanings respectively set out in the GDPR.
  2. User subscriptions

    1. Subject to the Customer purchasing the relevant User Subscriptions and paying the relevant Subscription Fees in accordance with clause 3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, Turtl hereby grants to the Customer a worldwide, non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term:

      1. to create and edit Turtl Docs using the Software;
      2. to authorise Readers to access (and, as such time as that functionality is made available by Turtl, print) Turtl Docs by sending them a hyperlink to the Turtl Doc; and
      3. to analyse and use Content Analytics Data.
    2. The Customer shall be entitled to receive updates and improvements to the Base Product (excluding Optional Chargeable Features) at no additional charge. Turtl may at its discretion extend the rights granted to the Customer under clause 2.1 to include Optional Chargeable Features on payment of an additional fee.
    3. Each User Subscription is for a single Authorised User for the Subscription Term and is personal to that Authorised User. The Customer acknowledges that Turtl may monitor the use of login details assigned to Authorised Users, and prohibit multiple simultaneous use of those login details. Additional User Subscriptions can be purchased in accordance with clauses 3.1 to 3.3.
    4. In relation to the Authorised Users, the Customer undertakes that:

      1. it shall request Turtl’s prior written consent to authorise any agents or independent contractors to use the Services and Documentation which Turtl shall not unreasonably withhold;
      2. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
      3. it will not allow any User Subscription to be used by anyone other than the individual Authorised User to whom it is assigned without Turtl’s prior written consent;
      4. it shall, and shall procure that Authorised Users, keep confidential the login details for the use of the Services and Documentation and do not permit them to be used by anyone other than the Authorised Users to whom the login details are assigned;
      5. if the Customer has underpaid Subscription Fees to Turtl, then without prejudice to Turtl’s other rights, the Customer shall pay to Turtl an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form.
    5. The Customer shall comply with Turtl’s Acceptable Use Policy and Turtl reserves the right, without liability or prejudice to its other rights, at its sole discretion to suspend its performance of or terminate this Agreement for any breach of this clause and/or to disable the Customer’s access to material.
    6. The Customer shall not 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:

      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 and/or Documentation (as applicable) in any form or media or by any means; or
      2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      3. access all or any part of the Services and Documentation in order to build a competing product or service; or
      4. use the Services and/or Documentation to provide services to third parties; or
      5. subject to clause 15.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
      6. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
    7. 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 Turtl.
    8. The Customer agrees to be bound by all applicable end user restrictions and obligations contained in any Third Party Material Terms.
    9. The Customer shall supply Turtl with any logos, graphics, fonts and other assets required for Brand Templates, and shall be liable for obtaining all necessary rights, permissions and consents in respect of the use and distribution of such materials.
    10. The rights provided under this clause 2 are granted to the Customer and any Affiliate of the Customer provided that the Customer shall at all times:

      1. procure that any Affiliate who exercises the rights granted under this Agreement shall comply with its terms as if it were a party to this Agreement; and
      2. accept liability to Turtl for any acts or omissions of any such Affiliate that amount to a breach of this Agreement.
  3. Additional Brand Templates and User Subscriptions

    1. The Customer may purchase additional Brand Templates or User Subscriptions and shall pay to Turtl the relevant fees for such additional Brand Templates or User Subscriptions as set out in the Order Form or otherwise agreed. If such additional Brand Templates or User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
    2. Where a request for additional User Subscriptions is received and approved by Turtl between the 1st and 25th day of a calendar month, fees shall be payable in respect of those additional User Subscriptions from the start of that calendar month, but otherwise shall be payable from the start of the following month.
    3. Brand Templates will not be supplied until payment in full of the invoice referred to in clause 3.2 above has been received by Turtl.
  4. Services

    1. Subject to clause 7.2.2, Turtl shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

      1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
      2. unscheduled maintenance performed outside Normal Business Hours, provided that Turtl has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
    2. Turtl will, as part of the Services and at no additional cost to the Customer, provide the Customer with Turtl’s standard customer support services during Normal Business Hours in accordance with Turtl’s Support Services Policy. Turtl may amend the Support Services Policy from time to time. The Support Services Policy shall only apply in respect of full Authorised Users (ie User Subscriptions (Authors).
  5. Customer data

    1. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
    2. Turtl shall have the right to anonymise Content Analytics Data and shall own all right, title and interest in and to all of such anonymised Content Analytics Data including the right to use such anonymous aggregated analytics data to improve the Services.
    3. Customer Data will be hosted on the Cloud Storage Account. The Cloud Storage Account shall be managed by Turtl. Turtl shall archive Customer Data by taking a daily automatic back-up, which will be copied onto the Cloud Storage Account. To the fullest extent permitted by law but subject to clause 5.7, Turtl shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by Amazon (or any equivalent cloud hosting provider used to host the Customer Data) or their sub-contractors.
    4. Both parties will comply with all applicable requirements of the Data Protection Legislation.
    5. Turtl shall, in providing the Services, comply with its Security Policy relating to the Customer Data.
    6. If Turtl processes any personal data on the Customer’s behalf when performing its obligations under this Agreement (ie any personal data contained in or collected from Turtl Docs (which may include names and email addresses) and/or non-anonymised Content Analytics Data, which Turtl shall process during the Subscription Term in the course of providing the Services), the parties record their intention that the Customer shall be the controller and Turtl shall be a processor and in any such case:

      1. Turtl shall not transfer or store the personal data outside the UK and European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

        1. the Customer or Turtl has provided appropriate safeguards in relation to the transfer;
        2. the data subject has enforceable rights and effective legal remedies;
        3. Turtl complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        4. Turtl complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
           

      2. the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Turtl so that Turtl may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
         
      3. Turtl shall (and shall take steps to ensure that any person acting under its authority shall) process the personal data only on documented instructions from the Customer, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by EU or UK law; in which case, Turtl shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
         
      4. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technological and organisational measures adopted by it);
         
      5. Turtl shall assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
         
      6. Turtl shall notify the Customer without undue delay on becoming aware of a personal data breach;
         
      7. Turtl shall at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by applicable law to store the personal data; and
         
      8. Turtl shall maintain complete and accurate records and information to demonstrate its compliance with this clause 5.6 and allow for audits by the Customer or the Customer’s designated auditor.
    7. Turtl shall not engage a sub-processor of personal data without prior specific or general written authorisation of the Customer, and not unless the sub-processing agreement contains equivalent data protection provisions to those contained in this Agreement. Turtl shall remain fully liable to the Customer for the performance of the sub-processor’s obligations under Data Protection Legislation.
    8. Subject to clause 5.6.1, the Customer consents to Turtl appointing:

      1. Amazon Web Services, Inc. or equivalent cloud hosting suppliers as a sub-processor under this Agreement for the purposes of clause 5.3; and
      2. Fastly, Inc. or equivalent content delivery network suppliers as a sub-processor under this Agreement, and consents to the transfer of personal data to the US for such purposes so long as Turtl’s agreement with Fastly, Inc. incorporates the Standard Contractual Clauses, and Customer authorises Turtl to enter into those Standard Contractual Clauses on its behalf.
    9. Turtl may also process personal data when performing its obligations under this Agreement as a controller (for example when administering user login details) which use shall be in accordance with Turtl’s Privacy Policy.
  6. Third party providers

    1. Turtl Docs may contain hypertext links to third-party websites inserted by the Customer and/or social media “share” buttons that link to websites such as Twitter, Facebook and other social media. Turtl 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 at the Customer’s sole risk. Turtl does not endorse or approve any third-party website nor the content of any of the third party websites made available via the Services.
  7. Turtl’s obligations

    1. Turtl undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Turtl’s instructions, or modification or alteration of the Services by any party other than Turtl or Turtl’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Turtl 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 7.1. Notwithstanding the foregoing, Turtl:

      1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
         
      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from:

        1. any issues with availability or performance of Third Party Software that are outside of Turtl’s control; or
        2. 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.
    3. This Agreement shall not prevent Turtl 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.
    4. Turtl warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
  8. Customer’s obligations

    1. The Customer shall:

      1. promptly provide Turtl with:
        1. all necessary co-operation in relation to this Agreement; and
        2. all necessary access to such information as may be reasonably required by Turtl in order to provide the Services, including digital brand guidelines, Customer Data, security access information and configuration services;
      2. comply with all applicable laws and regulations with respect to its activities under this Agreement;
      3. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Turtl may adjust any agreed timetable or delivery schedule as reasonably necessary;
      4. 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;
      5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Turtl, its contractors and agents to perform their obligations under this Agreement, including the Services;
      6. ensure that Turtl Docs comply with the document size limits as set out in the Documentation;
      7. ensure that its network and systems comply with the relevant specifications as set out in the in the Documentation; and
      8. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Turtl’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
  9. Charges and payment

    1. The Customer shall pay the Subscription Fees to Turtl in accordance with this clause 9 and the Order Form.
    2. The Customer shall as soon as reasonably possible provide to Turtl valid, up-to-date and complete contact and billing details and (if applicable) a valid, approved purchase order and Turtl shall invoice the Customer:

      1. on or after the Commencement Date for the Subscription Fees and any agreed brand enabling and/or customisation costs payable in respect of the first Payment Period;
      2. subject to clause 14.1, at least 30 days prior to the start of each subsequent Payment Period for the outstanding Subscription Fees payable in respect of each such Payment Period; and,
      3. for any additional development work, as per the agreed terms;

       
      and the Customer shall pay each invoice by the Payment Due Date.

    3. If Turtl has not received payment for an invoice by the Payment Due Date, and without prejudice to any other rights and remedies of Turtl:

      1. Turtl may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Turtl shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      2. interest shall accrue on a daily basis on such due amounts at an annual rate of 3% above the then current base lending rate of Turtl’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    4. All amounts and fees stated or referred to in this Agreement:

      1. shall be payable in pounds sterling;
      2. are exclusive of value added tax, which shall, if applicable, be added to Turtl’s invoice(s) at the appropriate rate.
    5. Subject to clause 9.6, Turtl shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3 (including where Cloud Storage Account or other third-party fees have increased) at the start of each Renewal Period upon 120 days’ prior notice to the Customer and the Subscription Fees specified within the Order Form shall be deemed to have been amended accordingly.
    6. The increase in Subscription Fees and the fees payable in respect of additional User Subscriptions referred to in clause 9.5 (excluding any increase in the portion of fees attributable to Cloud Storage Account or other third-party fees, which Turtl may pass on to the Customer in full) shall not exceed the percentage increase in the Consumer Prices Index (CPI) published by the Office for National Statistics Office over the period of 12 months ending on 31 March prior to the Renewal Date. If the CPI ceases to be published then a broadly equivalent index as may be agreed by the parties will be used as a substitute.
  10. Proprietary rights

    1. The Customer acknowledges and agrees that Turtl and/or its licensors or the relevant third party owners (as the case may be) own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
    2. Turtl 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.
  11. Confidentiality

    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:

      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party’s lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      4. is independently developed by the receiving party, without recourse to the Confidential Information.
    2. Each party shall hold the other’s Confidential Information in confidence and, unless required to disclose it by law, by any court of competent jurisdiction or by any regulatory or administrative body, shall not (subject to clause 11.3) 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.
    3. Each party may disclose the other’s Confidential Information to those of its employees, agents and professional advisors who have a need to know the Confidential Information under this Agreement provided that each party shall take all reasonable steps to ensure that such employees, agents and/or professional advisors do not disclose Confidential Information in violation of the terms of this Agreement.
    4. Subject to clause 11.3, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    5. The Customer acknowledges that details of the Services, user names and passwords issued to Authorised Users and the results of any performance tests of the Services, constitute Turtl’s Confidential Information and Turtl acknowledges that the Customer Data constitutes the Customer’s Confidential Information.
    6. Turtl may disclose this Agreement to any proposed purchaser of the assets or shares of Turtl, provided that it shall take all reasonable steps to ensure that such recipient does not disclose Confidential Information in violation of the terms of this Agreement.
  12. Indemnity

    1. Subject to clauses 6.1, 12.3 and 12.4 Turtl shall defend and indemnify the Customer, its officers, directors and employees against any claim by a third party that use by the Customer of the Services or Documentation directly infringes any United Kingdom patent effective as of the Commencement 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, (including court costs and reasonable legal fees), provided that:

      1. Turtl is given prompt notice of any such claim;
      2. the claim is not based upon the Customer’s breach of any clause of this Agreement;
      3. the Customer does not make any admission of liability, agreement or compromise with regard to the claim without the prior written consent of Turtl;
      4. the Customer provides reasonable co-operation to Turtl in the defence and settlement of such claim, at Turtl’s expense;
      5. Turtl is given sole authority to defend and/or settle the claim; and
      6. Turtl’s liability under the indemnity in this clause shall not exceed £5 million.
    2. In the defence or settlement of any claim, Turtl may procure the right for the Customer to continue using the Services, replace or modify the Services 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.
    3. In no event shall Turtl, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

      1. a modification of the Services or Documentation by anyone other than Turtl or anyone authorised by Turtl; or
      2. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Turtl; or
      3. the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Turtl or any appropriate authority.
    4. Notwithstanding any other provision in this Agreement, clause 12.1 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third Party Material, or through the breach of any Third Party Material Terms by the Customer.
  13. Limitation of liability

    1. Subject to clauses 12, 13.3 and 13.5, this clause 13 sets out the entire financial liability of Turtl and the Customer (including any liability for the acts or omissions of their employees, agents and sub-contractors) to each other:

      1. arising under or in connection with this Agreement;
      2. in respect of any use made by the Customer of the Services and Documentation or any part of them; and
      3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
    2. Except as expressly and specifically provided in this Agreement:

      1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Turtl shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Turtl by the Customer in connection with the Services, or any actions taken by Turtl at the Customer’s direction; and
      2. 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.
    3. Nothing in this Agreement excludes the liability of either party for:

      1. death or personal injury caused by the other party’s negligence; or
      2. fraud or fraudulent misrepresentation.
    4. Subject to clause 13.2, clause 13.3 and 13.5:

      1. Neither Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise 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;
      2. Turtl’s total aggregate liability in contract (excluding in respect of the indemnity at clause 12), 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 100% of the total Subscription Fees paid or payable for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose; and
      3. the Customer’s total aggregate liability in contract (excluding in respect of the indemnity at clause 12), 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 as follows:

        1. for non-payment of invoices for Subscription Fees or any other fees due to Turtl, to the amount unpaid, and any interest due on such amount under clause 9.3.2; or
        2. for any other type of liability, to 100% of the total Subscription Fees paid or payable during the 12 months immediately preceding the date on which the claim arose.
    5. Nothing in this clause 13 shall exclude or limit the Customer’s liability to Turtl for any breach of clause 2.
  14. Term and termination

    1. 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:

      1. 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 30 days after being notified in writing to make such payment;
      2. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
      3. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
      4. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    2. Without affecting any other right or remedy available to it, Turtl may terminate this Agreement with immediate effect by giving written notice to the Customer if as a result of a change of control of the Customer, Turtl reasonably believes that the Customer has become a competitor to Turtl.
    3. Subject to clause 14.4 below, on termination of this Agreement for any reason:

      1. all licences granted under this Agreement shall immediately terminate and the Customer shall no longer have rights to create, edit, access (or authorise Readers to access) any Turtl Docs created prior to termination;
      2. 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;
      3. Turtl may destroy or otherwise dispose of any of the Customer Data in its possession unless Turtl receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Turtl shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Turtl in returning or disposing of Customer Data; and
      4. 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.
    4. After termination, for a period of 12 months the Customer may continue to access (and authorise Readers to access), but not edit, Turtl Docs created prior to termination on payment of a maintenance fee of 25% of the annual Subscription Fees at the date of termination (eg annual Subscription Fee = £100,000, maintenance fee = £25,000).
    5. Termination will not affect any accrued rights of action or liabilities of either party, nor will it affect the coming into force or continuance in force of any provision of this Agreement, which is expressly, or by implication, intended to come into or continue in force on or after ending this Agreement.
  15. General

    1. Force Majeure: Turtl shall have no liability to the 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 pandemic, epidemic and failure of a telecommunications network, provided that the Customer is notified of such an event and its expected duration.
    2. Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    3. Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    4. 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.
    5. Severance: 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.
    6. Entire Agreement: This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
    7. Assignment: The Customer shall not, without the prior written consent of Turtl, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Subject to clause 5, Turtl may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    8. No partnership or agency: Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture 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 the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
    9. Third party rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
    10. Notices: Any notice under this Agreement shall be in writing and delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Order Form. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
    11. Dispute resolution: If any dispute arises in connection with this Agreement, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the dispute requesting mediation. A copy of the request should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. Nothing in this Agreement shall prevent either party from taking such action as it deems appropriate (including any application to a relevant court) for injunctive or other emergency or interim relief in relation to its Intellectual Property Rights or Confidential Information.
    12. Governing law and jurisdiction: 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 construed in accordance with the law of England and the parties irrevocably agree that the English courts 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).
    13. Subcontractors: The Customer acknowledges that Turtl may use subcontractors: (i) for incidental engagements by Turtl of individual experts or consultants as independent contractors; (ii) to outsource functions unrelated to provision of the Services; (iii) development or modification of the Software; or (iv) Turtl’s standard telephone or email technical support of the Service.
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