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END USER LICENCE AGREEMENT (EULA)

This document and the documents referred to in it are your Terms of Use with Colossus Systems Limited. Please read this carefully before using any of our Service(s) and you may want to retain a copy for your records.

On Accepting these terms I confirm that I am duly authorised on behalf of the Client to place an order for Colossus Systems Service subject to the terms and conditions set out below. I also warrant that the information submitted in signing up is correct and accurate to the best of my knowledge.

1. LICENCE ACCEPTANCE PROCEDURE
   1. On Acceptance you indicate agreement to this End User Licence Agreement and the limited warranty and limitation of liability set out in this End User Licence Agreement on behalf of any corporate entity which employs you or which you represent ('Client'). In this End User Licence Agreement, 'you' includes both the reader and any Client. you should therefore read this End User Licence Agreement carefully before Accepting.
      
      
2. DEFINITIONS
   1. The following terms as used in this Agreement have the following meanings:
      1. "Accept/Accepting/Acceptance" means (i) your placing a check in the box on our sign up form confirming that you Accept these terms and (ii) clicking the 'register or sign up' box which shall together constitute a binding contract between Colossus Systems and the Client.
      2. “Account” means any accounts or instances created by or on behalf of the Client for access and use of any of the Service(s).
      3. "Agreement" means these terms of use which may be amended by Colossus Systems from time to time in its sole discretion;
      4. "Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
      5. "Cancellation Period" means the period of 21 days starting on the Effective Date;
      6. "Card Details" means valid credit or debit card details provided by the Client for payment of the Fees;
      7. "Client" means the corporate entity or organisation ordering the Service(s);
      8. "Client Data" means any data, information or material provided or submitted by the Client to the Service or generated by the Service in the course of using the Service including but not limited to employee data held in the Service;
      9. "Content" means the documents, software, products and Service(s) contained or made available to the Client in the course of using the Service;
      10. "Data Protection Legislation" means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
      11. "Defect" means an error in the operation of the Service that causes the Service to fail to operate substantially as documented;
      12. "Effective Date" means the date the Accepting Individual Accepts on behalf of the Client to commence use of the Service;
      13. "Fee(s)" means any and all fees charges or other payments due made from the Client to Colossus Systems as provided by the Pricing Plan in force at the time the Fees become payable.
      14. "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
      15. "License Administrator(s)" means those Users who are authorised to administer the Client use of the Service;
      16. "License Term" means the period during which the Client is licensed to use the Service pursuant to this Agreement;
      17. “Licensor” means Brainiac Media Limited or the independent contractor (developer) who grants a licence to Colossus Systems for Software and Technology used in Colossus Systems Technology.
      18. "Technology" means all the proprietary technology used in delivering the Service (including the software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the Client by Colossus Systems in providing the Service;
      19. "Trial Period" means the initial period of 30 days from the Effective Date;
      20. "Period" means the period of either (i) one calendar month or (ii) one year. Each such period shall begin on the day of the month (in the case of (i) above) or date of the year (in the case of (ii) above) on which the Client began paying for the Service(s). Such date shall be recorded in the administration pages of the Service.
      21. “Personal Data” means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable Data Protection Law).
      22. "Pricing Plan" means the schedule of fees and billing terms currently in force which can be viewed at or has been confirmed with the Client in writing. Colossus Systems may replace the Pricing Plan on 30 days prior written notice (including by email or through the Administration pages in the Service) and for the avoidance of doubt such new Pricing Plan may increase the Fees payable and/or introduce new Fees.
      23. "Service(s)" means the online software as a service provided by Colossus Systems (and its Licensors, where applicable), or ancillary online or offline products and Service(s) provided to the Client by Colossus Systems, to which the Client is being granted access under this Agreement, including the Technology and the Content;
      24. “Update(s)” means any new or modified features added to or augmenting or otherwise modifying the Service(s)
      25. "User(s)" means the Client's employees, representatives, consultants, contractors or agents who are authorised to use the Service and have been supplied user identifications and passwords by the Client (or by Colossus Systems at the Clients request);
      26. “User Login” means unique login information such as usernames and passwords to identify individual Users.
      27. "Website" means any website Colossus Systems operates.
3. TRIAL PERIOD AND DURATION
   1. The Service(s) will commence on the Effective Date. Thereafter the Client will:
      1. provide Card Details for payment of the Fees referred to below, or
      2. at Colossus Systems sole discretion arrange for the payment of Fees by direct debit failing which Colossus Systems may immediately cease provision of the Service(s) in accordance with clause "Termination Upon Expiration".
      3. If the Client has provided Card Details to Colossus Systems, or has been permitted to pay by direct debit, the Service(s) shall continue to be provided for so long as the Fees are paid as aforesaid unless and until this Agreement is terminated in accordance with these terms and conditions.
         
         
4. DISCLOSURE
   1. With regard to any personal data input by or collected from the Client that may be stored or processed in the system, such data shall be stored and processed by Colossus Systems in accordance with Data Protection Legislation. Note that because the Service is a hosted, online application, Colossus Systems occasionally may need to notify all Users of the Service of important announcements regarding the operation of the Service.
      
      
5. PRIVACY & DATA PROCESSING
   1. Colossus Systems processing policy in relation to the Client's use of the Service may be viewed here. The Processing Policy sets out the scope, nature and purpose of processing by Colossus Systems, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject. Colossus Systems reserves the right to modify its processing policy in its reasonable discretion and in accordance with Data Protection Legislation from time to time.
   2. Both parties shall comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Colossus Systems is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
   3. Without prejudice to the generality of the forgoing in this clause, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Colossus Systems for the duration and purposes of this agreement.
   4. Without prejudice to the generality of the forgoing of this clause, Colossus Systems shall, in relation to any Personal Data processed in connection with the performance by Colossus System of its obligations under this agreement:
      1. process that Personal Data only on the written instructions of the Client unless Colossus Systems is required by the laws of any member of the European Union or by the laws of the European Union applicable to Colossus System to process Personal Data (Applicable Laws). Where Colossus Systems is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Colossus Systems shall promptly notify the Client of this before performing the processing required by the applicable laws unless those applicable laws prohibit Colossus Systems from so notifying the Client;
      2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and Service, 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 technical and organisational measures adopted by it);
      3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      4. assist the Client, at the Client'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;
      5. notify the Client without undue delay on becoming aware of a Personal Data breach;
      6. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement in accordance with Clause "Data Return and Destruction" unless required by Applicable Law to store the Personal Data; and
      7. maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Client or the Client's designated auditor.
      8. Colossus Systems will not transfer any Personal Data outside of the European Economic Area or ask you for permission to do this.
      9. The Client consents to Colossus Systems appointing the following classes of third-party processors of Personal Data under this agreement:
      10. Service providers acting as processors based in the UK who provide IT, development and system administration service.
      11. Professional advisers acting as processors or joint controllers including lawyers, bankers, auditors and insurers based in the UK who provide consultancy, banking, legal, insurance and accounting services.
      12. HM Revenue & Customs, regulators and other authorities acting as processors or joint controllers based in the United Kingdom who require reporting of processing activities in certain circumstances.
   5. Colossus Systems confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Client and Colossus Systems, Colossus Systems shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
   6. Colossus Systems may, at any time on not less than 30 days' notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
   7. Without prejudice to the generality of the foregoing, if the Client becomes a paying User of the Service, the Client agrees that colossus systems can disclose the fact that the Client is a paying User of the Service.
      
      
6. LICENSE GRANT & RESTRICTIONS
   1. Colossus Systems hereby grants the Client a non-exclusive, non-transferable, right to use the Service, solely for the Client's own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to the Client are reserved by Colossus Systems and its Licensors.
   2. The Client may not access the Service if they are a direct competitor of Colossus Systems, except with Colossus Systems prior written consent. In addition, the Client may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
   3. The Client shall not:
      1. license, lease, sublicense, sell, resell, transfer, display, disclose, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way;
      2. modify, duplicate copy or make derivative works based upon the Service or the Content;
      3. create internet "links" to the Service or "frame", "mirror", republish, transmit or distribute any Content on any other server or wireless or Internet-based device;
      4. reverse compile, decompile, or in any way reverse engineer or otherwise reduce to human perceivable form all or any part of the Service or Content;
      5. attempt to obtain, or assist third parties in obtaining, access to the Service(s) and/or Content (other than as provided under this Agreement); or
      6. access the Service in order to
         1. build a competitive product or service,
         2. build a product using similar ideas, features, functions or graphics of the Service, or
         3. copy any ideas, features, functions or graphics of the Service.
      7. The Client may use the Service only for internal business purposes and shall not:
      8. store infringing, obscene, sexually explicit, threatening, harassing or racially or ethnically insensitive, libellous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights;
      9. store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
      10. interfere with or disrupt the integrity or performance of the Service or the data contained therein; or
      11. attempt to gain unauthorised access to the Service or its related systems or networks.
          
          
7. THE CLIENT'S RESPONSIBILITIES
   1. The Client is responsible for all activity occurring under their User accounts and subject to any limitation on the number of individual Users available under the Service Plan to which the Client subscribed, access and use of the Service(s) is restricted to the specified number of individual Users permitted under the Client’s subscription to the Service(s)
   2. Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual. If the Client is a managed service provider and wishes to use the same User Login across Accounts that they manage for their clients, the Client acknowledges that it is the Client’s sole responsibility to obtain necessary consents from such clients.
   3. The Client acknowledges that they are responsible for the confidentiality of Client Data and User Logins. The Client agrees it shall not share its User Login with any third parties. In any event, unless the Client notifies Colossus Systems of any unauthorized use or suspicious activity in the Client Account, The Client is responsible for all activities that occur under their Account.
   4. Colossus System, its Licensors or its group companies will not be liable for any damage or loss that may result from the Client’s failure to protect its login information, including their password. Without limiting the foregoing, the Client is solely responsible for ensuring that its use of the Service(s) to store and transmit Client Data is compliant with all applicable laws and regulations. The Client also maintain all responsibility for determining whether the Service(s) or the information generated thereby is accurate or sufficient for their purposes.
   5. The Client shall:
      1. abide by all applicable national and foreign laws, treaties and regulations in connection with their use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data;
      2. carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner;
      3. review and approve the technical and organisational measures taken by Colossus Systems to protect against
         1. unauthorised or unlawful processing,
         2. accidental loss or destruction of or
         3. damage to Personal Data;
         4. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Colossus Systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet
         5. notify Colossus Systems immediately of any unauthorised use of any password or account or any other known or suspected breach of security;
         6. report to Colossus Systems immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by the Client or their Users; and
         7. not impersonate another Colossus Systems User or provide false identity information to gain access to or use the Service.
            
            
8. ACCOUNT INFORMATION AND DATA
   1. Colossus Systems does not own any of the Client Data. The Client, not Colossus Systems, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data,
   2. The Client shall indemnify and hold Colossus Systems, its Licensors and each such party's parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
      1. any breach of the Data Protection Legislation by the Client; or
      2. any inaccuracy in the Client Data as input by the Client.
         
         
9. INTELLECTUAL PROPERTY OWNERSHIP
   1. All rights, title and interest in and to all Colossus Systems patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the Service(s), including Colossus Systems Websites, and any part of it (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Colossus Systems and/or its Licensor. Colossus Systems are the owners or the licensee of all Intellectual Property Rights in Colossus Systems Websites and Technology, and the Content or material published on it and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Client or any other party relating to the Service. Those works are protected by copyright laws and treaties around the world. The Client must not use any part of the content on Colossus Systems Websites for commercial purposes without obtaining a license to do so from Colossus Systems or Colossus Systems Licensors. Further, Colossus Systems claim no intellectual property rights over the content the Client uploads or provides to the Service(s).
   2. This Agreement is not a sale and does not convey to the Client any rights of ownership in or related to the Service, the Technology or the Intellectual Property Rights owned by Colossus Systems or its Licensor. The Colossus Systems name, the Colossus Systems logo, and the product names associated with the Service are trademarks of Colossus Systems or third parties, and no right or license is granted to use them. The Client may only use such marks to identify the Client as a User of the Service(s) the Client has subscribed to.
      
      
10. FEES
    1. The Client must provide Card Details, or obtain the permission of Colossus Systems to pay by direct debit. The provision of any such Card Details, either upon the Effective Date or subsequently, shall be the Client's authorisation to charge all Fees to those Card Details.
    2. Colossus Systems collects Fees in advance on the first day of the Period in relation to which Fees are being charged (or the next Business Day):
       1. by charging the Client's card using the Card Details, or if agreed
       2. by taking a payment by direct debit from the Client's bank account.
    3. All payment obligations are non-cancellable, and all amounts paid are non-refundable, no refunds shall be issued for partial use or non-use of the Service(s) by the Client. The Client is responsible for paying for all Service(s) ordered for the entire License Term. If the Client wishes to amend the number of employees with access to the Service the Client must make any such amendment through the Administration pages in the Service or contact Colossus Systems by email or telephone to instruct the addition and any resulting adjustment to the Pricing Plan shall be reflected in the next Period.
    4. Fees for other Service(s) will be charged on an as-quoted basis.
    5. Colossus Systems Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the Client shall be responsible for payment of all such taxes, levies, or duties.
    6. All pricing terms are confidential, and the Client agrees not to disclose them to any third party.
    7. The Client warrants that it has provided Colossus Systems with complete and accurate billing and contact information. The Client agrees to provide Colossus Systems with updated information within 30 days of any change to it through the Client's administration page in the Service or contact Colossus Systems by email or telephone to instruct us of the new information. If the contact information the Client has provided is false or fraudulent, Colossus Systems reserves the right to terminate access to the Service in addition to any other legal remedies.
    8. If the Client believes their bill is incorrect they must notify Colossus Systems in writing within 60 days of the date of the disputed invoice, following which Colossus Systems shall assess whether any adjustment or credit is due.
       
       
11. RENEWAL
    1. The Clients subscription to the Service(s) will renew automatically for a License Term equivalent in length to the then expiring License Term. The Fees applicable to the Clients subscription to the Service(s) for any such subsequent License Term shall be Colossus Systems standard Fees for the Pricing Plan to which the Client has subscribed as of the time such subsequent License Term commences. The Client acknowledges and agrees that, unless the Client terminates the Clients Account in accordance with this Agreement, the Client Card Details will be used to automatically charge for the applicable Fees.
    2. Colossus Systems may use a third party service provider to manage credit card and other payment processing; provided, that such service provider is not permitted to store, retain or use the Clients payment account information except to process the Clients Card Details and other payment information for Colossus Systems. The Client must notify Colossus Systems of any change in the Clients Card Details or other payment account information, either by updating the Clients Account or by emailing Colossus Systems at support@colossus.systems
       
       
12. NON-PAYMENT AND SUSPENSION
    1. Colossus Systems shall not be liable to the Client or any other third party for suspension or termination of the Clients Account or access to the use of the Service(s), if such suspension or termination is in accordance with these terms.
    2. In addition to any other rights granted to Colossus Systems herein, Colossus Systems reserves the right to suspend or terminate this Agreement and the Client's access to the Service if their account falls into arrears. If any sum payable under this Agreement is not paid within 30 days after the due date or any payment is rejected revoked or refused then (without prejudice to the Colossus Systems other rights and remedies) Colossus Systems reserves the right to suspend the provision of any Service(s) being rendered and to delete all Client preferences and settings in relation to the system as set up for the Client and/or to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 4 per cent above the base rate of Bank of England from time to time in force compounded quarterly. Such interest shall be paid on demand by the Client.
    3. Colossus Systems reserves the right to impose a reconnection fee in the event the Client is suspended and thereafter requests access to the Service.
       
       
13. TERMINATION WITHIN CANCELLATION PERIOD
    1. Colossus Systems may at its sole discretion terminate this Agreement with immediate effect at any time before the expiry of the Cancellation Period.
    2. Colossus Systems shall not be obliged to give notice of such termination to the Client, but may do so at its sole discretion in any form.
       
       
14. TERMINATION UPON EXPIRATION
    1. This Agreement will automatically expire if there is a Trial Period unless the Client has provided Card Details or obtained Colossus Systems permission to pay by direct debit.
       
       
15. TERMINATION BY NOTICE
    1. If the Client selects the cancellation option within the administration pages in the Service this Agreement will terminate immediately.
    2. Colossus Systems may terminate this Agreement if Colossus Systems decides to withdraw the Service (whether on a temporary or permanent basis) or decides to no longer permit access to the Service by the Client (by use of passwords or changes of passwords or by any other means). No refunds shall be due in cases in which Clients have paid for but not received Service(s).
       
       
16. TERMINATION FOR CAUSE
    1. Colossus Systems may terminate this Agreement if the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of being notified of the breach. Without limit to the generality of the foregoing any breach of the Client's payment obligations or unauthorised use of the Technology or Service will be deemed a material and irremediable breach of this Agreement.
       
       
17. TERMINATION CONSEQUENCES
    1. Following termination for any reason Colossus Systems will terminate the Client's password, account and use of the Service. Within 21 days of the termination of the contract the Client must pay to Colossus Systems in full and without set off:
       1. the Fees due up until the date of such termination, and
       2. any other sums due under this Agreement.
    2. 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.
       
       
18. DATA RETURN AND DESTRUCTION
    1. Subject to clause "Internet Delays" and clause "Force Majeure", Colossus Systems will give the Client access to all or part of the Client's Data in its possession or control in the format and medium in which the Client uploaded the data to the Service.
    2. On termination of this Agreement for any reason or the expiry of its term, Colossus Systems will securely delete or destroy or, if directed by the Client using the administration pages of the Service prior to such termination, return and not retain, all or any Client Data or Personal Data related to this Agreement in its possession or control in the format and medium in which the Client uploaded the data to the Service. Colossus Systems may charge a reasonable fee for the return of Client Data, if the Client requires the Client Data to be formatted in a format that Colossus Systems would deem excessive and require heavy administration and development time.
    3. If any law, regulation, or government or regulatory body requires Colossus Systems to retain any documents or materials that Colossus Systems would otherwise be required to return or destroy, it will notify the Client in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.
       
       
19. REPRESENTATIONS & WARRANTIES
    1. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Colossus Systems represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially as documented under normal use and circumstances. The sole remedy for breach of this warranty shall be correction of any Defect by Colossus Systems within a reasonable time from notification by the Client of the Defect that constitutes such a breach, providing that the Client provides all the information that may be necessary to assist Colossus Systems in resolving the Defect, including sufficient information to enable Colossus Systems to recreate the Defect.
    2. The Client represents and warrants that they have not falsely identified themselves nor provided any false information to gain access to the Service and that their billing information is correct.
       
       
20. CONFIDENTIAL INFORMATION
    1. Colossus Systems will keep all Client Data confidential, providing that Client Data may be disclosed to Colossus Systems employees, Licensors, representatives, consultants, contractors or agents (who in turn will be legally bound to keep the Client Data confidential).
    2. The obligation to keep the Client Data confidential will not apply to any information that:
       1. Is already known to the public; or
       2. Is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction, providing that Colossus Systems will give the Client notice of the requirement to disclose of that disclosure as soon as practicable.
    3. This clause shall survive termination of this Agreement, however arising.
       
       
21. MUTUAL INDEMNIFICATION
    1. The Client shall indemnify and hold Colossus Systems, its Licensors and each such party's parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
       1. a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party;
       2. a claim, which if true, would constitute a violation by the Client of their representations and warranties; or
       3. a claim arising from the breach by the Client or their Users of this Agreement, provided in any such case that Colossus Systems
          1. gives written notice of the claim promptly to the Client;
          2. gives the Client sole control of the defence and settlement of the claim (provided that the Client may not settle or defend any claim unless they unconditionally release Colossus Systems of all liability and such settlement does not affect Colossus Systems business or Service);
       4. provides to the Client all available information and assistance; and
       5. has not compromised` or settled such claim.
    2. Colossus Systems shall indemnify and hold the Client and their parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including all reasonable legal and professional fees and costs) arising out of or in connection with:
    3. a proven claim that the Service directly infringes the copyright, or a trademark of a third party;
    4. a claim, which if true, would constitute a substantial and actual violation by Colossus Systems of its representations or warranties; or
    5. a claim arising from Colossus Systems wilful and knowing disclosure of your Client Data to any unauthorised parties unless required by law; provided that the Client
       1. promptly give written notice of the claim to Colossus Systems;
       2. give Colossus Systems sole control of the defence and settlement of the claim;
       3. provide to Colossus Systems all available information and assistance; and
       4. have not compromised or settled such claim.
    6. Colossus Systems shall have no indemnification obligation, and the Client shall indemnify Colossus Systems pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of the Client's products, service, hardware or business process(es).
       
       
22. DISCLAIMER OF WARRANTIES
    1. The websites and the service(s), including all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by applicable law. Colossus Systems expressly disclaim any and all conditions, representations, warranties or other terms, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non infringement.
    2. The Client acknowledge that Colossus Systems do not warrant that the service(s) or websites will be uninterrupted, timely, secure or error-free and the Client further acknowledges that Colossus Systems do not warrant that the access to the service(s), which is provided over internet and various telecommunications networks, all of which are beyond Colossus Systems control, will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software.
    3. The content on Colossus Systems websites is provided for general information only. it is not intended to amount to advice on which the Client should rely. The Client must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our websites. No information or advice obtained by the Client from Colossus Systems or through the Service(s) or Websites shall create any warranty not expressly stated in these terms.
    4. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of satisfactory quality, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Colossus Systems and its Licensors
       
       
23. INTERNET DELAYS
    1. Colossus Systems Service(s) may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. colossus systems is not responsible for any delays, delivery failures, or other damage resulting from such problems.
       
       
24. ACCESS TO THE SERVICE(S)
    1. The Client acknowledges that they may not be able to access or use the Service(s)
       1. during planned downtime for upgrades and maintenance to the Service(s) (of which Colossus Systems will use commercially reasonable efforts to notify the Client in advance, or
       2. during any unavailability caused by circumstances beyond Colossus Systems reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Colossus Systems reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
       3. We will use commercially reasonable efforts to schedule planned downtime for weekends (GMT) and other non-business hours.
          
          
25. CHANGES TO THE SERVICE(S) AND WEBSITES
    1. Service(s): Colossus Systems may Update the Service(s) from time to time and the Client may receive notifications of such upgrades, enhancements or Update(s). Colossus Systems reserve the right to deploy Update(s) at any time.
    2. Websites: Colossus Systems may also change content on Colossus Systems Websites at any time. However, please note that any of the content on Colossus Systems Websites may be out of date at any given time, and Colossus Systems are under no obligation to update it. For clarity, this sub-section refers to Colossus Systems Websites excluding the Service(s). We may discontinue or change any part of Colossus Systems Websites, that does not affect the Service(s), without notifying the Client. Colossus Systems Websites may contain links to websites, content and resources provided by third parties (“Third Party Links”). These Third Party Links are governed by their own terms and privacy policies and the Client agrees that Colossus Systems have no control over these Third Party Links and are not responsible for the Client access or use of these Third Party Links.
       
       
26. FORCE MAJEURE
    1. In this Agreement, "force majeure" shall mean any cause preventing Colossus Systems from performing any or all of Colossus Systems obligations which arise from or are attributable to acts, events, omissions or accidents beyond Colossus Systems reasonable control including without limitation strikes, lock-outs or other industrial disputes, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, interruption or failure of utility service, including but not limited to electric power, gas or water or default of suppliers or subcontractors.
    2. Colossus Systems shall not be in breach of this Agreement if it is subject to a force majeure event, provided that it uses reasonable endeavours to notify you in writing of the nature and extent of the force majeure event causing Colossus Systems failure or delay in performance.
    3. If the force majeure event prevails for a continuous period of more than 2 months, the Client may terminate this Agreement by giving 14 days' written notice to Colossus Systems. On the expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to Colossus Systems rights in respect of any breach of this Agreement occurring prior to such termination.
       
       
27. LIMITATION OF LIABILITY
    1. Nothing in this Agreement will exclude or limit Colossus Systems liability for:
       1. death or personal injury caused by Colossus Systems negligence; or
       2. fraud or fraudulent misrepresentation.
    2. Subject to the indemnity clause, Colossus Systems shall not be liable for any damages or losses as a result of a force majeure event.
    3. Colossus Systems shall not be liable for:
       1. Any loss of profits or other economic advantage;
       2. Any loss of data;
       3. Any loss of goodwill;
       4. Any loss of anticipated savings;
       5. Any consequential losses; and/or
       6. Any exemplary or punitive losses,
    4. Arising in respect of any representation, statement, act or omission in connection with this Agreement, whether the claim arises under contract, tort, misrepresentation or breach of statutory duty.
    5. Subject to clause 27.1, in no event shall Colossus Systems aggregate liability exceed the amounts actually paid by and/or due from the Client in the twelve (12) month period immediately preceding the event giving rise to such claim
       
       
28. NOTICE
    1. Colossus Systems may give notice by means of electronic mail to the Client's email address on record in Colossus Systems account information, or by written communication sent by first class mail or pre-paid post to the address on record in Colossus Systems account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
    2. The Client may only give:
       1. Notice to cancel the Agreement in accordance with Clause "Termination by Notice, and/or
       2. Instructions in relation to the destruction or retention of data in accordance with Clause "Data Return and Destruction" in the administration pages of the Service.
          
          
29. MODIFICATION TO TERMS
    1. Colossus Systems reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time. Such modified terms and conditions will be issued or made available to the Client electronically via email or the administration pages in the Service and shall be deemed effective 12 hours after electronic delivery or notification. Continued use of the Service after any such changes shall constitute the Client’s consent to such changes.
       
       
30. ASSIGNMENT; CHANGE IN CONTROL
    1. This Agreement may not be assigned by the Client without the prior written approval of Colossus Systems and or its Licensor but may be assigned without the Clients consent by Colossus Systems and or its Licensor to
       1. a parent, the Licensor or subsidiary,
       2. an acquirer of assets, or
       3. a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of the Client that results or would result in a direct competitor of Colossus Systems directly or indirectly owning or controlling 50% or more of the Client shall entitle Colossus Systems to terminate this Agreement for cause immediately upon written notice.
          
          
31. DATA MIGRATION
    1. During the Client’s License Term or prior, the Client may request Colossus Systems to import data into the Client Account. The Client hereby understand and acknowledge that Colossus Systems and/or its Licensor or group companies may access and process data in connection with providing support during such Data Migration. Colossus Systems may charge for this Service.
       
       
32. MISCELLANEOUS
    
    1. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties agree that any dispute relating to its terms or subject matter shall be subject to the exclusive jurisdiction of the english courts.
    2. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    3. No joint venture, partnership, employment, or agency relationship exists between the Client and Colossus Systems as a result of this Agreement or use of the Service.
    4. The failure of Colossus Systems to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Colossus Systems in signed writing authorised by a director of Colossus Systems.
    5. This Agreement together with the Processing Policy, Pricing Plan, and any copyright notices on the Website comprises the entire Agreement between the Client and Colossus Systems in relation to the Service(s) and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
       
       
33. THIRD PARTIES
    1. For the purposes of the Agreement (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.