1. TERMS AND CONDITIONS
These are the Terms and Conditions for FOLARITY LTD, a company incorporated in Scotland (registered number SC621646) with registered office at 99A Needless Road, Perth, PH2 0LB (“Folarity”) in relation to its Services (as defined above).
These Terms and Conditions together with the Services Confirmation form the agreement between Folarity and the Customer for the Services ("Agreement"). In the event there is any conflict or ambiguity, the Services Confirmation shall take precedence over these Terms and Conditions.
2. DEFINITIONS
The following definitions apply to these Terms and Conditions:
Authorised User: any employee, agent, consultant, contractor or other third party working for or on behalf of Customer, who is invited to use the Services by the Customer.
Business Day: any day which is not a Saturday, Sunday or public holiday in Scotland.
Confidential Information: has the meaning provided in clause 10.1.
Customer: the Customer who subscribes for the Services as set out in the Services Confirmation.
Customer Data: the data inputted by the Customer which may include Personal Data.
Documentation: the documents made available to the Customer by Folarity (including by online means) which sets out a description of the Services and the user instructions for the Services.
Data Protection Legislation: means the UK Data Protection Act 2018 and related subordinate legislation, as may be amended, updated or re-enacted from time to time, together with the GDPR for such time as it remains applicable in the UK.
Effective Date: the date of last signature of the Services Confirmation.
Fees: the fees payable by the Customer as set out in the Services Agreement.
GDPR: the European Union General Data Protection Regulation (2016/679/EU).
Normal Business Hours: 9.00 am to 5.00 pm in Scotland, each Business Day.
Personal Data: means any information that could cause a person to be identified, directly or indirectly by reference to an identifier such as a name, location data, or other factors specific to the physical, genetic, mental, economic, cultural or social identity of that person, without regard to their geographic location.
Services: the subscription services to be provided by Folarity to the Customer under this Agreement via www.forestplanner.com as described in the Documentation.
Services Confirmation: the service confirmation document setting out the details of the Customer, Services and Fees, and which together with these Terms and Conditions form the Agreement.
Software: the online software applications provided by Folarity in relation to the Services.
Term: the period stated in the Services Confirmation starting on the Effective Date.
Trial Period: the initial limited term which Folarity may, in its sole discretion, grant to the Customer as stated in the Services Confirmation.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
3. AUTHORISED USERS
3.1. Folarity grants to the Customer from the Effective Date a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the term of this Agreement for the Customer’s business operations for providing advice its Clients.
3.2. The Customer shall not, and ensure Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or
3.2.2. facilitates illegal activity; or
3.2.3. in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Folarity reserves the right, without liability or prejudice to its other rights to the Customer or Authorised Users, to disable the Customer’s or Authorised Users’ access to any material that breaches the provisions of this clause upon the provision of written notice to Customer.
3.3. The Customer shall not, and ensure Authorised Users shall not (except to the extent expressly permitted under this Agreement):
3.3.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute (as applicable) all or any portion of the Software or Documentation (as applicable) in any form or media or by any means; or
3.3.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form (as applicable) all or any part of the Software; or
3.3.3. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
3.3.4. attempt to obtain, or assist third parties in obtaining, access to the Services or Documentation, other than as provided under this clause 3; or
3.3.5. attempt to bypass or disable any security feature or mechanism within the Services.
3.4. The Customer shall, and ensure Authorised Users shall, keep all password and log-in details used in relation to the Services secure, and shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and the Documentation and, in the event of any such unauthorised access or use, promptly notify Folarity.
3.5. The Customer shall be responsible for all conduct and acts by the Authorised User, and will indemnify Folarity for any loss or damage caused by the Authorised User in breach of this Agreement.
3.6. The rights provided under this clause 3 are granted to the Customer and shall not be considered granted to any subsidiary or holding company of the Customer.
4. SERVICES
4.1. During the term of this Agreement, Folarity shall provide the Services and make available the Documentation, to the Customer on and subject to the terms of this Agreement.
4.2. Folarity shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1. unscheduled maintenance performed outside Normal Business Hours, provided that Folarity has used reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance; and
4.2.2. any emergency maintenance as required, provided Folarity provide prompt notice of any emergency maintenance to the Customer.
4.3. Folarity will, as part of the Services and at no additional cost to the Customer, provide the Customer with Folarity’s standard Customer support services 24 hours a day, seven days a week, in accordance with Folarity’s internal policies in effect at the time that the Services are provided. Folarity may amend its policy in its sole and absolute discretion from time to time, provided that such amended policy does not adversely affect Customer’s use of the Services. Enhanced support services can be provided on request under separate agreement.
4.4. Folarity shall use reasonable endeavours to provide marketing materials and information required to the Customer to market the Services to any person.
5. CLIENT DATA
5.1. The Customer is entirely responsible for the legality, reliability, integrity, accuracy and quality of the Customer Data. Folarity shall only use Customer Data as required to provide the Services or as otherwise expressly permitted under this Agreement.
5.2. Any data that Folarity provides as part of the Services is reproduced from open datasets, and therefore, Folarity cannot warrant the legality, reliability, integrity, accuracy and quality of the data obtained from those data sets.
5.3. Folarity shall follow its back-up procedures for Customer Data as set out in its back-up policy or otherwise as may be notified to the Customer from time to time, as such document may be amended by Folarity in its sole discretion.
5.4. The parties agree that they are each an independent Controller (as defined under the Data Protection Legislation) regarding the use of the Services.
5.5. Each party warrants that they will comply with their respective obligations under the Data Protection Legislation when processing any personal data. The Customer warrants that it will provide all appropriate notices to and obtain appropriate consents from any third parties regarding the processing of any Personal Data.
5.6. Folarity shall be entitled, on a perpetual and irrevocable basis, to created anonymised and aggregated data from the Customer Data solely for the purposes of (i) internal ongoing management of the Services (e.g. performance, capacity and billing purposes), and (ii) improve their services. Folarity shall own all right, title and interest in such anonymised and aggregated data assets, but not the Customer Data which shall remain owned by Customer.
6. CLIENT OBLIGATIONS
6.1. The Customer shall provide Folarity with all necessary co-operation in relation to this Agreement and all necessary access to such information and equipment as may be required by Folarity in order to provide the Services.
6.2. The Customer shall submit all Customer Data in accordance with any prescribed form and/or minimum requirements set out by Folarity in this Agreement.
6.3. The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement and shall carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.
6.4. The Customer shall ensure that the Authorised Users use the Services and the Documentation in accordance with the terms of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement.
6.5. The Customer shall obtain and shall maintain all necessary licences, consents, and permissions necessary to enable it to receive the Services from Folarity.
6.6. The Customer shall ensure that its network and systems comply with any relevant specifications provided by Folarity from time to time and be solely responsible for procuring and maintaining its network and internet connections
7. FOLARITY OBLIGATIONS
7.1. During the Trial Period, all Services will be provided to the Customer on an as-is basis and Folarity hereby disclaims any warranties, whether express or implied.
7.2. Other than during the Trial Period, Folarity undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care in a professional and workmanlike manner.
7.3. The undertaking at clause 7.2 shall not apply to the extent of any non-conformity which is caused by use of the Services contrary to Folarity’s instructions, or modification or alteration of the Services by any party other than Folarity or Folarity’s duly authorised contractors or agents. If the Services do not conform to this undertaking or non-maliciously malfunctions, Folarity warrants that, at its expense, it will use all reasonable commercial endeavours to correct any such non-conformity or malfunction promptly, or provide the Customer with a replacement Service as applicable. Notwithstanding this, Folarity:
7.3.1. does not warrant that the Customer's or Authorised Users’ use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer or Authorised Users through the Services will meet the Customer’s requirements; and
7.3.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4. This Agreement shall not prevent Folarity 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 by Folarity under this Agreement.
7.5. Folarity warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7.6. Folarity warrants and covenants that, to the best of its knowledge after reasonable diligence, no aspect of the Services or Software infringe upon any intellectual property rights of any third party in the U.K.
7.7. Folarity shall make available to the Customer such information as the Customer may reasonably request in relation to demonstrating compliance with applicable laws and regulations, and shall participate in audits and inspections where reasonably requested by the Customer in relation to the demonstration of such compliance.
8. RIGHTS IN THE SERVICES
8.1. All intellectual property rights in the Services and Documentation are owned by or validly licensed to Folarity. The Services and Documentation are proprietary to Folarity (or the appropriate third party rights owner) and the Customer and Authorised Users acquire no rights in or to the Services and Documentation other than those expressly granted by this Agreement.
8.2. Software and Documentation provided in relation to the Services are provided solely in relation to the Customer’s or Authorised Users’ use of the Services in accordance with this Agreement and are not provided, or to be used, for any other purpose.
9. PAYMENT
9.1. Fees shall be based on number of users. The Customer shall pay the Fees to Folarity for the Services in accordance with this clause 9 and the Services Confirmation.
9.2. .The Customer shall pay all Fees per month in advance, unless otherwise agreed between the parties.
9.3. Notwithstanding the foregoing, the Customer is entitled to add or subtract the number of users under the Services. If the Customer increases the users, then the Fees will be prorated at a fixed amount for the remainder of the Term. If the Customer decreases the users, then credits pursuant to section 9.6 shall apply. All changes to Fees based on amended users shall be invoiced or credited on a monthly basis.
9.4. If the Customer provides its credit card details or bank direct debit details to Folarity for payment, the Customer hereby authorises Folarity to bill such credit card or bank account on or after the Effective Date for Fees payable. Where no credit card or debit card details are provided, Folarity shall invoice the Customer and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.5. If Folarity has not received payment within 30 days after the due date, Folarity shall notify Customer of the non-payment in writing. If Customer does not make payment of all amounts due within 21 days after the overdue notice, and without prejudice to any other rights and remedies of Folarity:
9.5.1. Folarity may, without liability to the Customer or Authorised User, disable the Customer’s or Authorised Users’ passwords, accounts and access (where applicable) to all or part of the Services and Folarity shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.5.2. interest shall accrue on such due amounts at a rate equal to 1.5% per month, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.6. Fees are calculated based on the numbers of users. In the event the Customer removes users, then the Customer is entitled to a credit to its account for the Services to be used during the next month.
9.7. All amounts and fees stated or referred to in this Agreement shall be payable in the currency set out in the Services Confirmation, and, unless otherwise explicitly provided for, are non-cancellable and non-refundable, and are exclusive of all applicable taxes.
10. CONFIDENTIALITY
10.1. Both during and for five years after the termination of this Agreement, each party (“Receiving Party”) shall keep in strict confidence any information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as confidential, including the existence and terms of the Agreement (and the fact that the parties are working together under this Agreement), all technical or commercial know-how, trade secrets, business information (including information relating to Customers, clients, suppliers, plans, intentions, market opportunities, operations, products, processes and designs), technology, software, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain (“Confidential Information”). The Customer Data is and shall remain the Confidential Information of Customer.
10.2. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause “Confidentiality” shall survive termination of the Agreement.
10.3. This clause 10 shall not apply to the disclosure of Confidential Information which:
10.3.1. is now in, or hereafter comes into, the public domain otherwise than as a result of a breach of this clause 10;
10.3.2. was obtained or acquired in circumstances under which the receiving party was not bound by any form of confidentiality obligation; and
10.3.3. is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the Disclosing Party to limit disclosure to such authorised person to the extent necessary).
10.4. Notwithstanding the terms of clause 10.1 and 10.2 above, each party shall be entitled to reference the other party and this Agreement in relation to its marketing activities subject to the prior written consent of the other party.
11. INDEMNITY
11.1. Customer shall defend, indemnify and hold harmless Folarity against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) to the extent arising out of any third party claims resulting from the Customer's or Authorised Users’ use of the Services or Documentation contrary to this Agreement, provided that:
11.1.1. the Customer is given prompt notice of any such claim;
11.1.2. Folarity provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
11.1.3. the Customer is given sole authority to defend or settle the claim (but shall not settle any claim without the consent of Folarity unless such Folarity).
11.2. Folarity shall defend, indemnify and hold harmless the Customer, and its officers, directors and employees against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) to the extent arising out any third party claims resulting from the infringement of any patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts incurred by Customer to defend such claim and all amounts awarded against the Customer in judgment or settlement of such claims, provided that:
11.2.1. Folarity is given prompt notice of any such claim;
11.2.2. the Customer provides reasonable co-operation to Folarity in the defence and settlement of such claim, at Folarity’s expense; and
11.2.3. Folarity is given sole authority to defend or settle the claim (but shall not settle any claim without the consent of Customer unless such settlement includes a full and complete release of Customer).
11.3. In addition to the defence or settlement of any claim of infringement under Section 11.2.3, Folarity also 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, except that Folarity shall provide Customer with a copy of all Customer Data in a mutually agreed upon format.
11.4. In no event shall Folarity, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.4.1. a modification of the Services or Documentation by anyone other than Folairty or Folarity’s duly authorised contractors or agents; or
11.4.2. the Customer's or Authorised Users’ use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Folarity; or
11.4.3. the Customer's or Authorised Users’ use of the Services or Documentation after notice of the alleged or actual infringement from Folarity or any appropriate authority.
11.5. The foregoing and clause 12 state the Customer's sole and exclusive rights and remedies, and Folarity’s entire obligations and liability, for third-party claims brought against Customer for infringement of any patent, copyright, trade mark, database right or right of confidentiality regarding the Services or Documentation.
12. LIMITATION OF LIABILITY
12.1. This clause 12 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) in respect of:
12.1.1. any breach of the Agreement however arising;
12.1.2. any use made by the Customer or Authorised Users of the Services; and
12.1.3. any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Agreement.
12.2. Except as expressly and specifically provided in this Agreement:
12.2.1. the Customer assumes sole responsibility for its use of the Services and acknowledges that use of the Services does not guarantee the Customer any improvement in its business efficiencies;
12.2.2. Folarity shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Folarity by the Customer or Authorised Users in connection with the Services or any actions taken by Folarity at the Customer's or Authorised Users’ direction;
12.2.3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
12.2.4. the Services and Documentation are provided to the Customer and Authorised Users on an "as is" basis.
12.3. Nothing in these Terms and Conditions seeks to exclude Folarity’s liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation. Folarity excludes all other liability to the extent permitted at law.
12.4. Subject to clause 12.3, in no event shall Folarity be liable for any loss of business, loss of profit, loss or corruption of data or for any indirect or consequential loss and Folarity’s total aggregate liability arising under the Agreement or otherwise relating to the Services shall be limited to the total Fees paid or owing during the 12 month period preceding the date on which the claim arose.
12.5. The parties acknowledge and agree that any dates quoted for delivery of the Services are approximate only, and that the time of delivery is not of the essence. Folarity shall not be liable for any delay in delivery of the Services that is caused by an event, circumstance or cause outside the control of Folarity or the Customer’s failure to provide Folarity with adequate delivery instructions.
12.6. In no event shall Customer be liable for any loss of business, loss of profit, loss or corruption of data or for any indirect or consequential loss and Customer’s total aggregate liability arising under the Agreement or otherwise relating to the Services shall be limited to the total Fees paid or owing during the 12 months period preceding the date on which the claim arose.
13. TERM AND TERMINATION
13.1. The Trial Period shall last for so long as is described in the Services Confirmation, without any obligations to continue to a standard Term.
13.2. The Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with Clause 13.3, shall continue for the Term.
13.3. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
13.3.1. the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.3.2. the other party is insolvent within the meaning of section 123 of the Insolvency Act 1986, or any other equivalent in another jurisdiction;
13.3.3. as outlined in Clause 15.5, the other party assigns its rights and obligations under this Agreement as a result of a merger, acquisition or other transfer; or there is a change in control, such that the assignment is detrimental to the non-assigning party’s commercial interests; or
13.3.4. the other party ceases, or threatens to cease, to trade.
13.4. On termination of this Agreement for any reason:
13.4.1. all rights to use the Services granted under this Agreement shall immediately terminate;
13.4.2. each party shall return and make no further use of any equipment, property, Confidential Information, Documentation and other items (and all copies of them) belonging to the other party; and
13.4.3. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13.5. In the event of any expiration or termination of this Agreement, Folarity shall deliver to Customer a copy of all Customer Data in a mutually agreed upon format.
14. DISPUTE RESOLUTION
14.1. In the event the parties are unable to resolve a dispute between them arising out of or relating to the Agreement, and except for claims for interdict or other similar relief, the parties will attempt to settle it by good-faith negotiation between the senior management of both parties.
14.2. If the dispute is not settled within 10 days of commencement of the negotiation or within such further period as the parties may agree in writing, the parties shall be free to seek to resolve the dispute by such other means subject always to clause 16.
15. GENERAL
15.1. The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns).
15.2. If a party chooses to waive any particular right it has under the Agreement on any particular occasion, this does not prevent such party from exercising that right on another occasion.
15.3. If any part of the Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
15.4. Neither party shall have liability to the other party 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.
15.5. Neither party is entitled to transfer or assign its rights and obligations under the Agreement to anyone else without the other party’s prior written permission, except that permission is not required for assignments to third parties as a result of merger, acquisition, consolidation, or sale or transfer of all or substantially all of a party’s assets or capital stock and provided that the assignor in any such transaction notifies the other party in writing, and the assignee in any such transaction shall agree to comply with the obligations herein.
15.6. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have 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).
15.7. All notices required or permitted under the Agreement will be in writing and given by email to the addresses set out in the Service Confirmation or such other email address as parties may intimate from time to time. Any such notice shall be deemed to have been duly received when confirmation of completion of its transmission has been recorded by the sender’s email system.
15.8. No variation of the Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives, which shall include via email.
15.9. Each of the parties herein represents and warrants that the execution, delivery and performance of the Agreement has been duly authorised and signed by a person who meets statutory or other binding approval to sign on behalf of the Customer named in the Agreement.
15.10. The Agreement, including the Services Confirmation referencing these Terms and Conditions, constitutes the complete and exclusive understanding and agreement between Customer and Folarity regarding its subject matter and supersedes all prior or other agreements or understandings, written or oral, relating to its subject matter (including any proposal Folarity may have issued to the Customer). Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.
16. LAW AND JURISDICTION
The Agreement shall be governed by Scots law. If either party requires to raise court proceedings in relation to any such dispute then the Scottish courts shall have exclusive jurisdiction under the Agreement in relation to those proceedings.