PhixFlow Terms of Use.

These PhixFlow Terms of Use (“Terms”) set out the legal terms and conditions of the agreement between PhixFlow Limited, a company registered in England and Wales with Company Number 05065889 whose principal place of business is at St John’s Innovation Centre, Cowley Road, Cambridge CB4 0WS, United Kingdom (“we”, “us”, “our”) and you (the client whose details are set out on the Service Form) in respect of your use of the PhixFlow software and applications created using it.

  1. Definitions
    1. The following capitalised words have the meanings set forth below whenever they are used in these Terms:

      “Acceptable use Policy”means the policy attached to these Terms at Annex A:, which sets out the rules for using PhixFlow and the Apps.
      “Application” or “App”means an application created using any combination of data collectors, screens, tables, action flows, data exporters and APIs within PhixFlow and made available to Users.
      “App User”means a User to whom you have granted the right to use one or more existing Apps but who is not permitted to configure and build new Apps or modify existing ones.
      “Client Domain”means an internet domain name used by you for your business, as specified in the Service Form.
      “Config User”means a User whose email address is on a Client Domain and to whom you have granted the right to use PhixFlow’s configuration and development functionality to build new Apps and to modify and update existing ones.
      “Contract”means these Terms together with an accepted Service Form.
      “Data Protection Legislation”means the Data Protection Act 2018, UK GDPR and any other applicable UK and European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated. The terms ‘Personal Data’, ‘Personal Data Breach’, ‘Data Protection Lead’, ‘Data Controller’, ‘Data Processor’, ‘Data Subject’, and ‘process’ (in the context of the use of Personal Data) shall have the meanings given to them in the Data Protection Legislation and ‘Approved Countries’ means the European Economic Area, the United Kingdom and any territory which is subject to a current finding by the relevant authority under applicable Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals.
      “Documentation”means on-line help and user guides (accessible from within PhixFlow) and other information made available by us to you at our discretion.
      “Fees”means the monthly or annual sum to be paid by you for your Subscription to use PhixFlow, as set out in the Service Form.
      “Helpline”means our helpline service through which Config Users may request advice or assistance in respect of their use of PhixFlow.
      “Occasional User”means an App User whose use is restricted to the agreed Occasional Use Period.
      “Occasional Use Period”means the period of time for which an Occasional User is permitted to access PhixFlow and Apps, as set out on the Service Form.
      “PhixFlow”means our software platform including a range of data collectors, tables, data exporters and other code components and assets, including pre-configured operational components and building blocks, which you may use to create and run Apps.
      “User”means any of your App Users or Config Users (and “Users” means all of them).
      “Service Form”

      means the written document setting out details of the service for which the Client has subscribed, including:

      a.    Your name and company details

      b.   Your Client Domain(s)

      c.    Your maximum number of Config Users

      d.   Your maximum number of App Users

      e.   Other parameters used in determining the Fee

      f.     The Subscription Block

      g.    Any special conditions that apply to your contract

      h.   The Fee

      “Subscription”means the period during which you may use PhixFlow and your Apps.
      “Subscription Block”means the block of Subscription time for which you pay in advance, which may be a month, a year or such other period as set out in your Service Form.
      “Trial Service Form”means the Service Form set out at Annex :, which shall apply to your use during any free trial.
  2. Your Contract with Us
    1. By making an online request for a free trial of PhixFlow, you will be deemed to have entered a legally binding Contract with us subject to these Terms and the Trial Service Form.
    2.  By signing a Service Form you will enter into a legally binding Contract with us permitting you to use PhixFlow for up to the maximum number of Config Users and App Users set out in the Service Form (if any), and in accordance with any other parameters specified in the Service Form, during your Subscription and subject to these Terms.
    3. Any special conditions set out in the Service Form that expressly reference and amend or remove a provision of these Terms shall take precedence over these Terms. Subject to the forgoing, in the event of any conflict these Terms shall take precedence over any Service Form.
    4. Any terms and conditions set out in any order or other document supplied by you that are in addition to or at variance with the terms and conditions in these Terms shall be void and of no effect unless we expressly agree otherwise in writing.
  3. Ownership
    1. We are the owner or licensee of the copyright, trade secrets and any other intellectual property rights which subsist in PhixFlow and the Documentation, and all copies thereof. Title to PhixFlow and the Documentation shall remain vested in us or our licensors. Title and the intellectual property law rights to any design, new software, new protocol, new interface, revised screen text or other items that we create for you hereunder, if any, shall also remain vested in us or our licensors.
    2. Subject to clause 3.1, you are the owner or licensee of the design of your Apps, and the data you have used to configure the App components.
  4. Licence Grant.
    1. For the duration of your Subscription, and subject to the terms and conditions of the relevant Contract, we hereby grant to you a personal, non-transferrable and non-exclusive licence to use PhixFlow up to the maximum number of Config Users and App Users described in the relevant Service Form.
    2. During your Subscription, you may set up new Config Users and App Users up to the limits set out in your Service Form. You may only appoint individuals whose email address belongs to a Client Domain as Config Users. There are no limitations or restrictions on acceptable email addresses for App Users.
  5. Licence Restrictions.
    1. You are solely liable for the acts and omissions of your Users, for their compliance with these Terms and in particular for their compliance with the licence restrictions set out in this clause 5 and with the Acceptable Use Policy.
    2. You agree that you will make no other copies and no print outs of PhixFlow and will not procure, authorise or assist others to do so.
    3. You agree that:
      1. You shall not use PhixFlow in excess of the parameters specified in the Service Form;
      2. You may not reverse engineer, decompile, or disassemble PhixFlow or any of its components, except to the extent that we cannot prohibit such acts by law;
      3. PhixFlow is our valuable property and shall be treated as confidential as described under Clause 16;
      4. you are expressly prohibited (except where expressly permitted in writing by us) from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of PhixFlow for any purpose including error correction or any other type of maintenance. This does not prevent your Config Users from using PhixFlow to create or modify Apps.
    4. You agree that we may collect and monitor usage data from PhixFlow and Apps to monitor your compliance with these Terms and your Service Form.
  6. Helpline
    1. Your Config Users may contact the Helpline via any of the contact mechanisms provided within PhixFlow.

    2. We shall use our reasonable endeavours to respond to queries made via the Helpline.

    3. You hereby agree that any ideas for PhixFlow improvements, enhancements or new functionality  that may be submitted by you or your Config Users, via the Helpline or otherwise, shall be our exclusive intellectual property and that you hereby grant, by way of a present and future assignment, any and all rights that you may have in such ideas to us (and procure the same in respect of your Config Users). We shall not be liable to pay any royalties or other fees to you or to any Config User in respect of any such idea, whether or not we subsequently incorporate it into PhixFlow or any other product or service.

  7. Personnel
    1. Without in any way restricting the right of an employee freely to accept employment and change employment, if either party (the “Hiring Party”) induces the other party’s employee engaged in the performance of the relevant Contract to enter its service at any time during the term of the relevant Contract or during a period of six months thereafter, then the Hiring Party shall pay to the other party an amount being equivalent to fifty percent (50%) of the employee’s net annual salary, such sum being a genuine pre-estimate of the cost of the disruption that such inducement would cause to the efficient conduct of the affected party’s business.

  8. Payment & Taxes
    1. We shall invoice you for the Fees as set out in the applicable Service Form.

    2. At reasonable time prior to the expiry of your current Subscription Block, we shall invoice you for the subsequent Subscription Block and you shall promptly pay the corresponding Fees in order to secure continuity of your Subscription.

    3. In the event that you fail to make payment of the Fees in full prior to the end of your then-current Subscription Block, we may in our sole discretion:

      1. suspend your access to PhixFlow (including all Apps) until the Fees are paid in full; or

      2. treat such as a material breach and terminate the relevant Contract in accordance with Clause 12.3 (a).

    4. For the avoidance of doubt, in the event of suspension and resumption of your Subscription in accordance with clause 8.3a, your new Subscription Block shall be deemed to have commenced immediately after the end of the expired Subscription Block.

    5. You shall be liable for any fees, any national, European Union, value added, sales, excise, state, local, withholding or other taxes or customs duties as applicable and which are not based on our income. For the avoidance of doubt, should you be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under a Contract, the sum payable shall be increased by the amount of such tax to ensure that we receive the full amount of the Fee to be paid under the relevant Contract.
  9. Warranty
    1. We warrant that PhixFlow will substantially comply with the Documentation.
    2. We hereby warrant that we will respond to queries received through the Helpline using reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
    3. The above warranties do not apply to conditions resulting from improper use, external causes, including service or modifications not performed by us.  We do not warrant that the operation of PhixFlow or any App will be uninterrupted or error free. We expressly exclude any warranties in respect of the performance or functionality of any App created by your Config Users. We do not warrant that PhixFlow will enable your Config Users to create any particular App or to provide any specific functionality within an App.
    4. Save as expressly provided in this Clause 9, we hereby exclude but without limitation all other conditions, warranties, representations or undertakings relating to PhixFlow and the Helpline, including any warranties or other terms that might otherwise be implied or incorporated into the relevant Contract by law, such as (but not limited to) those of satisfactory quality, fitness for a particular or any purpose, or ability to achieve any particular result.
  10. Warranty Remedies
    1. You must promptly notify us in writing of any breach of the above warranties in order to benefit from the remedy stated in this Clause 10. You shall provide all information reasonably requested by us to assist us in resolving such breach.
    2. You hereby agree that your sole remedy in respect of any non-conformance with any warranty in these Terms is that we will remedy such non-conformance (either by ourselves or through a third party) and if in our reasonable opinion, we are unable to remedy such non-conformance within 60 days of our receipt of notice of the non-conformance, we will permit you to terminate your Subscription and will refund the pro-rata portion Fees paid for the remainder of your Subscription.
  11. Limitation of Liability
    1. Nothing in these Terms or any Contract shall exclude or limit either party’s liability for (i) fraud or other criminal act, (ii) personal injury or death caused by our negligence or that of our employees in connection with the performance of their duties hereunder or by defects in PhixFlow or any services supplied pursuant to these Terms or any Contract, or (iii) any other liability that cannot be excluded by law. 
    2. Subject to Clause 11.1, in no event will we be liable for any damages resulting from: (a) loss of, damage to or corruption of data or , (b) loss of use, (c) lost profits, (d) loss of revenue, (e) loss of anticipated savings, (f) loss of goodwill, (g) loss of reputation, (h) any damages that are an indirect or secondary consequence of any act or omission by us, or for any consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen. For the avoidance of doubt, in the event of loss of, damage to or corruption of data arising from any act or omission of its under these Terms, we shall be liable for the cost of restoring such data from backups where available, but not for the value of any lost or corrupted data that could not be so recovered.
    3. Except as provided in Clause 11.1 and 11.2 , our maximum aggregate liability to you for any cause whatsoever shall be for direct costs and damages only, and will be limited to a sum equivalent to 125% of the aggregate of the Fees paid and payable during the Subscription Block in which event giving rise to the claim arose.
    4. We hereby exclude, to the fullest extent permitted by law, all liability that we have not expressly assumed in these Terms or the relevant Contract. The limitations and exclusions set out in Clause 11.2 will apply regardless of the form of action, whether under statute, in contract, tort (including negligence) or any other form of action.
    5. For the purposes of this Clause 11, references to “we” or “us” includes our employees, subcontractors and suppliers (“Third Party Beneficiaries”) who shall each therefore have the benefit of the limits and exclusions of liability set out within above in terms of the Contracts (Rights of Third Parties) Act 1999. Notwithstanding the foregoing, the parties may vary the provisions of these Terms or the relevant Contract without requiring the consent of any such Third Party Beneficiaries and if either party becomes entitled to rescind or terminate a Contract it may do so without the consent of such Third Party Beneficiaries.
    6. No action, regardless of form, arising out of transactions occurring under or contemplated under these Terms or any Contract may be brought by either party more than two (2) years after the cause of action has accrued.
    7. Save as provided in Clause 11.8, you shall have no remedy in respect of any representation (whether written or oral) made to you upon which it relied in entering into any Contract under these Terms (“Misrepresentation”) and we shall have no liability to you other than pursuant to the express terms of these Terms and each Contract.
    8. Nothing in these Terms shall exclude or limit our liability for any Misrepresentation made by us fraudulently.
  12. Duration & Termination
    1. Your Subscription shall begin when you accept the corresponding Service Form in accordance with Clause 2, and shall continue unless and until terminated in accordance with Clause 12.3 or Clause 12.4, or until your latest Subscription Block expires.

    2. For the avoidance of doubt, in the event of a Contract being terminated, any other Contracts still in existence shall continue subject to these Terms until such Contracts are themselves terminated.

    3. Either party (the “Initiating Party”) may forthwith terminate a Contract at any time upon giving written notice to the other party, if that other party:

      1. commits any material breach of these Terms or any term of the relevant Contract other than to the extent that such breach is due to a material breach of these Terms by the Initiating Party and, in the case of a breach that is reasonably capable of being remedied shall have failed, within sixty (60) days of such notice from the Initiating Party, to so remedy the breach to the reasonable satisfaction of the Initiating Party (such notice to contain a request to remedy the breach and to contain a warning of the Initiating Party’s intention to terminate); or

      2. has a receiver or administrative receiver appointed over it or any of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bone fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business or if any substantially similar event shall take place under the laws of another jurisdiction.

    4. You may give us written notice to terminate a Contract at any time without cause.  The Contract and your Subscription shall continue for the remainder of any Subscription Block paid for as at the date of your notice of termination, whereupon it shall terminate without further notice to you. For the avoidance of doubt, you shall receive no refund of any Fee paid in respect of the period of Subscription remaining at the time of giving notice.

    5. Upon the expiry or termination of a Contract, you will return and/ or destroy any PhixFlow materials or Documentation in your possession and all copies thereof at your expense and will certify in writing to us that all copies thereof have been returned and/or destroyed.

    6. For a period of 30 days from the expiry or termination of the Contract, we shall permit you to access PhixFlow for the sole purpose of exporting and downloading your data. After the expiry of this 30 day period we may we may delete such data upon giving notice to you.

    7. The expiry of a Contract or the termination thereof for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of the parties accrued prior to such termination.

  13. Account Security
    1. PhixFlow allows you to create Config Users and App Users who can access your Apps or your PhixFlow instance. You shall only permit such access for legitimate purposes within these Terms and the boundaries of your Contract.
    2. You shall be solely liable for ensuring that each Config User and App User properly protects and safeguards their access details and we shall be under no liability for any unauthorised access to your Apps or data or from third parties who might use access facilities or other features of the software for unauthorised purposes.
  14. Intellectual Property
    1. We shall defend at our own expense any claim brought against you alleging that PhixFlow infringes a third-party patent, copyright, or similar right (“Intellectual Property Claim”) and we shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that you:

      1. furnish us with prompt written notice of the Intellectual Property Claim;

      2. provide us with reasonable assistance in respect of the Intellectual Property Claim; and

      3. give to us the sole authority to defend or settle the Intellectual Property Claim.

    2. If in our reasonable opinion PhixFlow is or may become the subject of an Intellectual Property Claim then we shall either:

      1. obtain for you the right to continue using the elements of PhixFlow which are the subject of the Intellectual Property Claim;

      2. replace or modify the elements of PhixFlow which are the subject of the Intellectual Property Claim so they become non-infringing; or

      3. if such remedies are not in our opinion reasonably available, then your Contract shall terminate and we shall refund to you any pro-rata portion of the Fees related to the unused period of your Subscription.

    3. We shall have no liability for any Intellectual Property Claim resulting from the combination of PhixFlow with other products which were neither supplied nor combined with PhixFlow by us.

    4. The provisions of this clause 14 set out our entire liability and your sole remedy in the event of an Intellectual Property Claim.

  15. Compliance with Laws, Data Protection and Information Retention
    1. In performing your and our respective obligations under these Terms, you and we each agree and undertake to the other that in connection with these Terms and each Contract, we will each respectively comply with all applicable laws, rules and regulations of the United Kingdom, including any health and safety legislation and environmental legislation and all laws, rules and regulations relating to anti-bribery and anti-money laundering.
    2. Where one party receives Personal Data for processing, before commencing any processing, they will agree with the Data Controller the following: (a) the subject-matter and duration of the processing; (b) the nature and purpose of the processing; (c) the type of Personal Data and categories of Data Subjects involved; (d) the obligations and rights of the controller and processor.
    3. The Data Processor will:
      1. act solely on the instructions of the Data Controller;
      2. ensure that (i) the appropriate technical and organisational measures are in place to comply with the Data Protection Legislation and protect the rights of the Data Subjects, and (ii) persons authorised to access the Personal Data are subject to appropriate confidentiality undertakings;
      3. not transfer the Personal Data outside of the Approved Countries, or to any third party without the Data Controller’s consent and, if required, the parties will enter into the applicable Standard Contractual Clauses and/or the UK IDTA prior to the transfer of Personal Data and take all other actions required to legitimise the transfer;
      4. give the Data Controller reasonable assistance and information in relation to either parties compliance with the Data Protection Legislation;
      5. at the end of the processing, (i) either delete or return the Personal Data to the Data Controller, and (ii) delete copies of the Personal Data unless subject to a legal obligation to store the copies
      6. not engage another processor of the Personal Data without the prior written consent of the Data Controller.
    4. Our processing of the Personal Data of you and your Users shall be in accordance with our Privacy Statement published on our website and as amended from time to time.
    5. Any breach by either us or you of this Clause 15 shall be deemed to be a material breach of these Terms.
    6. We shall maintain and keep up to date a list detailing the location of all your data (including Personal Data) together with details of any third-party sub-contractors or third parties with whom PhixFlow has shared any such data.
    7. In the event that you have any basis for a good faith belief that we may not be in compliance with the undertakings and/or requirements set out in this Clause 15, you shall advise us in writing of such and we shall cooperate fully with any and all enquiries undertaken by you or on your behalf in connection therewith, including by making available relevant personnel and supporting documents if reasonably deemed necessary by you.
  16. Confidentiality
    1. Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to a party’s business affairs or activities and which: (i) has been marked as confidential or proprietary, (ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.

    2. Each party undertakes that for a period of five (5) years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under these Terms or the relevant Contract. In any event, each party hereby agrees that it shall treat the other’s information marked “confidential” or which may reasonably be supposed to be confidential with the same degree of care as it employs with regard to its own confidential information of a like nature and in any event in accordance with good current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of these Terms or the relevant Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this Clause 16.2. Each party agrees that it shall be liable for any breach of this Clause 16.2 by any employee, consultant or professional advisor to whom it has disclosed the other party’s Confidential Information as though it had committed the breach itself.

    3. The provisions of Clause 16.2 shall not apply to:

      1. any information in the public domain otherwise than by breach of these Terms or the relevant Contract;

      2. information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party, as evidenced by written documents;

      3. information lawfully obtained without restriction from a third party, as evidenced by written documents; and

      4. information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.

    4. We may not publicise our involvement with you  without your prior written consent, such consent not to be unreasonably withheld or delayed.

  17. Assignment
    1. You may not assign any Contract or otherwise transfer any rights or obligations under it except with our prior written consent, and any such prohibited assignment shall be void. We shall have the right, without your consent, to assign all or part of your payments under this Agreement, and to assign our rights and obligations hereunder to another party who purchases all or substantially all of our business, stock or assets, except that we will ensure that none of these unilateral actions will affect your already paid for rights hereunder.

  18. Force Majeure
    1. Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder.  Dates or times by which each party is required to render performance under any Contract shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.

  19. Notices
    1. All notices made pursuant to any Contract must be made in writing.  Any written notice to be given or made pursuant to the provisions of these Terms and the Contract shall be sent postage prepaid by registered or recorded mail, or reputable courier, or express service, addressed to the other party’s address stated above or in the Service Form, or by email to the party’s nominated email address set out below, and shall be marked for the attention of the directors. Unless otherwise provided in the Service Form, all notices shall be deemed as given on the day of their receipt by the receiving party.
      For PhixFlow:

      For you: to the email address set out on your Service Form.

  20. Entire Agreement
    1. These Terms together with the corresponding Service Forms constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written.

  21. Law & Jurisdiction
    1. In the event of any dispute arising under these Terms or any Contract the parties will attempt to settle it by mediation. The mediator shall be selected from the Ministry of Justice Civil Mediation Directory, subject to the agreement of both parties. Save in respect of late or non-payment of undisputed invoices, no party may commence court proceedings in respect of any dispute arising out of these Terms or any Contract until it has attempted to settle the dispute by mediation and either the parties have been unable to agree on a mediator or 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. Unless agreed otherwise the mediator’s costs and expenses shall be shared equally between the parties.

    2. Subject to Clause 23, each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute, controversy or claim arising out of or relating to these Terms or any Contract and that the laws of England and Wales shall govern such dispute, controversy or claim. You and we each agree that our respective rights and obligations under these Terms are not subject to or governed by the United Nations Convention on Contracts for the International Sale of Goods.

    3. Notwithstanding the provisions of Clause 23, nothing in this agreement shall limit either party’s right to seek injunctive relief.

  22. Survival
    1. The following clauses shall continue to be in effect after the termination or expiration of this Agreement and each Contract: 1, 2, 8, 11, 12.5, 14, 16-23 inclusive.

  23. General
    1. If any provision of these Terms or any Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions of this Agreement shall not be affected thereby, and that the remainder of these Terms or the relevant Contract shall remain valid and enforceable. The expiry of a Contract or the termination thereof for whatever reasons shall be without prejudice to the respective rights and liabilities of either of the parties hereto accrued prior to such termination. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto. No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof or the exercise of any such power or right under this. Neither these Terms nor any Contract may be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of you and us. A person who is not a party to a Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of such Contract except as expressly set out herein, but this does not affect any right or remedy that such third party may have without reference to the Contracts (Rights of Third Parties) Act 1999.

Annex A: Acceptable Use Policy.

This Annex sets out the Acceptable Use Policy for your use of PhixFlow and the Apps. All capitalized terms in this document shall have the meanings defined for them in the Agreement unless expressly stated otherwise.

A.1     Use of PhixFlow

A.1.1  All use of PhixFlow shall be strictly in accordance with any guidance and instructions set out in any online help that is available, or that is provided during any training session provided by us.

A.1.2  If at any time you believe or suspect that any User is acting or intends to act in breach of this Acceptable Use Policy, you shall promptly notify us of such.

A.1.3  We shall immediately terminate or suspend any User’s access to PhixFlow where requested by you at your discretion and will co-operate with you in relation to any investigation into any misuse or potential misuse on the part of such User where requested by you.

A.1.4  You agree that in the event of any actual or suspected breach of this Acceptable Use Policy we may, without further reference to you, examine materials created by you using PhixFlow solely for the purpose of monitoring your compliance with the Contract.

A.2     Bandwidth

A.2.1  Your use of PhixFlow shall not exceed any bandwidth usage specified in the Service Form (if any).

A.3     SPAM

A.3.1  You acknowledge that the sending of unsolicited emails to third parties who have not given their consent to receive emails from you is considered to be ‘Spam’ and may cause the data centre hosting PhixFlow to be identified by companies or internet service providers as a source of Spam and to have subsequent emails sent from the data centre to such companies or email addresses using such internet service providers to be blocked by their Spam-filtering facilities.

A.3.2  You acknowledge that the identification of the data centre as a source of Spam may cause difficulty to other users of the data centre not connected with you and may therefore have significant impact on our ability to conduct our business.

A.3.3  In recognition of the provisions of paragraph A.3.2 you hereby consent to comply with the provisions of the CAN-SPAM Act of 2003 as enacted in the United States of America (the “Act”), and compliance with the Act is a condition of your use of PhixFlow and the Apps.

A.3.4  You hereby agree that you shall comply in full with the all applicable laws (including but not limited to the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Electronic Commerce Regulations 2002, the UK GDPR, the Consumer Rights Act 2015, the Payment Card Industry Data Security Standard, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, the Consumer Protection from Unfair Trading Regulations 2008, the Online Intermediation Services for Business Users (Enforcement) Regulations 2020) in your use of PhixFlow and the Apps.

A.3.5  You agree that you shall not use PhixFlow to send any commercial electronic mail message (as that term is defined in the Act) to any person who has opted out or otherwise objected to receiving such messages from you.

A.3.6  You may not use PhixFlow to email to distribution lists, newsgroups, or spam or unsolicited email addresses, where such email addresses have been purchased by you from a third party or acquired by you other than through best-practice permission based marketing.

A.3.7  If we receive notification from any third party or otherwise have cause to believe that your use of PhixFlow is generating a higher than average number of Spam complaints we shall notify you of such immediately and may, in our discretion:

a.    Suspend your access to PhixFlow until the issue resulting in the Spam complaints has been resolved; or

b.   Terminate the Contract in accordance with the provisions of Clause 14.2 of the Agreement.

A.4     Prohibited Content

A.4.1  You may not use PhixFlow or any App to:

a.    provide, sell or offer to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; or any products, services or content that it is unlawful to sell or offer to sell in the geographical territory in which the email recipient is located; or

b.   display or market material that exploits children, or otherwise exploit children under 18 years of age; or

c.    provide material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or profanity or includes any obscene, lewd, lascivious, violent, harassing or otherwise objectionable content; or

d.   disclose personal data or sensitive personal data in breach of the terms of the Data Protection Legislation; or

e.   breach any of the provisions of Clause 17 of the Agreement; or

f.     send emails containing or otherwise introducing viruses, worms, harmful code and/or Trojan horses into the recipient’s computer or computer network; or

g.    engage in any libellous, defamatory, scandalous, threatening or harassing activity; or

h.   post any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence; or

i.     provide content, including images, that are the property of a third party such as but not limited to authors, artists, photographers or others without the express written consent of the content owner; or

j.     in any way breach the intellectual property rights of any third party.

A.4.2  If we receive notification from any third party or otherwise have cause to believe that your use of PhixFlow is in breach of the provisions of Clause A.4.1 above, we shall notify you of such immediately and may, in our discretion:

a.    Delete any breaching emails or content without notice to you; and

b.   Suspend your access to PhixFlow until the issue has been resolved; and/or

c.    Terminate the Contract in accordance with the provisions of Clause 12.3 of the Agreement.

Annex B: Trial Service Form.

This is the Trial Service Form which, together with the Terms, makes up your contract for a free trial of PhixFlow. For the purposes of your free trial, the following details shall apply:

a.    Your name and company details – shall be determined according to the email address you have used to request your free trial.

a.    Your Client Domain(s) – shall be whichever domain(s) you wish to use for configuring Config Users.

b.   Your maximum number of Config Users – shall be unlimited for the duration of the trial.

c.    Your maximum number of App Users – shall be unlimited for the duration of the trial.

d.   Other parameters used in determining the Fee – shall be unlimited for the duration of the trial.

e.   The Subscription Block – shall be a period of one calendar month.

f.     Any special conditions that apply to your contract – none.

g.    The Fee – shall be the sum of £1, receipt of which is hereby acknowledged.

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