Layer Systems End User License Agreement and Terms of Service

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”), OUR APPLICABLE SERVICES TERMS OF USE (E.G. MARKETING SERVICES) AND OUR USE POLICIES (E.G. ANTI-SPAM POLICY) GOVERN YOUR ACQUISITION AND USE OF OUR SERVICES, APPLICATIONS AND WEBSITES (E.G. CUSTOMER PORTAL). IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS (AS STATED), IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES ALSO. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Note: You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on 18 March 2013. It is effective between You and Us as of the date of You accepting this Agreement.

1.            DEFINITIONS

1.1          In this Agreement, unless the context otherwise requires, the following words and expressions shall have the meanings ascribed to them below:

“Affiliate”                                       of any person means any other person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such person;

“AppZone”                                     means the online directory of applications that interoperate with the Services, located at https://app.thelayer.com or at any successor websites;

“Base Rate”                                    means the base lending rate from time to time of the Lloyds Banking Group or of such other UK clearing bank as We may nominate from time to time or, in the event that the said base lending rate ceases to exist, such other rate reasonable equivalent to the said base lending rate as We may from to time to time by notice specify;

“Beta Services”                            has the meaning ascribed thereto in Clause 9.4;

“Business Day”                             means Monday through Friday, excluding public holidays in Scotland;

“Business Hours”                         means 9am to 5pm on a Business Day;

“Claim Against You”                   has the meaning ascribed thereto in Clause 10.1;

“Claim Against Us”                      has the meaning ascribed thereto in Clause 10.2;

“Confidential Information”     means the terms and conditions of this Agreement and all Order Forms, as well as Our business and marketing plans, technology and technical information, product plans and designs, and business processes, and all information (whether oral, written or in any other form) of a confidential and/or commercially sensitive nature concerning Us and/or any Related Company of Ours made available or disclosed by or on behalf of a Discloser to a Recipient (whether before or after this Agreement is actually entered into), including without limitation for the purpose of or pursuant to this Agreement (and, for these purposes, Our Intellectual Property shall be deemed to have belonged to Us at all times), together with any information derived from such information and any analyses, compilations, studies and other material prepared by the Recipient which contain or otherwise reflect or are generated from such information, but shall not include information which:

• is publicly available at the time it is made available to the Recipient or subsequently becomes generally available to the public other than as a result of disclosure or any act or omission by any Recipient contrary to its obligations of confidentiality; or

• was or has become available (as can be demonstrated by its written records) to the Recipient free of any restrictions as to its use or disclosure; or
• the Discloser has agreed in writing not to treat as Confidential Information;

“control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) means the possession, direct or through one or more intermediaries or together with persons acting in concert (as such term is defined for the purposes of The Takeover Code), of the power to direct or cause the direction of the management or policies of any person and, without limitation, for the purposes of this Agreement, an interest in shares in the capital of a company conferring in the aggregate 50% or more of the total voting rights conferred by all the issued shares in the capital of that company shall be deemed to confer control of that company;

“Discloser”                                     means the relevant party by or on whose behalf Confidential Information is made available or disclosed;

“Initial Term”                                means the initial two (2) year contract term entered into hereunder (or as otherwise expressly agreed and set out in the Order Form);

“Malicious Code”                        means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

“Non-The Layer Applications”   means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services, including but not limited to those listed on the AppZone and those identified as or by a similar designation;

“Order Form”                                means the electronic and/or paper forms for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto; NOTE: and by entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto; thus Order Forms shall be deemed incorporated herein by reference;

“Prescribed Rate”                       means 8% per annum above the Base Rate;

“Purchased Services”                means Services that You or Your Affiliates purchase under an Order Form, (whether signed electronically by way of our quote or traditional means) as distinguished from those provided pursuant to a free trial;

“Recipient”                                    means the relevant party receiving Confidential Information;

“Related Company”                    means a company which is a subsidiary or holding company or a subsidiary of such holding company (as the terms “subsidiary” and “holding company” are defined in Section 1159 of the Companies Act 2006);

“Services”                                       means the products and services that are ordered by You under a free trial or an Order Form and made available by Us online via the customer login link at https://app.thelayer.com and/or other web pages designated by Us, including associated offline components, as described in the User Guide. “Services” exclude Non-The Layer Applications;

“Usage Statistics”                        has the meaning ascribed thereto in Clause 2;

“User Guide”                                means the online user guide for the Services, accessible via login at https://app.thelayer.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial described in Clause 2 (30-Day Free Trial) below;

“Users”                                            means individuals who are authorised by You to use the Services according to the terms hereunder, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request and cost), including, but not limited to, Your employees, consultants, contractors and agents, and third parties with which You transact business;

“We,” “Us” or “Our”                   means Layer Systems Ltd, a private company limited by shares, incorporated in Scotland on 26 May 2010 with registered company number SC379219 and having its registered office at Standard Buildings, 94 Hope Street, Glasgow G2 6PH, and trading as “The Layer”;

“You” or “Your”                            means you and, jointly and severally, any company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity; and

“Your Data”                                    means all electronic data or information submitted by You to the Purchased Services.

1.2          In this Agreement, unless the context otherwise requires:

               1.2.1      words and expressions defined in the Companies Acts shall bear the same meanings herein;

               1.2.2      reference to any statute or statutory provision includes a reference to any statute or statutory provision which amends, extends, re-enacts or replaces the same or which has been amended, extended, re-enacted or replaced by the same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision whether before or after the date hereof;

1.2.3      reference to Clauses and subdivisions thereof are references to the clauses of this Agreement and subdivisions thereof;

1.2.4      a reference to the singular includes a reference to the plural and vice versa and a reference to any gender includes a reference to all other genders;

1.2.5      references to persons shall include natural persons, bodies corporate, unincorporated associations, partnerships, joint ventures, trusts or other entities or organisations of any kind and in any jurisdiction, including (without limitation) government entities (or political subdivisions or agencies or instrumentalities thereof);

1.2.6      references to any Scottish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept shall in respect of any jurisdiction other than Scotland be deemed to include what most nearly approximates in that jurisdiction to the Scottish legal term.

1.3          The headings in this Agreement are for convenience of reference only and shall not affect its validity or construction.

2.            FREE TRIAL

If You register on our website for a free trial, We will (at our discretion) make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. NOTE: Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMISATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU UNDERTAKE THE FREE TRIAL ON THIS BASIS. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMISATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G. TRIALLING A LARGER USER GROUP AND THEN MOVING TO A PAID FOR SUBSCRIPTION FOR A SMALLER NUMBER OF USERS, OR IN THE CASE OF TRIALLING A SUPPLEMENTARY SERVICE, SUCH AS THE MARKETING MODULE, FAILURE TO PAY FOR THE MARKETING MODULE WOULD RESULT IN THE DATA BEING POTENTIALLY DELETED. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING CLAUSE 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND AT YOUR OWN RISK. Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase. If You are located in the United Kingdom, then during any free trial period We may disclose anonymous data about Your use of the Services (“Usage Statistics”) to our service providers for the purpose of helping us improve our users’ experience with the Services, or as required by law. Any such disclosures of Usage Statistics to our service providers will not include Your identity.

3.            PURCHASED SERVICES

3.1          Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term, which shall include at least the Initial Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments (or otherwise) made by Us regarding future functionality or features.

3.2          User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require on-going use of the Services.

4.            USE OF THE SERVICES

4.1          Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 7 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during non-Business Hours), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

4.2          Our Protection of Your Data. We shall maintain what we deem appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Clause 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

4.3          Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the completeness, accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use best efforts to prevent unauthorised access to or use of the Services, and notify Us forthwith of any such unauthorised access or use, and (iv) use the Services only in accordance with this Agreement, the User Guide and applicable laws and government regulations. You shall not directly or indirectly (including authorising or knowingly fail to refrain another) (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or delictual material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorised access to the Services or their related systems or networks.

4.3          Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide from time to time. The Services provide real-time information to enable You to monitor Your compliance with such limitations.

5.            NON-THE LAYER PROVIDERS

5.1          Acquisition of Non-The Layer Products and Services. We or third parties may from time to time make available to You (e.g., through the AppZone) third-party products or services, including but not limited to non-The LayerApplications and implementation, customization and other consulting services. Any acquisition by You of such non-The Layerproducts or services, and any exchange of data between You and any non-The Layerprovider, is solely between You and the applicable non-The Layerprovider. We do not warrant or support non-The Layerproducts or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. Subject to Clause 5.3 (Integration with Non-The LayerServices), no purchase of non-The Layerproducts or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.

5.2          Non-The Layer Applications and Your Data. If You install or enable Non-The LayerApplications for use with Services, You acknowledge that We may allow providers of those Non-The LayerApplications to access Your Data as required for the interoperation of such Non-The LayerApplications with the Services. We shall not be responsible for any disclosure, variation, modification or deletion of Your Data resulting from any such access by Non-The LayerApplication providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-The LayerApplications for use with the Services.

5.3          Integration with Non-The Layer Services. The Services may contain features designed to interoperate with Non-The Layer Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Non-The Layer Applications from their providers. If the provider of any such Non-The Layer Application ceases to make the Non-The Layer Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

6.            FEES AND PAYMENT FOR PURCHASED SERVICES

6.1          Fees. You shall pay all fees specified in all Order Forms hereunder forthwith on demand (or as otherwise stated). Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. You shall have no right of set off, counter claim or other right of security and insofar as they may apply by operation of law, you hereby waive same to the full extent provided by law.

6.2          Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorise Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Clause 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

6.3          Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the Prescribed Rate, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Clause 6.2 (Invoicing and Payment).

6.4          Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Clause 13.2 (Manner of Giving Notice), before suspending services to You.

6.5          Payment Disputes. We shall not exercise Our rights under Clause 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

6.6          Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added tax, assessable by any local, national, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.

7.            PROPRIETARY RIGHTS

7.1          Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest, past, present and future, in and to the Services, including all subsisting and related intellectual property rights and any derivatives, improvements, modifications, enhancements and developments of the same. No rights are granted to You hereunder other than as expressly set forth herein.

7.2          Restrictions. You shall not, directly or indirectly (including authorising or knowingly fail to refrain another), (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorised herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

7.3          Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize and licence Us (on an irrevocable, perpetual, worldwide, royalty-free basis) to host, copy, transmit, display and adapt such applications and program code, as necessary for Us to provide the Services in accordance with this Agreement, or otherwise. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

7.4          Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. You agree to indemnify and hold Us harmless in relation to any matter arising in connection with your data. For the avoidance of doubt, you are solely responsible for taking copies of your data and the frequency thereof.

7.5          Data identification/security. We reserve the right to use or remove, without notification, static IP/HTTPS features. You agree to indemnify and hold Us harmless in relation to any matter arising in connection with same and Your/User use of Our website/s and Services.

7.6          Suggestions. We shall have a royalty-free, worldwide, irrevocable, transferable, sub-licensable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services. We shall exclusively own all intellectual property rights in our expression of any such incorporated suggestion/s and you hereby waive any rights, past, present and future, that you may have in relation to the same.

8.            CONFIDENTIALITY

8.1          Confidential Information. We agree thatYour Data shall be your confidential information. Notwithstanding any provision to the contrary, You irrevocably grant us free use of Your Data as we deem fit for statistical and related purposes on the condition that we use best efforts to ensure such data is anonymised.

8.2          Protection of Confidential Information. The Recipient shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Discloser in writing, to limit access to Confidential Information of the Discloser to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Recipient containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

8.3          Compelled Disclosure. The Recipient may disclose Confidential Information of the Discloser if it is compelled by law to do so, provided the Recipient gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser's cost, if the Discloser wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.

9.            WARRANTIES AND DISCLAIMERS

9.1          Our Warranties. We warrant, subject to the limitations in clause 11, that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Clause 5.3 (Integration with Non-The Layer Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Clause 12.3 (Termination for Cause) and Clause 12.4 (Refund or Payment upon Termination) below.

9.2          Your Warranties. You warrant that (i) You have validly entered into this Agreement and have the legal power to do so, (ii) Your entering into this Agreement does not breach the terms of another contract, and (iii) the information provided in this Agreement, the Order Forms and Your Data generally is exclusively Yours and the uploading of same will not breach any laws.

9.3          Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9.4          Beta Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Beta Services"). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.

10.          MUTUAL INDEMNIFICATION

10.1        Indemnification by Us. We shall defend You against any claim, demand, or legal proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, legal fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defence and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Clause 9.1 above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

10.2        Indemnification by You. You shall defend Us against any claim, demand, or legal proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, legal fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defence and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

10.3        Exclusive Remedy. This Clause 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Clause 10, with the exception of Our right to interim relief.

11.          LIMITATION OF LIABILITY

11.1        Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUTOF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR DELICT OR OTHERWISE) SHALL EXCEED THE LESSER OF £500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHSPRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISINGOUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR DELICT OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOURPAYMENT OBLIGATIONS UNDER CLAUSE 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

11.2        Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, DELICT OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12.          TERM AND TERMINATION

12.1        Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

12.2        Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 90 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 45 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

12.3        Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.4        Refund or Payment upon Termination. Upon any termination for cause by You, other than during the Initial Term, subject to 90 days advance notification We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term (including the Initial Term) of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

12.5        Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, You may download a file of Your Data in comma separated value (.csv) format along with attachments in their native format from the Settings Zone. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

12.6        Surviving Provisions. Clauses 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

13.          NOTICES, GOVERNING LAW AND JURISDICTION

13.1        Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

13.2        Agreement to Governing Law and Jurisdiction. Each party agrees that Scots law shall be the applicable and exclusive governing law without regard to choice or conflicts of law rules, and to the non-exclusive jurisdiction of the Scottish courts.

14.          GENERAL PROVISIONS

14.1        Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations. Each party represents that it is not named on any UK government denied-party list. You shall not permit Users to access or use Services in a U.K.-embargoed country or in violation of any U.K. export law or regulation.

14.2        Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use best efforts to notify us forthwith.

14.3        Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.4        No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.5        Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

14.6        Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.7        Costs. You shall pay on demand all of Our legal fees and other costs and expenses incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Clause 6.2 (Invoicing and Payment).

14.8        Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.9        Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, set out the entire agreement and understanding between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Clause 14.9 shall not exclude liability for fraudulent misrepresentation.

ANTI-SPAM POLICY

Email and Prohibited Content

Your use of The Layer's platform and marketing services is subject to this policy. If you are found to be in violation of our policies at any time, as determined by The Layer in its sole discretion, we may warn you, or suspend or terminate your account and/or report you to the ICO, TPS and/or international equivalent. Please note that, in accordance with our Terms of Use, we may change this policy at any time. It is your responsibility to keep up-to-date with and comply with this policy.

Email Requirements

The Layer has a zero-tolerance spam policy. This means that all email recipients must have opted in to, or otherwise validly consented to, receiving communications from you, the sender. Subscriber accounts may be terminated for sending unsolicited email messages.

Email messages sent in connection with The Layer marketing service must contain an "unsubscribe" link that allows subscribers to remove themselves from your email messages. You acknowledge and agree that you will not hide, disable, or remove or attempt to hide, disable, or remove the opt-out link from the email invitation. You will actively manage and process unsubscribe requests received by you directly within ten days of submission, and update your email lists and address books to reflect the unsubscribe requests.

You are responsible for ensuring that the email messages you send in connection with your marketing services do not generate a number of spam complaints or bounce rates in excess of industry, ICO or TPS (or international equivalent) standards. If we determine that your level of spam complaints or bounce rate is higher than industry standards, The Layer, at its sole discretion, has the right to suspend or terminate your use of its platform and services. If you receive low response rates, high abuse rates or high bounce rates, we may request additional information regarding your mailing lists to investigate and attempt to resolve the problem, or in some cases we may suspend or remove email privileges on your account.

Email Restrictions

• Emails you send via The Layer must have a valid reply-to email address owned or managed by you.

• You can only use The Layer to send emails to lists of people that gave you permission to email them. If you don't have proof that each recipient on your list opted in for your emails, don't import them into The Layer.
• We prohibit the use of harvested mailing lists. The Layer will terminate accounts violating this prohibition.

• We prohibit the use of third-party, purchased, or rented mailing lists unless you are able to provide proof that individuals on the list have opted-in to receiving emails of the type you will be sending them.
• You must not send unsolicited mail to newsgroups, message boards, distribution lists, or email addresses.

• You must not utilise The Layer’s marketing services to send any commercial electronic mail messages to any recipient who has opted out, unsubscribed, or otherwise objected to receiving such messages from you or another party on whose behalf you may be commissioned. If you intend on sending commercial emails, you should familiarise yourself with all applicable legislation, which outlines requirements under law for sending out such emails, and any other applicable anti-spam laws.
• You must not use The Layer to send emails with deceptive subject lines or false or misleading header information.

• You must not breach any regulation as set down by the ICO or TPS in the UK or their international equivalent.

Reporting Spam

If you suspect that The Layer has been used by someone to send spam, please contact us immediately at support@layersystems.com and we will investigate the matter.

THE LAYER MARKETING SERVICES TERMS OF USE (INC. EMAIL AND PROHIBITED CONTENT)

These Terms of Use are effective as of 25 March 2013 for all pre-existing free accounts and all new accounts created on or after that date. All paid accounts existing before 25 March 2013 which renew their Subscription on or after 25 March 2013 will, at the time of renewal, have these Terms apply.

UK notice: With respect to Users in the United Kingdom who are dealing as consumers (as defined by the U.K. Electronic Commerce Regulations 2002 and the Consumer Protection (Distance Selling) Regulations 2000) ("U.K. Consumers"), U.K. Consumers shall have the right to cancel this Agreement within seven (7) working days from the date of the day following the day the U.K. Consumer has entered into this Agreement by providing written notice of cancellation to The Layer. However, the U.K. Consumer will not be able to exercise this statutory right if the U.K. Consumer has already started using the Services provided under this Agreement, unless the U.K. Consumer and The Layer otherwise agree in writing.

Please read this document carefully. It concerns email behaviour and prohibited content. This document governs your relationship with Layer Systems Ltd, a private company limited by shares, incorporated in Scotland on 26 May 2010 with registered company number SC379219 and having its registered office at Standard Buildings, 94 Hope Street, Glasgow G2 6PH, and trading as “The Layer”. Set forth below are the terms and conditions under which The Layer makes available its internet based platform (www.layersystems.com) (the "Site"), and the marketing services available through the Site or otherwise provided by The Layer (the "Services"), to each person or entity (including, but without limitation to, their officers, consultants and employees, for which such person or entity shall be jointly and severally responsible for) (each a "User") accessing or using the Site or the Services.

These terms and conditions, together with The Layer Master Subscription Agreement and any and all other terms, conditions, rules, policies or procedures ("Additional Terms") published on the Site from time to time and related to User's use of the Site or the Services (including, without limitation, all country-specific terms attached hereto) (together, this "Agreement"), each as updated from time to time by The Layer, constitute a binding, legal agreement between The Layer and User.

By clicking "I Agree" (or any other button indicating your acceptance of this Agreement) you hereby agree to, and are bound by, this Agreement. If you do not agree with any of the terms of this Agreement, do not click such a button or otherwise access or use this Site or the Services or any information contained on this Site.

The Layer may make changes to the materials and services offered on this Site at any time. The Layer can change the terms of this Agreement (including any Additional Terms) at any time. If The Layer changes the terms of this Agreement, The Layer will post an updated set of terms and conditions of use on this Site and post a change notice and/or send registered users an email notice of the changes in advance of implementing the changes.

If any modification is unacceptable to you, you shall cease using this Site and the Services and be able to terminate your registration and/or subscription (if any). If you do not cease using this Site and the Services, you will be conclusively deemed to have accepted the change.

1.            Legal Status

Each User hereby warrants that if it is a corporation or other legal entity, User is validly formed and existing under the laws of its jurisdiction and has duly authorised its agent or agents to enter into this Agreement and, if an individual, User is of contractual age in his or her place of residence.

2.            Subscriptions and Payment

2.1          If User purchases a paid subscription to the Services (a "Subscription"), User shall, unless otherwise specified, pay all fees to The Layer, including for any additional Services purchased by User or usage that exceeds the thresholds at the rates posted, as well as VAT and any other applicable taxes, applicable to such Subscription, as published on the Site at http://www.layersystems.com from time to time. The Layer may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of User's Subscription. The Layer will provide User with prior notice of any change in fees to allow User to cancel User's Subscription prior to the end of the then-current term of User's Subscription.

2.2          Subscription membership in the Services is on a continuous service basis. This means that, subject to the terms and conditions of this Agreement, The Layer shall automatically renew User's Subscription at the end of its term unless User's Subscription is cancelled by application in writing or via designated email, and accepted by The layer, any time prior to the end of the then-current Subscription. User will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription program (annual, quarterly, monthly, etc.) that User has chosen, unless The Layer has notified User of any new rate in advance. An accepted cancellation of a Subscription requested by User will become effective on the date that the then-current Subscription period expires, unless indicated as earlier by The Layer.

2.3          If User has elected to pay the fees referred to in Clause 2.1 (Subscriptions and Payment) by credit card, User hereby warrants that the credit card information provided by User is correct, and User shall promptly notify The Layer of any changes to such credit card information. User acknowledges and agrees that if User's credit card payment cannot be processed for any reason, The Layer may suspend or cancel User's Subscription.

3.            Registration

               If User has registered for an account to use the Services, User hereby warrants that the information provided by User for the purposes of such registration is complete and accurate. User shall ensure that such information is kept up to date. Upon registering for an account, each User will receive a password and an account designation. User acknowledges and agrees that User, and not The Layer, is responsible for User's account and all activities occurring in connection with the use of that account, whether or not User authorises such activities.

4.            The Layer Materials

4.1          Certain content and information provided on and through this Site and Services, including, without limitation, documents, graphics and images that are not User Content (as defined below) (collectively, the "The Layer Materials") are provided to you by The Layer and are the copyrighted and/or trademarked work of The Layer or The Layer's contributors. The Layer grants you a limited, personal, non-exclusive and non-transferable license to use and to display the The Layer Materials solely for your personal use in connection with the Site and Services.

4.2          Except as expressly permitted in this Agreement, you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the The Layer Materials in any manner. This limited license terminates automatically, without prior notice to you, if you breach any term of this Agreement. Except for the limited rights granted hereunder, you acknowledge that you have no right, title or interest in or to any The Layer Materials.

5.            User Content

5.1          User acknowledges and agrees that:

5.1.1      all marketing questions, information, data, text, software, music, sound, photographs, images, video, marketing responses, messages or other materials communicated, submitted or transmitted by User or respondents of User's surveys through the Site or the Services (collectively, "User Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated;

5.1.2      User, and not The Layer, is responsible for all User Content that User or respondents of User's marketing upload, post, email, distribute, communicate, transmit, or otherwise make available using the Services or that is otherwise made available through the use of User's account (if User has one), whether or not authorised by User;

5.1.3      by using the Site and the Services, User may be exposed to User Content that is unlawful, harmful, threatening, abusive, harassing, delictual, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, and

5.1.4      by communicating or transmitting any User Content using the Site or the Services, User grants to The Layer an irrevocable, non-exclusive, royalty-free and worldwide license to use such User Content for the purpose of operating the Site and supplying the Services, and User warrants to The Layer that it has the right to grant such license for such purposes.

5.2          User further acknowledges and agrees that The Layer does not control the User Content originating from User, respondents to User's marketing or other users of the Site or the Services, and does not guarantee the accuracy, integrity or quality of such User Content. Notwithstanding the foregoing, The Layer may, but is not obligated to, review all User Content and block, modify, terminate access to, or remove any such User Content that The Layer, in its sole discretion, considers to be non-compliant with any of the requirements of this Agreement.

5.3          The Layer reserves the right to purge User Content from its databases at any time and from time to time without notice. User acknowledges and agrees that User is solely responsible for backing up any User Content uploaded to the Site by User or received by User through the use of the Services. The Layer shall not be liable for any purging, deletion or failure to retain any such User Content.

5.4          In the event of User’s non-compliance with any provision of this Agreement, The Layer may suspend or disable User’s account and User’s access to use the Site and/or the Services, as well as recover from User any losses, damages, costs or expenses incurred by The Layer resulting from or arising out of such non-compliance.

6.            User Conduct

6.1          In connection with User's use of the Site and the Services, and without limiting any of User's other obligations under this Agreement or applicable law, User:

6.1.1      shall comply with: (i) this Agreement, including The Layer's anti-spam policy and all other policies as published on the Site from time to time, (ii) all local and international laws applicable to User, including UK Law on data protection in the sector of electronic communications and all other laws related to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property, data protection, and child protective email address registries, (iii) all other rules or regulations applicable to User, including, among other things, securities regulations, and (iv) all privacy policies or similar policies or procedures to which User may be bound that are related to User's use of the Services;

6.1.2      shall not upload, post, email, distribute, communicate, transmit or otherwise make available any User Content: (i) that is unlawful, harmful, threatening, abusive, harassing, delictual, defamatory, libellous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that User does not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any "junk mail", "spam", "chain letters", "pyramid schemes", or any similar form of solicitation;

6.1.3      shall not use the Site or the Services to send marketing, surveys, polls, or other materials to individuals under the contractual age in his or her place of residence ("minors") unless User is permitted to do so under all applicable laws, or to harm minors in any way, and shall not send surveys, polls, or other materials to minors that would subject The Layer to any local or international law, rule or regulation governing children's privacy, rights of personality or otherwise related to protecting minors;

6.1.4      shall not impersonate any other person or entity, including The Layer, or a The Layer official, forum leader, guide or host, or falsely state or otherwise misrepresent User's affiliation with any other person or entity;

6.1.5      shall, if User uses the Services to send a marketing item, not mislead the recipients of that item that User may have the ability to associate individual responses to that item with the individual email addresses to which that survey was sent by stating that User has no such ability (unless User has requested The Layer to disable such feature). The Layer recommends that Users' marketing items include the following notice (or words to similar effect), if applicable: "Please be advised that your responses to this item may not be treated as anonymous by the survey sender."

6.1.6      shall not interfere with or disrupt the Site or the Services or servers or networks connected to the Site or the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or the Services;

6.1.7      shall not engage in excessive usage of the Site or the Services, as determined by The Layer in its sole discretion, including usage that adversely affects the speed, responsiveness, or functionality of the Site, or disrupts the availability of the Site and the Services for other users;

6.1.8      shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Site or the Services in any manner (except to the extent the foregoing prohibition is not permitted by applicable law);

6.1.9      shall not upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer, the Site, or the Services; and

6.1.10    shall not upload survey links to message boards or newsgroups that are not relevant to the subject matter of the survey, or that prohibit such uploading without The Layer's prior written consent.

6.2          User further acknowledges and agrees that The Layer may cooperate with any governmental authority in connection with any investigation into User's use of the Site or the Services, including use in contravention of applicable laws, and may, in accordance with applicable laws, disclose any User Content, and any other information pertaining to the User or to User's use of the Site or the Services, to such governmental authority in connection with any such investigation.

7.            Indemnity by User

7.1          User shall indemnify, defend and hold harmless The Layer, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including legal fees on a full indemnity basis) arising out of or in connection with:

• User's use of the Site or the Services, including User's use of or reliance on any information or materials (including marketing results or responses) obtained through the use of the Site or the Services;

• any other use of the Services by a third party using User's account (whether or not authorised by User);

• 
  
• User's breach of this Agreement, including any of User's representations and warranties under this Agreement;

• User's contravention of any law applicable to User; or

• 
  
• Any claim, fine, penalty or otherwise We may incur from use of Your/User date (e.g. under TPS/CTPS services).

8.            Termination

8.1          This Agreement shall automatically become effective upon User's first use of the Site or the Services and upon acceptance of this Agreement, and will continue until it is terminated.

8.2          The Layer may cancel User's Subscription (if User has one) and automatically terminate this Agreement immediately by notice to User in the event that User breaches any of User's representations, warranties, or obligations under this Agreement (including any of User's obligations under Clause 5 (User Content)) or contravenes any applicable law.

8.3          User may cancel User's Subscription (if User has one) and terminate this Agreement by written notice to The Layer in the event that The Layer materially breaches any of its obligations under this Agreement, if such breach is not cured within sixty (60) days of The Layer's receipt of notice of breach from such User.

8.4          Upon termination of this Agreement for any reason, User shall immediately cease all use of the Site and the Services, and User acknowledges and agrees that The Layer may, in its sole discretion, take any measures The Layer reasonably deems necessary or desirable to prevent further use by User of the Site or Services, including by blocking User's IP address. User further acknowledges and agrees that upon termination of this Agreement, The Layer shall not be obliged to retain any User Content (including marketing results or responses) or to provide the same to User, but may elect to do so in its sole discretion.

8.5          Termination of this Agreement for breach as defined in Clause 8.2 (Termination) above shall not entitle User to a refund of any unearned Subscription fees previously paid by User.

8.6          The following shall survive termination of this Agreement for any reason:

8.6.1       all of User's representations, warranties and indemnities given under this Agreement;

8.6.2       all disclaimers of warranties, and limitations and exclusions of liability; and

8.6.3      the last sentence of Clause 4 (The Layer Materials), and each of Clause 5 (User Content), 7 (Indemnity by User), 8.4 (Termination), 8.5 (Termination), 8.6 (Termination), 10 (Limitations and Exclusions of The Layer's Liability), 11 (Intellectual Property Rights), and 13 (General).

9.            Provision of the Site and the Services

9.1          The Layer reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Services or any part thereof, or User's access thereto, and to modify, suspend or delete the Site or any part thereof, and The Layer will use commercially reasonable efforts to provide reasonable advance notice of changes that significantly impact the Services in a negative manner. In the case of changes that significantly impact the Services in a negative manner, User is entitled to cancel User's Subscription, if any. User acknowledges and agrees that The Layer shall not be liable to User, or to any third party, for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Site.

9.2          Without limiting Clause 9.1 (Provision of the Site and the Services), if User engages in excessive usage of the Site or the Services (as described in Clause 6.1.7 (User Conduct)), The Layer may take such action as it considers necessary to prevent such excessive usage and to restore the availability of the Site and the Services to other users, including by limiting or suspending User's access to the Site and the Services, or by cancelling User's Subscription and terminating this Agreement.

9.3          USER ACKNOWLEDGES AND AGREES THAT THE SITE AND THE SERVICES ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," AND "WITH ALL FAULTS," AND THAT, EXCEPT AS MAY OTHERWISE BE SET FORTH IN THIS AGREEMENT, THE LAYER HAS NO RESPONSIBILITY OR LIABILITY FOR THE LOSS OR DELETION OF, OR FAILURE TO RECEIVE, PROCESS, OR STORE ANY USER CONTENT (INCLUDING MARKETING RESULTS OR RESPONSES) MAINTAINED OR TRANSMITTED USING THE SERVICES.

9.4          USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS.

9.5          USER FURTHER ACKNOWLEDGES AND AGREES THAT USER, AND NOT THE LAYER, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES.

9.6          THE LAYER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES, OR OTHER HARMFUL COMPONENTS OF THE SITE OR THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION, SOFTWARE, PRODUCTS AND SERVICES.

9.7          TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LAYER, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.

10.          LIMITATIONS AND EXCLUSIONS OF THE LAYER'S LIABILITY

10.1       IN NO EVENT SHALL THE LAYER, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, DELICT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF THE LAYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:

10.1.1    THE USE OR PERFORMANCE OF, THE DELAY IN PROVIDING, THE FAILURE TO PROVIDE, OR THE INABILITY TO USE, THE SITE OR THE SERVICES; OR

10.1.2    ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES.

10.2       USER SPECIFICALLY AGREES THAT THE LAYER, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR:

10.2.1    UNAUTHORISED ACCESS TO OR ALTERATION OF ANY TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE OR THE SERVICES OR IN RELIANCE UPON ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES;

10.2.2    ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS; OR

10.2.3    ANY CONTENT SENT USING, OR INCLUDED IN, THE SITE OR THE SERVICES BY ANY THIRD PARTY.

10.3       IF USER IS DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES, USER'S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SITE AND THE SERVICES.

10.4       IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, THE LAYER, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO USER FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, DELICT, STRICT LIABILITY OR OTHERWISE, THE LAYER'S (OR SUCH AFFILIATES', DIRECTOR'S, OFFICER'S, EMPLOYEE'S, SERVANT'S OR AGENT'S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:

               10.4.1    THE AMOUNT OF ONE HUNDRED POUNDS (£100) STERLING, AND

10.4.2    THE AMOUNTS ACTUALLY RECEIVED BY THE LAYER FROM USER UNDER THIS AGREEMENT.

10.5       USER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE LAYER WOULD NOT BE ABLE TO OFFER THE SITE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE USER'S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE.

10.6       NOTHING IN CLAUSES 10.1 THROUGH 10.5 OF THE AGREEMENT SHALL LIMIT THE LAYER'S OR ITS AFFILIATES' OR THEIR RESPECTIVE DIRECTORS', OFFICERS', EMPLOYEES', SERVANTS', OR AGENTS' LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE (AS SUCH TERM IS DEFINED IN THE UNFAIR CONTRACT TERMS ACT 1977); (B) FRAUD; (C) MISREPRESENTATION AS TO A FUNDAMENTAL MATTER; OR (D) ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

11.          Intellectual Property Rights

The Site and the Services and all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of The Layer, its affiliates, or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. The Layer reserves all rights in the Site and the Services that are not expressly granted. The Layer is a trademark of The Layer Systems Limited in the United Kingdom. Other trademarks, names, and logos on this Site are the property of their respective owners. Nothing in this Agreement shall be deemed to assign or transfer to User any rights to any such intellectual property. User further acknowledges and agrees that The Layer Materials and other content made available to User through the Services may be subject to the intellectual property rights of third parties.

12.          Privacy Policy

12.1       Your use of this Site is governed by the The Layer privacy policy, which is available upon request (the "Privacy Policy").

12.2       You agree that you are responsible for notifying the respondents of marketing that you create through the Site about how The Layer may use the respondents' marketing responses as described in the Privacy Policy.

13.          General

13.1       The Layer may provide references, frames or hyperlinks to internet websites maintained by third parties. The Layer does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. The Layer is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.

13.2       User acknowledges and agrees that User, and not The Layer, is responsible for determining which laws may apply to User's use of the Site and the Services and assessing User's obligations under such laws.

13.3       All notices and other communications required or permitted to be given by The Layer to User under this Agreement will be deemed to be properly given on the date when:

13.3.1    posted on the Site;

13.3.2    sent by email to the email address for User last recorded by The Layer; or

13.3.3    sent by postal mail to the postal address for User last recorded by The Layer.

               User may give notices to The Layer under this Agreement by email to [support@layersystems.com].

13.4       This Agreement (including, for the avoidance of doubt, The layer Master Subscription Agreement and our related policies, comprises the entire agreement between The Layer and the User relating to the Site and the Services. Both User and The Layer confirm that they have not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not a party to this Agreement) unless that agreement, warranty, statement, representation, understanding or undertaking is expressly set out in this Agreement.

13.5       The use of the terms "includes" and "including", and similar terms, shall be deemed not to limit what else might be included.

13.6       This Agreement shall be governed by the laws of Scotland. The Layer and the User agree to submit to the exclusive jurisdiction of the Scottish courts in relation to any claim arising under or in connection with this Agreement which cannot be solved through a mutually agreed conciliation procedure. User may not assign this Agreement without The Layer's prior written consent, which may be withheld in The Layer's sole discretion.

13.7       The Layer may assign this Agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganisation in which The Layer participates or to the purchaser of all or substantially all of The Layer's assets to which this Site relates.

13.8       In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable legal fees and costs.

13.9       The failure by either party to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or of any other provision of this Agreement.

13.10     If any provision of this Agreement shall be determined to be invalid or unenforceable by a court, such provision shall be deemed severable and the remainder of this Agreement shall remain in full force and effect.

‍