Avelo Exchange Terms and Conditions
Enquiries: 08450 530490
THIS AGREEMENT is made BETWEEN
(1) AVELO PORTAL LIMITED (company number: 02596452) registered address 1 Kingmaker Court, Warwick Technology Park, Gallows Hill, Warwick, Warwickshire CV34 6DY ("We" or "Us");
AND
(2) the sole trader, partnership or company signing or accepting the Registration Form ("You" or "Your").
IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions And Interpretation
1.1 In this Agreement the following expressions shall bear the following meanings:
- "Act" means the Data Protection Act 1998;
- "Additional Services" means any additional services provided to You and Your Authorised Users from time to time as requested by You;
- "Agreement" means this agreement, the Tariff and the Registration Form;
- "Anonymised Data" means Data from which details which identify Clients as individuals (whether living or dead) have been removed;
- "Authorised User" means You or an employee or agent of You holding appropriate authorisation pursuant to Laws or Regulations who has been nominated by You as an authorised user (and who has been registered with Us as such in the Registration Form) to access and use Avelo Exchange on Your behalf;
- "Avelo Exchange" means the Service(s) to which You and/or Your Authorised Users have subscribed in accordance with the Registration Form and the Tariff, including any Additional Services or Third Party Services to which You and/or Your Authorised Users have subscribed whether such services are provided by Us or by a Third Party Provider;
- "Business Day" means any day (except a Saturday or a Sunday) between the hours of 9.00 am. and 5.30 pm. on which banks in England are normally open for business;
- "Client(s)" means any client(s) of You and/or Your Authorised Users;
- "Commencement Date" means the date upon which We authorise You and Your Authorised Users to access and use Avelo Exchange;
- "Communicate/Communications/Communicating" means any contact with You or Your Authorised Users by Us, any member of Our Group or any third party to whom we provide Data in order to comply with Our obligations under this Agreement (whether by letter, phone, fax, text, email, video, picture or WAP messaging and/or by any other method of communication that becomes available from time to time during the term of this Agreement);
- "Confidential Information" means any information of a confidential nature concerning the disclosing party or its Group including commercial, financial, product, technical or software information, know how, trade secrets, and passwords;
- "Data" means any personal or sensitive personal data as defined by the Act as provided by You or Your Authorised Users about You, Your Authorised Users or Clients;
- "FSMA" means the Financial Services and Markets Act 2000;
- "FSA" means the Financial Services Authority or any successor of it;
- "Group" means the group of companies of which the party referred to forms part of and comprising of that party and all other companies from time to time being subsidiaries of that party, subsidiaries of that party's holding company, or subsidiaries of such subsidiaries: "subsidiary" and "holding" bearing the meanings ascribed to them in Section 1159 of the Companies Act 2006;
- "Intellectual Property Rights" means all intellectual property and related rights of any nature whatsoever throughout the world (whether in existence before or after the Commencement Date) for the full duration of the same including, without limitation: (i) all patents, registered or unregistered designs; registered or unregistered trade marks, service marks, copyrights, utility models and any and all applications for registration of any of the same wheresoever made; (ii) computer software and database rights of any nature, semi-conductor topographies and know-how; and (iii) any right or interest in any of the foregoing together with any applications to protect the same and any similar or equivalent rights arising or subsisting throughout the world;
- "Laws or Regulations"means, in relation to You or Your Authorised Users, all laws or regulations that are applicable to You or Your Authorised Users, including, without limitation, the rules of the FSA or any other regulations, requirements, stipulations or conditions made by any professional or regulatory organisation or association of which You or Your Authorised Users may from time to time be a member or which You or Your Authorised Users may be subject from time to time;
- "Losses" means any losses (whether direct or indirect), costs, damages, actions, awards, claims, demands, judgments, penalties, proceedings, expenses or other liabilities;
- "Password" refers to the Avelo Exchange individual application username and password given to each Authorised User which provides that Authorised User with access to and use of Avelo Exchange;
- "Registration Form" the form to be completed, signed or accepted and processed before a Password is provided to You and/or each of Your Authorised Users which sets out the legal entity entering into this Agreement, which Services You and/or Your Authorised Users are subscribing to as part of Avelo Exchange, including what (if any) Additional Services or Third Party Services You and/or Your Authorised Users are subscribing to from the Commencement Date;
- "Services" means the document contained on Avelo Exchange which sets out a description of and the schedule of fees and charges of the various services offered on Avelo Exchange as amended from time to time including any Additional Services or Third Party Services;
- "Tariff" means the document available on Avelo Exchange which sets out details of the Services available via Avelo Exchange and a description of the fees for those Services, as may be amended from time to time (unless we have agreed in writing any special terms in respect of the tariff, in which case those special terms shall prevail);
- "Third Party Provider" means a company that provides Third Party Services via Avelo Exchange;
- "Third Party Services" means software, services, information and/or data owned or controlled by Third Party Providers which is provided and/or made available to Authorised Users via Avelo Exchange; and
- "Unacceptable Content" means any material of any nature which (i) is unlawful, defamatory, indecent, obscene, abusive, menacing or harassing in nature, (ii) contains any criticism of Us, Avelo Exchange or any member of Our Group; (iii) would (if published) constitute a contempt of court; (iv) promotes violence or illegal activities or promotes discrimination based on race, sex, religion, national origin, physical disability or age; or (v) contains any viruses, worms, Trojan horses or other contaminants or disabling devices that may modify, delete, disable or damage any data, files, software or systems.
1.2 References to a statute or a statutory provision include a reference to that statute or statutory provision as from time to time modified, extended, consolidated or re-enacted and includes all subordinate legislation made pursuant to it (provided that Our liability is not increased and/or Our rights materially altered by such modification, extension, consolidation or re-enactment).
1.3 A reference to a clause is a reference to a clause of this Agreement. A reference to one gender includes a reference to the other gender.
1.4 Where We provide Avelo Exchange to members of Your Group then references to You in this Agreement shall be deemed to include such members of Your Group. You shall be liable for all actions and/or omissions of Your Group and each of Your Authorised Users as if they were Your own acts and/or omissions.
1.5 You will comply with and will procure the compliance of Your Authorised Users with the terms of this Agreement.
2. Grant
2.1 We may change this Agreement at any time by posting changes online at www.avelo.com. You agree that it is Your responsibility to make Yourself and Your Authorised Users aware of any such changes. Continued use of Avelo Exchange by You and Your Authorised Users after such posting shall constitute agreement to be legally bound by this Agreement as updated and/or amended.
2.2 Subject to payment of the applicable fees that You are required to pay in accordance with Clause 6 and the Tariff We grant both You and Your Authorised Users a non-exclusive, non-transferable licence (without rights to sub-license) to access and use Avelo Exchange, in accordance with this Agreement, from the Commencement Date until termination of this Agreement in accordance with its terms.
2.3 You and Your Authorised Users may only;
2.3.1 use the Passwords allocated by Us to You and Your Authorised Users for the purposes of accessing Avelo Exchange; and
2.3.2 access and use Avelo Exchange for lawful purposes only and for the lawful purposes of Your business as financial advisers and/or the provision of administration services to financial advisers; and
2.3.3 access and use Avelo Exchange strictly in accordance with the terms of this Agreement.
2.4. This Agreement shall apply to Avelo Exchange and the Services to which You and/or Your Authorised Users subscribe from time to time except for where You or Your Authorised Users are asked to enter into alternative terms directly with the Third Party Provider whereupon Your entire recourse and sole remedy for those Third Party Services shall be directly against the Third Party Provider. If You use Third Party Services You agree that where required You will enter into terms directly with a Third Party Provider for the use of Third Party Services to which You have access through Avelo Exchange, and where required You will pay to the Third Party Provider (via Us where appropriate) such monies as are required by Your agreement with the Third Party Provider. In the event that You are required to enter into an agreement with a Third Party Provider and You fail to do so You will not have access to the relevant Third Party Services however You will still be liable for the fees payable to Us under this Agreement.
2.5 Except as permitted by law, You shall not and You shall procure that Your Authorised Users shall not (i) rent, lease, sub licence, loan, merge, vary, alter, modify, translate, reverse engineer, decompile, disassemble, reformat, adapt, modify or edit (in whole or in part) Avelo Exchange or (ii) permit Avelo Exchange or any part of it to be combined with or become incorporated in, any other programme (without our consent) or create derivative works based on it, (in whole or in part).
2.6 You or Your Authorised Users shall not alter or remove any copyright, trademark, notice of Intellectual Property Rights and/or any other protective notices contained in Avelo Exchange or made available during the provision of the Services.
2.7 If You or Your Authorised Users have submitted any feedback to Us relating to Avelo Exchange and/or the Services You shall agree and You shall procure the agreement of Your Authorised Users that we may use such feedback to improve, modify and/or develop the Services and We shall own all Intellectual Property Rights in such improvements, modifications and developments. You shall, and You shall ensure that Your Authorised Users shall, do everything necessary to ensure that such Intellectual Property Rights vest in Us.
2.8 When an Authorised User uses Avelo Exchange for the first time he will automatically receive a data collection notice stating that We may contact him in accordance with our privacy policy and giving him the option to opt out of receiving any communications from us, or from our third party business partners, regarding products, services, events, competitions, offers or discounts that We, members of Our Group, or third party business partners provide from time to time.
3. Term and Termination
3.1 Subject to Clause 3.2 below, this Agreement shall be for an initial period of 12 months from the Commencement Date and shall continue thereafter until or unless terminated by either party on 3 months' written notice to expire at any time on or after the first anniversary of the Commencement Date. You are still liable to pay fees due under this Agreement during the period of any notice to terminate.
3.2 Either party may terminate this Agreement by providing written notice which shall have immediate effect if any of the following events occur:
3.2.1 any Laws or Regulations require such termination;
3.2.2 the other party (including an Authorised User) commits a material breach of this Agreement and fails to remedy such material breach (or in so far as such breach is not capable of remedy, to furnish adequate compensation (in the opinion of the innocent party) therefore) within 30 days of receipt of a written notice specifying the material breach from the other party and requiring it to be remedied;
3.2.3 the other party (including any Authorised Users) is in persistent breach of this Agreement;
3.2.4 the other party is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enter into administration, receivership or administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken by it or any other person in respect of any of these circumstances.
3.3 We may (at Our discretion) refuse to accept the registration of You or any of Your Authorised Users. We may suspend the provision of Avelo Exchange (at Our discretion) on giving You 1 (one) week's written notice if We reasonably believe that You or any of Your Authorised Users are using Avelo Exchange other than in strict accordance with the terms of this Agreement or You fail to meet a request for payment when due in accordance with Clause 6. You are still liable to pay the fees under this Agreement during such suspension. As and when, to our reasonable satisfaction, We consider that you have rectified any non-compliance We will restart Your access to Avelo Exchange.
3.4 Upon termination for any reason:
3.4.1 all rights granted to You and Your Authorised Users under this Agreement shall cease;
3.4.2 You must, and You must procure that Your Authorised Users must, cease all activities authorised by this Agreement; and
3.4.3 You must immediately pay Us any sums due to Us under this Agreement.
3.5 Any clauses of this Agreement which are expressly stated or impliedly intended to apply after termination of this Agreement will continue in full force and effect in accordance with their terms.
4. You and Your Authorised Users Obligations
4.1 Neither You nor Your Authorised Users may use Avelo Exchange:
4.1.1 other than in accordance with this Agreement and any instructions as to use set out in Avelo Exchange from time to time;
4.1.2 to transmit, download or access Unacceptable Content; and
4.1.3 for commercial time sharing, rental or service bureau use, advertising or spamming, or as part of an outsourcing service for a third party.
4.2 You agree to inform Us of any change of details contained in the Registration Form together with any change in the authorisation under FSMA of You or Your Authorised Users or any other details We may reasonably require from You or Your Authorised Users.
4.3 We will allocate a Password to You and to each individual Authorised User. Passwords are provided to You and Your Authorised Users on an individual basis and no concurrent use or sharing of Passwords is permitted.
4.4 You agree not to and will procure that Your Authorised Users do not disclose Password(s) to any other person. If it becomes known that a disclosure has taken place or a Password is no longer secure, You will inform Our helpdesk immediately. Our helpdesk may require You and/or Your Authorised Users to change a Password where We consider it necessary. You shall indemnify Us for all losses resulting from Your and/or Your Authorised Users breach of this Clause 4.4.
4.5 When registering for the Service you shall provide us with your Financial Registration Number (“FRN”).Any information provided via the Services is distributed upon the basis of the Authorised Users’ FRN. In the event that your FRN changes you shall notify us immediately. You agree that you shall indemnify us upon demand in the event that any claim is made against us or we suffer any loss, damage or other liability as a result of you providing us with an incorrect FRN or you failing to update us with any change to your FRN.
4.6 If you choose to make use of digital certificates ("Digital Certificates"). You and Your Authorised Users will only be entitled to use Avelo Exchange if you abide by the relevant terms and conditions that You and Your Authorised Users have signed up to in order to have a Digital Certificate. Under no circumstances must You or Your Authorised Users give details of, or access to Your, or their, Digital Certificate to any third party. In the event that You or Your Authorised Users breach Your Digital Certificate terms and conditions, and such breach causes Us any Losses, You will defend and fully indemnify Us and hold Us harmless against all such Losses whatsoever and howsoever incurred. You and Your Authorised Users will make available to Us, their Digital Certificate for Us to read. We can pass the information read from Your Digital Certificate, or from that of Your Authorised User, to a Third Party Provider. Each year as You and Your Authorised Users renew the Digital Certificate, You must promptly renew and update the information required by us under this Clause.
4.7 You shall only permit Your Authorised Users to access Avelo Exchange.
4.8 You shall not permit the download or reproduction of material from Avelo Exchange for redistribution or use by a third party unless authorised by Us in writing.
4.9 If You wish to add or remove any of Your Authorised Users, You will notify Us so that we can amend Our records accordingly, and this Agreement will apply to any such new Authorised Users.
4.10 You shall not assign any of Your rights and obligations under this Agreement, without Our express written consent. We may assign or otherwise transfer any of Our rights and/or obligations under this Agreement to any member of Our Group without Your consent.
5. Avelo Exchange Availability
5.1 We shall from the Commencement Date host and maintain Avelo Exchange. We do not warrant that Avelo Exchange will be continuously available 24x7x365 but We will use Our reasonable endeavours to keep downtime to a minimum. You acknowledge that, from time to time, We will be required to undertake both routine and emergency maintenance work during which time Avelo Exchange may be unavailable for use.
5.2 We may (at Our discretion) make changes to Avelo Exchange from time to time. For the avoidance of doubt, any such changes may include removing or adding functionality as well as corrections and modifications. We reserve the right to offer new functionality only as an Additional Service or a Third Party Service for which there may be a charge.
5.3 You acknowledge that the Internet, world wide web, ftp, usenet, email and services provided via any of the aforementioned are inherently uncontrollable by Us and that We cannot be held responsible or liable for any errors, omissions, delays or inability to use such services or for the introduction of any Unacceptable Content by such services.
5.4 Reasonable helpdesk support during the Business Day will be available covering the use of Avelo Exchange, Additional Services and Third Party Services. All helpdesk support will be provided via telephone, facsimile, electronic mail or post at Our discretion (details of helpdesk numbers and operating hours are set out on Avelo Exchange). Visits to Your sites are not included within the helpdesk support and will be charged for separately.
5.5 Helpdesk support shall not be given where the problem is caused directly or indirectly by operator error or omission or any modifications made by You, Your Authorised Users or any unauthorised third parties.
5.6 The helpdesk support number is: 08450 531111.
5.7 Helpdesk support does not include matters relating to Your and/or Your Authorised Users’ operating systems, software network, accessories, peripherals, machines, systems or devices, or the Internet, howsoever caused.
6. Fees
6.1 You shall pay to Us the fees (together with value added tax thereon where applicable) set out in the Tariff for Avelo Exchange and the Services to which You and/or Your Authorised Users subscribe. We will notify You when fees will be invoiced.
6.2 You will be responsible for paying all other fees incurred whilst using Avelo Exchange or any Additional Services or Third Party Services, such as telephone charges and fees for access to premium rate Internet based sites and services.
6.3 If any amount due from You has not been paid within 30 days of the due date We reserve the right to charge interest at the rate of 3 per cent over Barclays Bank plc base rate from the due date until the total amount (including interest both before and after judgment) has been paid in full and in cleared funds without prejudice to any right we may have to terminate pursuant to Clause 3.
6.4 We reserve the right to increase the fees payable for Avelo Exchange and any Services by updating the Tariff from time to time. Any changes in the fees payable for Avelo Exchange will be notified to you in advance.
7. Intellectual Property Rights
7.1 You acknowledge that (i) any and all domain names and other Intellectual Property Rights subsisting in or used in connection with Avelo Exchange and/or the Services are and shall remain the property of Us and/or the relevant Third Party Providers (as appropriate) and neither You nor Your Authorised Users shall question or dispute the ownership thereof or infringe such Intellectual Property Rights in any manner; (ii) the rights in Avelo Exchange are licensed (not sold) to You; and (iii) neither You nor Your Authorised Users have any rights in or to Avelo Exchange other than the right to use it in accordance with the terms of this Agreement.
7.2 Neither You nor Your Authorised Users shall during the continuance of or after the expiry or termination of this Agreement, without Our prior written consent, use or adopt any domain name, trade mark, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any domain name trade mark, trade name, trading style or commercial designation used by Us.
7.3 You hereby grant to Us and each member of Our Group an irrevocable, perpetual, exclusive, royalty free licence to use the Anonymised Data for Our own business purposes and the business purposes of Our Group, to the extent that You have any rights in the Anonymised Data. We may sell, disclose, sub licence or otherwise deal with the Anonymised Data as We (in our absolute discretion) consider appropriate.
8. Monitoring and Audit
8.1 We may retain records of all transactions made or instructions received by You and Your Authorised Users via Avelo Exchange and such records will be regarded as definitive evidence of such transactions or instructions. We reserve the right to record all electronic transactions and communications with You and Your Authorised Users in respect of Avelo Exchange in accordance with this Agreement.
8.2 You must permit Us and Our representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, and any records kept pursuant to this Agreement, for the purpose of ensuring that You are complying with the terms of this Agreement.
8.3 You will upon reasonable notice permit Us or persons duly authorised by Us or any third party authorised pursuant to laws and/or regulations access to Your records (to the extent the same may be accessible through Avelo Exchange) during normal working hours, for the purposes of verification of the nature and content of such records or for such other purpose as may be permitted or required by laws and/or regulations.
9. Confidentiality
9.1 Subject to the provisions of Clause 2.9, each party (including any and all Authorised Users) (the "Restricted Party") shall, and shall ensure that every other member of its Group shall keep confidential and shall not use for its own purposes, nor disclose any other party's or Group member's Confidential Information which becomes known to the Restricted Party unless such Confidential Information is already in the public domain otherwise than by reason of a breach by the Restricted Party of its obligations under this Clause.
9.2 Disclosure is, however, permitted to the extent that the disclosure is:
9.2.1 required by law or by a court or government body with appropriate jurisdiction;
9.2.2 requested by the Restricted Party's professional advisers or a regulatory body to whose jurisdiction or rules the Restricted Party is subject or another member of the Restricted Party's Group;
9.2.3 to the Restricted Party's employees, agents or professional advisers where it is reasonably necessary or desirable to enable the Restricted Party to comply with this Agreement and before the disclosure takes place the Restricted Party makes such employees, agents or professional advisers aware of its obligations of confidentiality under this Agreement and at all times procures compliance by such employee, agents and advisors therewith; or
9.2.4 made with the prior written consent of the disclosing party.
9.3 The parties agree that damages may be an insufficient remedy for breach of the provisions of this Clause 9 and that the disclosing party shall be entitled to seek an injunction for any such breaches.
10. Compliance
You acknowledge that the advice, recommendations and actions resulting from the use of Avelo Exchange by You and Your Authorised Users are the responsibility of You and Your Authorised Users. We are not making or giving any representations, guarantees or warranties except as set out in Clause 12. You further acknowledge that You and Your Authorised Users are responsible for compliance with all Laws or Regulations concerning Your business irrespective of the use of or access to Avelo Exchange and we shall not be responsible in any way whatsoever for such compliance.
11. Data Protection
11.1 In respect of any Data supplied to Us by You and Your Authorised Users You warrant that You will and that You will procure that Your Authorised Users will:
11.1.1 have all necessary registrations, consents or authorisation necessary under the Act (and any other relevant Laws or Regulations) to provide the Data to Us; and to permit Us, our Group or any Third Party Provider to store and process the Data in order to comply with the relevant obligations to You under this Agreement;
11.1.2 comply and will continue to comply with the Act and any Laws and Regulations, guidelines and codes of practice made thereunder (including but not limited to the Data Protection Principles); and
11.1.3 provide Us with any necessary corrections to or changes in the Data from time to time;
11.1.4 inform Us when You or Your Authorised Users no longer comply with the provisions of this Clause 11; and
11.1.5 ensure that the Data provided is correct as far as reasonably possible.
11.2 You warrant that You and/or Your Authorised Users have previously obtained the necessary consents to allow Us to disclose the Data to any of Your Authorised Users.
11.3 Where You or Your Authorised Users supply Data to Us, We will:
11.3.1 ensure that such Data is only used for purposes authorised by You or permitted under this Agreement or as permitted by law and/or regulations;
11.3.2 hold any Data as a "data processor" as defined by the Act , which You and Your Authorised Users hereby acknowledge.
11.4 During the course of Your and Your Authorised Users' use of Avelo Exchange and the Services, the pages that You see will be monitored by Our and third party software and systems which We can use against any Password to identify You and/or Your Authorised Users. Most websites, portals and extranets use similar tools which are known as cookies. We use the information We obtain from cookies to provide You with an improved service and to better Our understanding of Your and Your Authorised Users’ preferences. For more information on how we use cookies and Your and Your Authorised Users’ information please refer to Our privacy policy at www.avelo.com, which is also available in hard copy on request. By entering into this Agreement, You are providing your consent (and will procure that Your Authorised Users provide their consent) for Us to use or provide the information we collect with such cookies to Our Group, and any Third Party provider, data sellers, and market research companies in accordance with the terms of this Agreement.
11.5 You allow us to create Anonymised Data and sell and/or provide it to third parties.
12. Warranty
12.1 We warrant that We own or have all necessary Intellectual Property Rights in the UK, licences and permissions to grant the licence granted in Clause 2.
12.2 You acknowledge that Avelo Exchange and the Services have not been developed to meet Your individual requirements and that it is therefore Your responsibility to ensure that the facilities and functions of Avelo Exchange and the Services meet Your requirements.
12.3 Avelo Exchange, the Services and any content, including information, names, images, pictures, logos and icons regarding or relating to Us, Our Group and/or to Third Party Providers, is provided 'As Is' and on an 'As Available' basis without any representations or any kind of warranty made (whether express or implied by law and/or regulation), including any implied warranties of satisfactory quality, fitness for a particular purpose, non infringement, compatibility, security and accuracy.
12.4 Any Third Party Services supplied to You or Your Authorised Users by any Third Party Provider via Avelo Exchange are subject to the terms and conditions of the relevant Third Party Provider.
12.5 Where Avelo Exchange provides any Third Party Services or hypertext links to other websites, extranets or portals this does not constitute an endorsement of the same and You and Your Authorised Users shall access and use the Third Party Services and links at Your and Your Authorised Users’ own risk. We and Our Group accept no responsibility for any Losses associated with such access and use. Furthermore, We have not attempted to verify the truth, accuracy or completeness of any illustrations, data, commissions or information provided to Us by any Third Party Providers and We accept no responsibility or liability for the truth, accuracy or completeness of the same.
12.6 Each party's undertakings as set out in this Agreement shall be the full extent of its obligations to the other party concerning its performance or non-performance under this Agreement. Accordingly, except as aforesaid, all warranties, conditions or representations, expressed, implied, statutory or otherwise and whether arising under this Agreement or under any prior agreement or in oral or written statements made by or on behalf of either party or its representatives are hereby excluded, insofar as the same are capable of exclusion by law.
13. Liability and Indemnity
13.1 Nothing in this Agreement shall be deemed or construed so as to limit, restrict or exclude the liability of either party (or Your Authorised Users) for death or personal injury caused by the negligence of that party or for any loss, damage or other liability arising out of either party's fraud or fraudulent misrepresentation or anything else which cannot be excluded by law.
13.2 Subject to Clause 13.1 above and to the extent permitted by law, We shall not be liable in contract (including for fundamental breach and under any indemnity) or tort (including negligence) or otherwise for:
13.2.1 any purely economic loss;
13.2.2 loss of profit;
13.2.3 loss of turnover;
13.2.4 loss of sales;
13.2.5 loss of revenue;
13.2.6 loss of, damage to or corruption of data;
13.2.7 indirect loss;
13.2.8 special losses; and/or
13.2.9 consequential losses
whatsoever incurred by You, Your Authorised Users and/or any third party in relation to Avelo Exchange, including in respect of access to and use of Avelo Exchange and/or the Services.
13.3 Subject to Clauses 13.1 and 13.2 above and to the extent permitted by law, Our entire liability to You in respect of all losses, damages, costs, claims or expenses suffered by You and arising out of or in connection with this Agreement howsoever arising, including any breach of contract, tort (including negligence), breaches of statutory duty committed by Us in connection with this Agreement and any liability with respect to any indemnities given in this Agreement by Us, will be limited and will in no circumstances whatsoever exceed the greater of a) 150% of the amount of the fees paid by You to Us in the 12 months immediately preceding the date on which the relevant cause of action(s) arose; or b) £5,000 in respect of any single occurrence or series of related occurrences.
13.4 Subject to Clause 13.1, formal proceedings relating to any claim against Us arising out of or in connection with this Agreement howsoever occurring must be served on Us within 12 months from the end of the month in which You become aware or should reasonably have become aware of the events giving rise to the claim. Failure to commence proceedings in accordance with this Clause 13.4 will bar You from bringing any claim howsoever arising under the terms of this Agreement against Us.
13.5 You shall procure Your Authorised Users compliance with the terms of this Agreement. In the event that We and/or Our Group incurs any Losses of whatever nature arising out of or in connection with the acts or omissions of Your Authorised Users You hereby agree to defend and indemnify Us and Our Group against such Losses.
13.6 We are not liable in contract , tort (including negligence) or otherwise for any Losses You or Your Authorised Users suffer as a result of Your and/or Your Authorised User’s use of the Third Party Services.
13.7 We are not liable in contract, tort (including negligence) or otherwise for the acts or omissions of providers of telecommunications services or for faults in or failure of their apparatus.
13.8 This Clause 13 shall not impose any liability upon Us which would not have existed but for this Clause 13.
14. Force Majeure
Except for the obligation on You to pay fees to Us in accordance with this Agreement neither party shall be liable to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of either party which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, epidemic, pandemic, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority, power failure, failure of telecommunications lines, failure or breakdown of plant, machinery or default of sub-contractors.
15. Waiver
Failure or neglect by Us to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Our rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice Our rights to take subsequent action.
16. Severability
In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
17. Notices
17.1 All notices to or by the respective parties hereto shall be in writing (except for notices sent by email) in the English language and shall be deemed to have been duly given when delivered by hand, posted by recorded delivery post, sent by facsimile or email to the party to which such notice is required to be given under this Agreement addressed as follows: You/Your Authorised User: to the address, facsimile number or email address set out in the Registration Form; Us: the Company Secretary, 1 Kingmaker Court, Warwick Technology Park, Gallows Hill, Warwick, CV34 6DY (Fax: 01242 210295) Email: companysecretary@avelo.com; or to such other address, facsimile number or email address as the respective parties hereto may hereafter specify to the others in writing as a replacement address for service in accordance with, and making specific reference to, this Clause 17.1.
17.2 Notices delivered by hand or sent by facsimile shall be deemed received the first working day following such delivery or sending (provided no error message indicating failure to deliver is received by the sender). Notices sent by email shall be deemed to be received on delivery provided that no error message indicating failure to deliver is received by the sender. Notices which have been posted as above shall be deemed received on the fifth working day following posting.
18. Third Party Rights
This Agreement does not create any rights enforceable by any person who is not a party to it except that a person who is the permitted successor to or assignee of the rights of a party is deemed to be a party to this Agreement.
19. Additional Services
19.1 You and Your Authorised Users may request and We may make available to You and Your Authorised Users Additional Services as are set out in the Tariff.
19.2 This Agreement shall govern the provision of the Additional Services unless We make You and/or Your Authorised Users aware of any further terms and conditions applicable to such Additional Services.
19.3 Each subscription for an Additional Service may be terminated by You or Us without terminating this Agreement: (i) upon the terms specified in the invitation to subscribe; or (ii) as set out in Clause 3.
20. No Partnership
The relationship between the parties is as set out in this Agreement and no employment, joint venture, partnership or agency will be deemed to subsist between the parties and neither will have the authority to bind the other.
21. Entire Agreement
21.1 We acknowledge that We may have agreed special terms regarding Your subscription to Avelo Exchange, and provided that such special terms are in writing and signed by one of Our directors (or a person authorized by Our directors), We agree that if those terms conflict with the terms set out herein, the special terms We have agreed with You shall take precedence.
21.2 Save for any special terms referred to above, this Agreement constitutes the entire agreement between the parties concerning Avelo Exchange, the Services and Additional Services and supersedes any previous written or oral agreements between the parties relating to Avelo Exchange and the Services. This Agreement is not affected by any other promise, representation, warranty, usage, custom or course of dealing. You confirm that You have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing shall exclude our liability for any fraudulent statement or act made prior to the date of this Agreement.
22. Law
The parties hereby agree that this Agreement (any non-contractual obligations arising as a result of this Agreement) shall be construed in accordance with English law and subject to the non-exclusive jurisdiction of the English courts.
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