1.Your licence to use our App
1.1 Subject to the Subscriber purchasing the User Subscription(s), the restrictions set out in this clause, the Subscriber complying with the August Platform Terms of Use, and the other terms and conditions of this agreement, August hereby grants to the Subscriber a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Subscriber’s internal business operations.1.2The Subscriber shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      1.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
     1.2.2 facilitates illegal activity;
     1.2.3 depicts sexually explicit images;
     1.2.4 promotes unlawful violence;
     1.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
     1.2.6 is otherwise illegal or causes damage or injury to any person or property;
     and August reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the
Subscriber’s access to any material that breaches the provisions of this clause.
1.3 The Subscriber shall not:
     1.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
     1.3.2 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
     1.3.3 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
     1.3.4 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
     1.3.5 use the Services and/or Documentation to provide services to third parties; or
     1.3.6 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
     1.3.7 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause; or
     1.3.8 introduce or permit the introduction of, any Virus or Vulnerability into the Services or August’s network and information systems.
1.4 The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify August.
1.5 The rights provided under this clause are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of a corporate Subscriber.

1. Services
   2.1 August shall, during the Subscription Term, provide the Services and make available the Documentation to the Subscriber on and subject to the terms of this agreement.
   2.2 August shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week.
   2.3 August will, as part of the Services, provide the Subscriber with August’s standard Subscriber support services during Normal Business Hours in accordance with August’s Support Services Policy in effect at the time that the Services are provided.  August may amend the Support Services Policy in its sole and absolute discretion from time to time. 

2. Data protection
   3.1  To the extent that any processing of personal data is carried out by August as a data processor acting on behalf of the Subscriber as data controller, the provisions of the standard contractual clauses annexed to the 4 JUNE 2021 COMMISSION IMPLEMENTING DECISION on standard contractual clauses between controllers and processors under Article 28 (7) of Regulation (EU) 2016/679 and Article 29 (7) of Regulation (EU) 2018/1725 shall apply and are incorporated into this agreement by reference with the following optionality: Clause 5 (Docking) shall not apply, in Clause 7.7(a) (Use of sub-processors) option 2 (General Authorisation) shall apply with a 14 day time period, and in each case of an option between Regulation (EU) 2016/679 and Regulation (EU) 2018/1725 the Regulation (EU) 2016/679 shall apply.
   3.2 The list of authorised sub-processors in relation to any processing of personal data where August is a data processor shall be maintained here. The parties agree and acknowledge that proposed amendments to the list of authorised sub-processors online shall constitute notice to the data controller and that 14 days after the proposed amendment is posted online, general authorisation may be presumed under the reference to Clause7.7(a) option 2 in 1.1 above.
   3.3 The parties agree to record in writing and update from time to time the Annex information as it applies to the nature and scope of the processing in question here.

3. Account Information Services / Payment Initiation and Third party providers
   4.1 Through the Services the Subscriber will have access to certain account information and payment initiation services in the UK in order to provide August with its account information and to initiate payments. These account information and payment initiation services are provided to the Subscriber directly by Plaid Financial Ltd (“Plaid”), a payment institution authorised by the Financial Conduct Authority in the UK for the provision of payment initiation and account information services (firm reference number: 804718). The Subscriber acknowledges that August is not authorised to provide account information or payment initiation services, and it is only acting as an ‘agent’ of Plaid. This means that even though August is not directly regulated by the FCA, it is permitted to carry on certain activities for which Plaid accepts regulatory responsibility. Further information on the Subscriber’s rights and responsibilities and the account information and payment initiation services provided directly by Plaid is set out in Plaid’s End User Services Agreement (UK) (available here https://plaid.com/legal/#end-user-services-agreement-uk), which the Subscriber must accept before it receives any account information or payment initiation services.
   4.2 The Subscriber acknowledges that the Services may contain third-party advertising or enable or assist the Subscriber to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. August makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Subscriber, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Subscriber and the relevant third party, and not August.  August recommends that the Subscriber refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. August does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

4. August’s obligations
   5.1 August shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
   5.2 August’s obligations at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to August’s instructions, or modification or alteration of the Services by any party other than August or August’s duly authorised contractors or agents. If the Services do not conform with the terms of clause 5.1, August will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Subscriber’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. 
   5.3 August:
        5.3.1. does not warrant that:
          5.3.1.1   the Subscriber‘s use of the Services will be uninterrupted or error-free;
          5.3.1.2   that the Services, Documentation and/or the information obtained by the Subscriber through the Services will meet the Subscriber‘s requirements; or
          5.3.1.3 the Software or the Services will be free from Vulnerabilities or Viruses; 
        5.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Subscriber acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
   5.4 This agreement shall not prevent August from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
   5.5 August warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
   5.6 August shall follow its archiving procedures for Subscriber Data as set out in its Back-Up Policy available at www.augustapp.com/terms-conditions/back-up-policy or such other website address as may be notified to the Subscriber from time to time, as such document may be amended by August in its sole discretion from time to time. In the event of any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy against August shall be for August to use reasonable commercial endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by August in accordance with the archiving procedure described in its Back-Up Policy. August shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by August to perform services related to Subscriber Data maintenance and back-up for which it shall remain fully liable.
    

5. Subscriber’s obligations
   6.1 The Subscriber warrants that it shall use the App and the Services in connection with a trade, business or profession, and not to satisfy its own needs in terms of private consumption.
   6.2 The Subscriber shall, and shall procure that all Authorised Users shall:
        6.2.1 use the App and Services in compliance with all applicable laws and regulations; and
        6.2.2 comply with the August Platform Terms of Use.
   6.3 The Subscriber shall:
        6.3.1 provide August with:
          6.3.1.1 all necessary co-operation in relation to this agreement; and
          6.3.1.2 all necessary access to such information as may be required by August;
           in order to provide the Services, including but not limited to Subscriber Data, security access information and configuration services;
   6.3.2 without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
        6.3.3 carry out all other Subscriber responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Subscriber’s provision of such assistance as agreed by the parties, August may adjust any agreed timetable or delivery schedule as reasonably necessary;
        6.3.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
        6.3.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for August, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
        6.3.6 ensure that its network and systems comply with the relevant specifications provided by August from time to time; and
        6.3.7 be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to August’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Subscriber’s network connections or telecommunications links or caused by the internet.
   6.4The Subscriber shall own all right, title and interest in and to all of the Subscriber Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Subscriber Data.
    

6. Charges and payment
   7.1 The Subscriber shall pay the Subscription Fees:
        7.1.1 directly to August for the User Subscriptions in accordance with this clause 7; or
        7.1.2 via an authorised app store (including but not limited to the Google Play Store or the Apple App Store) in accordance with all of its terms of service and payment terms.
   7.2 If paying Subscription Fees directly, the Subscriber shall on the Effective Date provide to August valid, up-to-date and complete credit card details. The Subscriber hereby authorises August to bill such credit card:
        7.2.1.1 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
        7.2.1.2 subject to clause 12.1, on the expiry of the Initial Subscription Term or current Renewal Period for the Subscription Fees payable in respect of the next Renewal Period;
   7.3 If August (or as the case may be, any relevant app store) has not received any payment on the due date, and without prejudice to any other rights and remedies of August:
        7.3.1 August may, without liability to the Subscriber, disable or delete the Subscriber’s password, account (including Subscriber Data) and access to all or part of the Services and August shall be under no obligation to provide any or all of the Services while the sum(s) concerned remain unpaid; and
        7.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base rate of in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
   7.4 All amounts and fees stated or referred to in this agreement:
        7.4.1 shall be payable in pounds sterling;
        7.4.2 are, subject to clause 11.3.2, non-cancellable and non-refundable;
        7.4.3 are exclusive of value added tax, which shall be added to August’s invoice(s) at the appropriate rate.
   7.5 August shall be entitled to increase the Subscription Fees by giving notice to the Subscriber on the first day of a Renewal Period. If the Subscriber does not perform an In-App Cancellation during that Renewal Period, the increased Subscription Fees shall apply from the start of the Subscriber’s next Renewal Period.
    

7. Proprietary rights
   8.1 The Subscriber acknowledges and agrees that August and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Subscriber any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
   8.2 August confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement. 

8. Confidentiality
    9.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives in connection with this agreement or the Services, including but not limited to:
        9.1.1 any information that would be regarded as confidential by a reasonable business person relating to:
          9.1.1.1 the business, assets, affairs, Subscribers, clients, Augusts, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
          9.1.1.2 the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
        9.1.2 any information developed by the parties in the course of carrying out this agreement and the parties agree that:
        9.1.2.1 details of the Services, and the results of any performance tests of the Services, shall constitute August Confidential Information; and
        9.1.2.1 Subscriber Data shall constitute Subscriber Confidential Information;
        Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers. 
   9.2 The provisions of this clause shall not apply to any Confidential Information that:
        9.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
        9.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
        9.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
        9.2.4 the parties agree in writing is not confidential or may be disclosed;
        9.2.5 is developed by or for the receiving party independently of the information disclosed by the disclosing party; or
        9.2.6 is Subscriber Data that by its nature is intended to be disclosed via the Services or the App or that the Subscriber expressly or impliedly permits August to disclose via the App or Services.
   9.3 Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
        9.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
        9.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
   9.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
        9.4.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
        9.4.2 at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
   9.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
   9.6 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
   9.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this  agreement are granted to the other party, or to be implied from this agreement.
   9.8 On termination of this agreement, each party shall, to the extent technically and legally practicable:
        9.8.1 destroy to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information; and
        9.8.2 erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties;
   9.9 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
   9.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
   9.11The above provisions of this clause 9 shall continue to apply after termination of this agreement.
    

9. Indemnity
   10.1 The Subscriber shall defend, indemnify and hold harmless August against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Subscriber’s use of the Services and/or Documentation, provided that:
        10.1.1 the Subscriber is given prompt notice of any such claim;
        10.1.2 August provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber’s expense; and
        10.1.3 the Subscriber is given sole authority to defend or settle the claim.
   10.2 August shall defend the Subscriber, its officers, directors and employees against any claim that the Subscriber’s use of the Services or Documentation in accordance with this agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:
        10.2.1 August is given prompt notice of any such claim;
        10.2.2 the Subscriber does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to August in the defence and settlement of such claim, at August’s expense; and
        10.2.3 August is given sole authority to defend or settle the claim.
   10.3 In the defence or settlement of any claim, August may procure the right for the Subscriber to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.
   10.4 In no event shall August, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:
        10.4.1 a modification of the Services or Documentation by anyone other than August; or
        10.4.2 the Subscriber’s use of the Services or Documentation in a manner contrary to the instructions given to the Subscriber by August; or
       10.4.3 the Subscriber’s use of the Services or Documentation after notice of the alleged or actual infringement from August or any appropriate authority; or
        10.4.4 the Subscriber’s breach of this agreement.
   10.5 The foregoing  and clause 11.3.2 state the Subscriber’s sole and exclusive rights and remedies, and August’s (including August’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
    

10. Limitation of liability
    11.1 Except as expressly and specifically provided in this agreement:
         11.1.1 the Subscriber assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Subscriber, and for conclusions drawn from such use. August shall have no liability for any damage caused by errors or omissions in any Subscriber Data, information, instructions or scripts provided to August by the Subscriber in connection with the Services, or any actions taken by August at the Subscriber’s direction;
         11.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
         11.1.3 the Services and the Documentation are provided to the Subscriber on an “as is” basis.
    11.2 Nothing in this agreement excludes the liability of August:
         11.2.1 for death or personal injury caused by August’s negligence; or
         11.2.2 for fraud or fraudulent misrepresentation.
    11.3 Subject to clause 11.1 and clause 11.2:
    11.3.1 August shall have no liability for any: 

• loss of profits,  

• loss of business,  

• wasted expenditure,  

• depletion of goodwill and/or similar losses,  

• loss or corruption of data or information, or 

• any special, indirect or consequential loss, costs, damages, charges or expenses; and
  11.3.2 August’s total aggregate liability to the Subscriber in respect of all breaches of duty occurring within any contract year shall not exceed the cap. If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, August’s total liability for those claims shall not exceed the single highest annual cap for those contract years.
  11.3.3 In clause 11.3.2:
  
  The cap is one hundred per cent (100%) of the total Subscription Fees paid in the contract year in which the breaches occurred;A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.
  11.4 References to liability in this clause include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
  11.5 Nothing in this agreement excludes the liability of the Subscriber for any breach, infringement or misappropriation of August’s Intellectual Property Rights.

12. Term and termination 

       12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of the same length (each a Renewal Period), unless:  

              12.1.1 the Subscriber performs an In-App Cancellation (in which case this agreement shall terminate at the end of the Initial Subscription Term or the then-current Renewal Period); 

             12.1.2 the Subscriber cancels the Subscription through an authorised app store (including but not limited to the Google Play Store or the Apple App Store) in accordance with all of its terms of service and cancellation terms;. 

             12.1.3 August gives the Subscriber a minimum of 1 month notice that this agreement is being terminated; or 

             12.1.4 otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term. 

       12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving notice to the other party if: 

             12.2.1 the other party fails to pay any amount due under this agreement on the due date for payment; 

             12.2.2 the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified to do so; 

             12.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 OR (being a partnership) has any partner to whom any of the foregoing apply; 

            12.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 

            12.2.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; 

             12.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 

              12.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership); 

      12.2.8 the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver; 

               12.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; 

               12.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; 

               12.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.3 to 12.2.10(inclusive); 

               12.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; 

               12.2.13 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or 

                12.2.14 there is a change of control of the other party. 

       12.3 On termination of this agreement for any reason: 

                12.3.1 all licences granted under this agreement shall immediately terminate and the Subscriber shall immediately cease all use of the Services and/or the Documentation;  

                12.3.2  each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; 

                12.3.3 August may destroy or otherwise dispose of any of the Subscriber Data in its possession unless August receives prior to the effective date of the termination of this agreement, a written request for the delivery to the Subscriber of the then most recent back-up of the Subscriber Data. August shall use reasonable commercial endeavours to deliver the back-up to the Subscriber within 30 days of its receipt of such a written request, provided that the Subscriber has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Subscriber shall pay all reasonable expenses incurred by August in returning or disposing of Subscriber Data; and 

                12.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced. 

Schedule 1   Authorised Users 

1. 1 In relation to the Authorised Users, the Subscriber undertakes that:
        1.1.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
        1.1.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
        1.1.3 each Authorised User shall keep a secure login and/or password for their use of the Services and Documentation, and that each Authorised User shall keep their login information and/or password confidential;
        1.1.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to August within 5 Business Days of August’s written request at any time or times;
        1.1.5  it shall permit August or August’s designated auditor to audit the Services in order to establish the name, login information and password of each Authorised User and the Subscriber’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at August’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Subscriber’s normal conduct of business;
        1.1.6 if any of the audits referred to in paragraph 1.1.5 reveal that any login information and/or password has been provided to any individual who is not an Authorised User, then without prejudice to August’s other rights, the Subscriber shall promptly disable such passwords and August shall not issue any new logins and/or passwords to any such individual; and
        1.1.7 if any of the audits referred to in paragraph 1.1.5 reveal that the Subscriber has underpaid Subscription Fees to August, then without prejudice to August’s other rights, the Subscriber shall pay to August an amount equal to such underpayment as calculated in accordance with the then-current prices within 10 Business Days of the date of the relevant audit. 

Schedule 2   Legal boilerplate clauses 

1. Force majeure
   Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.

    

2. Waiver 
   2.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.  
   2.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
    

3. Rights and remedies
   Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
    

4. Severance  
   4.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. 
   4.2 If any provision or part-provision of this agreement is deemed deleted under paragraph 4.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
    

5. Entire agreement 
   5.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. 
   5.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
   5.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. 
   5.4 Nothing in this clause shall limit or exclude any liability for fraud.

    

6. Assignment 
   6.1 The Subscriber shall not, without the prior written consent of August, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement. 
   6.2 August may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement. |

    

7. No partnership or agency
   Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

    

8. Third party rights
   This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
   The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
    

9. Notices
   9.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

   delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); 
   9.1. 1sent by email to the address provided:
   by the Subscriber as their account email address from time to time;
   by August as their email address for the serving of legal notices from time to time; 
   1.1.1 in the case of notice by August to the Subscriber, by in-App message or notification. 
   9.2 Any notice shall be deemed to have been received: 
        9.2.1 if delivered by hand, at the time the notice is left at the proper address; 
       9.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;  
        9.2.3 if sent by email, unless an non-delivery or equivalent notification is generated, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume; or 
        9.2.4 if sent by in-App message or notification, at the time of sending.

   This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
    

    

10. Governing law 
    10.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.

     

11. Binding arbitration 
    11.1 Each party irrevocably agrees that any dispute arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) shall be determined by one arbitrator who will be chosen in accordance with the Arbitration and Internal Rules of the European Court of Arbitration being part of the European Centre of Arbitration having its seat in Strasbourg, and which are in force at the time the application for arbitration is filed, and of which adoption of this clause constitutes acceptance. The seat of arbitration shall be London, United Kingdom. The language of the proceedings shall be English. Applicable rules of substantive law shall
    be the law of England and Wales. 
    11.2 Any arbitration shall be limited to the dispute between the parties individually. To the full extent permitted by law:  
         11.2.1 no arbitration shall be joined with any other proceeding; 
         11.2.2 there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilise class action procedures; and  
        11.2.3 there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. 
    11.3 Notwithstanding paragraph 11.1 above the following disputes are not subject to the above provisions concerning binding arbitration: 
        11.3.1 any disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a party;  
        11.3.2 any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, breach of licence or unauthorised use;
    and  any claim for injunctive relief. 

    If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any dispute falling within that portion of this provision found to be illegal or unenforceable and such dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the parties agree to submit to the personal jurisdiction of that court. 

     

Schedule 3   Interpretation 

The definitions and rules of interpretation in this clause apply in this agreement. 

App: the online software application(s) provided by August as part of the Services. 

August Platform Terms of Use: the rules governing behaviour on the App, available on the App or at www.augustapp.com/august-app-terms-of-use as updated by August from time to time. 

1. Authorised Users: those employees, agents and independent contractors of the Subscriber who are authorised by the Subscriber to use the Services and the Documentation, (including you yourself where you are a sole trader), as further described in paragraph 1.1.4 of Schedule 1. 

2. Business Day: a day other than a Saturday, Sunday or public holiday in England   vwhen banks in London are open for business. 

3. Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010. 

4. Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.1. 

5. Documentation: the document made available to the Subscriber by August online or via the App from time to time which sets out a description of the Services and the user instructions for the Services. 

6. Effective Date: the date the Subscriber pays the Subscription Fees for the Initial Subscription Term. 

7. In-App Cancellation: the use by the Subscriber of the in-App function to cancel their User Subscription(s) at the end of the Initial Subscription Term or the then-current Renewal Period (as the case may be). 

8. Initial Subscription Term: one calendar month from the Effective Date. 

9. Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day. 

10. Renewal Period: the period described in clause 12.1. 

11. Services: the subscription services provided from time to time by August under this agreement, as more particularly described in the Documentation. 

12. Subscriber Data: the data inputted by the Subscriber, Authorised Users, or August on the Subscriber’s behalf for the purpose of using the Services or facilitating the Subscriber’s use of the Services.  

13. Subscription Fees: the subscription fees payable by the Subscriber to August for the User Subscriptions, as set out from time to time on www.augustapp.com 

14. Subscription Term: has the meaning given in clause 12.1  (being the Initial Subscription Term together with any subsequent Renewal Periods). 

15. Support Services Policy: August’s policy for providing support in relation to the Services as made available at www.augustapp.com/terms-conditions or such other website address as may be notified to the Subscriber from time to time. 

16. User Subscriptions: the user subscriptions purchased by the Subscriber pursuant to clause 7.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement. 

17. Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. 

18. Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.  

1. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. 

2. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. 

3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 

4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. 

5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. 

6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement. 

7. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision. 

8. A reference to writing or written excludes fax but not email or other electronic message. 

9. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement. 

10. The clauses and schedules of this agreement are all of binding force and taken together form one instrument.