Terms and Conditions | ArbilityApp

ArbilityApp Terms and Conditions

These Terms and Conditions are a legal agreement between you and Arbility App Ltd (we, us, our) for your use of our software, platform(s), website(s), application(s) or services (ArbilityApp). They explain how you are (and are not) allowed to use ArbilityApp, and our rights and responsibilities.

ArbilityApp is a mobile app and service which allows you to Compile Utility Arboriculture tree and site surveys, create work instruction and document landowner consents.

We refer to you in these Terms and Conditions as “you” or “user”. The definitions of the terms “user” and “user content” are given in the section titled “Definitions” in clause 31. Where we include word(s) in quotes and brackets after a description, we will then use those words to have the described meaning. The numbering in these Terms and Conditions is provided for convenience only. The entire document makes up the Terms and Conditions, whether or not it forms part of a numbered section.

Please read these Terms and Conditions carefully before using ArbilityApp. In particular, you should note that these Terms and Conditions limit our liability (see the section titled “Our responsibility for loss or damage suffered by you”).

These Terms and Conditions refer to the following additional terms, which also apply to your use of ArbilityApp and which can all be found on our website at www.arbilityapp.com:

Our Privacy Policy https://arbilityapp.com/privacy (see the section titled “How we may use your personal information”).
Our Cookie Policy https://arbilityapp.com/cookie, which sets out information about the cookies used by ArbilityApp.
If you downloaded and installed our mobile app from the Apple AppStore, Google Play or any other mobile app distribution platform, the ways in which you can use the app may also be controlled by the platform's rules, terms and policies.

By accessing or using ArbilityApp, or by clicking “I agree” (or similar wording), you agree that you have read, understand and agree to these Terms and Conditions, our Privacy Policy, our Cookie Policy and the app distribution platform’s terms (if relevant). If you do not agree to any of these, you must not use ArbilityApp.

Your acceptance of these Terms and Conditions
1. As a user of ArbilityApp, you accept these Terms and Conditions on behalf of yourself personally.
2. If you use ArbilityApp on behalf of a business or organisation, by so doing so you accept these Terms and Conditions on behalf of yourself personally and also on behalf of any legal entity that operates your business or organisation (the “Organisation”). All references to “you” or “user” in these Terms and Conditions refer to you personally and also to the Organisation. You hereby represent and warrant that you have authority to agree to these Terms and Conditions on behalf of the Organisation.
3. If you purchase a subscription which allows other users to use ArbilityApp:
  1. you are responsible for ensuring that all persons who access ArbilityApp through your subscription are aware of these Terms and Conditions and other applicable terms, and that they comply with them; and
  2. you shall be responsible for the actions of all users who access ArbilityApp via your subscription and for any breach of these Terms and Conditions and any other applicable terms by them.
We may update these Terms and Conditions
1. We may update these Terms and Conditions, our Privacy Policy, our Cookie Policy and our Acceptable Use Policy from time to time to clarify them or to reflect changes to the law, or to ArbilityApp.  Every time you wish to use ArbilityApp, please check these Terms and Conditions to ensure you understand them.
2. If you do not agree to the updates, you must stop using ArbilityApp. If you continue to use ArbilityApp you agree that you have read, understand and agree to the updates.
Who we are
1. ArbilityApp is a trading name of Arbility App Ltd. We are a limited company registered in England and Wales under company number 15311553 and we have our registered office and main trading office at Jessamine Cottage, Wavering Lane East, Gillingham, Dorset, England, SP8 4NX.
2. To contact us, email us at info@arbilityapp.com
How we make ArbilityApp available to you
1. Any descriptions or illustrations of ArbilityApp on www.arbilityapp.com are published for the sole purpose of giving an approximate idea of ArbilityApp. They will not form part of these Terms and Conditions or have any contractual force.
2. We do not guarantee that ArbilityApp will always be available or be uninterrupted.  We may amend, suspend or withdraw or restrict the availability of all or any part of ArbilityApp at any time. For example, we may amend, suspend or withdraw or restrict the availability of all or any part of ArbilityApp to improve performance, enhance functionality, reflect changes to operating systems or address security issues. If you are using our mobile app, we may ask you to update the app for these reasons. If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and ArbilityApp.  We will try to give you reasonable notice of any major changes, where appropriate.
3. ArbilityApp is not designed for use on all devices and systems.  We do not warrant that ArbilityApp will be compatible with your device or system. [IF THERE ARE KNOWN SYSTEM REQUIREMENTS, INCLUDE THEM HERE.]
4. We may make some ArbilityApp functionality and features available for free, subject always to these Terms and Conditions.
5. We may also provide options which allow you to purchase a monthly subscription to allow you and your users to access certain content and services on ArbilityApp.
6. Where you purchase a subscription, you shall pay the Subscription Fees (as defined in the section titled “Definitions”) to us:
  1. in accordance with the pricing information made available by us from time to time;
  2. using the payment method or payment processor communicated to you by us from time to time;
  3. where payments are processed by a third party payment processor:
    1. you must agree to the third party’s terms and conditions and provide all relevant co-operation and information in order to purchase a subscription; and
    2. you acknowledge that the third party’s privacy policy shall apply.
7. If you provide your payment details to us (or a third party payment processor) in relation to a subscription, you hereby authorise us to bill you:
  1. at the start of the subscription for the Subscription Fees payable in respect of the initial subscription period; and
  2. subject to clause 5.2 (terminating at the end of the subscription period), on each anniversary of the start of the subscription for the Subscription Fees payable in respect of the next subscription period.
8. If you cancel any payment, fail to make payment when it is due, or your payment is rejected, without prejudice to our other rights and remedies:
  1. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of our bankers in the UK from time to time, commencing on the due date and continuing until fully paid;
  2. you will not be granted access to the relevant subscription unless/until payment is made. If this relates to an existing subscription, we may suspend your access to ArbilityApp (or the part which relates to the failed payment) until the relevant subscription has been paid for.
9. All amounts and fees stated or referred to in this agreement:
  1. shall be payable in pounds sterling;
  2. are, subject to clauses 5.4 (consumer refunds), 27.3 (refund on termination in some cases) and 28.4 (our liability), non-cancellable and non-refundable; and
  3. are exclusive of value added tax, which shall be added at the appropriate rate.
10. You can find a description of the available ArbilityApp subscriptions and the Subscription Fees at www.arbilityapp.com. Where the Subscription Fees are calculated on the basis of the number of certain types of users who can use the subscription, any changes to the number of such users will affect the Subscription Fees payable from the time of the change.
11. We shall be entitled to amend the Subscription Fees at any time upon written notice to you. The changes shall take effect at the start of each new subscription period.
12. If you have any questions about any purchase or how your Subscription Fees have been calculated, you can contact us at info@arbilityapp.com.
Cancelling a subscription, Refunds
1. Where you have purchased a subscription the subscription period will automatically renew on the anniversary of the start date of your subscription.
2. You can cancel a subscription at any time via your account on www.arbilityapp.com. If you cancel a subscription you will continue to receive your current subscription until the end of the relevant subscription period, after which your access will terminate automatically. If we do not disable the relevant subscription immediately, that will not mean that we have waived our right to do so.
3. If any Subscription Fees have not been paid at the termination of a subscription (e.g. for new users added, you will be charged for those outstanding Subscription Fees.
4. We do not generally issue refunds for subscriptions once you decide to purchase a paid ArbilityApp subscription. However, if you are a consumer in the UK, EU or Turkey and have signed up to a subscription and have not used the service and have changed your mind within 14 days you may be entitled to cancel your subscription and receive a refund. If you believe that this is the case, please contact us at info@abilityapp.com.
You must keep your account details safe
1. If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.
2. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these Terms and Conditions.
3. If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at info@arbilityapp.com.
You must co-operate with us in your use of ArbilityApp
1. You must cooperate with us in all matters relating to ArbilityApp.
2. You must provide us with such information and materials we may reasonably require in order to provide access to ArbilityApp, and ensure that such information is complete and accurate in all material respects. 
3. You are responsible for obtaining and maintaining all necessary licences, permissions and consents which may be required for your use of ArbilityApp.
4. You must comply with all applicable laws in your use of ArbilityApp.
5. If someone else owns device you are using, you must have the owner's permission to install and use ArbilityApp on the device. You will be responsible for complying with these terms, whether or not you own the phone or other device.
Licence to use ArbilityApp
1. We, or our licensors, are the owners or the licensee of all intellectual property rights arising out of or in connection with ArbilityApp (other than intellectual property rights in any user content provided by you). 
2. We grant you a non-exclusive, revocable licence to use any freely available parts of ArbilityApp on the basis of, and subject to, these Terms and Conditions. Subject to you purchasing a subscription in accordance with clause 4, we grant you a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to access and use ArbilityApp during the subscription period solely for your internal business operations on the basis of, and subject to, these Terms and Conditions. We do not sell ArbilityApp to you.  
3. You may not sub-license, assign or otherwise transfer the rights granted in this clause 8.
4. You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any user content provided by you to us for the purpose of providing access to ArbilityApp to you.
5. You agree that we will own all intellectual property rights in any improvements, and that we may incorporate such improvements into ArbilityApp and make them available to other users.  The definition of “improvement” is given in the section titled “Definitions”.
6. To the extent that they do not automatically vest in us, you hereby assign to us (by way of present assignment of future rights where appropriate) absolutely with full title guarantee all your right, title and interest in and to the intellectual property rights in the improvements.
7. These Terms and Conditions shall not prevent us 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 these Terms and Conditions.
No bots, automated processes, text or data mining, or web scraping
1. You shall not conduct, facilitate, authorise or permit any text or data mining or web scraping in relation to ArbilityApp. This includes using (or permitting, authorising or attempting the use of):
  1. Any "robot", "bot", "spider", "scraper" or other automated device, program, tool, algorithm, code, process or methodology to access, obtain, copy, monitor or republish any portion of ArbilityApp or any data, content, information or services accessed via the same.
  2. Any automated analytical technique aimed at analysing text and data in digital form to generate information.
2. The provisions in this clause should be treated as an express reservation of our rights in this regard, including for the purposes of Article 4(3) of Digital Copyright Directive ((EU) 2019/790).
3. You shall not use, and we do not consent to the use of, ArbilityApp, or any data published by, or contained in, or accessible via, ArbilityApp or any services provided via, or in relation to, ArbilityApp for the purposes of developing, training, fine-tuning or validating any AI system or model.
4. This clause shall not apply insofar as (but only to the extent that) we are unable to exclude or limit text or data mining or web scraping activity by contract under the laws which are applicable to us.
We are not responsible for other websites or services
1. Where any part of ArbilityApp contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.  We have no control over the contents of those sites or resources.
User content is not approved by us
1. You may encounter user content on ArbilityApp. You should note that user content is not provided by us and has not been verified or approved by us. The views expressed by users on, or through their use of, ArbilityApp do not represent our views or values.
How to complain about or report content
1. If you become aware of any material on ArbilityApp that you think may be illegal content, otherwise against the law, or a breach of our Acceptable Use Policy or these Terms and Conditions please contact us immediately on info@arbilityapp.com. The definitions of “illegal content” and “against the law” are given in the section titled “Definitions”.
You must comply with our content standards.  
1. Whenever you make use of a feature that allows you to upload user content to ArbilityApp, or to create user content on ArbilityApp, or to make contact with other users of ArbilityApp, you must comply with the law and make sure that you have permission to use any third party-owned material which you include in the user content.
2. You shall not access, store, distribute or transmit any viruses, or any material during the course of your use of ArbilityApp that:
  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  2. facilitates illegal activity;
  3. depicts sexually explicit images;
  4. promotes unlawful violence;
  5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  6. is otherwise illegal or causes damage or injury to any person or property;
    
    and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
3. You warrant that any user content on ArbilityApp and your use of ArbilityApp does comply with this clause (referred to elsewhere in these Terms and Conditions as our “Acceptable Use Policy”), and you are liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
We may use your user content
1. You retain all of your ownership rights in your user content, but you are required to grant us and any other users of ArbilityApp to whom you grant or permit access to your user content (including by using any feature of ArbilityApp) a limited licence to use that user content in relation to ArbilityApp.
2. The rights you license to us and to other users are described in the section titled “Rights to use user content”.
We may remove your user content
1. We may take action if user content which you upload to or create on ArbilityApp does not comply with these Terms and Conditions.
2. We have the right to remove any user content from ArbilityApp if we reasonably believe the user content is illegal, against the law, or otherwise does not comply with these Terms and Conditions, including the content standards set out in our Acceptable Use Policy.
3. Where it is reasonably necessary to comply with our legal obligations, we also have the right to disclose your identity to:
  1. any third party who is claiming that any user content which was uploaded or created by you is illegal or against the law or constitutes a violation of their legal rights, including intellectual property rights, and or of their right to privacy or any other legal right; and/or
  2. any law enforcement agency, regulator or judicial authority (together with other information about your user content and use of our services).
4. We may suspend or ban you, or restrict your use of ArbilityApp if you upload or create any user content which is illegal, against the law or otherwise does not comply with these Terms and Conditions, including the content standards set out in our Acceptable Use Policy.
5. If we suspend or ban you from using ArbilityApp, you are not permitted to use the Services or register again as a new user during the relevant period.
Your rights to claim against us
1. If we restrict access to any user content you upload to or create on ArbilityApp in a way that breaches these Terms and Conditions, you have a right to bring a claim against us for breach of contract.
2. If we suspend or ban you from using ArbilityApp in a way that breaches these Terms and Conditions, you have a right to bring a claim against us for breach of contract.
Rights to use user content
1. When you upload user content to, or create user content on ArbilityAppApp, you grant us the following rights to use that user content:
  1. a worldwide, non-exclusive, royalty-free, sublicensable licence to display, modify and use the user content in connection with ArbilityAppApp; and
  2. where you enable other ArbilityAppApp users (which may include, where relevant, the general public) to access and use the user content, a worldwide, non-exclusive, royalty-free licence to permit such users to display, modify and use the user content in any ways enabled by you.
2. The licences in this clause shall continue for as long as you permit the user content to remain on ArbilityAppApp.
Disputes with other users in relation to user content
1. If you choose to share user content with other users (whether or not this is via ArbilityAppApp) you do so at your own risk.  Where you make use of a feature or setting which allows other users to modify or otherwise use your user content, you do so at your own risk. We are not responsible for your decisions to share or not to share user content with other users and we shall not be liable to you for their use of the user content within the scope of the licence you grant under these Terms and Conditions. We are not responsible for the actions of any user in relation to your user content in breach of these Terms and Conditions.
2. If you choose to share user content with other users for them to use outside of any services provided by us, we are not involved in any licensing arrangements between you and those other users and you are solely responsible for determining, communicating and recording any licensing arrangements between you and those other users.
3. You indemnify us for any loss or damage we suffer if you, another user or a third-party complains to us, or brings a claim against us concerning any or all of:
  1. the licensing arrangements for the use of user content outside of any services provided by us;
  2. you inviting others to use ArbilityAppApp; and/or
  3. you sharing user content with them or with others (whether or not this is via ArbilityAppApp).
Security and export of user content
1. You are solely responsible for securing and backing up your content.
2. You are solely responsible for ensuring that you have exported any user content from ArbilityAppApp prior to termination or expiry of your subscription. Subject to our obligations under the Data Processing Agreement, we shall have no obligation to return any user content to you upon termination of your subscription.
We are not responsible for viruses and you must not introduce them
1. We do not guarantee that ArbilityAppApp will be secure or free from bugs or viruses.
2. You are responsible for configuring your information technology, computer programs and platform to access ArbilityAppApp. You should use your own virus protection software.
3. You must not misuse ArbilityAppApp by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to ArbilityAppApp, the servers or other infrastructure which are used by ArbilityApp. You must not attack ArbilityApp via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use ArbilityApp will cease immediately.
Linking and framing
1. You may link to WEBSITE, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it; and otherwise complies with these Terms and Conditions and our Acceptable Use Policy.  We reserve the right to withdraw linking permission without notice.
2. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
3. ArbilityApp must not be framed on any other site or service.
4. You warrant that any link you create or share to ArbilityApp complies with the requirements of this clause, and you are liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.
Restrictions on your use of ArbilityApp
1. You must not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between us and except to the extent we expressly permit:
  1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of ArbilityApp in any form or media or by any means; or
  2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of ArbilityApp; or
  3. access all or any part of ArbilityApp in order to build a product or service which competes with ArbilityApp; or
  4. subject to clause 32.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make ArbilityApp available to any third party; or
  5. attempt to obtain, or assist third parties in obtaining, access to ArbilityApp, other than as permitted under these Terms and Conditions; or
  6. introduce or permit the introduction of, any virus or vulnerability into the software or our network and information systems.
How we may use your personal information
1. If we process your personal information on behalf of another user, you should contact the other user with any questions or concerns about that processing. In this situation, we act as a processor on behalf of that other user, who is the controller. We have provided some further information on this in our Privacy Policy.
2. We will process your personal information in accordance with our Privacy Policy, the terms of which are incorporated into these Terms and Conditions.
3. If you use a third party service to register for ArbilityApp and/or authenticate your identity, we will use and store the information provided by that service in order to set up and/or authenticate your access.
Data protection
1. This clause explains how we process personal data in the course of providing ArbilityApp to users. In this clause, references to “you” are to the user or Organisation which holds the relevant account where the personal data is collected, stored or processed.
2. For the purposes of this clause 24:
  1. the definitions of the terms “Applicable Data Protection Laws”, “Customer Personal Data”, “Data Protection Particulars” and “Purpose” are set out in the section titled “Definitions”; and
  2. the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
3. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 24 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
4. The parties have determined that, for the purposes of Applicable Data Protection Laws we shall process the Customer Personal data, as a processor on behalf of you, except as set out in our Privacy Policy.
5. By accepting these Terms and Conditions, you consent to (and shall procure all required consents, from your users and your other personnel, representatives and agents, in respect of) all actions taken by us in connection with the processing of the personal data described in our Privacy Policy.
6. Without prejudice to the generality of clause 24.3, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data described in our Privacy Policy and the Customer Personal Data to us and/or lawful collection of the same by us for the duration and purposes described in these Terms and Conditions. You warrant that it has an appropriate privacy policy in place in relation to the processing and collection of Customer Personal Data undertaken by us on behalf of you in relation to ArbilityApp, that this has been brought to the attention of relevant data subjects and that (where required) consent has been obtained from such data subjects.
7. In relation to the Customer Personal Data, the Data Protection Particulars set out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
8. Without prejudice to the generality of clause 24.3 we shall, in relation to Customer Personal Data:
  1. process that Customer Personal Data only on your documented instructions, which shall be to process the Customer Personal Data for the Purpose, unless we are required by applicable laws to otherwise process that Customer Personal Data. Where we are relying on applicable laws as the basis for processing Customer Processor Data, we shall notify you of this before performing the processing required by the applicable laws unless those applicable laws prohibit us from so notifying you;
  2. ensure that we have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
  3. ensure that any personnel engaged and authorised by us to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  4. assist you insofar as this is possible (taking into account the nature of the processing and the information available to us), and at your cost and written request, in responding to any request from a data subject and in ensuring your compliance with your obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify you without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
  6. at your written direction, delete or return Customer Personal Data and copies thereof to you on termination of the agreement unless we are required by applicable law to continue to store or to process that Customer Personal Data. For the purposes of this clause 24.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by us; and
  7. maintain records to demonstrate its compliance with this clause 24 and allow for reasonable audits by you or your designated auditor, for this purpose, on reasonable written notice.
9. You hereby provide your prior, general authorisation for us to:
  1. appoint processors to process the Customer Personal Data, provided that we:
    1. shall ensure that the terms on which we appoint such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on us in this clause 24;
    2. shall remain responsible for the acts and omission of any such processor as if they were our acts and omissions; and
    3. shall inform you of any intended changes concerning the addition or replacement of the processors, thereby giving you the opportunity to object to such changes provided that if you object to the changes and cannot demonstrate, to our reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, you shall indemnify us for any losses, damages, costs (including legal fees) and expenses suffered by us in accommodating the objection. This means you will be responsible for those amounts.
  2. transfer Customer Personal Data outside of the UK and EEA as required for the Purpose, provided that we shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws.
Confidentiality
1. We and you each undertake that we will not at any time during your use of ArbilityApp, and for a period of five years after termination of your use of ArbilityApp disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 25.2.
2. We each may disclose the other's confidential information:
  1. to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising our respective rights or carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 25; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. We may use your confidential information for the purpose of providing ArbilityApp or as otherwise permitted by these Terms and Conditions. 
Indemnity
1. You shall defend, indemnify and hold us harmless 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 your use of ArbilityApp
2. We shall defend you against any claim that your use of ArbilityApp in accordance with these Terms and Conditions infringes any third party United Kingdom intellectual property right, and we shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that: you give us prompt notice of any such claim; you do not make any admission, or otherwise attempt to compromise or settle the claim and you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and we are given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, we may procure the right for you to continue using ArbilityApp, replace or modify ArbilityApp so that it becomes non-infringing or, if such remedies are not reasonably available, terminate your subscription and this agreement without any additional liability or obligation to pay liquidated damages or other additional costs to you other than the refund the relevant portion of any Subscription Fees which have already been paid and which relate to the period following termination.
4. In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
  1. a modification of ArbilityApp by anyone other than us; or
  2. your use of ArbilityApp in a manner contrary to the instructions given to you by us; or
  3. your use of ArbilityApp after notice of the alleged or actual infringement from us or any appropriate authority; or
  4. your user content; or
  5. your breach of this agreement.
5. The foregoing and clause 27.4 state your sole and exclusive rights and remedies, and our (including our employees', agents' and sub-contractors') entire obligations and liability, for infringement or alleged infringement of any third party intellectual property right by us.
Our responsibility for loss or damage suffered by you
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
1. The following definitions apply in this clause 27:
  1. liability: 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; and
  2. default: any act or omission resulting in one party incurring liability to the other.
2. Except as expressly and specifically provided in these Terms and Conditions:
  1. ArbilityApp is provided to you on an "as is" basis;
  2. we do not warrant that:
    1. your use of ArbilityApp will be uninterrupted or error-free; or
    2. that ArbilityApp and/or the information and/or outputs obtained by you through ArbilityApp will meet your requirements or shall be suitable for satisfying your compliance with any laws or regulations to which you are subject.
  3. you assume sole responsibility for results obtained from your use of ArbilityApp, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ArbilityApp in connection with the Services, or any actions taken by us at your direction; and
3. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
4. Subject to clause 27.3, our total liability to you arising under or in connection with ArbilityApp, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the greater of £100 or 100% of the total Subscription Fees paid for your use of ArbilityApp during the period of 12 months prior to the event giving rise to the liability.
5. If you are a consumer user, we only provide ArbilityApp for domestic and private use. You agree not to use ArbilityApp for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
6. Subject to clause 27.3:
  1. these Terms and Conditions set out the full extent of our obligations and liabilities in respect of ArbilityApp;
  2. except as expressly stated in these Terms and Conditions, any condition, warranty, representation or other term which might otherwise be implied into, or incorporated in, these Terms and Conditions or any agreement for your use of ArbilityApp whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
7. This clause 27 will survive termination of your use of ArbilityApp.
Our responsibility for loss or damage suffered by business use
1. YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
2. If you are using ArbilityApp for any commercial or business purposes, you will be deemed to be a business user under these Terms and Conditions.
3. If you are a business user:
  1. We exclude all implied conditions, warranties, representations or other terms that may apply to ArbilityApp or any content on it.; or
  2. We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
    1. use of, or inability to use, ArbilityApp; or
    2. use of or reliance on any content displayed on ArbilityApp.
  3. In particular, we will not be liable for:
    1. loss of profits, sales, business, or revenue;
    2. business interruption;
    3. loss of anticipated savings;
    4. loss of use or corruption of software, data or information;
    5. loss of business opportunity, goodwill or reputation; or
    6. any indirect or consequential loss or damage.
4. This clause 28 will survive termination of your use of ArbilityApp.
Termination, consequences of termination and survival
1. Termination. Without limiting any of our other rights, we may suspend or terminate your access to and/or licence to use ArbilityApp with immediate effect by giving written notice to you if:
  1. you commit a material breach of any term of these Terms and Conditions and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so; and/or
  2. your subscription has expired or terminated for any reason.
2. Consequences of termination. If we suspend or terminate your access to ArbilityApp, then for the period of the suspension, or indefinitely for termination:
  1. all rights granted to you under these Terms and Conditions shall cease; and
  2. you must immediately cease all activities authorised by these Terms and Conditions.
3. Survival.  Any provision of these Terms and Conditions that expressly or by implication is intended to come into or continue in force on or after such termination, or after you cease using ArbilityApp, will remain in full force and effect.
Definitions
1. improvement means any improvement, enhancement or modifications to ArbilityApp whether following requests or feedback from you or suggestions made by us.
2. user means you, as a user of ArbilityApp (or another user, if implied by the context).  
3. user content means any data uploaded or inputted by or on behalf of you (or another user, if implied by the context), for the purpose of using ArbilityApp and any data created on, generated by, or derived from your use of ArbilityApp.
4. terrorist content means content which amounts to an offence set out in Schedule 5 of the Online Safety Act 2023, including encouragement of terrorism and dissemination of terrorist publications.
5. child sexual abuse material means content which amounts to an offence set out in Schedule 6 of the Online Safety Act 2023, including offences under the Sexual Offences Act 2003.
6. priority illegal content means terrorist content, child sexual abuse material and content which amounts to an offence set out in Schedule 7 of the Online Safety Act 2023, including human trafficking (including sex trafficking or other illegal exploitation), harassment and assisting suicide.
7. illegal content means priority illegal content and content which is a criminal offence of the type defined in section 59(5) and (6) of the Online Safety Act 2023 including modern slavery.
8. against the law means that the user content gives rise to some liability which is not covered by the definition of illegal content, e.g. copyright infringement and defamation.
9. Subscription Fees means the fees you pay to access any subscription.
10. Applicable Data Protection Laws: means:
  1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
  2. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which we are subject, which relates to the protection of personal data.
11. Customer Personal Data means any personal data which we processes in connection with this Agreement, in the capacity of a processor on behalf of you, as referred to in the Data Protection Particulars.
12. Data Protection Particulars means the particulars of processing, setting out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject for the Customer Personal Data, as set out in Annex 1.
13. EU GDPR means the General Data Protection Regulation ((EU) 2016/679).
14. Purpose means the purposes for which the Customer Personal Data is processed, as set out in Annex 1.
15. UK GDPR has the meaning given to it in the Data Protection Act 2018.
General
1. Assignment and transfer
  1. We may assign or transfer our rights and obligations under these Terms and Conditions to another entity.
  2. You may only assign or transfer your rights or your obligations under these Terms and Conditions to another person if we agree in writing.
2. Waiver. If we do not insist that you perform any of your obligations under these Terms and Conditions, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
3. Severance. Each paragraph of these Terms and Conditions operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
4. Entire agreement. These Terms and Conditions set out the entire agreement between you and us in relation to ArbilityApp. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in these Terms and Conditions.  These Terms and Conditions apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
5. Third party rights. The agreement for use of ArbilityApp is between you and us. No other person has any rights to enforce any of its terms.
6. Events outside our control.  We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms and Conditions that is caused by any act or event beyond our reasonable control (Event Outside Our Control).   If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms and Conditions:
  1. we will contact you as soon as reasonably possible to notify you; and
  2. our obligations under these Terms and Conditions will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
7. Trade marks. “Arbility" is a trade mark of Arbility App Ltd. You are not permitted to use it without our approval.
8. Communications between us. When we refer to "in writing" in these Terms and Conditions, this includes email. The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
9. Governing law and jurisdiction. These Terms and Conditions and your use of ArbilityApp is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with these Terms and Conditions and ArbilityApp to the exclusive jurisdiction of the English courts.