ProofHQ Terms of Service

PROOFHQ TERMS OF SERVICE

Last updated:  August 2012
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These Terms of Service set out the terms and conditions that govern your access to and use of any of the Service Offerings.

By purchasing a subscription to the Services:

•    you agree to be bound by these Terms of Service;
•    a Contract is created between you or the entity you represent (the "Customer") and Approvr Limited trading as ProofHQ ("ProofHQ") which incorporates these Terms of Service;
•    you represent to ProofHQ that you are lawfully able to enter into contracts (e.g. you are 18 years of age or older); and
•    if you are purchasing a subscription to the Services on behalf of an entity, such as the company you work for, you represent to ProofHQ that you have legal authority to bind that entity to these Terms of Service.

If you do not have such authority, or if you do not agree to these Terms of Service, you must NOT click the 'I accept' button.  Your registration will be discontinued and you may not use the Services.

ProofHQ reserves the right to update and change these Terms of Service (including any of its policies) at any time by posting a revised version on the Site. Your continued use of the Service Offerings indicates your acceptance of such updates and changes.  You are advised to checking the Terms of Service from time to time for any updates or changes that may affect you. ProofHQ last modified these Terms of Service on the date stated at the beginning of these Terms of Service.

All capitalised terms used in these Terms of Service shall have the meaning set out in Section 17.
1.    FREE TRIAL
1.1    ProofHQ may make one or more Services available to the Customer on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which the Customer registered or is registering to use the applicable Service; or (b) the date on which the Customer purchases a subscription to the Services.  
1.2    Additional trial terms and conditions may appear on the trial registration web page.  Any such additional terms and conditions are incorporated into the Contract by reference and are legally binding.
1.3    Any Customer Data entered into the Services and any communications made to the Services by or for the Customer during the free trial will be retained for sixty (60) days only following the end of the free trial, after which it will be permanently lost, unless the Customer purchases a subscription to the Services.
1.4    Notwithstanding Section 8 (Representations and Warranties) during the free trial the Services are provided 'as is' without any warranty or representation.
2.    PURCHASE OF A SUBSCRIPTION TO THE SERVICES
2.1    The Customer acknowledges that its purchase of a subscription to the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by ProofHQ with respect to future functionality or features.
2.2    User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer use the Services.
2.3    To access the Services, the Customer must create a Registered Account. In submitting the registration form, the Customer represents and warrants that the information contained therein is truthful, accurate, and complete.  The wilful provision by the Customer of inaccurate or unreliable information shall constitute a material breach of the Contract and will be a basis for termination.
2.4    During the creation of the Registered Account, the Customer will choose a user name and a password.  The Customer shall maintain the confidentiality of its password.
2.5    The Services may be subject to other limitations, such as, for example, limits on disk storage space, number of proofs per Billing Period, number of Users or the number of calls which the Customer is permitted to make against the application programming interface.  Any such limitations are specified either in the Documentation or in the order forms.  The Services provide real-time information to enable the Customer to monitor its compliance with such limitations.
3.    PROVISION OF THE SERVICES
3.1    ProofHQ shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which ProofHQ shall give at least 8 hours notice via the Services and which ProofHQ shall schedule to the extent reasonably practicable during weekends; (b) any unavailability caused by circumstances beyond ProofHQ's reasonable control, including acts of God, acts of government, lightning, flood, exceptionally severe weather, fire, earthquakes, explosions, war, civil unrest, acts of terror, acts or omissions of local or central government or other competent authorities; and computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within ProofHQ's possession or reasonable control, and denial of service attacks; or (c) legal or regulatory restrictions imposed on ProofHQ which prevent ProofHQ from providing the Services.  
3.2    ProofHQ shall provide basic support to the Customer for the Services at no additional charge.  
3.3    ProofHQ reserves the right at any time to change temporarily or permanently, the Service Offerings (or any part thereof).  If ProofHQ changes the Service Offerings in a manner which removes or disables a feature or functionality on which the Customer materially relies, ProofHQ, at the Customer’s request, shall use commercially reasonable efforts to substantially restore such functionality to the Customer. In the event that ProofHQ is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction), the Customer shall have the right to terminate the Contract  and receive a pro-rata refund of the fees paid under the Contract for the terminated portion of the Billing Period. The Customer acknowledges that ProofHQ reserves the right to discontinue offering the Services at the conclusion of Customer’s then current Billing Period. The Customer agrees that ProofHQ shall not be liable to the Customer nor to any third party for any changes to the Service Offerings as described in this Section 3.3.
3.4    Third party content, such as software applications provided by third parties, may be made available directly to the Customer by other companies or individuals under separate terms and conditions, including separate fees and charges.  The use of any third party content by the Customer is at the Customer's sole risk because ProofHQ may not have tested or screened such content.
4.    CUSTOMER RESPONSIBILITIES
4.1    The Customer is responsible for: (a) using and accessing the Service Offerings, and performing its obligations under the Contract, in accordance with (i) these Terms of Service; (ii) the Documentation; and (iii) all laws and government regulations applicable to the use of the Service Offerings; (b) obtaining and maintaining all necessary licenses and consents for the use of the Service Offerings;(c) any and all activities that occur under the Registered Account, regardless of whether the activities are undertaken by the Customer or the Users; and (d) the compliance by the Users with the obligations of the Customer under these Terms of Service.
4.2    The Customer shall not: (a) access and/or engage in any use of the Services for fraudulent or illegal purposes; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) send or store Malicious Code; (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (e) attempt to gain unauthorized access to the Services or its related systems or networks.
4.3    If the Customer become aware of any violation of its obligations under these Terms of Service by a User, the Customer shall immediately terminate such User’s access to the Customer Data and the Service Offerings.
4.4    The Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Registered Account, the Service Offerings or any other security breach, and shall contact ProofHQ immediately of any such unauthorized access to or use.  ProofHQ shall not be liable for any Losses that the Customer may incur as a result of any such unauthorized access other than where such use arises due to the negligence or wilful misconduct of ProofHQ. However, the Customer may be held liable for any Losses incurred by ProofHQ as a result of any such unauthorized use.
5.    CUSTOMER CONTENT
5.1    The Customer shall  have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.  The Customer acknowledges that ProofHQ has no control over the Customer Data and does not purport to monitor the Customer Data.
5.2    The Customer shall not upload to, transmit through or otherwise post or share through the Services any Customer Data that is: (a) deemed harassing, threatening, indecent, obscene, pornographic, libellous, defamatory or otherwise objectionable, unlawful or tortious material, including material that is harmful to children or which violates third party privacy rights; or (b) may be construed as an infringement of the Intellectual Property Rights of a third party.
6.    FEES AND PAYMENT ARRANGEMENTS
6.1    The Customer is responsible for all the applicable fees as described on the Site for the use of the Services by the Users, and hereby authorizes ProofHQ to obtain payment of all such fees in accordance with the Payment Information.  Fees are based on the Services purchased and not actual usage.  Payment obligations are non-cancellable, and fees paid are non-refundable.  The number of User subscriptions purchased cannot be decreased to take effect during any Billing Period.
6.2    All Payment Information provided by or on behalf of the Customer must be current, complete and accurate, and the Customer is solely responsible for updating such Payment Information as necessary. The Customer hereby authorizes ProofHQ, from time to time, to take steps to determine whether the Payment Information is valid.  ProofHQ shall not be responsible for any overdraft charge or other fees that may be incurred by ProofHQ's use of the Customer's payment card for payment in accordance with these Terms of Service.
6.3    ProofHQ will issue the Customer with an invoice fourteen (14) days before the start of each Billing Period. Credit card payments will be processed on the first day of the Billing Period. Invoices must be paid by the first day of the Billing Period.
6.4    All amounts to be paid under the Contract shall be made in US Dollars unless agreed otherwise in writing by ProofHQ.
6.5    The fees are exclusive of value added tax and any other taxes or duties which may be applicable to the provision of the Services, and any such taxes or duties shall be payable by the Customer to the appropriate governmental agency or to ProofHQ at the rate and in the manner for the time being prescribed by law.
6.6    If the Customer believes that ProofHQ has incorrectly invoiced the Customer, the Customer must contact ProofHQ in writing within thirty (30) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
6.7    ProofHQ shall be entitled to interest on late payments, payable by the Customer immediately on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of three per cent (3%) per annum above the base rate of Barclays Bank PLC applicable at such time. Such interest shall accrue daily and shall be compounded quarterly.
6.8    The Customer may not withhold payment of any sum by reason of any set-off of any claim or dispute with ProofHQ whether relating to the quality or performance of the Services or otherwise.
6.9    The amount of the fees is subject to change upon fourteen (14) days notice from ProofHQ.  
7.    OWNERSHIP AND LICENSING
7.1    ProofHQ reserves all right, title, and interest in and to the Service Offerings.  The Customer shall not obtain any rights to the Service Offerings other than as follows.  ProofHQ hereby grants (or shall procure that the owner of the Intellectual Property Rights therein shall grant) to the Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license for the Term to: (i) access and use the Services solely in accordance with these Terms of Service; and (ii) copy and use the ProofHQ Data solely in connection with the Customer's permitted use of the Services.
7.2    The Customer shall not use the Service Offerings in any manner or for any purpose other than as expressly permitted by these Terms of Service. The Customer shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users or as otherwise contemplated by  these Terms of Service; (b) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas; (c) modify, copy, or create derivative works based upon the Service Offerings or the ProofHQ Data; (d) reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code in connection with any aspect of the Service Offerings, except to the extent permitted by law; (e) create Internet 'links' to the Services or 'frame' or 'mirror' any ProofHQ Data forming part of the Services, other than on the Customer's own intranets or otherwise for its own internal business purposes; or (f) access the Services in order to (i) build a competitive product or service; (ii) build a product using similar or ideas, features, functions or graphics of the Services; or (ii) copy any ideas, features, functions or graphics of the Services.
7.3    As between ProofHQ and the Customer, the Customer owns all right, title, and interest in and to the Customer Data. Except as provided in this Section 7, ProofHQ shall not obtain any rights to the Customer Data other than as follows. The Customer consents to the use by ProofHQ of the Customer Data to provide the Service Offerings to the Customer and any Users. ProofHQ may disclose the Customer Data to provide the Service Offerings to the Customer or any Users or to comply with any request of a law enforcement, regulatory or governmental authority (including subpoenas or court orders).  
7.4    ProofHQ shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or the Users regarding the operation of the Services.
7.5    If the Customer purchases the right to have the Services branded with its trade marks, it hereby grants to ProofHQ a revocable, non-exclusive, non-transferable, royalty-free license for the term of the Contract to use the applicable logs, trade marks, service marks and trade names that the Customer may adopt and designate from time to time in connection with the branding of the Services.
7.6    Nothing in these Terms of Service shall be construed so as to prevent ProofHQ from using techniques, ideas and other know-how gained during the performance of the Services in the further of its own business to the extent that such use does not result in a disclosure of Confidential Information in breach of Section 12 or any infringement of any Intellectual Property Rights of the Customer (or its licensors), and provided that ProofHQ shall not use any know-how which is specific to the business of the Customer or has been developed specifically for use in or for the business of the Customer.
8.    REPRESENTATIONS AND WARRANTIES
8.1    Each party hereby warrants to the other party that it has all necessary authority to enter into and perform its obligations under the Contract without the consent of any third party or breach of any contract or agreement with any third party.
8.2    ProofHQ represents and warrants to the Customer that: (a) ProofHQ will provide the Services: (i) in accordance with all applicable laws and government regulations; (ii) in a manner consistent with general industry standards reasonably applicable to the  provision thereof; and (iii) materially in accordance with the Documentation; (b) the functionality of the Service will not be materially decreased during a  Billing Period; (c) the Service will not contain or transmit to the Customer any Malicious Code (except for any Malicious Code contained in attachments uploaded by Users or otherwise originating from Users); (d) ProofHQ owns or has obtained valid licences of all Intellectual Property Rights which are necessary for the performance of the Services; and (e) the Services will not infringe the Intellectual Property Right of any third party.
8.3    The Customer represents and warrants to ProofHQ that: (a) the Customer owns or has obtained valid licences of all Intellectual Property Rights in the Customer Data which are necessary to grant the rights contemplated by these Terms of Service; and (b) the Customer Data shall not, and the use by the Users of the Customer Data and the Services Offerings shall not, violate the Acceptable Use Policy.
8.4    Except as expressly provided in these Terms of Service, ProofHQ does not make any representations or warranties of any kind, whether express or implied by statute, common law or otherwise regarding the Service Offerings, and ProofHQ specifically disclaims all implied warranties, including any warranties of merchantability, satisfactory quality or fitness for a particular purpose, to the maximum extent permitted by applicable law.
9.    INDEMNITIES
9.1    ProofHQ shall indemnify and hold the Customer harmless, from and against any Losses incurred by the Customer in respect of any third party claims against the Customer arising as a result of or otherwise in connection with the supply of the Service Offerings which, infringes or violates, or is alleged to infringe or violate, the Intellectual Property Rights of any third party.
9.2    The Customer shall indemnify and hold ProofHQ and its Affiliates harmless, from and against any Losses incurred by ProofHQ and its Affiliates in respect of any third party claims that (a) the Customer Data; or (b) the use by the Customer or any of the Users of the Service Offerings (including any activities under the Registered Account) in breach of these Terms of Service; infringes the Intellectual Property Rights of, or has otherwise harmed, a third party.
9.3    If either ProofHQ or the Customer wishes to bring a claim under this Section 9 against the other: (a) the indemnified party shall promptly give written notice of such claim to the indemnifying party; (b) the indemnified party shall provide to the indemnifying party as soon as reasonably possible, copies of all correspondence regarding such claim; (c) the indemnified party shall not make any admission of liability, contract or compromise in relation to such claim without the prior written consent of the indemnifying party (such consent not to be unreasonably qualified, withheld or delayed); (d) the indemnifying party shall be entitled to sole control of the defence and settlement of such claim (provided that the indemnified party shall not settle or defend any such claim unless it unconditionally releases the indemnified party of all liability and the settlement does not affect the business or services of the indemnified party; and (e) the indemnified party shall provide to the indemnifying party, at the indemnifying party's cost, all reasonable assistance.
10.    LIMITATION OF LIABILITY
10.1    Nothing in the Contract excludes or limits the liability of either party for: (a) death or personal injury caused by its negligence; (b) breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (c) fraud or fraudulent misrepresentation.
10.2    Subject to Section 10.1, the aggregate liability of each party arising to the other party under or in connection with the Contract in respect of the year in which the liability arises, whether arising from tort (including negligence), breach of contract or otherwise, shall in no event exceed the aggregate amount of the fees paid and payable by the Customer to ProofHQ under the Contract during the twelve (12) months immediately prior to the date on which the cause of action first arose.
10.3    Subject to Section 10.1, neither party shall be liable for any loss of profits, income, business or goodwill, loss of opportunity or any type of special, indirect of consequential loss, even if such loss was reasonably foreseeable or such party has been advised of the possibility of incurring the same.
11.    SECURITY AND DATA PROTECTION
11.1    ProofHQ shall have in place, appropriate technical and organisational measures to protect the Customer Data against accidental or unlawful destruction or accidental loss or alteration or unauthorized disclosure or access and against all other unlawful forms of processing.
11.2    The parties acknowledge and agree that in relation to Personal Data the Customer acts as a data controller, and ProofHQ shall, to the extent that it processes such Personal Data on behalf of the Customer: (a) process all Personal Data in accordance with the Data Protection Act 1998 and not do or omit to do, or cause or permit anything to be done or omitted to be done, which may cause or otherwise result in a breach of such Act by the Customer; (b) only process Personal Data in accordance with the written instructions of the Customer and to the extent reasonably necessary for the performance by ProofHQ of its obligations under the Contract; (c) promptly refer to the Customer any request, notices or other communications in respect of Personal Data, and which have been received from data subjects, any applicable data protection authority or any other law enforcement, regulatory or governmental authority; (d) provide such reasonable assistance and information to the Customer as it may reasonably require to allow the Customer to comply with its obligations as data controller under the Data Protection Act 1998; and (e) erase, truly anonymise or, if either of these options is not possible, block all access to, all Personal Data within a reasonable period of time after it ceases to be necessary for ProofHQ to process such Personal Data in order to perform its obligations under the Contract.
11.3    To process the Personal Data, ProofHQ may transfer it to subcontractors and agents of ProofHQ in countries outside the European Economic Area which may not have laws comparable to those in the European Economic Area for the protection of personal data.  ProofHQ is responsible for ensuring that the Personal Data continues to be adequately protected during the course of any such transfer.
12.    CONFIDENTIALITY
12.1    Each party which receives Confidential Information of the other party shall: (a) keep secret and confidential the Confidential Information of the other party; and (b) not disclose the Confidential Information of the disclosing party in whole or in part to any other person without the disclosing party's prior written consent, save to its Representatives to the extent necessary for the performance of its obligations under the Contract, and then provided that such party ensures that its Representatives are aware of and comply with these confidentiality obligations.
12.2    The obligations of confidentiality under Section 12.1 shall not apply to any Confidential Information which: (a) must be disclosed by law or in response to a valid, legally compliant request by a law enforcement, regulatory or governmental authority, provided that (to the extent it is permitted to do so) the affected party gives all reasonable notice of such disclosure to the other party; (b) was known to the recipient before its receipt from the disclosing party; (c) is lawfully in the public domain or possession of a third party other than by reason of breach; (d) is independently developed without access to the other party’s Confidential Information; or (e) is authorized for release by the written consent of the disclosing party.
13.    TEMPORARY SUSPENSION
13.1    ProofHQ may at any time upon written notice to the Customer, without liability to the Customer and in addition to any other rights and remedies of ProofHQ, immediately suspend the right of the Customer or any of the Users to access or use any portion or all of the Service Offerings, if ProofHQ determines that: (a) the access or use by the Customer or a User of the Service Offerings (i) poses a security risk to ProofHQ or any third party; (ii) may adversely impact the Service Offerings or the systems or data of any other ProofHQ customer; or (iii) may subject ProofHQ, its Affiliates, or any third party to liability; (b) ProofHQ has reasonable grounds to suspect that the Customer and/or any of the Users has engaged in fraudulent activity in connection with the Service Offerings; (c) the Customer does not provide a valid credit card for the payment of fees; provided that if the credit card is invalid, ProofHQ will notify the Customer and attempt to charge the card again in twenty four (24) hours; if the credit card is invalid again, ProofHQ will notify the Customer for a second time, and the Customer will have an additional twenty four (24) hours to provide a replacement valid credit card; if the second replacement credit card is invalid, the Services may be terminated; or (d) the Customer, or any User, is in breach of the Contract, including any payment obligations for more than fifteen (15) days (except with respect to fees then under reasonable and good faith dispute).
13.2    If ProofHQ suspends the right of the Customer to access or use any portion or all of the Service Offerings: (a) the Customer shall remain responsible for all fees that are payable during the period of the suspension; (b) ProofHQ reserves the right to impose a reconnection fee if the Customer thereafter requests access to the Services; and (c) ProofHQ shall not delete any Customer Data as a result of the suspension, except in accordance with these Terms of Service.
14.    TERM AND TERMINATION
14.1    The term of the Contract will commence on the date on which the Customer purchases a subscription to the Services.  Unless terminated earlier in accordance with this Section 14 or otherwise, the Contract shall continue for the Billing Period.  Thereafter, the Contract shall automatically renew for further terms of the same length as the Billing Period unless the Contract is terminated earlier in accordance with this Section 14.  If the Customer signs up for a free trial period and does not purchase a subscription to the Services before the end of that period, the Contract will terminate at the end of the free trial period.
14.2    Either party may terminate the Contract at any time with immediate effect by written notice to the other party if: (a) the other party commits a material breach of any term of the Contract and such breach is not capable of remedy or, if capable of remedy, is not remedied within a period of thirty (30) days of being notified in writing to do so; or (b) an Insolvency Event of the other party occurs, or the other party ceases or threatens to cease to carry on the whole or any material part of its business;
14.3    Either party may at any time terminate the Contract with effect from the end of the current Billing Period as follows: (a) the Customer shall amend the profile of the Customer in the Registered Account; and (b) ProofHQ shall notify the Customer by email in accordance with Section 15.1.
14.4    ProofHQ may terminate the Contract at any time with immediate effect by written notice to the Customer: (a) if any act or omission by Customer or any User results in a suspension described in Section 13; or (b) in order to comply with (i) all applicable laws and government regulations; and (ii) the valid and binding request of a law enforcement, regulatory or governmental authority.
14.5    Neither party shall be liable for any Losses incurred by the other party arising from or in connection with the termination of the Contract in accordance with these Terms of Conditions; provided, however, that the expiry or termination for any reason of the Contract shall not prejudice or affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
14.6    If the Customer terminates the Contract for cause, ProofHQ shall refund to the Customer any prepaid fees covering the remainder of the Billing Period after the date of termination.  If ProofHQ terminates the Contract for cause, the Customer shall pay any unpaid fees covering the remainder of the Billing Period after the effective date of termination.  In no event shall any termination relieve the Customer of the obligation to pay any fees payable to ProofHQ for the Billing Period prior to the effective date of termination.
14.7    The Customer may request a copy of the Customer Data before the expiry or termination of the Contract within its profile on the Site, and ProofHQ will make the Customer Data available to the Customer in accordance with the Documentation.  ProofHQ shall have no obligation to maintain or provide any Customer Data with effect from thirty (30) days after the date of expiry or termination of the Contract (as applicable).  Thereafter, unless and to the extent legally prohibited, ProofHQ shall delete all the Customer Data on the Site or otherwise in the possession or under the control of ProofHQ.  
14.8    Upon the expiry or termination for any reason of the Contract: (a) any and all amounts outstanding and any unpaid amounts due and owed under the Contract shall become immediately due and payable; and (b) neither party shall have any further right or obligation with respect to the other party except as set out in this Section 14 and in the following additional Sections: Section 7 (Ownership and Licensing), Section 8 (Representations and Warranties), Section 9 (Indemnities), Section 10 (Limitation of Liability), Section 11 (Security and Data Protection), Section 12 (Confidentiality), Section 16 (General) and Section 17 (Definitions).
14.9    Any additional post-termination assistance from ProofHQ is subject to mutual agreement by Customer and ProofHQ.
15.    NOTICES
15.1    ProofHQ may provide any notice to the Customer under the Contract by (a) posting a notice on the Site; (b) posting a message to the Profile menu of the Registered Account via an announcement, or (c) sending an email to the registered email address of the Customer as set out in the personal settings on the Site at https://www.proofhq.com/personal, and such notice shall  be effective upon posting or sending the email (as appropriate).
15.2    To give ProofHQ notice under the Contract, the Customer shall contact ProofHQ by email to support@proofhq.com and such notice shall be effective upon sending the email.
15.3    All communications and notices to be made or given pursuant to the Contract must be in the English language.
16.    GENERAL
16.1    ProofHQ may refer to the Customer as a key customer and ProofHQ may use the name and logo of the Customer on the Site and in other marketing materials, unless the Customer notifies ProofHQ in writing otherwise.
16.2    The waiver by either party of any breach of the Contract by the other party shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind.  No failure or delay by a party to exercise any of its rights under the Contract shall constitute a waiver of such rights.  
16.3    If any provision of the Contract is found to be invalid, unenforceable or illegal, then such provision shall be severed and the remainder of the Contract shall continue with full force and effect.
16.4    The Customer shall not assign the Contract, or delegate or sublicense any of its rights under the Contract, without the prior written consent of ProofHQ. Any assignment or transfer in violation of this Section 16.4 will be void. Subject to the foregoing, the Contract will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16.5    The parties are independent contractors.  The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
16.6    There are no third party beneficiaries to the Contract.
16.7    The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, contracts, arrangements, communications  and understandings between them, whether written or oral, relating to its subject matter.
16.8    Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract. Neither party shall have any claim for innocent or negligent misrepresentation based upon any statement in the Contract.  Nothing in this Section 16.8 shall limit or exclude any liability for fraud.
16.9    The Contract 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 construed in accordance with the law of England and Wales.  The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales regarding any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
17.    DEFINITIONS
17.1    In these Terms of Service the following terms shall have the following meanings:
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the Customer or ProofHQ; and for these purposes 'control' means direct or indirect ownership or control of more than 50% of the voting interests of the party;
"Billing Period" means the billing period in resect of which the fees are payable, as selected by the Customer and as set out on the Site at https://www.proofhq.com/billing;
"Confidential Information" means all confidential information (however recorded or preserved) which may come into the possession of a party as a result of or in connection with the Contract regarding (a) the terms of the Contract; and/or (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, clients, suppliers and plans of the disclosing party; and/or (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
"Contract" means the contract created between the Customer and ProofHQ on the date on which the Customer purchases a subscription to the Services, and incorporates these Terms of Service as may be amended from time to time and any other documents incorporated by reference;
"Customer Data" means all electronic data or information submitted by the Customer or the Users in relation to the Services;
"Documentation" means the guides, instructions, manuals, specifications and other materials with respect to the installation, operation, updating and maintenance of the Services located at http://help.proofhq.com, as updated from time to time;
"Insolvency Event" means a party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of its creditors, or any circumstances occur that are the equivalent thereof under the applicable laws for that party;
"Intellectual Property Rights" means all patents, trade marks, copyright and related rights, domain names, rights in get-up, design rights, database rights, topography rights, and all other similar proprietary rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Losses" means any and all losses, costs, damages, settlement payments, awards, expenses and other charges  (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs) of an entity;
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
"Payment Information" means the payment information provided by the Customer when purchasing a subscription to the Services and which are stored on the Site at https://www.proofhq.com/billing, as amended from time to time by the Customer;
"Personal Data" means personal data of the Customer or personal data generated or otherwise processed on behalf of the Customer by ProofHQ in the performance of its obligations under the Contract;
"ProofHQ Data" means all electronic data and information which ProofHQ makes available in connection with the Services or on the Site to allow access to and use of the Services, including the Documentation; but does not include the Services;
"Registered Account" means an account associated with a valid e-mail address which has been registered by the Customer on the Site for use of the Service Offerings;
"Representatives" of a party means the Affiliates of that party and the employees, officers, directors, agents, legal advisors, auditors or sub-contractors of that party and its Affiliates;
"Service Offerings" means the Services (including associated APIs), the Site and any data or information on the Site other than the Customer Data, and any other product or service provided by ProofHQ under the Contract;
"Services" means the online Web-based application and platform provided by ProofHQ via the Site;
"Site" means the ProofHQ website at http://www.proofhq.com and any successor or related site designated by ProofHQ;
"User" means individuals who are authorized by the Customer to use the Services, for whom subscriptions to a Service have been purchased and who have been supplied user identifications and passwords by the Customer (or by ProofHQ at the request of the Customer); and may include employees, consultants, contracts and agents of the Customer or third parties with which the Customer transacts business;
17.2    The following expressions shall be construed as follows: (a) the terms "data controller", "personal data", "process" and "processing" have the meaning given to those terms in the Data Protection Act 1998; and (b) any phrase introduced by the term "including" shall be construed as illustrative and shall not limit the sense of the words proceeding such term.
17.3    In interpreting the Contract (unless the context requires otherwise) any reference to any statute or statutory provision including any subordinate legislation includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
17.4    If there is any inconsistency or conflict between the various components of the Contract, these terms and conditions shall prevail to the extent of such inconsistency or conflict, unless expressly stated to the contrary.