Blink Services Terms & Conditions

1. 1.2 In this Agreement:

1. (a) all headings are for convenience only and shall not affect the interpretation of this Agreement;
2. (b) words in the singular include the plural and vice versa;
3. (c) reference to a person includes a legal person (such as a limited company) as well as a natural person;
4. (d) reference to including or any similar terms in the Agreement will be treated as being by way of example and without limitation, and shall not imply the exclusion of other words not specifically mentioned;
5. (e) reference to any legislation will be to that legislation as amended, extended, or re-enacted from time to time and to any subordinate provision made under that legislation; and
6. (f) a reference to writing or written includes e-mail.

1. 2. COMMENCEMENT AND DURATION
2. Free Trials

1. 2.1 Customer may be permitted to access some or all of the Services by way of a Free Trial, and in such case, the Free Trial shall commence on the Commencement Date and continue for duration of the Free Trial unless terminated by either party for any reason (or no reason) at any time during the Free Trial.
2. 2.2 Upon the expiry of the Free Trial, Customer’s access to the Services will immediately cease and this Agreement shall automatically terminate. If such access continues without payment, all relevant terms of this Agreement shall continue in full force and effect. ‍
3. Term

1. 2.3 Customer may choose to enter a paid-for Agreement with Blink via the admin panel at any time during the Free Trial or before its expiry, in which case the Free Trial shall automatically terminate, and a new Agreement shall be entered between the parties from the date on which that upgrade is made in the admin panel (also known as the Commencement Date).
2. 2.4 The Agreement shall continue for the Initial Term and thereafter shall automatically renew for successive periods of equal length to the Initial Term (each a "Renewal Term") unless:

1. (a) either party gives at least thirty (30) days' written notice to the other before the end of the Initial Term (or Renewal Term, as applicable), in which case this Agreement shall terminate at 23:59PM (GMT) on the last day of the Initial Term (or Renewal Term, as applicable); or
2. (b) either party terminates the Agreement at any time in accordance with clause 15.

1. 3. USER SUBSCRIPTIONS
2. 3.1 Subject to Customer’s payment of all Fees and compliance with the terms of this Agreement (or in the case of a Free Trial, Customer’s agreement to these Blink T&Cs, including implied agreement), Blink hereby grants to Customer during the Term a non-exclusive, non-transferable, right (without the right to grant sub-licences, unless expressly permitted in this Agreement) to permit:

1. (a) Authorised Users to access and use the Blink Apps, APIs, Integrations and/or Add-on Features; and
2. (b) Admin Users to use and access the “admin panel” section, each solely for Customer’s internal business operations and in connection with the receipt of the Services.

1. 3.2 Blink may amend the Blink Apps, Blink APIs, and Documentation from time-to-time, provided such amendments do not materially impact the functionality, performance, or security of the Blink Apps. In respect of amendments to the Blink Apps, Customer acknowledges that Blink may ask Authorised Users to update the Blink Apps in order to continue to access the Services. Customer acknowledges that if Authorised Users choose not to install the updates to the Blink Apps or if they opt out of automatic updates then such Authorised Users may not be able to continue using or use the latest features and functionality of the Blink Apps, and in such circumstances, Customer acknowledges and agrees that Blink will not be liable for any failure of such Authorised Users to access and use the Services.
2. 3.3 Customer acknowledges and agrees that Blink owns all Intellectual Property Rights in the Services, including any functionality, interfaces, or other content, software or deliverables requested by Customer (excluding Customer Data). Except as expressly stated herein, this Agreement shall not grant Customer or any Authorised User any rights to, or in, any Intellectual Property Rights in respect of the Services or any part thereof.
3. 3.4 If Customer or its Authorised Users provide Blink with any suggestions, comments, improvements, ideas or other feedback or materials related to the Services (collectively, “Feedback”), Customer hereby irrevocably assigns, and as applicable shall procure that any relevant Authorised User(s) assigns all right, title and interest in and to such Feedback to Blink, without any compensation or other duty to account to the Customer or its Authorised Users (as applicable) and shall automatically waive and procure the waiver of any moral rights in such Feedback. Customer undertakes to do all such reasonable acts (and procure the same from any relevant Authorised Users) as may be reasonably required from time to time (including execution of affidavits and other documents) to effect, perfect or confirm Blink’s rights under this clause 3.4. For the avoidance of doubt, Blink shall not be obliged to implement any such enhancement requests or Feedback.

1. 4. ADDITIONAL SERVICES
2. 4.1 When Customer purchases Additional Services, Blink may, at its discretion, prepare a draft Statement of Work. In such cases, Customer and Blink will then use commercially reasonable efforts to agree the terms of the draft, and may agree that such Statement of Work is either:
3. (a) non-binding, in which case the parties shall work in good faith to deliver their respective parts; or
4. (b) binding, in which case it shall be signed by the authorised representatives of both parties, and upon such complete execution, shall become a binding Statement of Work under this Agreement. Each Statement of Work agreed by the parties in accordance with this clause 4.1(b) will form part of this Agreement and is governed by these Blink T&Cs and any additional terms set out in that Statement of Work.

1. 4.2 To the extent Blink provides Additional Services, such Additional Services will be provided:

1. (a) materially in accordance with terms contained therein;
2. (b) with reasonable skill and care; and
3. (c) in accordance with good industry practice.

1. 4.3 If Blink fails to comply with clause 4.2, it shall be entitled, to the extent possible, to rectify, repair, or correct such failure within a reasonable time and/or a reasonable addition of time for performance of its obligations. Blink shall not be responsible or obligated to act to the extent of any non-conformance, including non-performance, which is caused by Customer's breach of this Agreement.
2. 5. MICRO-APPS, THIRD PARTY Services and integrations
3. 5.1 Blink, Customer and/or a third party may from time to time create, provide, or otherwise make available:

1. (a) Micro-Apps and Integrations thereto; and/or
2. (b) Integrations with Third Party Services.
   

1. Blink-built Micro-Apps and Integrations

1. 5.2 In the case of any Micro-Apps and Integrations created or provided by Blink, all relevant terms of this Agreement shall apply. For the avoidance of doubt, Blink shall own all Intellectual Property Rights in Micro-Apps and Integrations it creates, including those which Customer may have requested. There shall be no distinction between Micro-Apps and Integrations developed by Blink and the rest of the Services, and all disclaimers, exclusions and limitations as set out in this Agreement shall apply thereto to the fullest extent permitted by law.
   
   Third Party Services, and Micro-Apps and Integrations built by third parties

1. 5.3 In the case of any Micro-Apps and Integrations created or provided by third parties, and Third Party Services, the following terms shall apply:

1. (a) any access or use of such Micro-Apps, Integrations and Third Party Services are or may be subject to Customer entering into a separate agreement with the applicable provider;
2. (b) Customer agrees that Blink is not liable to Customer for any loss or damage suffered or incurred by it or any Authorised User in connection with its receipt or use of such Micro-Apps, Integrations and Third Party Services, including to the extent such loss or damage is caused by any act or omission, default or negligence committed by the provider;
3. (c) Blink does not warrant, represent, or guarantee the accuracy, completeness, fitness for purpose or availability of the Micro-Apps, Third Party Services or Integrations between such Third Party Services and Blink Apps; and
4. (d) it is Customer’s responsibility to make its own investigations and due diligence of such providers, including running appropriate tests and audits on them and/or updates thereto.‍

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Customer-built Micro-Apps and Integrations‍

5.4 In the case of any Micro-Apps and Integrations created or provided by the Customer, clauses 5.5 to 5.13 (inclusive) shall apply in addition to all other restrictions and obligations of the Customer elsewhere in the Agreement (including clause 8). References to “Micro-Apps” and “Integrations” in clauses 5.5 to 5.13 (inclusive) mean to Micro-Apps and Integrations developed by the Customer.

5.5 Customer shall not (and shall procure that its Authorised Users shall not):

1. (a) use, copy, or otherwise rely on any part of the Services other than the Blink API’s in accordance with this Agreement, in its development and provision of such Micro-Apps and Integrations;
2. (b) develop or use a Micro-App for the purpose of monitoring the availability performance or function of the Services or gathering any insights into the Services in any respect (including but not limited to for benchmarking purposes); or
3. (c) make any Micro-App, Integration or Third Party Services accessible in connection with the Services unless Customer provides clear and accurate information to Authorised Users regarding its or their use, and any processing of information provided by the Authorised User which it or they facilitate.

1. 5.6 Customer agrees that Blink is not liable to Customer for any loss or damage suffered or incurred by it or any Authorised User in connection with its development or use of these Micro-Apps and/or Integrations, including to the extent such loss or damage is caused by any act or omission, default or negligence committed by Customer.
2. 5.7 Blink does not warrant, represent, or guarantee the accuracy, completeness, or fitness for purpose of any Micro-App or Integration.
3. 5.8 Customer grants Blink (and procures the granting of from any Authorised User as required to give effect to this clause 5.8) a non-exclusive, worldwide, fully paid up or royalty free, irrevocable, sub-licensable, perpetual license to:

1. (a) host, use, distribute, run, perform, or display, translate, and create derivative works of the Micro-Apps and/or Integrations Apps for any business purpose in connection with operating, providing, or improving the Services, including a right to frame or link to or analyse them (including to assess Customer’s and Authorised Users’ compliance with this Agreement); and
2. (b) use Customer’s name and other branding, and any content contained in the Micro-Apps (together “App Branding”) solely to the extent that this is necessary to enable Blink to perform its obligations and exercise its rights under this Agreement.

1. 5.9 Customer acknowledges and agrees that where it or its Authorised Users develop any Micro-Apps or Integrations, Customer shall be fully responsible and liable for the same, including its or their development, content, and maintenance. Blink shall have no obligation to provide support to Authorised Users or to Customer for the access, use of, development or delivery of such Micro-Apps or Integrations.
2. 5.10 Prior to permitting access to a Micro-App, Integration and Third Party Services, Customer shall procure that Authorised Users first agree to terms which, as a minimum:

1. (a) make clear that use of the Micro-App or Integration are only available to Authorised Users and does not grant access to the Services outside of the permission so granted by this Agreement;
2. (b) make clear to Authorised Users that the Micro-App, Integration and/or Third Party Services is or are created and made available by the Customer or a party and not Blink, and that Blink has no obligation to provide maintenance or support for the Micro-App, Integration or Third Party Services to Customer or Authorised Users, or to fix any errors or defects in them;
3. (c) prohibit Authorised Users from reverse engineering, decompiling, disassembling or otherwise attempting to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Micro-App or any Integration with the Services, unless such restriction is not permitted by law;
4. (d) only grant such access right as strictly necessary to use the Micro-App, Third Party Services, or Integration to access information they are permitted to access;
5. (e) do not grant any right or license whatsoever to the content or source code of the Micro-App or Integration that would give any person any right or license to any part of the Services or Blink’s Intellectual Property Rights other than in accordance with this Agreement; and
6. (f) include restrictions and limitations necessary to preserve Blink’s rights and obligations under this Agreement.

1. 5.11 Customer shall be responsible for protecting the privacy and legal rights of Authorised Users in relation to their use of the Micro-Apps and Integrations. Customer shall provide legally adequate privacy notices to Authorised Users required for the lawful processing of information as between the Services and the Micro-App or Third Party Services and undertake any required data protection compliance steps as may be required by Data Protection Legislation. If any Authorised User provides Customer with any information including any personal data via a Micro-App, Customer shall provide notice to such Authorised Users that such information may be made available to Blink.
2. 5.12 Customer acknowledges and agrees that Blink (or an authorised representative) shall be entitled at any time on reasonable notice to Customer to perform audits, tests, or assessments, including any penetration tests, on Micro-Apps or Integrations (each a "Test”). Customer shall (and shall procure that its Authorised Users shall) provide reasonable cooperation to Blink in connection with the conduct of any Test, including by providing reasonable assistance or information reasonably requested by Blink (or the authorised representative as the case may be). Without prejudice to Blink’s other rights or remedies, if any Test reveals a failure by Customer or any Authorised User to comply with any obligation under this Agreement, Customer shall without undue delay remove any affected Micro-Apps and Integrations and pay Blink’s reasonable costs in conducting any Test which determined the failure(s). If Customer wishes to make such affected Micro-Apps or Integrations available again, it must, at its own cost, rectify any failure to Blink’s reasonable satisfaction.
3. 5.13 Blink may in its sole discretion suspend or end any Micro-App’s or Integration’s access to the Services at any time with or without notice if Blink believes (acting reasonably) that Customer or its Authorised Users are in breach of this Agreement or that such action is needed to protect Blink from legal or regulatory liability or to protect Blink’s legitimate interests.
4. ‍
5. 6. BLINK’S GENERAL OBLIGATIONS
6. 6.1 Blink warrants that:

1. (a) it has the right, power, and authority to enter into this Agreement;
2. (b) the Services shall be provided materially in accordance with any relevant Documentation;
3. (c) it has and will maintain all licences, consents, and permissions necessary for the performance of its obligations under this Agreement; and
4. (d) it shall not intentionally  introduce any Viruses or other forms of malicious code into Customer’s network and information technology systems via the Services.

1. 6.2 Blink shall:

1. (a) perform its obligations under this Agreement in compliance with all applicable laws and in accordance with good industry standards; and
2. (b) comply with all applicable anti-bribery, anti-corruption and modern slavery legislation.

1. 6.3 If Blink fails to comply with the warranties in this clause 6, it shall be entitled, to the extent possible, to rectify, repair, or correct such failure within a reasonable time and/or a reasonable addition of time for performance of its obligations. The warranties in this clause 6 shall not apply to the extent of any non-conformance, including unavailability, which is caused by: (i) Customer's breach of this Agreement; (ii) Customer’s or any Authorised User’s use of the Blink Apps contrary to Blink's instructions; or (iii) modification or alteration of the Blink Apps by Customer, its affiliates, or any Authorised Users.
2. 7. DISCLAIMERS
3. 7.1 Except as expressly provided in this Agreement, the Services are provided "as is". To the extent permitted by law, Blink disclaims all other conditions, warranties, representations, undertakings, or other terms which might have effect between the parties with respect to the Services, or be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise. This includes any implied conditions of satisfactory quality, reasonable skill and care, fitness for any particular purpose, ability to achieve a specific result, or arising from course of dealing or usage of trade. The disclaimer extends to systems beyond the scope of the Services, including Third Party Services.
4. 7.2 Blink does not warrant, represent, undertake, or agree that:

1. (a) the use of the Services by Customer or its Authorised Users will meet Customer’s or Authorised Users’ requirements;
2. (b) the Services will be uninterrupted, secure, available at any particular time or error free; or
3. (c) all parts of the Services will remain unamended, available, or otherwise operative in accordance with Customer’s expectations.

1. 7.3 Under no circumstances shall Blink or Blink’s Personnel have any liability for any losses, claims, damages, costs, or expenses caused by errors or omissions in any information, instructions or scripts provided to Blink and/or Blink’s Personnel by or on behalf of Customer and/or the Authorised Users in connection with the Services, or any actions taken by Blink and/or Blink’s Personnel at Customer's or the Authorised Users’ direction.
2. 8. CUSTOMER'S OBLIGATIONS
3. 8.1 Customer shall not store, distribute, or transmit any Virus, or any material, information, content, or data (including Customer Data) through or in connection with the Services or create Micro-Apps or Integrations that:

1. (a) infringes any Intellectual Property Rights or data protection, privacy, or other rights of any other person;
2. (b) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or is otherwise objectionable or prohibited;
3. (c) facilitates illegal activity;
4. (d) depicts sexually explicit images;
5. (e) promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities or could amount to any of the same; or
6. (f) is false or misleading or could or does cause damage or injury to any person or property.
7. ‍

8.2 Customer shall not:

1. (a)    attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Services;
2. (b)   access, develop, supply or market all or any part of the Services in order to build a product or service which replicates, competes with or is substantially similar to any part or parts ofthe Services;

1. (c)    attempt to undertake any security testing of the Services or any part thereof without the prior written consent of Blink (not to be unreasonably withheld);
2. (d)   except to the extent permitted by this Agreement, use the Services to provide services to third parties(including Customer’s affiliates) or permit or facilitate any third party toaccess or use the Services, or itself use the Services on behalf of any thirdparty;
3. (e)   use the Services for time-sharing or service or software bureau purposes or otherwise for the benefit of a third party;
4. (f)    employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Services (sometimes referred to as' virtualization', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorised use contained in this Agreement;
5. (g)    use the Services in a way that could damage, disable, overburden, impair or compromise Blink’s systems or security, the systems or security relating to any Third Party Services or interfere with other users;
6. (h)   attempt to exceed or circumvent any express or implied limitations on use of theServices, including, but not limited to, in relation to the number of calls to the Blink APIs or related use thereof, storage and data enrichment functionality, as set by Blink from time to time and in its sole discretion and where such limitations may depend on the type of Plan purchased or taken;
7. (i)     unless for the purpose of anIntegration, or otherwise expressly permitted by Blink in writing, create internet "links" to any part of the Services, or "frame" or"mirror" any Blink Content or the contents of the Blink Apps on any other server or wireless or internet-based device;
8. (j)     remove any proprietary notices or labels from any part of the Services;
9. (k)    reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant toor comprised in the Services unless such restriction is not permitted by law;
10. (l)     access any undocumented API owned or controlled by the Blink or accessor use Blink’s APIs other than in accordance with the Documentation; or
11. (m)  use the Blink APIs for the purpose of monitoring the availability performance or function of the Services or gathering any insights into the Services in anyrespect (including but not limited to for benchmarking purposes).

1. 8.3 Customer shall:

1. (a) prevent any unauthorised access to, or use of, the Blink Apps and/or Blink APIs and shall promptly notify Blink in writing of any such unauthorised access or use;
2. (b) provide Blink with all reasonable co-operation in relation to this Agreement and access to information reasonably required by Blink in order to provide the Services;
3. (c) maintain sufficient licences to any software (from third parties or licensed by Blink separately to this Agreement) operated using or in conjunction with the Services;
4. (d) acknowledge that as between the parties, it is solely responsible for ensuring that its firewalls, security and privacy systems and settings, and other plug-ins or applications, do not interfere with or restrict Customer's or its Authorised Users', access and use of the Services, and Blink and Blink’s Personnel shall have no responsibility or liability in relation thereto;
5. (e) immediately take all steps to remove content (including Customer Data) from the Services which breaches the terms of this clause 8 and/or the Acceptable Use Policy, or as otherwise may be reasonably considered harmful, or which Blink requests to be removed;
6. (f) comply with all applicable laws and regulations with respect to its activities under this Agreement; and
7. (g) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.

1. 8.4 Customer warrants and represents that:

1. (a) the person requesting to receive the Services online or via the admin panel is authorised by the Customer to enter the Agreement on its behalf; and
2. (b) it will use the Services strictly for internal business purposes and not for any other purpose, and that Blink will not be responsible or liable for any non-permitted use of the Services by Customer or its Authorised Users.

1. 8.5 Upon reasonable notice, Blink may audit Customer's compliance with this clause 8 by any lawful, technical means and Customer shall provide all reasonable assistance and information to Blink necessary to establish that the Services are only being accessed and used in accordance with this Agreement.
2. 8.6 Blink reserves the right to, but is not obliged, remove Customer Data which breaches this clause 8 or is otherwise deemed harmful by Blink in its sole discretion suspects to be in breach of this clause 8 and Blink shall have no liability for such removal.
3. 9. AUTHORISED USERS AND ADMIN USERS
4. 9.1 In relation to Authorised Users and Admin Users (as applicable):

1. (a) Customer is responsible for maintaining the list of Allocated Users, which includes those who are Authorised Users, and those specified as Admin Users. The list of users can be found in the “admin panel” section of the Blink Apps;
2. (b) All restrictions set out in this Agreement which apply to the Customer (including those set out in clause 5 and 8) shall apply to Authorised Users and Customer shall ensure Authorised Users comply with them and the Acceptable Use Policy; Customer shall be responsible for any breaches and/or acts and omissions of any Authorised User as if committed by Customer itself;
3. (c) Customer will not allow any Authorised User account to be used by more than one (1) individual; and
4. (d) Customer shall ensure that Authorised Users keep their log-in details confidential and where such details are chosen by the Authorised Users (e.g., passwords), that they choose secure credentials.

1. 9.2 During the Term, an Authorised User may choose to end their access to the Blink Apps or otherwise have their access terminated, for example, in the event they leave Customer’s employment. In such cases, Customer will be entitled to recycle the relevant User Subscription by disabling such Authorised User’s access to the Services and replacing that Authorised User with a new Allocated User for no additional fees, provided that the number of Allocated Users does not exceed the Licence Entitlement paid for during the online sign-up process or purchased via the admin panel. Where the number of User Subscriptions being used by Authorised Users or allocated to Allocated Users drops below the Licence Entitlement, Blink shall not be required to reduce or refund any Subscription Fees.  
2. 9.3 If Customer wishes to purchase more User Subscriptions, Customer shall notify Blink or the relevant Distributor in writing. Blink or the relevant Distributor will send an invoice for Subscription Fees relating to the additional User Subscriptions (calculated on a pro-rata basis against Customer’s then-current Subscription Fee price) for payment within thirty (30) days of the date of any such invoice. The increased User Subscriptions will be applicable to the rest of the Term, unless the parties agree prior to the deadline for notice to terminate the Agreement in accordance with clause 2.4(a), to decrease the Licence Entitlement. For the avoidance of doubt, the Licence Entitlement may only be decreased before a Renewal Term for subsequent renewals.
3. 9.4 Blink may upon reasonable notice and at any time during the Term audit Customer’s usage of the Services and verify that Customer is not exceeding the Licence Entitlement. If such audit reveals that the Licence Entitlement has been exceeded, Blink may, without prejudice to its other rights: (i) send an invoice to Customer for the relevant fees for such additional Licence Entitlement (calculated on a pro-rata basis against Customer’s then-current Subscription Fees) for the number of User Subscriptions being used for payment within thirty (30) days of the date of any such invoice and update the Licence Entitlement accordingly; or (ii) require the Customer to increase the License Entitlement via the admin panel and pay for such increase immediately.
4. 9.5 Following an increase to the Licence Entitlement, any references in this Agreement to “Licence Entitlement” shall be deemed to be references to the revised Licence Entitlement as increased in accordance with clause 9.3 or 9.4.
5. 10. FEES AND PAYMENT TERMS
6. 10.1 Customer shall pay the Fees to Blink in accordance with this clause 10, the online sign up request as confirmed by Blink via email or the agreement made via the admin panel, and, as applicable, the Statement(s) of Work. Blink reserves the right to make provision of the Services subject to receipt of payment.
7. 10.2 Blink may not require payment for as long as Customer is in in a Free Trial or is otherwise permitted to gain access to some of the Services. Customer does not have the right to a Free Trial and Blink reserves the right to start and end any Free Trial at its sole discretion. There can only be one Free Trial per Customer.
8. 10.3 Subscription Fees and Add-on Subscription Fees are payable either annually or monthly in advance (as chosen by Customer during the online sign-up process and confirmed by Blink via email or agreed via the admin panel) and Additional Services Fees are payable in full in advance, or as otherwise expressly agreed between the parties.
9. 10.4 Payment is due immediately upon the Commencement Date (other than in the case of a Free Trial), and Customer is obliged to settle all invoices or requests for payment immediately. If Customer submits payment details for a credit card, debit card, direct debit or other a similar payment method (collectively, “Credit Card”) to Blink, it hereby authorises Blink to automatically charge the Credit Card, including any applicable taxes, to settle any outstanding invoices, including Fees for any Renewal Terms. Customer acknowledges that certain Credit Cards may charge foreign transaction fees or other charges which will be Customer’s responsibility to pay.
10. 10.5 Prior to the commencement of any Renewal Term, Blink may increase or decrease the Fees which will be payable by Customer for that Renewal Term. Alterations of the Fees in accordance with this clause 10.4 require not less than sixty (60) days’ notice to Customer prior to the commencement of the Renewal Term and if Customer does not wish to accept the new Fees, it may give notice to terminate this Agreement in accordance with clause 2.4(a) otherwise the price increase shall apply automatically.
11. 10.6 For an Initial Term of a duration longer than one (1) year, Blink shall have the right to increase or decrease the Subscription Fees, Add-on Subscription Fees and/or Additional Services Fees which will be payable in any year within the Initial Term other than the first, providing that (i) each increase shall not be more than 5% of the latest relevant Fee; (ii) Blink gives Customer not less than sixty (60) days’ notice in writing of any such increase, after which it shall take effect automatically; and (iii) no more than one increase per type of Fee is made in any year.
12. 10.7 In the case that Customer gains access to the Services by way of a Distributor, Blink reserves the right to make the provision of the Services subject to the receipt by Blink of payment from the Distributor. All payment terms relevant to Customer by way of the Distributor shall apply and to the extent that the terms of these Blink T&Cs contradict those terms, the terms of the relevant Distributor agreement shall prevail.
13. 10.8 All sums due to Blink under or in relation to this Agreement are exclusive of any Sales Tax which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by Customer in full at the same time as payment is due under the relevant invoice.
14. 10.9 If Customer is required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to Blink pursuant to this Agreement and Blink is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to Blink will be increased by the amount necessary to yield to Blink an amount equal to the sum it would have received had no withholdings or deductions been made.
15. 10.10 If Customer fails to make any payment in accordance with this Agreement or any payment, including by Credit Card, fails, then Blink shall (without prejudice to its other rights and remedies) be entitled to:

1. (a) charge interest on the overdue amount from the due date until the payment of the overdue sum, whether before or after judgment. Interest under this clause 10.10(a) will accrue daily at 5% per annum above the base rate of the Bank of England from time to time or at 5% per annum for any period when that base rate is below 0%; and/or
2. (b) suspend Customer's and Authorised Users' access to and use of the Services in accordance with clause 15.4(a) until payment is made by Customer in accordance with this Agreement.

1. 10.11 Other than where the Agreement is terminated by Customer in accordance with clause 15.1((b) or clause 13.4((c) due to a material breach by Blink (in which case Customer shall be entitled to a pro-rata refund of the Subscription Fees), any Fees due or paid in accordance with this Agreement shall remain payable to Blink or where already paid, will be non-refundable.
2. 11. CUSTOMER DATA
3. 11.1 Customer shall own (and hereby warrants that it owns) all rights, title, and interest in and to all of the Customer Data. Customer shall at all times have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data and for ensuring that its and Authorised Users’ use does not infringe the rights of any third parties.
4. 11.2 Customer hereby grants to Blink, its affiliates and its and their Personnel, a non-exclusive, non-transferable (except in accordance with clause 17.8), fully paid up, royalty-free worldwide licence to:

1. (a) host, use, copy, store, collect, process, transmit, retain, publish, display, create derivative works of and otherwise use the Customer Data, with the right to sub-licence these rights, in each case to the extent necessary for the provision of the Services and the performance of Blink’s obligations and rights under this Agreement; and
2. (b) to analyse, copy, distribute, display, create derivative works of and otherwise use the Customer Data on an anonymous and/or aggregated basis, for Blink’s business purposes (including for benchmarking, analytical or statistical purposes). Ownership of such anonymised and aggregated data and all Intellectual Property Rights in the data and/or database will vest in Blink upon its creation.

1. 11.3 In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be for Blink to restore the lost or damaged Customer Data from the latest back-up of such Customer Data where such back-ups are made by Blink. Blink shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data (including personal data) caused by Customer, its Authorised Users, Customer's affiliates or any third party (except those third parties sub-contracted by Blink to perform services related to Customer Data hosting and back-up, in which case Blink's liability shall be subject to the limitations and exclusions set out in this Agreement, including those set out in this clause 11 and clause 14).
2. 11.4 Each party warrants that it shall fully comply with its obligations under Data Protection Legislation to the extent relevant to the provision or use of the Services pursuant to this Agreement.
3. 11.5 Blink and Customer shall comply with its obligations as set out in the Data Protection Agreement and, regarding Blink, to its Privacy Policy (if applicable).
4. 11.6 To the extent that Customer is subject to one or more of the FOI Regulations, in the event that Customer receives a request for information under any such FOI Regulation which relates in any way to Blink, this Agreement, the subject-matter or negotiations of this Agreement or any of Blink’s other Confidential Information (a “Relevant RFI”), Customer shall:

1. (a) without undue delay and in any event within two (2) business days of the receipt of such Relevant RFI forward the Relevant RFI along with any reasonably necessary background information to Blink in accordance with the Notices provision at clause 17.6;
2. (b) give Blink a reasonable time period to make representations to Customer or amendments to the response to the Relevant RFI (the “RFI Response”) and incorporate any such representations or amendments into the RFI Response, including any exemptions of information from disclosure in accordance with the FOI Regulations; and
3. (c) under no circumstances refer to or include Blink’s Confidential Information or any reference to Blink or Blink’s business activities which could reasonably be considered to be detrimental in the RFI Response without Blink’s prior written consent, unless in each case Customer is legally prohibited from doing so, in which case Customer shall inform Blink of this fact as soon as possible along with a detailed explanation of why this is the case, and giving Blink a reasonable time period to object (taking into account the timeframe for responding to the Relevant RFI and the fact that Blink may be permitted to make representations or amendments to the RFI Response in the event Blink’s objection is correct).

1. 11.7 Blink has the right to collect and analyse data and other information relating to the provision, use and performance of the Services and related systems and technologies (including information concerning or comprised in Customer Data and data derived therefrom), and Blink will be free to:

1. (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Blink offerings; and
2. (b) commercialise, disclose, or otherwise use such data and information providing it has been aggregated or otherwise de-identified from any person, including the Customer.

1. 12. CONFIDENTIALITY
2. 12.1 Each party shall:

1. (a) only use (including making copies of) Confidential Information in connection with and to the extent necessary for the purposes of this Agreement or as otherwise permitted by this Agreement;
2. (b) not disclose the Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with clauses 12.2 and 12.3; and
3. (c) keep all Confidential Information secret and securely protected against theft or unauthorised access.

1. 12.2 A Receiving Party may disclose Confidential Information to its affiliates, representatives, and personnel to the extent strictly necessary for the performance, provision, or receipt of this Agreement, provided that in each case, the Receiving Party informs those persons of the confidential nature of the Confidential Information and ensures that such persons are bound by obligations of confidentiality no less protective than this clause 12, and remains responsible for any breach of this clause 12 by those persons.
2. 12.3 All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except as expressly agreed otherwise in this Agreement) operate to transfer or operate as a grant of any licences or right to use any Intellectual Property Rights in the Confidential Information.
3. 12.4 The parties' obligations under this clause 12 shall continue in force for three (3) years following the termination or expiry of this Agreement.
4. 12.5 The parties agree that damages alone would be insufficient in the event of a breach of the provisions of this clause 12. Accordingly, the parties agree that the Disclosing Party shall be entitled, without proof of special damages, to seek an injunction or other interim remedy for any threatened or actual breach of this clause 12 by the Receiving Party, without prejudice to any other rights and remedies which the Disclosing Party may have.
5. 13. INDEMNITIES
6. 13.1 Subject to clause 13.3, Customer shall indemnify, keep indemnified and hold Blink and Blink’s Personnel harmless against any and all damages, claims, actions, proceedings, losses and reasonable costs (including court and reasonable legal fees) and expenses suffered or incurred by Blink and/or Blink’s Personnel arising or in connection with:

1. (a) Customer's and/or Authorised Users' use or misuse of the Services in breach of this Agreement or otherwise not in accordance with the Acceptable Use Policy, including regulatory fines imposed on Blink in respect of harmful content uploaded or sent by Customer and/or its Authorised Users;
2. (b) any claim by a third party that the supply to, or use by Blink or any Blink’s Personnel, of the Customer Data infringes the Intellectual Property Rights of any person;
3. (c) Customer’s use of the Third Party Services; and
4. (d) Customer or any Authorised User’s breach, infringement, or misappropriation of Blink’s Intellectual Property Rights.

1. 13.2 Subject to clause 13.3, Blink shall indemnify, keep indemnified and hold Customer and its Personnel harmless against any and all damages, claims, actions, proceedings, losses, and reasonable costs (including court costs and reasonable legal fees) and expenses suffered or incurred by Customer arising out of any claim by a third party against Customer that its use of the Services in accordance with this Agreement infringe Intellectual Property Rights of any person.
2. 13.3 A party indemnifying (“Indemnifying Party”) the other party (“Indemnified Party”) under this clause 13 shall be so obliged to indemnify providing that:

1. (a) the Indemnified Party gives the Indemnifying Party prompt notice of any actual or threatened claim;
2. (b) the Indemnified Party does not admit any liability or agree to any settlement or compromise of a claim without the prior written consent of the Indemnifying Party;
3. (c) the Indemnifying Party is entitled at any time to assume exclusive conduct of the claim (which shall include the exclusive right to conduct any proceedings or action, negotiate the settlement of the claim and to conduct all discussions and dispute resolution efforts in connection with the claim);
4. (d) at the Indemnifying Party’s request, cost, and expense, the Indemnified Party gives the Indemnifying Party all reasonable assistance in connection with the conduct of the claim (including taking such necessary steps to enable the Indemnifying Party to assume conduct of the claim pursuant to this clause 13.3); and
5. (e) the Indemnified Party takes all reasonable steps to mitigate its liabilities.

1. 13.4 If a claim is made pursuant to clause 13.2, or in the Blink’s reasonable opinion is likely to be made, against Customer, Blink may at its option and expense:

1. (a) secure Customer’s right to continue using the Services in the manner permitted under this Agreement; or
2. (b) modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, in such a way that does not materially adversely affect the functionality of the Services; or
3. (c) terminate this Agreement immediately on notice to Customer.

1. 13.5 Under no circumstances shall Blink, Blink’s affiliates or any of Blink’s Personnel be liable to Customer under this clause 13.2 to the extent that the infringement (whether actual or threatened) is based on:

1. (a) any changes, modifications, updates, or enhancements made to the Services other than as authorised by Blink;
2. (b) any use of the Services by Customer or its Authorised Users in a manner contrary to Blink's instructions and/or in breach of this Agreement;
3. (c) Customer's or its Authorised Users' use of the Services after notice or becoming aware of the actual or threatened claim;
4. (d) any open source software distributed, embedded, or bundled with the Services; or
5. (e) any of the circumstances described in clause 7.

1. 13.6 This clause 13 outlines each party’s entire liability to the other in connection with third party claims for infringement of Intellectual Property Rights and shall be each party’s sole and exclusive remedy in that regard.
2. 14. LIMITATION OF LIABILITY
3. 14.1 Nothing in this Agreement excludes or limits the liability of either party to the other for:

1. (a) death or personal injury caused by negligence;
2. (b) fraud or fraudulent misrepresentation by it;
3. (c) the indemnities under clause 13.1; or
4. (d) any other liability that cannot be excluded or limited by law.

1. 14.2 Save for liability that cannot be limited by law, Customer, Blink and either party’s Personnel shall not be liable as a result of a breach of contract, tort (including for negligence and gross negligence), breach of statutory duty, misrepresentation (whether tortious or statutory), or otherwise for:

1. (a) any loss of profits, loss of business, loss of savings, depletion of goodwill and/or similar losses, or pure economic loss or (subject to clause 11.3) any loss of corruption of data or information (regardless of whether these types of loss or damage are direct, indirect or consequential); or
2. (b) any special, indirect, or consequential loss or damage whatsoever,
3. in each case however arising under or in connection with this Agreement and even if the party was aware of the possibility that such loss or damage might be incurred.

1. 14.3 Subject to clause 14.1 and 14.2, each party’s total aggregate liability to the other party, including for breach of contract, tort (including negligence and gross negligence), breach of statutory duty, misrepresentation (whether tortious or statutory), or otherwise arising under or in connection with the performance, non-performance or contemplated performance of this Agreement (excluding Customer’s payment obligations) shall in no event exceed the Subscription Fees paid or payable by Customer to Blink in the twelve (12) months preceding the event giving rise to the claim.  
2. 14.4 Each party will use all reasonable efforts to mitigate its losses.
3. 15. TERM, TERMINATION AND SUSPENSION
4. 15.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

1. (a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default for not less than thirty (30) calendar days after being notified in writing to make such payment;
2. (b) the other party commits a material breach of this Agreement and fails to remedy that breach within a period of thirty (30) business days after being notified in writing to do so; or
3. (c) the other party suffers an Insolvency Event.

1. 15.2 Subject to clause 10.11, on termination of this Agreement for any reason, Customer shall immediately pay all amounts payable to Blink under the terms of this Agreement.
2. 15.3 On termination of this Agreement for any reason:

1. (a) all rights to use and access the Services and rights, permissions or licences to Blink’s Intellectual Property shall immediately terminate and Customer and the Authorised Users shall immediately cease all use of the Services. In addition, Customer shall use commercially reasonable efforts to ensure each Authorised User deletes or removes the Blink Apps from any of its Devices. For the avoidance of doubt, any licences granted under this Agreement which are stated to be granted on a perpetual and irrevocable basis shall survive the termination of this Agreement for any reason and shall continue in full force and effect;
2. (b) Blink may immediately end Customer's and the Authorised Users’ use of and access to the Services;
3. (c) unless the parties agree otherwise, each party shall return or destroy, and (in each case) make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party, including the other party's Confidential Information (except Blink may retain reasonable professional records of Customer’s and its Authorised Users' use of the Services and shall be entitled to retain Customer's Confidential Information for the purposes of internal audit, litigation and/or to comply with applicable laws);
4. (d) unless otherwise required by applicable law, Blink may destroy or otherwise dispose of any Customer Data in its possession at any point thirty (30) calendar days or more after termination of this Agreement;
5. (e) 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
6. (f) clauses 3.3, 3.4, 7, 10 to 17 inclusive and any other provisions which are necessary for the interpretation or enforcement of this Agreement shall continue in force notwithstanding termination.

1. 15.4 Blink may suspend Customer's, and its Authorised Users', right to access the Services or use any portion or all of the Services immediately upon notice to Customer if it determines in its sole discretion (acting reasonably):

1. (a) that Customer has failed to pay any amount due under this Agreement on the due date for payment and remains in default for not less than fourteen (14) calendar days after being notified in writing to make such payment;
2. (b) that Customer's (and/or any Authorised User’s) use of or access to the Services (i) poses a security risk to Blink, the Services or any third party; (ii) may adversely impact availability or performance of the Blink Apps and/or Blink APIs, the software or the systems comprised within the Services, or software of any other customer of Blink; (iii) may subject Blink or any third party to any liability; or (iv) may be fraudulent; or
3. (c) that Customer, or any Authorised User, is in breach of this Agreement or any other agreement by which software being used on or in conjunction with the Services is licensed.

1. 15.5 Blink will reinstate suspended Services once it confirms the cause has been resolved. Without prejudice to any other rights and remedies it may have, if the cause of the suspension persists for over thirty (30) calendar days, Blink may immediately terminate this Agreement without liability to Customer.
2. 16. THIRD PARTY RIGHTS
3. 16.1 Unless expressly stated in this Agreement, a person who is not a party hereto may not enforce its provisions or bring claims relating to this Agreement or the Services. No third-party consent is required for any variations, releases, or terminations of this Agreement.
4. 16.2 All claims brought by Customer under or as a result of this Agreement (whether in contract, misrepresentation (whether tortious or statutory), tort (including negligence and gross negligence), restitution, breach of statutory duty or otherwise) shall be brought against the Blink entity named in these Blink T&Cs only and not any of Blink’s Personnel or affiliates. The liability limitations and exclusions in this Agreement shall apply to all such claims.
5. 17. MISCELLANEOUS
6. 17.1 Force Majeure. Neither party shall be in breach of this Agreement or liable for any delays or failures in performing any of its obligations (excluding Customer’s payment obligations) if such delays or failures results from events, circumstances or causes beyond its reasonable control, including strikes, lock-outs or other industrial disputes (excluding the workforce of the affected party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, or storm. In such circumstances, the affected party shall be entitled to a reasonable extension of time for performance, provided that if the delay or non-performance continues for three (3) months, either party may terminate this Agreement by giving not less than thirty (30) days' written notice to the other party.
7. 17.2 No Waiver. Failure to exercise, or delay in exercising, a right, power, or remedy under this Agreement or by law shall not constitute a waiver of that right, power, or remedy.  Waiving a breach of any provision of this Agreement does not waive any subsequent breaches of that provision or breaches of other provisions.
8. 17.3 Severance. If any part of this Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid, or unenforceable, that part shall be deemed deleted, and the legality, validity, or enforceability of the remainder of this Agreement shall not be affected, unless otherwise required by operation of applicable law. If part of this Agreement is deemed deleted, the parties will negotiate in good faith to agree a replacement provision that best achieves the original commercial intent.
9. 17.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties in relation to its subject matter. It replaces and extinguishes all prior agreements, collateral warranties, collateral contracts, statements, representations, and undertakings made by or on behalf of the parties, whether oral or written, in relation to that subject matter.
10. 17.5 Variation. Blink may modify the terms of these Blink T&Cs from time to time by updating the contents on the relevant page of its website or by direct written notice to Customer. If a modification is material, as reasonably determined by Blink in its sole discretion, then Blink will make commercially reasonable efforts to notify the Customer of the change. Continued use of Services after the expiry of the notice period will constitute acceptance of the new Blink T&Cs.
11. 17.6 Notices. Any notice required to be given under this Agreement shall be in writing in English and shall be delivered:

1. (a) Via email to Blink at legal@joinblink.com; or
2. (b) Via email or post to Customer in accordance with the details provided during the online sign-up process or submitted in the admin panel, or such other addresses as may have been notified by that party for such purposes. This clause 17.6 shall not apply to the service of legal proceedings.