Terms and Conditions

Who we are and how to contact us directly

www.frankli.io (“our site”) is a site operated by Frankli Communication Technologies Limited (“We”). We are registered in Ireland under company number 597723 and have our registered office at ATU Sligo Innovation Centre, Ash Lane, Ballytivnan, Sligo F91 YW50. We are a private company limited by shares.

To contact us, please email hello@frankli.io.

What’s in these terms of service?

This Frankli Subscription Terms of Service ("Agreement") is entered into by and between the Frankli entity set forth below ("Frankli") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorised to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.

This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Frankli under any Frankli ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. 

The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.

As used in this Agreement, "Frankli" means Frankli Communication Technologies t/a Frankli incorporated in Ireland with company number 597723, whose registered office is at Level 2, 28 Market Street, Sligo, F91WKA0, Ireland.

Modifications to this Agreement: From time to time, Frankli may modify this Agreement. Unless otherwise specified by Frankli, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. Frankli will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customers may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form. In any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Frankli specifies that changes to the Agreement will take effect before Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for the use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.

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1. Definitions

"AUP" means Frankli's Acceptable Use Policy, available at https://www.frankli.io/acceptable-use-policy or a successor URL, incorporated into these terms by this reference.

“Additional Services” any additional services provided by Frankli to the Customer.

"Affiliate:" with respect to the Customer, any subsidiary or holding company under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.

"Beta Offerings" means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.

"Contractor" means an independent contractor or consultant who is not a competitor of Frankli.

"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Customer Properties using the Services.

"Dashboard" means Frankli's user interface for accessing and administering the Services that the Customer may access via the web.

"Documentation" means any technical and/or product documentation provided with the Services.

"Feedback" means comments, questions, suggestions or other feedback relating to any Frankli product or service. Feedback does not include any Customer Data.

"Intellectual Property Rights" include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.

"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

"Order Form" means a written or electronic form to order the Services or an online order completed through Frankli’s website. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.

"People" (in the singular, "Person") means Customer's end-user customers, potential end-user customers, and other users of and visitors to the Customer Properties. People or Person does not include the customers of Customer’s end-user customers.

"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorised to access the Service.

"Services" means Frankli’s proprietary software-as-a-service solution(s), including the Dashboard, Frankli application programming interfaces (APIs), Frankli Code and Frankli features, as described in the applicable Order Form.

"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Frankli.

 

2. Frankli Services

2.1. Services Overview. Frankli's Services are a suite of performance management and employee engagement software-as-a-service solutions offered through a single platform. The Services are designed to enable Customers to manage performance management activities with People through continuous communication and interactions. Customers may import and export Employee Data between the Services and access certain Third-Party Platforms through supported integrations. 

2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). The customer will purchase, and Frankli will provide the specific Services as specified in the applicable Order Form.

2.3. Access to Services. Customer may access and use the Services solely for its own benefit (and for the benefit of People) and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Frankli's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorised person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. The customer will be responsible for any, and all actions are taken using the Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Service. 

2.4. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.

2.5. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide or incorporate the Services into, any product or service provided to a third party other than the Customer Properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Frankli); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.

2.6. Frankli APIs. If Frankli makes access to any APIs available as part of the Services, Frankli reserves the right to place limits on access to such APIs (e.g., limits on the number of calls or requests). Further, Frankli may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Frankli believes that Customer's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Frankli).

2.7. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Frankli (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. Frankli has the right to terminate a Trial Subscription at anytime for any reason. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FRANKLI WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

2.8. Beta (Preview) Offerings. Customers may choose to use Beta (Preview) Offerings at its sole discretion. Beta (Preview) Offerings may not be supported and may be changed at any time without notice. Beta (Preview) Offerings may not be as reliable or available as the Service. Beta (Preview) Offerings are not subject to the same security measures as in the Security Policy. Frankli will have no liability arising out of or in connection with Beta Offerings. 

CUSTOMERS USE BETA (PREVIEW) OFFERINGS AT THEIR OWN RISK. 

3. Customer Data and Customer Obligations

3.1. Data Processing by Frankli. All data processing activities by the Service will be governed by our Privavy Policy.

3.2. Rights in Customer Data. As between the parties, Customer will retain all rights, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data as provided to Frankli. Subject to the terms of this Agreement, Customer hereby grants to Frankli a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.

3.3. Storage of Customer Data. Frankli agrees that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term and expressly disclaims all other obligations with respect to storage.

3.4. Customer Obligations.

a) In General. The customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Frankli that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the AUP. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.

b) No Sensitive Personal Information. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement for HIPAA data, Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. The customer acknowledges that Frankli is not a payment card processor and that the Services are not PCI DSS compliant. Except for Frankli’s obligations as a business associate pursuant to this Agreement, Customer shall be responsible for any Sensitive Personal Information it submits to the Service, and Frankli will treat such submissions as Customer Data as defined in this Agreement such that Frankli is not subject to any additional obligations that apply to Sensitive Personal Information.

c) Compliance with Laws. The customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.

3.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Frankli from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data, Customer’s use of a Third Party Apps or Integrations, or breach or alleged breach by Customer of Section 3.4 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Frankli at Customer's expense. Notwithstanding the foregoing sentence, (a) Frankli may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Frankli's prior written consent unless the settlement fully and unconditionally releases Frankli and does not require Frankli to pay any amount, take any action, or admit any liability.

3.6. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Frankli may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Frankli may use the Aggregated Anonymous Data to analyse, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Frankli customers. For clarity, this Section 3.6 does not give Frankli the right to identify Customer as the source of any Aggregated Anonymous Data.

4. Security

Frankli agrees to use commercially reasonable technical and organisational measures designed to prevent unauthorised access, use, alteration or disclosure of any Service or Customer Data. The steps we take to offering world-class data protection are detailed here.

However, Frankli will have no responsibility for errors in transmission, unauthorised third-party access or other causes beyond Frankli's control. 

5. Third-Party Platforms and Third-Party Apps

5.1 Integration with Third-Party Platforms. The Services may support integrations with certain Third-Party Platforms. For the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials for the Services to access and receive relevant information from such Third-Party Platforms. By enabling the use of the Services with any Third-Party Platform, Customer authorises Frankli to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. The customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Frankli has no responsibility or liability for any Third-Party Platform or App or how a Third-Party Platform (including Apps) uses or processes Customer Data after such is exported to a Third-Party Platform or App. Frankli does not guarantee that the Services will maintain integrations with any Third-Party Platform, and Frankli may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs the Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.

5.2 Third-Party Apps. Customer represents and warrants that Customer has agreed to the terms of service associated with any Third Party App(s) and has created, or has authorised Frankli to create on Customer's behalf, a Third Party App account in accordance with such terms and conditions, which govern Customer's use of such Third Party App account. Frankli will have no liability for, and the Third Party App provider is solely responsible for, the Third Party App’s network, functionality, clients, and APIs.

5.3 Third-Party Beta Releases. TO THE EXTENT A CUSTOMER USES FEATURES IN THE SERVICE THAT INTEGRATE WITH A THIRD-PARTY PLATFORM AND A CUSTOMER REQUESTS THAT FRANKLI INTEGRATE WITH SUCH THIRD-PARTY PLATFORM’S BETA OR PRE-RELEASE FEATURES (“THIRD PARTY BETA RELEASES”), FRANKLI WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH FRANKLI’S PARTICIPATION IN SUCH THIRD PARTY BETA RELEASES OR CUSTOMER’S USE OF SUCH INTEGRATED FEATURES.

6. Ownership

6.1. Frankli Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement, no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Frankli or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "Frankli Technology"). Except as expressly set forth in this Agreement, no rights in any Frankli Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an online, hosted solution and that Customer has no right to obtain a copy of any of the Services except for the format provided by Frankli.

6.2. Feedback. Customer, from time to time, may submit Feedback to Frankli. Frankli may freely use or exploit Feedback in connection with the Service. To the extent Customer submits Feedback related to Third Party Messaging Apps, Customer hereby grants to Frankli, if for any reason it is further needed, a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such feedback into any Frankli product or service at any time at the sole discretion of Frankli.

7. Subscription Term, Fees & Payment

7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the then-current Subscription Term.

7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within fourteen(14) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 12 (Indemnification), all fees are non-refundable. The customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Frankli receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments may be subject to a service charge of 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

7.3. Payment Via Credit Card. If purchasing the Services via credit card, debit card or another payment card ("Credit Card"), the following terms apply:

1. 1

   Recurring Billing Authorisation. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorises Frankli (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.

2. 2

   Foreign Transaction Fees. The customer acknowledges that for certain Credit Cards, the issuer of the Customer's Credit Card may charge a foreign transaction fee or other charges.

3. 3

   Invalid Payment. If payment is not successfully settled due to the expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Frankli, and Frankli may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.

4. 4

   Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending Frankli notice of non-renewal in accordance with Section 7.1 (Subscription Term and Renewals). As set forth in Section 2.7 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period, and Customer's Credit Card will not be charged.

5. 5

   Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Frankli will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which Frankli will not charge Customer's Credit Card for any additional fees.

7.4. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Frankli reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Frankli also reserves the right to suspend Customer's access to the Services without liability if Customer's use of the Services violates the AUP.

8. Term and Termination

8.1. Term. This Agreement is effective as of the Effective Date and expires on the expiration date or termination of all Subscription Terms.

8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Frankli Technology) and delete (or, at Frankli's request, return) any and all copies of the Documentation and any other Frankli Confidential Information in its possession. Customer acknowledges that following termination, it will have no further access to any Customer Data input into any Service and that Frankli may delete any such data as may have been stored by Frankli at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.5 (General Restrictions), 2.7 (Trial Subscriptions), 3.3 (Storage of Customer Data), 3.5 (Indemnification by Customer), 3.6 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11 (Limitation of Remedies and Damages), 12 (Indemnification), 13 (Confidential Information) and 15 (General Terms).

9. Limited Warranty

9.1. Limited Warranty. Frankli warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Frankli's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Frankli to use commercially reasonable efforts to correct the reported non-conformity, or if Frankli determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and the Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorised modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.

9.2. Warranty Disclaimer. except for the limited warranty in section 9.1, all services are provided "as is". neither Frankli nor its suppliers makes any other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement. Frankli does not warrant that customer’s use of the services will be uninterrupted or error-free, nor does Frankli warrant that it will review the customer data for accuracy or that it will preserve or maintain the customer data without loss or corruption. Frankli shall not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications, third-party platforms, third party apps, or other systems outside the reasonable control of Frankli. 

10. Availability and Support

The Services are available subject to Frankli’s Support Policy.

11. Limitation of Remedies and Damages

11.1. Consequential Damages Waiver. Except for excluded claims (defined below), neither party (nor its suppliers) shall have any liability arising out of or related to this agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of the possibility of such damages in advance.

11.2. Liability Cap. Except for excluded claims (defined below), each party’s entire liability to the other arising out of or related to this agreement shall not exceed the amount actually paid or payable by customer to Frankli during the prior twelve (12) months under this agreement.

11.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.5 (General Restrictions); (b) under Section 3.4 (Customer Obligations) or 3.5 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 13 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service or relating to Customer Data).

11.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 11 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

12. Indemnification

Customer will indemnify, defend and hold Frankli and their Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Frankli or their Affiliates to the extent that such Action is based upon or arises out of:

• Unauthorised or illegal use of the Subscription Service by Customer or their Affiliates, Customer or their Affiliates' noncompliance with or breach of this Agreement, 

• Customer or their Affiliates' use of Third-Party Products, or

• The unauthorised use of the Subscription agreement by any other person using Customer User information. 

We will: notify the Customer in writing within thirty (30) days of Frankli becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim; and provide Customer (at your expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer will not accept any settlement that (i) imposes an obligation on Frankli; (ii) requires Frankli to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Frankli without our prior written consent.

13. Confidential Information

Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Frankli Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Frankli without any marking or further designation. Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 13 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 13. 

The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

14. Publicity

Frankli may, upon Customer’s prior written consent, use Customer’s name to identify Customer as a Frankli customer of the Service, including on Frankli’s public website. Frankli agrees that any such use shall be subject to Frankli complying with any written guidelines that Customer may deliver to Frankli regarding the use of its name and shall not be deemed Customer’s endorsement of the Service.‍

15. General Terms

15.1 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Frankli may make changes to the Services, and Frankli will update the applicable Documentation accordingly. The support and service level availability terms described in the Security Policy and the Support Policy may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Frankli's obligations as compared to those reflected in such terms as of the Effective Date).

15.2 Dispute Resolution. Any dispute which may arise between the parties concerning the agreement shall be determined as provided for herein. For the purpose of this Clause 15.2, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.

After service of the notice of dispute, the following procedure shall be followed by the parties by mutual agreement:

• Within 5 Business Days, the respective CEOs of Frankli or nominated directors, and the Customer shall meet to attempt to settle the dispute; and

• If the respective CEOs are unable to reach a settlement within ten Business Days from the date of service of the notice, for the following 15 Business Days the parties shall attempt to settle the dispute by mediation. Unless otherwise agreed between the parties, the mediator shall be nominated by the President for the time being of the Law Society of Ireland, or in event of his being unwilling or unable to do so, by the next senior officer of the Law Society of Ireland who is willing and able to make the appointment.

• If no settlement is reached under, the dispute may be referred by either party to the courts of Ireland in accordance with clause 15.3.

15.3 Governing law. This 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 laws of Ireland. 

15.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

15.5 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services.