Application Terms and Conditions
MyNesting Service Terms and Conditions
Please read these Terms and Conditions carefully. The MyNesting Service is developed and run by Efficient Software. All contracts that Efficient Software may enter into from time to time for the provision of the MyNesting Service and related services shall be governed by these Terms and Conditions. These Terms and Conditions do not affect any statutory rights Customer may have as a Consumer.
1.1. In these Terms and Conditions, except to the extent expressly provided otherwise:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the MyNesting Service, including access credentials for the Customer Portal.
"Agreement" means a contract between the parties for the provision of the Services incorporating these Terms and Conditions, created when Customer completes and submits the Customer Sign-Up.
“Business” means a customer who is purchasing the MyNesting Service or using the MyNesting Service in connection with their trade, business, craft or profession.
"Business Day" means any weekday other than a bank or public holiday in England, United Kingdom.
"Business Hours" means the hours of 09:30 to 17:00 on a Business Day.
"Charges" means the amounts specified in the Subscription Options and any other amounts that Efficient Software is entitled to charge under these Terms and Conditions.
"Confidential Information" means any information disclosed by or on behalf of a party to the other party at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked or described as "confidential"; or (ii) should have been reasonably understood by the receiving party to be confidential.
“Consumer” means a customer who is purchasing the MyNesting Service or using the MyNesting Service wholly or mainly for their personal use.
"Customer" means the person or entity identified as such in the Customer Sign-Up.
"Customer Contact Data" means Personal Data about Customer (if Customer is a Consumer) or Customer’s personnel and representatives (if Customer is a Business): (i) submitted by Customer in the Customer Sign-Up; (ii) provided by Customer via the Customer Portal, (iii) obtained by Efficient Software in connection with providing the Support Services; or (iv) otherwise obtained by Efficient Software or disclosed by Customer in connection with the Agreement.
"Customer Portal" means the online interface for the MyNesting Service designed to allow individual human users to access and use the MyNesting Service at https://app.mynesting.com
"Customer Sign-Up" means an online sign-up form published by Efficient Software and completed and submitted by Customer, incorporating these Terms and Conditions by reference.
"Data Protection Laws" means the UK GDPR, Data Protection Act 2018 and all other applicable laws relating to the processing of Personal Data in connection with the Agreement.
"Documentation" means any user information for the MyNesting Service, including support articles and help videos, produced by Efficient Software and made available on Efficient Software’s website.
"Effective Date" means the date upon which Customer obtains access to the MyNesting Service following its completion and submission of the Customer Sign-Up.
"Efficient Software" means Efficient Software Limited, a company incorporated in England and Wales (registration number 08918202) having its registered office at 470 Hucknall Road, Nottingham, NG5 1FX.
"Export Laws" means all applicable laws restricting and/or regulating:
(a) the inter-jurisdictional import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information; and/or
(b) the import, export, supply, disclosure, transfer or transmission of goods, services, software, technology, technical know-how, data and/or information to designated entities or persons, or to designated classes of entities or persons.
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars).
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
“Merchant of Record” means Paddle (as defined in Paddle’s Checkout Buyer Terms and Conditions), which is the online reseller and merchant of record for all orders for the MyNesting Service.
"MyNesting Platform" means the MyNesting Platform managed by Efficient Software and used by Efficient Software to provide the MyNesting Service, including the application and database software for the MyNesting Service, the system and server software used to provide the MyNesting Service and the computer hardware on which that application, database, system and server software is installed.
"MyNesting Service" means the MyNesting software which will be made available by Efficient Software to Customer as a service via the internet in accordance with these Terms and Conditions, as specified in the MyNesting Service Specification.
"MyNesting Service Specification" means the specification for the MyNesting Service set out on Efficient Software’s website and in the Documentation.
“Nesting Data” means any calculations or outputs from the MyNesting Service derived from the Customer Data including, but not limited to, nesting drawings and ancillary data.
"Personal Data" has the meaning given to it in the Data Protection Laws (and in the event of conflict between the definitions of personal data in different Data Protection Laws, the most comprehensive definition shall apply).
"Security Measures" means the technological and organisational information security measures set out in Efficient Software’s MyNesting Security Whitepaper made available on Efficient Software’s website.
"Services" means any services that Efficient Software provides to Customer, or has an obligation to provide to Customer, under these Terms and Conditions, including the MyNesting Service and Support Services.
“Subscription Options” means one or more subscription options (including, but not limited to, subscription duration and amounts payable by Customer) offered by Efficient Software and varied from time to time.
“Subscription Period” means a period of access to the MyNesting Service according to the subscription option selected by Customer and further periods of access to the MyNesting Service on each subsequent Subscription Renewal.
“Subscription Renewal” means automatic renewal or manual renewal of Customer subscription and Customer payment of renewal Charges.
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the MyNesting Service, but shall not include the provision of training services.
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that Efficient Software agrees in writing shall be supported.
"Term" means the term of the Agreement, commencing and ending in accordance with Clause 2.1.
"Terms and Conditions" means the main body of these Terms and Conditions, including any amendments to that documentation from time to time.
“Trial Period” means a period of free use of the MyNesting Service that Efficient Software may in its discretion provide to Customer, as set out in the Customer Sign-Up or otherwise agreed by Efficient Software in writing.
"UK GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019).
1.2. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to that statute or statutory provision as modified, consolidated and/or re-enacted from time to time and any subordinate legislation made under that statute or statutory provision.
1.3. The Clause headings do not affect the interpretation of these Terms and Conditions.
1.4. References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
1.5. In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
2.1. The Agreement shall come into force upon the Effective Date and continue until terminated according to clause 18.
2.2. Customer acknowledges that it shall only be permitted to have one trial of the MyNesting Service and that Efficient Software may apply technical controls to prevent Customer from attempting to obtain further trial periods. Customer shall not attempt to obtain further trials for the MyNesting Service and Efficient Software may suspend provision of the MyNesting Service to Customer and/or terminate the Agreement if it has reasonable cause to believe that Customer has obtained a further trial of the MyNesting Service in breach of this Clause 2.2.
2.3. Each successfully submitted Customer Sign-Up shall create a distinct contract under these Terms and Conditions.
3. MyNesting Service provision
3.1. Efficient Software shall ensure that the MyNesting Platform automatically provides Customer with access to the MyNesting Service promptly following Efficient Software’s receipt of confirmation from the Merchant of Record that Customer has paid the Charges.
3.2. Efficient Software hereby grants to Customer a worldwide, non-exclusive licence to use the MyNesting Service by means of the Customer Portal for the personal purposes of Customer (if a Consumer) or the internal business purposes of Customer (if a Business) in accordance with the Documentation during the Term.
3.3. The licence granted by Efficient Software to Customer under Clause 3.2 is subject to the following limitations:
3.3.1. the Customer Portal may only be used through a Supported Web Browser;
3.3.2. the Customer Portal may only be used by the Customer (if a Consumer) or the officers, employees, agents and subcontractors of Customer (if a Business);
3.3.3. Customer must not upload CAD files over 1 MB in size to the MyNesting Service, unless agreed in writing with Efficient Software;
3.3.4. Customer must not transact more than 100 nesting calculations per day and 1000 nesting calculations per month on the MyNesting Service, unless agreed in writing with Efficient Software;
3.3.5. Customer must not store more than 1000 parts in the parts library, unless agreed in writing with Efficient Software.
3.4. Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, Customer must not:
3.4.1. sub-license its right to access and use the MyNesting Service;
3.4.2. permit any unauthorised person or application to access or use the MyNesting Service;
3.4.3. use the MyNesting Service to provide nesting services to third parties;
3.4.4. republish, redistribute, make available or convey through other means to the public domain or to any third party any content or material obtained or derived from the MyNesting Service, including the Nesting Data, any results found using the MyNesting Service and any comparisons between the MyNesting Service or MyNesting Platform and any other software or service, unless agreed in writing with Efficient Software;
3.5. Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the MyNesting Service by means of the Access Credentials.
3.6. Efficient Software shall use all reasonable endeavours to maintain the availability of the MyNesting Service to Customer at the gateway between the public internet and the network of the hosting services provider for the MyNesting Service but does not guarantee 100% availability.
3.7. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:
3.7.1. a Force Majeure Event;
3.7.2. a fault or failure of the internet or any public telecommunications network;
3.7.3. a fault or failure of Customer’s computer systems or networks;
3.7.4. any breach by Customer of the Agreement; or
3.7.5. scheduled maintenance carried out in accordance with the Agreement.
3.8. Customer must not use the MyNesting Service in any way that causes, or may cause, damage to the MyNesting Service or MyNesting Platform or impairment of the availability or accessibility of the MyNesting Service.
3.9. Customer must not use the MyNesting Service in any way that uses excessive MyNesting Platform resources and as a result is liable to cause a material degradation in the services provided by Efficient Software to its other customers using the MyNesting Platform; and Customer acknowledges that Efficient Software may use reasonable technical measures to limit the use of MyNesting Platform resources by Customer for the purpose of assuring services to its customers generally.
3.10. Customer must not use the MyNesting Service:
3.10.1. in any way that is unlawful, illegal, fraudulent or harmful; or
3.10.2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
3.10.3. in connection with the development, identification or dissemination of weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons;
3.10.4. in any circumstances in which the failure of the software to perform can reasonably be expected to result in personal injury or loss of life; or
3.10.5. in breach of any applicable Export Laws.
3.11. For the avoidance of doubt, Customer has no right to access the software code (including object code, intermediate code and source code) of the MyNesting Platform or MyNesting Service, either during or after the Term.
3.12. Customer acknowledges that the provision of the MyNesting Service shall automatically be suspended if any amount due to be paid by Customer to Efficient Software under the Agreement is overdue.
4.1. Efficient Software may from time to time suspend the MyNesting Service for the purposes of scheduled maintenance to the MyNesting Platform, providing that Efficient Software shall where practicable give to Customer prior notice of scheduled maintenance that will, or is likely to, affect the availability of the MyNesting Service or have a material negative impact upon the MyNesting Service.
5. Support Services
5.1. Efficient Software shall provide the Support Services to Customer during the Term in accordance with the standards of skill and care reasonably expected from a leading service provider in Efficient Software’s industry.
5.2. Efficient Software shall make available an email and phone helpdesk service to Customer during Business Hours (the “Helpdesk”).
5.3. Customer may use the Helpdesk for the purposes of requesting and, where applicable, receiving the Support Services and Customer must not use the Helpdesk for any other purpose.
5.4. Efficient Software shall respond promptly to all requests for Support Services made by Customer through the Helpdesk.
6. Customer Data
6.1. Customer hereby grants to Efficient Software a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Customer Data to the extent reasonably required for the performance of Efficient Software’s obligations and the exercise of Efficient Software’s rights under the Agreement. Customer also grants to Efficient Software the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
6.2. Customer hereby grants to Efficient Software a non-exclusive licence to access, view, copy, store, modify and analyse Nesting Data for the purpose of improving and developing the MyNesting Service and Efficient Software’s other products and services. Efficient Software shall not share the Nesting Data with any third party without the prior written consent of Customer.
6.3. Customer warrants to Efficient Software that Customer Data when used by Efficient Software in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6.4. Efficient Software shall create a back-up copy of Customer Data and Nesting Data at least daily, shall ensure that each such copy is sufficient to enable Efficient Software to restore the MyNesting Service to the state it was in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
6.6. Efficient Software shall apply the Security Measures to Customer Data and Nesting Data during the Term and any post-termination storage period pursuant to the data deletion provisions in Clause 19.4.
6.7. If Customer provides Efficient Software with any feedback concerning the operation, performance, efficiency or functionality of the MyNesting Service or MyNesting Platform, including any suggested improvements regarding the MyNesting Service or MyNesting Platform (“Feedback”), Efficient Software may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback shall be considered Customer’s Confidential Information and nothing in these Terms and Conditions shall limit Efficient Software’s right to independently use, develop, evaluate or market products or services, whether incorporating Feedback or otherwise.
7.1. Except as expressly set out in Clause 7.2, nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from Efficient Software to Customer, or from Customer to Efficient Software.
7.2. To the extent that Efficient Software owns any Intellectual Property Rights in the Nesting Data, Efficient Software now assigns to Customer by way of present assignment of future rights any such Intellectual Property Rights in the Nesting Data.
8.1. Customer shall pay the Charges to Efficient Software in accordance with these Terms and Conditions.
8.2. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by Customer to Efficient Software.
9.1. Customer must pay all Charges via the Merchant of Record using a payment method permitted by the Merchant of Record.
9.2. Customer must pay the Charges in advance for each Subscription Period on the first day of each Subscription Period except during a Trial Period.
9.3.1. charge Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
9.3.2. claim interest and statutory compensation from Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
9.4. If Customer disputes any payment or has any query or complaint relating to payments, it must direct these to the Merchant of Record using contact details provided to Customer by the Merchant of Record.
10.1. Efficient Software may pause Customer’s subscription to the MyNesting Service at any time with immediate effect if Customer commits a material breach of the Agreement.
10.2. Customer’s subscription to the MyNesting Service shall automatically be paused if Customer fails to pay any Charges in accordance with these Terms and Conditions.
10.4. The provisions of this Clause 10 are without prejudice to either party’s rights to terminate the Agreement under these Terms and Conditions.
11.1.1. keep the other party’s Confidential Information strictly confidential;
11.1.2. not disclose the other party’s Confidential Information to any person without the other party’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
11.1.3. use the same degree of care to protect the confidentiality of the other party’s Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care;
11.1.4. act in good faith at all times in relation to the other party’s Confidential Information; and
11.1.5. not use any of the other party’s Confidential Information for any purpose other than performing its obligations and enforcing its rights under the Agreement.
11.2. Notwithstanding Clause 11.1, a party may disclose the other party’s Confidential Information to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the other party’s Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.
11.3. This Clause 11 imposes no obligations on a party with respect to Confidential Information that:
11.3.1. is known to it before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
11.3.2. is or becomes publicly known other than through its act or default; or
11.3.3. is obtained from a third party in circumstances where the receiving party has no reason to believe that there has been a breach of an obligation of confidentiality.
11.4. The restrictions in this Clause 11 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Efficient Software on any recognised stock exchange.
11.5. The provisions of this Clause 11 shall continue in force indefinitely following the termination of the Agreement.
12.2. Efficient Software shall process Customer Contact Data and any other Personal Data it obtains in connection with the Agreement in compliance with its obligations as a controller under the Data Protection Laws.
12.3. If Customer is a Business, Customer shall process Customer Contact Data and any other Personal Data it obtains in connection with the Agreement in compliance with its obligations as a controller under the Data Protection Laws.
12.4. Customer acknowledges that no Personal Data is required to be provided as Customer Data to enable Efficient Software to provide the MyNesting Service and accordingly shall ensure that it does not include Personal Data in Customer Data.
13.1. Efficient Software warrants to Customer that it:
13.1.1. has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement;
13.1.2. will comply with all applicable legal and regulatory requirements applying to the exercise of Efficient Software’s rights and the fulfilment of Efficient Software’s obligations under the Agreement; and
13.1.3. has or has access to all necessary know-how, expertise and experience to perform its obligations under the Agreement.
13.2. Efficient Software warrants to Customer that:
13.2.1. the MyNesting Platform and MyNesting Service will conform in all material respects with the MyNesting Service Specification;
13.2.2. the MyNesting Platform will incorporate security features reflecting the requirements of good industry practice;
13.2.3. the MyNesting Service, when used by Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law; and
13.2.4. the MyNesting Service, when used by Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
13.3. If Efficient Software reasonably determines, or any third party alleges, that the use of the MyNesting Service by Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, Efficient Software may at its own cost and expense:
13.3.1. modify the MyNesting Service in such a way that it no longer infringes the relevant Intellectual Property Rights; or
13.3.2. procure for Customer the right to use the MyNesting Service in accordance with these Terms and Conditions.
13.4. Customer warrants to Efficient Software that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
13.5. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14.1. Customer acknowledges that:
14.1.1. complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, Efficient Software gives no warranty or representation that the MyNesting Service will be wholly free from defects, errors and bugs;
14.1.2. complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, Efficient Software gives no warranty or representation that the MyNesting Service will be entirely secure;
14.1.3. Efficient Software does not warrant or represent that the MyNesting Service will be compatible with any particular software or systems;
14.1.4. the MyNesting Service has not been developed to meet Customer’s requirements; and Efficient Software does not warrant or represent that the MyNesting Service or the data outputs of the MyNesting Service (including the Nesting Data) will meet Customer’s requirements and it is Customer’s responsibility to ensure that the facilities and functions of the MyNesting Service as described in the MyNesting Service Specification and the data outputs of the MyNesting Service (including the Nesting Data) meet Customer’s requirements and are suitable for Customer’s purposes;
14.1.5. Efficient Software will not provide any legal or other advice under the Agreement or in relation to the MyNesting Service; and, except to the extent expressly provided otherwise in these Terms and Conditions, Efficient Software does not warrant or represent that the MyNesting Service or the use of the MyNesting Service by Customer will not give rise to any legal liability on the part of Customer or any other person.
15.1. Efficient Software shall indemnify and shall keep indemnified Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Customer and arising directly or indirectly as a result of any claim by a third party that the MyNesting Service infringes the Intellectual Property Rights of any person ("Efficient Software Indemnity Event").
15.2.1. upon becoming aware of an actual or potential Efficient Software Indemnity Event, notify Efficient Software;
15.2.2. provide to Efficient Software all such assistance as may be reasonably requested by Efficient Software in relation to the Efficient Software Indemnity Event;
15.2.3. allow Efficient Software the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Efficient Software Indemnity Event; and
15.2.4. not admit liability to any third party in connection with the Efficient Software Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Efficient Software Indemnity Event without the prior written consent of Efficient Software,
and Efficient Software’s obligation to indemnify the Customer under Clause 15.1 shall not apply unless Customer complies with the requirements of this Clause 15.2.
15.3. Customer shall indemnify and shall keep indemnified Efficient Software against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Efficient Software and arising directly or indirectly as a result of a claim by a third party that Customer Data infringes the Intellectual Property Rights or other legal rights of any person, or breaches the provisions of any law, statute or regulation (a "Customer Indemnity Event").
15.4.1. upon becoming aware of an actual or potential Customer Indemnity Event, notify Customer;
15.4.2. provide to Customer all such assistance as may be reasonably requested by Customer in relation to the Customer Indemnity Event;
15.4.3. allow Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
15.4.4. not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of Customer,
and Customer’s obligation to indemnify Efficient Software under Clause 15.3 shall not apply unless Efficient Software complies with the requirements of this Clause 15.4.
15.5. The indemnity protection set out in this Clause 15 shall be subject to the limitations and exclusions of liability set out in these Terms and Conditions.
16.1. Nothing in these Terms and Conditions will limit or exclude any liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or in any way that is not permitted under applicable law and, if Customer is a Consumer, Customer’s statutory rights will not be excluded or limited by these Terms and Conditions except to the extent permitted by applicable law.
16.2. The limitations and exclusions of liability set out in this Clause 16 and elsewhere in these Terms and Conditions are subject to Clause 16.1 and govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
16.3.1. losses arising out of a Force Majeure Event;
16.3.2. loss of profits or anticipated savings, revenue, income, business, contracts or opportunities;
16.3.3. loss of use or production;
16.3.4. loss or corruption of any data, database or software, provided that this Clause 16.3.4 shall not protect Efficient Software unless Efficient Software has fully complied with its obligations under Clause 6.6;
16.3.5. any special, indirect or consequential loss or damage.
16.4. Without prejudice to the generality of Clause 16.3, Efficient Software shall not be liable to Customer in respect of any losses, including personal injury and property damage, arising as a result of:
16.4.1. the incorporation of parts cut in accordance with Nesting Data into Customer’s or any third party’s products;
16.4.2. the cutting of parts in accordance with Nesting Data by or on behalf of Customer or any third party;
16.4.3. any faults, defects or inadequacies in the parts cut in accordance with Nesting Data;
16.4.4. the unsuitability of any parts cut in accordance with Nesting Data for any purpose; or
16.4.5. any recall of the parts cut in accordance with Nesting Data.
16.5. The liability of Efficient Software to Customer under the Agreement in respect of any event or series of related events shall not exceed an amount equal to the Charges paid by Customer to Efficient Software under the Agreement in the 12 month period preceding the commencement of the event or events.
17.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
17.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must promptly notify the other and inform the other of the period for which it is estimated that such failure or delay will continue.
17.3. A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1. If Customer is a Consumer, it is entitled to cancel the Agreement within 14 days of the date on which Efficient Software provides access to the MyNesting Service in accordance with Clause 3.1 by notifying the Merchant of Record within that 14-day period in accordance with the Merchant of Record’s Checkout Buyer Terms and Conditions Customer has already started to use the MyNesting Service.
18.2. Customer may terminate the Agreement at the end of any Subscription Period subsequent to the Trial Period (if applicable) or at the end of the Trial Period (if applicable) by: (i) giving written notice of termination to Efficient Software at email@example.com; or (ii) contacting the Merchant of Record in accordance with the Merchant of Record’s Checkout Buyer Terms and Conditions.
18.3. Efficient Software may terminate the Agreement at the end of any Subscription Period subsequent to the Trial Period (if applicable) or at the end of the Trial Period (if applicable) by giving written notice of termination to Customer.
18.5.2. Efficient Software is prevented from performing the Agreement by a Force Majeure Event, subject to the provisions of Clause 17.
18.6. Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
18.6.1. the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
18.6.2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
18.6.3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under the Agreement); or
18.6.4. if that other party is an individual, that other party dies, becomes incapable of managing his or her own affairs as a result of illness or incapacity or is the subject of a bankruptcy petition or order.
18.7. If Customer has not logged into its account for 6 consecutive months, Efficient Software may terminate the Agreement.
19.1. Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.4.4, 3.4.5, 3.4.6, 3.4.7, 3.11, 6.2, 6.5 and 6.6 (if and to the extent that Efficient Software still holds any Customer Data), 6.7, 7, 9.3, 11, 12, 13, 14, 15, 16, 19, 20, 22.1, 22.4, 22.5, 22.6, 22.7 and 22.7.
19.2. Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.
19.3.1. Customer must pay to Efficient Software any Charges due in respect of Services provided to Customer before the termination of the Agreement; and
19.3.2. Efficient Software must refund to Customer any Charges paid by Customer to Efficient Software in respect of Services that were to be provided to Customer after the termination of the Agreement, except where the Agreement is terminated by Efficient Software under Clause 18.5.1,
without prejudice to the parties’ other legal rights.
19.4.1. Efficient Software shall retain any Customer Data and Nesting Data held in the live MyNesting Platform at that time for a period of 30 days from the effective date of termination. During that time, if Customer so requests, Efficient Software will assist Customer with obtaining and copying Customer Data and Nesting Data, provided that if Customer is able to do this itself using tools made available by Efficient Software via the MyNesting Service, Efficient Software may charge Customer for such assistance at its standard time-based charging rates;
19.4.2. Efficient Software shall delete all Customer Data held in the live MyNesting Platform within 60 days of the effective date of termination;
19.4.3. any Customer Data held in the MyNesting Platform backup servers will be deleted in accordance with Clause 6.4; and
19.4.4. Efficient Software may retain Nesting Data indefinitely.
20.1. Any notice from one party to the other party under the Agreement must be sent by email using the addressee details for Customer set out in the Customer Sign-Up and firstname.lastname@example.org for Efficient Software.
20.2. Notices shall be deemed to be received at the time of the sending of the email providing that the sending party retains written evidence that the email has been sent and that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.3. The addressee details set out in Clause 20.1 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
21.1. Subject to any express restrictions elsewhere in these Terms and Conditions, Efficient Software may subcontract any of its obligations under the Agreement. Efficient Software shall remain responsible to Customer for the performance of any subcontracted obligations.
21.2. Notwithstanding the provisions of this Clause 21 but subject to any other provision of these Terms and Conditions, Customer acknowledges and agrees that Efficient Software may subcontract to any reputable third party hosting business the hosting of the MyNesting Platform and the provision of services in relation to the support and maintenance of elements of the MyNesting Platform.
22.2. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3. The Agreement may not be varied except in accordance with this Clause 22.3. Efficient Software may vary the Agreement by giving to Customer at least 30 days’ written notice of the proposed variation via the Customer Portal. On receipt of a notice of variation under this Clause 22.3, Customer may:
22.3.1. accept the variation via the Customer Portal, in which case the Agreement shall be deemed varied with effect from the date of Customer’s acceptance;
22.3.2. reject the variation and cancel its subscription in accordance with Clause 18.2, in which case the variation shall not take effect and the Agreement shall terminate in accordance with Clause 18.2; or
22.3.3. reject the variation but not cancel its subscription, in which case the variation shall not take effect and Efficient Software may terminate Customer’s subscription and the Agreement at the end of the period of 30 days of the notice of variation or at the end of the subsequent Subscription Period.
22.4. Customer hereby agrees that Efficient Software may assign Efficient Software’s contractual rights and obligations under the Agreement to any third party, provided that, if Customer is a Consumer, such action does not serve to reduce the guarantees benefiting Customer under the Agreement. Save to the extent expressly permitted by applicable law, Customer must not without the prior written consent of Efficient Software assign, transfer or otherwise deal with any of Customer’s contractual rights or obligations under the Agreement.
22.5. The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
22.6. Subject to Clause 16.1, the Customer Sign-Up, together with these Terms and Conditions, shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7. Except to the extent amended by any applicable law of the country in which Customer is resident if a Consumer, the Agreement shall be governed by and construed in accordance with the laws of England and Wales and any dispute arising under or in connection with the Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.