Fidel Terms of Service

The Terms of Service set out the terms and conditions upon which you may use the Fidel Service and any application or functionality Fidel makes available through the Fidel Service.

By using the Fidel Service or signing an Order Form, you agree to and accept the Terms of Service and the Order Form.

  1. Information about Fidel
    1. The Fidel Service is provided by Fidel Limited (“Fidel”), a company incorporated and registered in England and Wales under company number 08068829 whose registered office is at 9th Floor, 107 Cheapside, London, United Kingdom, EC2V 6DN. Fidel’s main trading address is 53 Frith Street, 2nd Floor, London W1D 4SN. Fidel’s VAT number is 155393006.
  2. Interpretation
    1. In the Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
      1. “On Us transaction” means a transaction where the merchant acquirer and card issuer are the same entity;
      2. “Account” means the Customer’s account on the Fidel Service;
      3. “Agreement” means the agreement between the Customer and Fidel comprising the Order Form and the Terms of Service for the provision of the Fidel Service;
      4. “API” means Fidel's application programming interface enabling the Customer to connect User’s payment cards with loyalty programmes via the Customer’s digital applications;
      5. “Code” means the JavaScript or other source code provided by Fidel to the Customer for incorporation into the Customer’s digital applications;
      6. “Commencement Date” means the date from which the Customer will receive the Fidel Service as set out in the Order Form;
      7. “Confidential Information” means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary;
      8. “Customer” means the person identified in the Order Form
      9. “Documentation” means the description of the Fidel Service functionality and related information available at: https://docs.fidel.uk/;
      10. “DP Laws” means the Data Protection Act 1998 implementing the Directive 95/46/EC on the protection of individuals with regard to the processing of personal data, the Privacy and Electronic Communications (EC Directive) Regulations 2003 implementing Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications as may be amended, modified or replaced from time to time (including by the EU General Data Protection Regulation);
      11. “Extended Term” means the period of time set out in the Order Form that the Agreement will automatically extend for following the end of the Initial Term or any Extended Term;
      12. “Fees” means the amount set out in the Order Form, or such amount that the Parties may agree in writing from time to time, for the provision of the Fidel Service;
      13. “Fidel Service” means the Code, the API and any related software Fidel makes available through the Website as a service from time to time and as set out in the Documentation for the purposes of allowing the Customer to connect User’s payment cards with rewards services or card- linked offers in connection with Transactions;
      14. “Information Security Incident” means any actual or reasonably suspected:
        1. unauthorised use of, or unauthorised access to, any of Customer’s computers or networks;
        2. damage to, or inability to access, any of Customer’s computers or networks due to a malicious use, attack or exploit of such computers;
        3. unauthorised access to, theft of, or loss of Confidential Information, specifically including but not limited to, Personal Data;
        4. unauthorised use of Confidential Information, specifically including, but not limited to, Personal Data, for purposes of actual, reasonably suspected, or attempted theft, fraud, identity theft, or other misuse;
        5. breach of, or transmission of malicious code or a Virus to, any of Customer’s computers or networks arising from, in whole or part, an act, error, or omission of Customer, or third parties acting on behalf of Customer; or
        6. unauthorised disclosure of Confidential Information, specifically including, but not limited to, Personal Data.
      15. “Initial Term” means the initial term of the Agreement as set out in the Order Form;
      16. “MasterCard” means MasterCard Europe SA and its affiliated companies;
      17. “Minimum Charge Fee” means the minimum monthly fee for use of the Fidel Service as set out on the Order Form;
      18. “Order Form” means the order form signed (whether electronically or otherwise) which amongst other things, identifies the Customer and sets out the Fees, if applicable;
      19. “Payment Provider” means a payment provider of the Customer authorised pursuant to clause 4 to provide Transaction Data to Fidel (for example Visa or MasterCard);
      20. “Term” means the period of time made up of the Initial Term plus any Extended Term;
      21. “Terminal Owner” means the person who operates the point of sale equipment relating to a Transaction;
      22. “Terms of Service” means these terms and conditions of service;
      23. “Territory” means the location(s) identified in the Order Form;
      24. “Transaction” means a point of sale purchase made by a User with an enrolled payment card at a programme participating merchant location excluding any ‘On Us’ transaction;
      25. “Transaction Data” means data supplied via a Payment Provider relating to a Transaction including the following: Merchant ID (“MID”); card token; date; time; and amount;
      26. “User” means any person authorised by the Customer to use the Fidel Service via the Customer’s digital applications excluding Customer’s employees;
      27. “Virus” mean anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;
      28. “Visa” means Visa Europe Services Inc. and its affiliated companies;
      29. “Website” means www.fidel.uk;
      30. “Tier 1 Support” means first line user support on non-technical issues; and
      31. “Tier 2 support” means second line support on technical and urgent issues.
  3. Duration
    1. The Agreement shall start on the Commencement Date in the Order Form and continue for the T erm
    2. The Initial Term of the Agreement shall automatically extend for the Extended Term at the end of the Initial Term and at the end of each Extended Term, unless either party gives written notice to the other, no later than 30 days before the end of the Initial Term or at any time during the relevant Extended Term, to terminate the Agreement at the end of the Initial Term or at any time during the relevant Extended Term on no less than 30 days’ notice, as the case may be.
  4. Terminal Owner’s consent to monitor payment activity
    1. The Customer consents or, where the Customer is not the Terminal Owner, shall obtain the consent of the Terminal Owner for the Payment Provider to monitor payments made via the Terminal Owner’s payment card terminals, and to access the corresponding payment data, as required by the Fidel Service, for the sole purpose of enabling the Payment Provider to:
      1. Identify, track and record Transactions; and
      2. Provide the Transaction Data to Fidel.
    2. Customer shall incorporate a consent agreement provided by Fidel, within any agreement between itself and a Merchant.
    3. The signed consent agreement must be provided to Fidel prior to MIDs being enrolled.
  5. Users’ consent to monitor payment activity
    1. To the extent that the Customer does not utilise the Fidel iFrame as described in the Documentation, the Customer shall obtain affirmative consent from Users, and agree to promptly comply with Fidel’s instructions to update disclosures or consent language, to enable the Payment Provider to:
      1. Monitor activity on the User’s card to identify, track and record Transactions; and
      2. Share such Transaction Data with Fidel.
  6. Customer’s restrictions on the use of Transaction Data
    1. In order to provide the Fidel Service, Fidel will provide the Customer with the Transaction Data, or a sub-set thereof.
    2. The Customer agrees in respect of the Transaction Data received, that it will:
      1. Use the Transaction Data for the sole purpose of enabling the Customer to fulfil rewards to Users in connection with loyalty programmes (the “Permitted Use”);
      2. Retain the Transaction Data only as long as necessary for the Permitted Use and in any event no longer than 7 years from the date of the Transaction; and
      3. Not share, transfer or disclose the Transaction Data to any third parties, or otherwise cause Transaction Data to be disclosed to any third parties (including via assignment or subcontracting).
    3. Fidel has the right to obtain equitable relief regarding the Customer’s use or threatened use of the Transaction Data contrary to the Permitted Use. Where the Payment Provider providing the Transaction Data is MasterCard, MasterCard shall be a third party beneficiary entitled to enforce this clause against the Customer.
  7. Access to the Fidel Service
    1. Fidel grants the Customer a non-transferable, personal and non sub-licensable licence to use the Fidel Service in connection with the operation of the Customer’s customer loyalty programmes.
    2. The Customer must treat any username and password to access the Fidel Service or the Account as Confidential Information, and it must not disclose it to any third party.
    3. The Customer shall require that each User keeps secure and confidential their username and password for the User's use of the Fidel Service via the Customer’s webpages or mobile application and shall not disclose such user name and password to any third party.
    4. Fidel may disable any Account, at any time and at Fidel’s sole discretion, if the Customer has failed, in any material respect, to comply with any of the provisions of this Agreement.
    5. The Customer is responsible for maintaining the confidentiality of login details for its Account and any activities that occur under its Account including the activities of Users. Whenever applicable, Fidel encourages the Customer to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Customer has any concerns about the login details for its Account or thinks they have been misused, please contact Fidel at developer@fidel.uk.
    6. The Customer must use reasonable endeavours to prevent any unauthorised access to, or use of, the Fidel Service and, in the event of any such unauthorised access or use, as soon as reasonably practicable notify Fidel.
    7. The Customer recognises that Fidel is always innovating and finding ways to improve the Fidel Service with new features and services. Therefore, the Customer agrees that the Fidel Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Fidel Service.
    8. Fidel undertakes that the Fidel Service will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    9. Fidel represents and warrants that any Transaction data supplied as part of the Fidel Service shall be accurate, complete, reliable, secure and fit for the purposes of allowing the Customer to connect User’s payment cards with rewards services or card-linked offers in connection with Transactions.
    10. Customer shall indemnify and defend Fidel, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of a claim brought by a third party relating to the Customer’s use of the Fidel Service (except to the extent caused by Fidel’s negligence).
  8. Customer’s Obligations
    1. Fidel permits the Customer to download the Code (including any updates to the Code that Fidel may make available from time to time) from the Website for the sole purpose of permitting the Customer to integrate the Code into the Customer’s web pages or mobile applications in order to allow Users to connect payment cards with the Customer’s customer loyalty programmes via the Fidel Service.
    2. The Customer shall insert the Code into the Customer’s web pages or mobile applications in accordance with the reasonable directions given by Fidel in writing (including email) from time to time.
    3. The Customer shall, on reasonable request from Fidel, update the Code inserted into the Customer’s web pages as soon as reasonably practicable upon receiving notice from Fidel to do the same.
    4. Fidel shall use all reasonable endeavours in accordance with good industry practice to ensure that the Code will be Virus free and will not introduce any Virus to the Customer’s IT systems including but not limited to the Customer’s hardware, software, websites and apps. Otherwise, the Code is provided on an “AS IS” basis and the Customer assumes sole responsibility for installation and integration of the Code with its IT systems including but not limited to the Customer's hardware, software, websites and apps.
    5. Fidel permits the Customer to use the API (including updates to the API that Fidel may make available from time to time) for the sole purpose of enabling the Customer to connect User’s payment cards with loyalty programmes via the Customer’s digital applications;
    6. The Customer shall use the API in accordance with the reasonable directions given by Fidel in writing (including email) from time to time.
    7. The Customer must use the most current version of the API after any previous version has been upgraded, following reasonable notice from Fidel to do so.
    8. Fidel may monitor the Customer’s use of the Fidel Service to ensure quality, improve the Fidel Service, and verify the Customer’s compliance with the Agreement.
    9. The Customer:
      1. must comply with all applicable laws and regulations with respect to its use of the Fidel Service and its activities under the Agreement;
      2. must use the Fidel Service in accordance with the terms of the Agreement;
      3. must obtain and shall maintain all necessary licences, consents, permits and permissions necessary for Fidel to perform its obligations to the Customer under the terms of the Agreement;
      4. must ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by Fidel in writing (including email) from time to time;
      5. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Fidel Service.
      6. shall use reasonable endeavours not to:
        1. access, store, distribute or transmit any Virus through the Fidel Service
        2. use the Fidel Service to access, store, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
        3. use the Fidel Service in a manner that is illegal or causes damage or injury to any person or property;
        4. use any automated system, including without limitation "robots," "spiders," "offline readers," to access the Fidel Service in a manner that sends more request messages to the Fidel Service than a human can reasonably produce in the same period of time by using a conventional online web browser;
        5. attempting to interfere with or compromise the Fidel Service integrity or security. Fidel reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer’s Account for material or persistent breaches of the provisions of this clause 8.9.6.
      7. shall update MIDs provided to Fidel promptly after becoming aware of a change and inform Fidel accordingly and consents to Fidel providing Payment Providers with MIDs and any other data provided by Fidel to Payment Providers to help them identify merchants, such as merchant names and branch addresses.
  9. Important note on intellectual property rights
    1. Fidel is the owner of or the licensee of all intellectual property rights in the Fidel Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
    2. The Customer will not, when using the Fidel Service:
      1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Fidel Service in any form or media or by any means; or
      2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the Fidel Service; or
      3. access all or any part of the Fidel Service in order to build a product or service which competes with the Fidel Service or use or attempt to use the Fidel Service to directly compete with Fidel.
  10. Publicity, Case Studies and Feedback
    1. Subject to the Customer giving its prior written approval, Fidel may use the Customer’s name, logo and related trade marks in any of Fidel’s publicity or marketing materials (whether in printed or electronic form for the purpose of highlighting that the Customer uses the Fidel Service and alongside any testimonials that the Customer has agreed to give. The giving of any such approval by the Customer shall be deemed to include the grant to Fidel of such rights as are necessary to use its name, logo, related trademarks and testimonial for the purposes of this clause 10.1.
  11. Data Protection
    1. Customer shall comply with the DP Laws where applicable and its own published representations and policies relating to the collection, usage, disclosure and security of Personal Data, with regards the provision of Personal Data to Fidel and for the processing of that Personal Data.
    2. If Fidel processes any Personal Data as a result of the Customer’s use of the Fidel Service, the Customer agrees that Fidel does so as Data Processor and that the Customer is the Data Controller in relation to such Personal Data.
    3. Fidel and the Customer agree that, in relation to such Personal Data:
      1. Fidel will process the Personal Data only in accordance with the terms of the Agreement, the DP Laws and any lawful written instructions reasonably given to Fidel by the Customer from time to time; and
      2. Fidel will both have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
    4. Customer will ensure that Users have consented to the processing of their Personal Data outside of the EEA.
    5. For the purposes of this clause 11, the terms “Personal Data”, “Data Processor” and “Data Controller” shall have the same meaning as set out in the Data Protection Act 1998.
    6. Customer shall promptly cooperate with privacy and security audits by Fidel (including where Fidel is acting on behalf of a Payment Provider) or its designee.
  12. Information Security
    1. Where the Payment Provider providing the Transaction Data is MasterCard, the Customer must promptly report any Information Security Incident in writing to both Fidel and directly to MasterCard.
  13. Confidential Information
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms and conditions. A party's Confidential Information shall not be deemed to include information that:
      1. is or becomes publicly known other than through any act or omission of the receiving party;
      2. was in the other party's lawful possession before the disclosure;
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
      4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
      5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement during the Term and for a period of 3 years following the termination of the Agreement.
    3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
    4. Each party shall limit dissemination of Confidential Information of the other party to persons within its own organisation; to third parties who are bound by written confidentiality obligations consistent with this clause 13; and all on a “need-to-know” basis;
    5. Each party shall use the same degree of care to protect the Confidential Information as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care. In the event the receiving party receives a court order or other validly issued administrative or judicial process demanding the Confidential Information, or to the extent required to be disclosed by any applicable laws or regulations by a party as a publicly traded company, the receiving party will be permitted to disclose Confidential Information to the minimum extent necessary to comply with such legal obligations. The receiving party will, to the extent not prohibited by law, give the disclosing party prompt written notice of any disclosure that, in the opinion of its counsel, appears to be required by law, so that the disclosing party, at its sole cost and expense, may assert any defenses to disclosure that may be available and seek an injunction or other protective relief.
    6. The parties agree that in the event of any breach of the confidentiality obligations described herein, the non-breaching party shall be entitled to seek immediate injunctive relief for such breach in addition to any other right or remedy that the non-breaching party may have at law or in equity.
    7. At the time of expiration or termination of this Agreement, as applicable, or upon the other party’s request, each party agrees to promptly return or destroy any Confidential Information provided by the other party in connection with this Agreement.
    8. Each party acknowledges and agrees that, as between the parties, Confidential Information disclosed by the disclosing party to the receiving party will at all times remain the property of the disclosing party. No license under any trade secrets, copyrights, or other rights is granted by any disclosure of Confidential Information under this Agreement.
  14. Price and Payment
    1. Subject to clause 14.2, the Customer shall pay the Fees which are payable monthly in arrears.
    2. The Customer shall pay the Minimum Charge Fee for the first month of the Term no later than 2 working days from the Commencement Date. Thereafter, the Minimum Charge Fee for each month during the Term shall be payable monthly in advance.
    3. Fidel shall invoice the Customer for the Fees at the end of each month during the Term, 7 working days prior to the payment being made
    4. Unless alternative payment is agreed in the Order Form, the Customer will provide to Fidel valid, up-to-date and complete credit or debit card details and it hereby authorises Fidel to bill such credit or debit card for the Fees in accordance with the Order Form.
    5. If Fidel has not received full payment of an undisputed invoice within 30 days after the due date, and without prejudice to any other rights and remedies available to Fidel:
      1. Fidel may, without liability to the Customer, suspend or temporarily disable all or part of its access to the Fidel Service and Fidel shall be under no obligation to provide any access to the Fidel Service while the invoice(s) concerned remain unpaid, but shall reinstate such access at no further cost when the delinquent invoice has been paid; and
      2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
    6. All amounts and Fees stated or referred to in the Agreement:
      1. are payable in the currency specified in the Order Form or otherwise stipulated by Fidel; and
      2. are exclusive of value added tax (“VAT”) unless otherwise expressly stated which shall be paid at the same time as payment of the Fees. Fidel shall send the Customer a VAT invoice if Fidel is requested to do so.
  15. Availability and Support
    1. Where the Customer has paid for access to the Fidel Service, Fidel will use commercially reasonable endeavours to make the Fidel Service available with an uptime rate of 99.99% except for:
      1. planned maintenance for which 24 hours notice will be given; or
      2. unscheduled maintenance during normal business hours (UK time) or otherwise, for which Fidel will use reasonable endeavours to give the Customer advance notice.
    2. The Customer will provide Users with “Tier 1 support” during normal business hours of the Customer. Fidel will provide the Customer with Tier 2 support to enable the Customer to provide Tier 1 support to the Users. Fidel will provide the Customer with a telephone number between 9am-5pm Monday-Friday except Public Holidays to handle all “Tier 2 support” queries. The Customer may raise Tier 1 or Tier 2 support tickets with Fidel via email. Fidel agrees to respond to email support queries no later than 24 hours after receipt.
    3. Fidel agrees that transactions via Visa will track and report no later than 5 days after they are made.
    4. Fidel agrees that transactions via MasterCard will track and report no later than 5 days after they are made.
    5. Fidel agrees that MIDs provided by the Customer shall take no longer than 20 business days to process for Visa transactions to begin tracking.
    6. Fidel agrees that MIDs provided by the Customer shall take no longer than 20 business days to process for MasterCard transactions to begin tracking.
    7. The Customer acknowledges that the Fidel Service is dependent on access to various third party data sources (including the Transaction Data). The Customer agrees that Fidel is not responsible for the non-availability or interruption to the Fidel Service caused by any such non availability of any such third party data source unless such non-availability or interruption is caused by Fidel acting negligently.
    8. Subject to clause 15.7, if the Fidel Service does not meet any of the availability and support requirements in this clause 15 (each a “Service Failure”) in any month during the Term, the Customer shall be entitled to a service credit in the amount calculated in accordance with the below table in respect of that month (“Service Credit”):
    9. The total amount of Service Credits payable in any month shall not exceed 25% of the Fees payable in that month.
    10. The Service Credits shall be shown as a deduction form the amount due from the Customer to Fidel in the invoice for that month, or in any future invoice issued by Fidel under this Agreement, with a clear indication of the month to which such Service Credit relates.
  16. Suspension and Termination
    1. If the Customer fails to pay any sum due to Fidel and such sum remains outstanding for a further thirty (30) days following notice requiring such sum to be paid Fidel may terminate the Agreement with the Customer immediately by notice in writing and without any liability for Fidel to the Customer.
    2. Fidel may terminate the Agreement by written notice with immediate effect if the Customer infringes Fidel’s intellectual property rights in the Fidel Service.
    3. Either party may terminate the Agreement at any time on written notice to the other if the other:
      1. is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
      2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction;
      3. is in breach of applicable law.
    4. Upon termination of the Agreement for any reason all licences granted under the Agreement shall immediately terminate and the Customer’s right to access and use the Fidel Service will end.
    5. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
    6. Fidel may terminate the Agreement by written notice with immediate effect in the event that a Payment Provider is unwilling or unable to provide the Transaction Data to Fidel. If this clause is exercised, Fidel agrees to provide the Customer with written proof that Payment Provider is unwilling or unable to provide such reports.
  17. Limited Warranty
    1. Where the Customer has paid for the Fidel Service, Fidel undertakes to make the Fidel Service available as specified in clause 15.1. Otherwise the Fidel Service is provided on an “AS IS” basis and Fidel gives no representations, warranties, conditions or other terms of any kind in respect of the Fidel Service, whether express or implied, including, but not limited to, warranties of satisfactory quality, merchantability fitness for a particular purpose or non-infringement.
    2. Fidel warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
    3. Except as expressly and specifically provided for in the Agreement:
      1. The Customer assumes sole responsibility for (i) installation and integration of the Fidel Service with its IT systems including but not limited to the Customer's hardware, software, websites and apps; and (2) any results obtained from the use of the Fidel Service and for any conclusions drawn or taken from such use and it relies on the results obtained from the Fidel Service at its own risk;
      2. All representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
      3. Fidel will not be responsible for any interruptions, delays, failures or non-availability affecting the Fidel Service or the performance of the Fidel Service which are caused by third party services or errors or bugs in software, hardware or the internet on which Fidel relies to provide the Fidel Service and the Customer acknowledges that Fidel does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.
  18. Fidel’s liability
    1. Subject to clause 18.2, neither party will be liable to the other whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any loss of income or revenue; loss of business; loss of profits; loss of anticipated savings; loss of data (other than loss of data caused by a breach of the Agreement); or any indirect, consequential or special damages, costs or expenses.
    2. Nothing in the Agreement excludes or limits either party’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation. Each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to the Fees paid by the Customer in the 12 months prior to the event giving rise to the claim.
  19. Written communications
    1. Applicable laws may require that some of the information or communications Fidel send to the Customer should be in writing. When using the Fidel Service, the Customer accepts that communication with Fidel will be mainly electronic. Fidel will contact the Customer by e-mail or provide the Customer with information by posting notices on the Fidel Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that Fidel provides to the Customer electronically comply with any legal requirement that such communications be in writing.
  20. Notices
    1. All notices given by the Customer to Fidel must be given to developer@fidel.uk. Fidel may give notice to the Customer at either the e-mail or postal address the Customer provides to Fidel, or any other way Fidel deems appropriate. Notice will be deemed received and properly served immediately when posted on the Fidel Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
  21. Transfer of rights and obligations
    1. Neither party may transfer, assign, charge or otherwise deal in the Agreement, or any of its rights or obligations arising under the Agreement, without the other party’s prior written consent.
  22. Events outside a party’s control
    1. No party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, governmental act, war, fire, flood, explosion or civil commotion.
  23. Waiver
    1. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
  24. Severability
    1. If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
  25. Third party rights
    1. Except as expressly stated at clause 6.3, a person who is not party to the Agreement shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
  26. Law and jurisdiction
    1. The Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.