1.INTRODUCTION
1.1 This page sets out the general customer terms (General Terms) which apply to any Service (as defined below) which Supplier (as defined below) licences or provides to any Customer (as defined below), unless Customer has entered into a separate written contract with Supplier signed by both parties in respect of the Services.
1.2 The parties’ agreement for the licensing, use and provision of the Services is made up of (i) these General Terms; (ii) the Proposal; and (iii) any other written document either issued by Supplier (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.4 Any order placed by Customer shall only be deemed to be accepted upon Supplier’s signature of, or email agreement to, the Proposal, at which point and on which date the Agreement shall come into existence.
1.5 These General Terms are published on Supplier’s website. Customer should print or save a copy of these General Terms for its records. Supplier may amend these General Terms from time to time during the Term and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so. Every time Customer agrees a new Proposal with Supplier it should check these General Terms to ensure that it understands the terms which will apply to the Agreement at that time. This version two of these General Terms was most recently updated on 8th August 2022. Historic versions may be obtained by contacting us.
1.6 Any Proposal issued by Supplier shall be valid for a period of 30 days (or such longer period specified on the Proposal) from the date of issue, if not agreed by Customer, at which point the offer outlined in the Proposal shall lapse.
2. INTERPRETATION
2.1 In the Agreement the following definitions and rules of interpretation shall apply:
Agreement has the meaning given to it in clause 1.2;
Authorised Users means those employees and agents of, and independent contractors providing services to, the Customer and any Subscribing Organisations only, who are authorised by the Customer to use the Subscription Services and their ancillary documentation, who have agreed to the terms of the EULA and in respect of whom the Customer has purchased a User Licence;
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland;
Commencement Date means the date specified in the Proposal; Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation the Software and its ancillary documentation, and the pricing offered by Supplier) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party;
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures each have the meaning given to them in relevant UK Data Protection Law;
Charges means the applicable charges for the Services from time to time, including the Professional Services Charges and the Subscription Charges;
Customer means the organisation which has purchased User Licences from Supplier, as specified in the Proposal;
Customer Data means the data, content and images inputted by the Authorised Users or (if applicable) Supplier (or its sub-contractors) on Customer’s behalf for the purpose of facilitating Customer’s or its Authorised Users’ use of the Software. Customer Data shall be deemed to be the Confidential Information of the Customer where it is not uploaded or disclosed in a manner that contemplates it being made available or viewable by third parties (other than Customer’s Authorised Users);
Customer Equipment means, in respect of the Cloud Software, a functioning hardware system and software facilitating access to the following modern and high usage web browsers, namely: Chrome, Mozilla, Firefox, Safari or MS Edge, for the current and previous version of each such browser (HTML5 Enabled) and, in respect of the App, a modern functioning Apple tablet device capable of running applications, access to the Apple application store, or a modern functioning hardware system and software facilitating Customer’s access to the Android application store, and internet access, or such other relevant software and/or hardware reasonably notified to Customer by Supplier from time to time;
Data Protection Law means all applicable data protection and privacy legislation in force from time to time in the UK or the other jurisdiction in which Customer is based, including, to the extent applicable, the UK or EU General Data Protection Regulation (GDPR);
EULA means Supplier’s end-user licence agreement which all Authorised Users are required to sign up to before beginning to use the Services, a copy of which will be provided to you before you access the AuditComply® portal for the first time and a copy can be obtained by contacting us directly.
General Terms has the meaning given to it in clause 1.1;
Initial Subscription Term means the initial subscription term, exclusive of any Trial Period, either specified online when Customer first signs up to use the Services, or set out in the Proposal, which period shall be 12 months unless otherwise specified;
Licence Restrictions means the licence restrictions specified or referred to in the Proposal or elsewhere in the Agreement;
Payment Terms means the payment terms set out in the Proposal. If none are specified the default payment terms shall require payment of any Subscription Charges in full in advance of the Initial Subscription Term or any subsequent Renewal Term, on demand, and payment for any Professional Services monthly in arrears, on 30-day payment terms;
Purpose means accessing and using the Subscription Services to develop and create a framework for Customer’s bespoke audit and inspection compliance requirements, to work with that framework, and otherwise make use of any of the functionality offered by the Software (including that contemplated within the Documents) for its functionally contemplated purposes only;
Privacy Policy means Supplier’s privacy and cookies notice and policy, available here
https://www.auditcomply.com/privacy-policy/ Professional Services means any bespoke professional services to be provided by Supplier to Customer (as agreed from time to time or set out in the Proposal), other than the Subscription Services or basic Support, including for example, installation and technical assistance services on Customer site;
Professional Services Charges means the service charges detailed in the Proposal for any Professional Services, or which Supplier confirms to the Customer from time to time in respect of any further agreed Professional Services;
Proposal means the written quotation for, among other things, licensing and provision of the Services, provided by Supplier to Customer;
Renewal Period means rolling terms of 12 months (or such other period as Supplier may agree in writing with Customer in the Proposal);
Retail Prices Index means the index of that name published by the UK Office of National Statistics, or such successor body or successor index as shall apply from time to time in future (so as to most closely mirror that index);
Sensitive Information means (a) credit or debit card numbers; personal financial account information; national insurance or social security numbers or equivalents; passport numbers; driver’s licence numbers or similar identifiers; passwords; details of racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information defined under the UK Data Protection Legislation as ‘Sensitive Personal Data’ (or any analogous term which may apply from time to time), or any information subject to the US Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information as amended or applicable worldwide from time to time;
Services means both the Subscription Services and the Professional Services;
Software means Supplier’s browser based automated audit and inspection compliance software application, AuditComply®, which provides Authorised Users access to the AuditComply® portal and templates (Cloud Software), and mobile based audit compliance software application, AuditComply®, which provides Authorised Users access only (the App) (each or both, as applicable, of the Cloud Software and the App together the Software), and which includes any upgrades either: (a) purchased by Customer from time to time in return for payment of Supplier’s then prevailing charges; or (b) to which Customer is otherwise entitled under the terms of the Agreement;
Subscribing Organisations means, in addition to the Customer, those other organisations (if any) referred to within the Proposal whose Authorised Users are permitted to use the Subscription Services and their ancillary documentation;
Subscription Charges means the total amounts specified online to Customer when purchasing User Licences from time to time or otherwise payable in accordance with the terms of the Agreement, to be paid in accordance with the timeframes and other stipulations set out in the Agreement;
Subscription Services means, in the case of the Cloud Software, hosting of the Cloud Software and making it available for access to Authorised Users via Supplier’s Software platform available at www.auditcomply.com using Customer Equipment, or in the case of the App, allowing Authorised Users to download and use the App using the Customer Equipment;
Subscription Term means, in respect of each User Licence, the term beginning on the Commencement Date, and continuing for the Initial Subscription Term, and any Renewal Periods (subject to clause 14.3), unless and until the Agreement is terminated in accordance with its terms;
Supplementary User Licence means a User Licence issued to an Authorised User with only restricted access to the Services as specified in the Proposal;Supplier means AuditComply Ltd (company number NI623693) whose registered office is at Alexander House, 17A Ormeau Avenue, Belfast, BT2 8HD;
Support means the support services to be provided by Supplier in relation to each Authorised User, for the relevant Subscription Term, and made available, unless otherwise specified, during Supplier’s standard business hours (9am to 6.00pm UK time on Business Days) either via telephone consultation (+44 2890 328115) or email contact help@auditcomply.com. Customer agrees to provide access to Supplier to their account where required in order to provide remote support. Supplier may also provide online support resources for Authorised Users;
Term means the term of the Agreement as defined in clause 16.1;
Trial Period means a free-of-charge trial licence period, if offered to the Customer (either in the Proposal or otherwise);
Unused Portion means, in respect of any period of the Subscription Term for which Customer has made a payment in advance, the proportion which the number of days following termination of the Agreement until the end of such remaining Subscription Term bears to the total number of days in that period; and User Licences means the subscriptions purchased by Customer which entitle Authorised Users to access and use the Subscription Services and its ancillary documentation in accordance with the Agreement. Restrictions may attach to specific User Licences for specific Authorised Users, as specified in the Agreement, for example where Customer purchases a Supplementary User Licence. A single User Licence allows one Authorised User to set up an account and to access both the Cloud Software and the App using that account.
2.2 Clause headings shall not affect the interpretation of the Agreement. References to clauses are to the clauses of these General Terms.
2.3 Words in the singular shall include the plural and vice versa.
2.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
3. USER LICENCES
3.1 Subject to payment and the other restrictions set out in the Agreement, Supplier hereby grants to Customer, subject to the Licence Restrictions, including any restrictions applicable to the type of User Licence each Authorised User has been granted, and subject to the EULA applicable to each Authorised User, a non-exclusive, non-transferable right to permit the Authorised Users to use the Subscription Services during the Subscription Term of the User Licences for such Authorised Users solely for the Purpose.
3.2 In relation to the Authorised Users, Customer undertakes that: (a) it shall be responsible for compliance by Authorised Users with the terms of the Agreement and the EULA, and for compliance by any Subscribing Organisations with the terms of the Agreement, and that the restrictions on Customer set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users shall not exceed the number of User Licences Customer has purchased from time to time and Customer will not permit use by the Authorised Users to exceed the type of User Licence purchased; (c) it will not allow or suffer any User Licence to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Subscription Services and/or their documentation; (d) each Authorised User shall keep a secure username (if applicable) and password for their use of the Subscription Services and its documentation, and that each Authorised User shall keep his password confidential; (f) it shall permit Supplier to audit the Subscription Services in order to establish the name of each Authorised User. Such audit may be conducted no more than once per quarter, and with reasonable prior notice; (g) if any of the audits referred to in clause 3.2(f) reveal that Customer has underpaid Subscription Charges to Supplier, then without prejudice to any other right to which it may be entitled, Customer shall pay to Supplier an amount equal to such underpayment (as calculated by reference to the Subscription Charges for additional Authorised Users) within 10 Business Days of the date of the relevant audit; and (h) if any of the audits referred to in clause 3.2(f) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Supplier’s other rights, Customer shall promptly disable such passwords and Supplier shall not issue any new passwords to any such individual.
3.3 Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Subscription Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and Supplier reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
3.4 Customer shall not: (a) other than as permitted by law, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or its documentation (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Subscription Services in order to build a product or service which competes with the Subscription Services; or (c) use the Subscription Services to provide services to third parties; or (d) subject to clause 17.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under this clause 3; or (f) interfere with or disrupt the integrity or performance of the Subscription Services or third party data contained therein; or (g) attempt to gain unauthorised access to the Subscription Services or their related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Software, or permitting the Software or any part of it to be combined with, or become incorporated in, any other programs.
3.5 CUSTOMER AGREES NOT TO USE THE SUBSCRIPTION SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. SUPPLIER WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES TO COLLECT OR MANAGE SENSITIVE INFORMATION.
3.6 Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or their documentation and, in the event of any such unauthorised access or use, promptly notify Supplier.
3.7 The rights provided under this clause 3 are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of Customer.
3.8 Subject to clause 3.9, Customer may, from time to time during the Subscription Term, purchase additional User Licences.
3.9 Customer shall, within 30 days of the date of Supplier’s invoice, pay to Supplier the relevant fees for such additional User Licences and, if such additional User Licences are purchased by Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4. SERVICES
4.1 Supplier shall supply, during the Subscription Term the Support, the Subscription Services and any agreed Profession to Customer on and subject to the terms of the Agreement.
4.2 The provision of the Subscription Services shall be subject to ongoing provision by Supplier’s hosting services provider from time to time. Supplier shall use reasonable endeavours to inform Customer in advance of any planned service interruption to the Subscription Services.
4.3 Supplier will, as part of the Services and at no additional cost to Customer other than the Subscription Charges, provide Customer with the Support in accordance with Supplier’s support services policy in effect at the time that the Services are provided, subject to fair usage of the Support by Customer. Supplier may, from time to time at its discretion, generally upgrade and improve the Software as it sees fit and Customer acknowledges that such upgrades and improvements may affect its use of the Subscription Services.
4.4 Bespoke upgrades to Software may be undertaken on request, subject to confirmation by Supplier, and are charged for by Supplier at its then prevailing standard daily rate for Professional Services. Any on-site support required by Customer and agreed by Supplier will be chargeable at Supplier’s then prevailing standard daily rates as a Professional Service.
4.5 There may be storage limits associated with particular Subscription Services, which are generally subject to fair usage limits. Supplier reserves the right to charge for additional storage or overage fees at the rates specified by Supplier to Customer from time to time, either on Supplier’s website or otherwise. Supplier may impose new, or may modify existing, storage limits for the Subscription Services at any time in Supplier’s discretion, giving notice to Customer, either on Supplier’s website or otherwise.
5. SUPPLIER’S OBLIGATIONS
5.1 Supplier undertakes that the Services will be performed with reasonable skill and care expected of a suitably skilled person engaged in the same type of business as Supplier.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by (a) use of the Services contrary to Supplier’s instructions or otherwise than as permitted by the Agreement, (b) modification or alteration of the Software or Services by any party other than Supplier or Supplier’s duly authorised contractors or agents, (c) issues with Customer Equipment; (d) interaction of the Software with other software programmes or plugins maintained by Customer; (e) use of the Software in an application, or with any software, hardware or materials for which it was not intended; or (f) acts or omissions otherwise attributable to Customer and/or outside Supplier’s reasonable control. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance within a reasonable timeframe, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, Supplier does not warrant that Customer’s use of the Subscription Services will be uninterrupted or error-free, nor that the Services and/or their documentation will meet Customer’s requirements.
5.3 Customer acknowledges that it has assessed the suitability of the Services for its requirements. Supplier does not warrant that the Software, the Services and/or their documentation will be suitable for such requirements or that any use will be uninterrupted or error free.
5.4 The Agreement shall not prevent Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
5.5 Timing for performance of Supplier’s obligations under the Agreement shall not be of the essence.
5.6 Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
6. CUSTOMER’S OBLIGATIONS
Customer shall: (a) at its cost, provide Supplier with all necessary co-operation in relation to the Agreement, and all necessary data and access to information as may be required by Supplier, its agents or contractors, in order to render the Services, including but not limited to applicable specifications, data management decisions, approvals, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under the Agreement; (c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays, Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) ensure that the Authorised Users and Subscribing Organisations use the Services in accordance with the terms and conditions of the Agreement and shall be responsible for any breach of the Agreement by either; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Supplier, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by Supplier from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment; (h) provide a single main point of contact who can address questions or issues relating to the Services, provide timely feedback and review any changes to the Services; (i) be solely responsible at its own cost for generating Customer Data, content and data required to utilise the services and uploading all such content and data to the site provided to Customer using the Services. In the event that Customer requires any assistance from Supplier in this regard, Supplier may provide such assistance as it deems appropriate at its then prevailing charges as a Professional Service; and (j) comply and procure the compliance of its Authorised Users with any reasonable directions given to it by Supplier from time to time.
7. CHARGES AND PAYMENT
7.1 Customer shall pay the Subscription Charges (and any Professional Service Charges, or other charges specified or agreed) to Supplier in accordance with the Payment Terms.
7.2 If Supplier has not received payment for any Subscription Charges in advance, and any Services Charges within 10 days after the due date, or notice of a bona fide dispute, without prejudice to any other rights and remedies of Supplier: (a) Supplier may, without liability to Customer, disable Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Services and Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at annual rate equal to 8% over the then current base lending rate of Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.3 All amounts and fees stated or referred to in the Agreement: (a) shall be payable in pounds sterling (unless another currency is denominated in the Proposal); (b) are, subject to clause 16.6, non-cancellable and non-refundable; (c) are exclusive of value added tax, which shall be added to Supplier’s invoice(s) at the appropriate rate; and (d) shall be paid by bank transfer in full and cleared funds to the account specified on Supplier’s invoice, or by such other payment method (which must be kept up to date and accurate) as Supplier may accept from time to time.
7.4 If, at any time whilst using the Services, Customer exceeds the Licence Restrictions, Supplier shall charge Customer, and Customer shall pay, Supplier’s then prevailing charges for such excessive use.
7.5 Supplier shall at the start of each Renewal Period, having given at least fourteen (14) days’ prior notice to Customer, be entitled to increase the Subscription Charges (including for any additional User Licences purchased) and the Subscription Charges set out in Proposal shall be deemed to have been amended accordingly (unless the Customer objects to such increase within 7 (seven) days of notice from Supplier, in which case the Agreement may not renew into any Renewal Period unless the parties otherwise agree). Supplier reserves the right to apply annual increases to the Charges in line with the annual increase in the Retail Prices Index over such period.
8. PROPRIETARY RIGHTS AND DATA
8.1 Customer acknowledges and agrees that Supplier and/or its licensors own all intellectual property rights in or arising from the Services, Software and their documentation. Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software and its documentation. This shall be without prejudice to Customer’s ownership of any background intellectual property rights owned by it separately from the Agreement and/or pre-dating the Agreement.
8.2 Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and the means by which it acquired such Customer Data.
8.3 Supplier shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. However, Customer understands and acknowledges that use of the Subscription Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Supplier, and that Supplier cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. Supplier does not guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat Supplier’s security measures or those of Supplier’s third party service providers.
8.4 Supplier shall not modify Customer Data, disclose Customer Data or access Customer Data except: (a) as required by law; (b) as expressly permitted by Customer; (c) to provide the Services; (d) to address technical problems or issues with the Services; or (e) at Customer’s request when providing Support.
8.5 Supplier shall use its reasonable commercial endeavours to back-up all Customer Data on a daily basis but otherwise backup of all Customer Data shall be the sole responsibility of Customer. In relation to images comprised in Customer Data, Supplier shall use its reasonable commercial endeavours to procure from its hosting services provider back-up of such images in accordance with its hosting services provider’s terms for provision of back-up services from time to time. Subject to clause 9.6, in the event of any loss of, degradation of or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Supplier to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Supplier (or its hosting services provider, as appropriate according to the nature of Customer Data which has been lost or damaged). Customer should note that Supplier’s typical retention periods for Customer Data are as set out in its Privacy Policy.
8.6 Supplier shall not be responsible for any loss of, degradation of or damage to Customer Data which arises as a result of, or in connection with any breach of Customer’s obligations under the Agreement, including clause 3.2. In such circumstances, Supplier may, at its sole discretion, offer the remedy as set out at clause 9.5.
9. DATA PROTECTION
9.1 Both parties will comply with all applicable requirements of the Data Protection Law. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Law.
9.2 The parties acknowledge that for the purposes of the Data Protection Law, in relation to any Personal Data comprised within Customer Data (Customer Personal Data), Customer is the data controller and Supplier is the data processor. Such Personal Data shall only be processed by Supplier in accordance with any lawful instructions reasonably given by Customer from time to time in writing, as reasonably necessary to fulfil the Agreement (including as required by the underlying operating procedures for the Software) and exercise Supplier’s rights and obligations hereunder and as applicable in accordance with the terms of Supplier’s Privacy Policy.
9.3 As between the parties, where each party processes any Personal Data provided by or relating to the other party or its employees otherwise than Customer Personal Data, including employee names and email addresses of employees of Customer with whom Supplier interacts (for example), each party acknowledges that they shall act as a data controller in relation to such Personal Data and only process it for specified purposes in accordance with each party’s respective privacy policy for the purposes of contract administration or otherwise in its own legitimate interests, as permitted under Data Protection Law.
9.4 Without prejudice to the generality of clause 10.1, Customer must ensure that its use of the Subscription Services and all Customer Data is at all times compliant with the terms of the Agreement, all applicable laws and regulations including Data Protection Law (nationally and internationally) and Customer represents and warrants that: (a) it has obtained all necessary rights, releases and permissions to provide all Customer Data to Supplier for the purposes and duration of the Agreement and to grant the rights granted to Supplier in the Agreement; and (b) Customer Data and its transfer to and use by Supplier as authorised by Customer under the Agreement do not violate any laws (including without limitation those relating to export control, the principle of demonstrable “consent” under Data Protection Law, specifically Article 7 of the EU GDPR) and electronic communications) or rights of any third party, or data subject, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorised herein is not inconsistent with the terms of any applicable privacy policies. Other than Supplier’s security obligations under clause 9.3, limited back-up obligations in clause 9.5, and legal obligations under Data Protection Law (as set out in this clause 10) and confidentiality obligations in clause 11, Supplier assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of determining the purpose and manner in which Customer Data is to be processed, used, disclosed, stored, or transmitted.
9.5 Without prejudice to the generality of clause 10.1, Supplier shall, in relation to any Customer Personal Data: (a) process that Customer Personal Data only on the written instructions of Customer unless Supplier is required by Data Protection Law to otherwise process that Customer Personal Data; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep Customer Personal Data confidential; (d) not transfer any Customer Personal Data outside of the UK or the EEA unless the prior written consent of Customer has been obtained and the following conditions are fulfilled: (i) Customer or Supplier has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) Supplier complies with its obligations under the Data Protection Law by providing an adequate level of protection to any Customer Personal Data that is transferred; and (iv) Supplier complies with reasonable instructions notified to it in advance by Customer with respect to the processing of Customer Personal Data; (e) assist Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (f) notify Customer without undue delay on becoming aware of a Personal Data breach; (g) at the written direction of Customer, delete or return Customer Personal Data and copies thereof to Customer on termination of the agreement unless required by Applicable Law to store Customer Personal Data (subject always to Customer having paid Supplier any then outstanding charges owing under the Agreement); and (h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
9.6 Customer consents to Supplier appointing the categories of sub-processor listed in the Privacy Policy or otherwise notified to Customer from time to time by Supplier, as third-party processors of any Personal Data processed by Supplier under the Agreement. Supplier confirms that it has entered or (as the case may be) will enter with such third-party processors into a written agreement substantially on those third party’s standard terms of business (which shall at a minimum require such sub-processors to treat any Customer Data as confidential and process any Customer Personal Data in compliance with Data Protection Law). As between Customer and Supplier, Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
9.7 If Supplier is deemed to process any personal data on Customer’s behalf when performing its obligations under the Agreement, the parties record their intention that the Agreement would represent the data processing agreement envisaged by Article 28 of the EU GDPR (and the equivalent provision under UK GDPR). In that instance, Customer would be the data controller and Supplier would be a data processor.
10. CONFIDENTIALITY
Each party shall use all reasonable endeavours to maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit any third party to do so) other than as strictly necessary for the performance of its rights and obligations under the Agreement. The provisions of this clause shall not apply to any information which: (a) is or comes into the public domain without breach of the Agreement; or (b) was in the possession of the receiving party prior to receipt from the disclosing party without an obligation of confidence; or (c) was obtained from a third party free to divulge such information; or (d) is required to be disclosed by law or by any legal, regulatory or administrative body.
11. WORKING PRACTICES
11.1 Each party shall at all times during the Term comply with any relevant legal requirements relating to the health and safety of employees and others who may attend on Customer site (if required) in the course of performance of the Agreement. Customer shall promptly notify Supplier of any health and safety hazards which may exist or arise at Customer’s premises and which may affect Supplier in the performance of the Agreement (where Supplier is required to attend on Customer site).
11.2 In addition to the requirements relating to health and safety, Supplier shall at all times during the Contract period comply with fair working practices, meaning that Supplier is committed to: (a) ensuring reasonable staffing levels and workloads for employees; and (b) promoting respect for employees in the workplace and facilitate appropriate grievance and dispute resolution of workplace issues.
12. NON-SOLICITION
12.1 During the Term and for 12 months thereafter, neither party, directly or indirectly, will solicit for employment or for engagement as an independent contractor, or encourage leaving its employment or engagement, any employee or independent contractor of the other party known to the soliciting party solely through the Agreement. For the avoidance of doubt, general public advertisements for employment or engagement and any individual’s response thereto will not be deemed a violation of this clause.
13. INDEMNITY
13.1 Customer shall defend, indemnify and hold harmless Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with its and/or the Authorised Users’ use of the Subscription Services including, without limitation, for any liability, damages, costs or claims incurred by Supplier due to Customer’s use of the Subscription Services for any purpose outside of the Purpose or any claim relating to Customer Data, including, without limitation, any claim brought by a third party alleging that Customer Data, or Customer’s use of the Subscription Services in breach of the Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law, save to the extent directly attributable to Supplier’s breach of the Agreement.
13.2 Supplier shall, subject to the other provisions of this clause 14 and the limitations in clause 15, defend Customer against any claim that the Subscription Services infringe any copyright, trade mark, patent or right of confidentiality and shall indemnify Customer for any amounts awarded by a court of competent jurisdiction against Customer in judgment or settlement of such claims, or agreed to by Supplier, provided that: (a) Supplier is given prompt notice of any such claim, together with all relevant details of the claim; (b) Customer provides reasonable co-operation to Supplier in the defence and settlement of such claim, at Supplier’s expense; and (c) Supplier is given sole authority to defend or settle the claim, and Customer does not compromise, settle or admit liability with respect to any claim without Supplier’s prior written consent (not to be unreasonably withheld).
13.3 In the defence or settlement of any claim, Supplier may procure the right for Customer to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4 In no event shall Supplier, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on: (a) a modification of the Software or Subscription Services by anyone other than Supplier or Supplier’s authorised contractors or agents or (b) Customer’s use of the Services in a manner contrary to the instructions given to Customer by Supplier or Supplier’s authorised contractors or agents; (c) Customer’s use of the Subscription Services after notice of the alleged or actual infringement from Supplier or any appropriate authority; or (d) any element of the Software (or the Customer Data’s integration with same) not attributable to the Supplier (for example, Customer databases, or bespoke upgrades to the Software undertaken at the Customer’s direction incorporating content provided by the Customer).
13.5 The foregoing provisions of clause 14 state Customer’s sole and exclusive rights and remedies, and Supplier’s (including Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. LIMITATION OF LIABILITY
14.1 This clause 15 sets out the entire financial liability of Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of: (a) any breach of the Agreement (including without limitation, any claim under clause 14.1 or clause 14.3); (b) any use made by Customer of the Software, Support or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Except as expressly and specifically provided in the Agreement: (a) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; (b) the Services and all other services provided, procured and/or sub-contracted by Supplier under the Agreement, are provided to Customer on an “as is” basis; and (c) Customer assumes sole responsibility for the use of the Services and their associated documentation by Customer and Authorised Users, and for conclusions drawn from such use. Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to Supplier by Customer in connection with the Services, or any actions taken by Supplier at Customer’s direction.
14.3 Nothing in the Agreement excludes the liability of either party: (a) for death or personal injury caused by such party’s negligence; or (b) for fraud or fraudulent misrepresentation or (c) any other liability which cannot strictly be excluded or limited by relevant law.
14.4 Subject to the foregoing: a) Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and (b) Supplier’s total aggregate 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 be limited to an amount equal the annual Subscription Charges paid for the 12 month period in which the claim arose.
14.5 Supplier shall have no liability to the Customer whatsoever in respect of any matters or liabilities arising during the Trial Period, which limitation the parties agree to be reasonable having regard to the free of charge nature of the Trial Period.
15. TERM AND TERMINATION
15.1 This Agreement shall commence on the Commencement Date, or the date the Proposal is agreed or signed by both parties, whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Subscription Term.
15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; (c) the other party ceases, or threatens to cease, to trade; or (d) the other party undergoes a change in control (as defined in section 1124 of the Corporation Tax Act 2010). Supplier may also terminate the Agreement for cause on thirty (30) days’ notice if Supplier determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect Supplier, Supplier’s prospects, or Supplier’s customers. The Agreement may not otherwise be terminated prior to the end of the Subscription Term.
15.3 Supplier may suspend any Authorised User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Services in a way that violates applicable laws or regulations or the terms of the Agreement, (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the intellectual property rights of any person. Supplier may, without notice, review, edit and delete any Customer Data that Supplier has reason to determine in good faith violates the Agreement (including the EULA), provided that the parties acknowledge and agree that Supplier has no duty to, and shall not, pre-screen, control, monitor or edit Customer Data.
15.4 The Subscription Term shall automatically renew over each Renewal Period unless and until either party gives notice to the other in writing (including by email) that it does not wish the Agreement to continue beyond the Initial Subscription Term or the then current Renewal Period, such notice to expire no later than 60 days prior to the end of the Initial Subscription Term or then current Renewal Period.
15.5 Where the Customer is offered a Trial Period in the Proposal (assuming that there is a Proposal and the other terms are agreed), either party shall be entitled to give notice to the other in writing (including by email) that it wishes the Agreement to continue beyond the Trial Period at any time prior to expiry of the Trial Period. If no such notice is given the Agreement shall automatically terminate.
15.6 On expiry or termination of the Agreement for any reason: (a) all licences granted under the Agreement shall immediately terminate, even if the Initial Subscription Term or Subscription Term is defined as “perpetual” in, or if no expiration date is specified in, the Proposal provided by Supplier; (b) each party shall return and make no further use of any Confidential Information belonging to the other party; and (c) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 2, 7 (as applicable), 8, 9, 10, 12, 13.1, 14, 15.5, 15.6 and 16) or implicitly surviving termination, shall not be affected or prejudiced; and (d) Supplier may destroy or otherwise dispose of any of Customer Data in its possession unless Supplier receives, no later than 10 days after the effective date of termination of the Agreement, a written request for the delivery to Customer of the then most recent back-up of Customer Data. Supplier shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of receipt of such a request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Supplier in returning or disposing of Customer Data.
15.7 Where Customer validly and lawfully terminates in accordance with clause 17.2(a) Supplier shall within 20 Business Days reimburse to Customer the Unused Portion of any Subscription Charges or other charges paid by Customer.
16. GENERAL
16.1 Supplier shall have no liability to Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.
16.2 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.3 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
16.4 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.5 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to their subject matter.
16.6 Customer shall not, without the prior written consent of Supplier (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Supplier shall be free to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the consent of Customer but providing notice of any assignment or transfer.
16.7 Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.8 Notwithstanding any other provisions of the Agreement, nothing in the Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it.
16.9 Any notice required or permitted to be given under the Agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified in the Agreement or such other address as either party may notify in writing to the other from time to time for this purpose. It may also, in the case of notice by Supplier only, be generally notified to Customers via their account, or notified by way of email to the email address Supplier has on account for a given Customer. Any notice shall be treated as having been served on delivery if delivered by hand, 4 Business Days after posting if sent by pre-paid first class post. In the case of notice served by posting on the Customer’s account or by email, the notice shall be deemed given at the time such upload goes live onto the website or at the time of transmission of the email (respectively).
16.10 The construction, validity and performance of the Agreement shall be governed by the laws of Northern Ireland, and the parties submit any dispute regarding the construction, validity performance of the Agreement, or its subject matter, or any non-contractual disputes, to the exclusive jurisdiction of the courts of Northern Ireland.
16.11 The Proposal may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed valid Proposal (in counterparts or otherwise) by facsimile or electronic transmission, or its signature via DocuSign or other EIDAS compliant signature platform, or the Customer’s confirmation by email of its agreement to the terms of a valid Proposal, shall be sufficient to bind the parties to the terms and conditions of the Agreement.
16.12 Unless otherwise stated in these General Terms, no amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The above notwithstanding, Supplier may, acting in its sole discretion, amend these General Terms from time to time and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so. Provided If Customer objects to any change the change shall not take effect (in relation to that Customer only) until the expiry of the then current Initial Subscription Term or Renewal Period (prior to which the Customer will have had an option under clause 15.4 to elect not to renew the Agreement into such subsequent term), and the version of the General Terms applicable to Customer until that point shall be the version applicable immediately prior to the latest update. Every time Supplier enters into a new Proposal with any Customer, the terms applying to the Agreement between the Parties shall be as outlined in the relevant version of these General Terms in force at the time of the signing of the relevant Proposal.
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