Use of the service is deemed as acceptance of the following terms and conditions:
DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in this clause apply in this Contract.
The following words and expressions have the following meanings:
- Acceptable Use Policy the acceptable use policy set out on the Company’s website or notified to the Client from time to time.
- Consequential Loss without limitation:
- pure economic loss;
- losses incurred by one party, any customer of that party or other Third Party;
- loss of profits (whether categorised as direct or indirect);
- losses arising from business interruption;
- loss of business revenue, goodwill, anticipated savings;
- losses arising from wrongful termination of a Contract;
- losses whether or not occurring in the normal course of business, wasted management or staff time; or
- loss or corruption of data.
- Contract a contract for the supply of Solutions, as established under clause 1.3, to which these Terms apply.
- Data Controller has the meaning given to that term in the Data Protection Act 1998.
- Data Processor has the meaning given to that term in the Data Protection Act 1998.
- Deposit the sum (if any) specified in the Quotation or otherwise which the Client will be required to pay the Company prior to the supply of the Solutions.
- Documentation the operating manuals, user instructions, technical literature and all other related materials in eye-readable form supplied to the Client in relation to the Solutions.
- Intellectual Property Rights in respect of any item, rights of any nature whatsoever, whether registered or unregistered including, without limitation, any patent, right in a design, copyright, trade mark, database right and other intellectual property right whether or not capable of registration.
- Personal Data has the meaning given to that term in the Data Protection Act 1998.
- Schedule of Cover the document setting out the Support provided by the Company and the response times within which such Support will be provided.
- Service Desk the Company’s service desk reserving incoming calls from Clients of the Company that have not subscribed to the 24x7 Support service.
- Software the Third Party Software, TIG Software and/or Bespoke Software as applicable to be supplied to the Client by the Company pursuant to the Contract.
- Support Fee the fee due by the Client to the Company for the provision of Support.
- Third Party any person, company or other body not being the Company or the Client.
VAT value added tax.
- BaaS (backup as a service) data backup and storage services as described in the Specification.
- Client the subscribing party
- Company TIG Limited Registered Office: 4th Floor, Edward Hyde House 38 Clarendon Road Watford WD17 1JW.
- Company No. 0430 8824
- Connectivity the service to provide data transport from the Client to the internet or between various other sites, to be supplied to the Client by or on behalf of the Company as described on the relevant agreed Quotation or Specification.
The provisions of paragraph 2 apply to all Cloud Services under this schedule.
PROVISION AND USE OF CLOUD SERVICES
The Company reserves the right to suspend or terminate the Cloud Services where:
- The Client does not pay for the services received in accordance with the terms and conditions
Service Level Agreement
- The Company will provide a 99.99% availability of the platform
THIRD PARTY SOFTWARE
- The service is subject to change with regards to Third Party Software were applicable licence terms for Software change by the vendor
DATA SECURITY & RECOVERY
- Upon termination of the service, the Company is not responsible for storing or retaining the data and the Company may remove or delete it immediately. The Client is solely responsible to copy and download any data it requires before termination.
- The Company will implement reasonable and appropriate measures to help secure data against accidental or unlawful loss, access or disclosure in relation to the use of Backup as a Service.
- Save as aforesaid, the Client is solely responsible for determining whether that security is sufficient for its purposes and to implement any other security measures it deems appropriate.
PROVISION OF BAAS
- The Company will provide the BaaS in accordance with the agreed service level
- Unless the Company the Quotation or BaaS Specification includes the provision by the Company of Connectivity, the Client shall be responsible for providing (and paying for) its own internet access facilities through its ISP or telecommunications provider.
- The Company shall provide technical support for the service on a chargeable service
BAAS USAGE FEES
- BaaS usage fees are calculated on the basis of the amount of data held on the Company’s servers on the last day of the working month after compression rounded up to the nearest gigabyte.
- BAAS USAGE FEES will be invoiced at the end of each calendar month at a rate agreed under the bring your own license service per gigabyte stored data.
USE AND UPDATING SOFTWARE
- An engineer from the Company will be responsible for installing the software on the Client’s equipment unless agreed otherwise by both parties.
- The Client undertakes to update the Software promptly on notification by the Company as subsequent versions are released.
- The Client acknowledges that the Software's feature set may vary from release to release.
- The Company accepts no liability for any failure in the BaaS where:
- the Client attempts to access them with a version of the Software which is not current;
- the Software fails owing to:
- the Client’s failure to follow instructions correctly;
- failure of the Software to interoperate with other software;
EFFECT OF TERMINATION
- The Client acknowledges that the responsibility to transfer or migrate any data following termination being served rests solely with the Client and not the Company. The Client can export all data via the Software free of charge, however the Company is are able to assist with data migration services if required, however this will be subject to an additional fee.
- The Company reserves the right to make any changes in the specifications of Hardware or Software which are required to conform with any applicable safety or other legal requirements or which do not materially affect their quality or performance.
CHARGES AND DEPOSIT
- The charges payable by the Client for the supply of Solutions and/or Recurring Items will, unless otherwise agreed in writing, be as stated in the Quotation agreed with the Client.
- All charges are exclusive of VAT that will be charged at the current rate within the country of use.
- The Company will be entitled to invoice the Client at the end of each calendar month for the services consumed within the month of invoice
- Payment terms are 30 days from the point of invoice
- If the Client fails to make any payment due under this Contract by the due date, then, without limiting the Company’s remedies detailed within this agreement, the Company will be entitled to:
- suspend the performance of any element of or all elements of any Contract and the Client will fully indemnify the Company for any and all losses (including loss of profit) or expenses incurred;
- charge interest on any monies due at the rate of 4% above the base rate of the Bank of England from the due date until the date of actual payment; and/or
- charge the cost of recovering such debt including any reasonable fees, charges or expenses payable to any professional adviser, collection agency or other person in relation to the debt.
The Client will:
- pay all sums, fees, Deposits and other charges due under any Contract by their due date, time of payment being of the essence;
- if a Service is delayed other than through the Company’s fault, at the election of the Company (to be exercised in the Company’s sole discretion) pay any fees or expenses incurred and/or any sums required by the Company in respect of idle-time incurred for the delay, including delay as a result of the Client’s agents or representatives. The Company’s fees will be charged at the Company’s then current hourly rate. Any agreed time schedules will be deferred to a period of time to be determined in the sole discretion of the Company;
- not copy or reproduce in any way the Documentation or any part thereof without receiving the Company’s prior written consent; and
PROVISION OF SOFTWARE
- Title to and the Intellectual Property Rights in the Software will not pass to the Client. If, notwithstanding the foregoing, pursuant to the Quotation, title in the Bespoke Software should pass to the Client, such title will not pass until the total price payable for it and any other sums due from the Client have been received in full cleared funds by the Company and the Client has signed and returned the applicable Bespoke Software Completion Form to the Company. The Client acknowledges and agrees that where source code has not been provided with Software, such Software may not be reverse-engineered, save to the extent permitted by law.
- Provided the Company receives in full cleared funds the total price payable for the Software, the Client is licensed to use the Software in accordance with these Terms and/or the applicable Third Party licence terms, and by entering into the Contract, the Client agrees to comply with such terms. For the avoidance of doubt, the owners of the Third Party Software are the licensors of the Third Party Software and the Client’s ability to access, install, possess or otherwise use the same is subject to the licence terms of such third parties.
- Save where the following terms contradict the licence terms for the Third Party Software (in which case those terms shall prevail), the Software will be licensed as follows:
- the licence for the Software will be for the duration of the Contract (until terminated), non-transferable and non-exclusive.
- the Client will not alter, modify, copy or adapt the Software or any part thereof;
- the Client will not assign, sublicense, charge or otherwise dispose of or grant rights over or out of the licence hereby granted for the Software, without the Company’s prior written consent (such consent not to be unreasonably withheld);
- to the maximum extent permissible in law, the Client agrees not to attempt to ascertain or list the source programs or source code relating to the Software;
PROVISION OF SERVICES
The Company shall use reasonable endeavours to provide the Solutions in accordance in all material respects with the relevant Specification and any service level agreement.
If either party wishes to change the scope of the Solutions, it shall submit details of the requested change to the other in writing.
If either party requests a change to the scope or execution of the Solutions, the Company shall, within a reasonable time, provide a written estimate (“Change Proposal”) to the Client of:
- the likely time required to implement the change;
- any variations to the Company's charges arising from the change;
- the likely effect of the change on the Specification; and
- any other impact of the change on the terms of the Contract.
GENERAL EXCLUSIONS, INDEMNITY AND LIMITATIONS OF LIABILITY
- To the maximum extent permissible in law all conditions and warranties which are to be implied by statute or otherwise by general law into these Terms or relating to the Solutions are hereby excluded.
- The Company does not warrant that the Solutions are virus or error free or that they are without interruption.
- The Company does not warrant that it will pro-actively detect all faults. The Client acknowledges and agrees that the Company is not liable for any loss (including loss of profit) incurred by the Client due to a fault not being detected.
- The Company will in no circumstances be liable to the Client for any indirect or Consequential Loss.
- The Company shall maintain in force with a reputable insurance company professional indemnity insurance in an amount not less than £5,000,000 and shall, on the Client’s written request, produce the insurance certificate giving details of cover.
- The total liability which the Company will owe to the Client and in respect of all claims under these Terms will not exceed the lesser of the insurance cover or 125% of the price paid by the Client in the previous 12 months in respect of the Service or Solution which gave rise to the claims.
- Nothing in these Terms will limit the Company’s liability to the Client for liabilities which cannot be limited or excluded as a matter of law including:
- Neither party will have any liability to the other in respect of any claim under this clause 11 unless the claiming party has given written notice of the same to the defaulting party as soon as is reasonably practicable and in any event no later than three months from the date on which such loss or damage arose.
- The Company will not be liable to the Client for any loss (including loss of profit) or damage whatsoever nor deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of the Company’s obligations under the Contract if the loss, damage or delay or failure is due to a cause beyond the Company’s reasonable control which, for the avoidance of doubt and without prejudice to the generality of the foregoing will include outages of the Company’s equipment wherever located, governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the workforce of the Company, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and acts of God.
TERM AND TERMINATION
The term of the service is an initial period of 12 months then the service continues on a rolling 30 day’s notice period
The Client can terminate the contract within the first 30 days of service, this is denoted as a trail period
- Each party undertakes to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of the Contract.
- The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
- The Client shall be the Data Controller, and the parties hereby acknowledge that the Company will be acting as Data Processor in respect of all data processing activities in relation to Client Data that the Company carries out under this Contract.
- The Company shall follow its standard archiving and security procedures for Client Data.
- The Company shall promptly notify the Client in writing of any loss or damage to the Client Data. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest backup of such Client Data maintained by the Company in accordance with the Company’s standard archiving procedure. The Company shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Client Data caused by any third party (except those third parties subcontracted by the Company to perform services related to Client Data maintenance and back-up).
- The Company undertakes to the Client that:
- it shall process the Client Personal Data only in accordance with the written instructions of the Client and to the extent, and in such a manner, as is reasonably necessary to supply the Services in accordance with this Contract or as is required by any applicable law;
- in respect of Client Personal Data of the Client, which is in the possession or under the control of the Company, it shall implement the technical and organisational measures to protect this Client Personal Data against unauthorised or unlawful processing and accidental loss, destruction, alteration or disclosure;
- it shall not (and shall ensure that its personnel do not) publish, disclose or divulge any Client Personal Data to any third party, nor allow any third party to process Client Personal Data on the Company's behalf without the prior written consent of the Client;
- it shall not transfer Client Personal Data outside the European Economic Area without the prior written consent of the Client; and
- it shall use reasonable endeavours to assist the Client with any subject access request that the Client receives relating to Client Personal Data processed by the Company under this Contract.
INTELLECTUAL PROPERTY RIGHTS
- The Client acknowledges that all Intellectual Property Rights in or relating to Third Party Software and in all related Documentation will remain the exclusive property of the owner of that Third Party Software and in the case of the TIG Software the exclusive property of the Company.
- The ownership of and sole right to Intellectual Property Rights originated created produced or prepared by or on behalf of the Company during the course of the Contract or otherwise relating to the provision of the Solutions for the Client under the Contract will be vested in the Company from the outset and the Company will be at liberty to effect and be responsible for securing such protection as it may see fit. The Intellectual Property Rights cannot be used copied transferred sold or dealt with in any way without the prior written consent of the Company.
- The Client will, where appropriate, give the Company all assistance in securing registration of any such Intellectual Property Rights if required by the Company to do so by the Company executing any assignment of any such Intellectual Property Rights but the right of the Company to require such assignment shall in no way be construed as indicating that the Intellectual Property Rights are other than vested in the Company in accordance with these Terms.
- The Client agrees with the Company that it will not, without the previous written consent of the Company, modify or change or alter any of the Intellectual Property Rights created by the Company in the performance of the Contract which in the opinion of the Company is material to the Intellectual Property Rights or to permit any such Intellectual Property Rights to be so altered modified or varied by any other person firm or company. The Client further agrees that it will not utilise any trade marks (whether registered or not) of the Company without the prior written approval of the Company.
- The Client warrants that in so far as it is necessary for the Company to have use of any software or any Intellectual Property Rights belonging to any Third Party it has all the necessary licences and rights to use such software or Intellectual Property Rights in so far as the Company requires it for the provisions of its obligations under the Contract.
- Each party agrees with the other in respect of all information of a confidential nature disclosed in the Contract or discovered further to the operation of the Contract (which includes without limitation, in the case of information to be kept confidential by the Client, information as to the operation of the business of the Company and information relating to the Solutions) (Confidential Information):
- to keep the Confidential Information in strict confidence and secrecy;
- not to use the Confidential Information save for complying with its obligations under the Contract;
- not to disclose the same to a Third Party;
- to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees and others who of necessity need the same in the performance of their duties as envisaged by the Contract and in such circumstances to ensure that such employees and others are aware of the confidential nature of the Confidential Information; and
- not allow access by third parties to the Company’s extranet,
- provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under the Contract) then the foregoing obligations of confidentiality in respect of such part will not apply or will cease to apply (as the case may be).
- This obligation of confidentiality will survive the termination of the Contract.
ESCALATION & DISPUTE RESOLUTION
- If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
- either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Company’s Account Manager and the Client’s representative shall attempt in good faith to resolve the Dispute within 30 days of service of the Dispute Notice;
- if the Dispute is not resolved, the Dispute shall be referred to the Company’s Group COO or CEO or equivalent and the Client’s COO, or CEO or equivalent who shall attempt in good faith to resolve it within 30 days of it being referred to them; and
- if the Dispute is not resolved under claus, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (Mediation notice) to the other party to the Dispute, requesting a mediation. A copy of the Mediation notice should be sent to CEDR Solve. The mediation will start not later than 30 days after the date of the Mediation notice.
- No party may commence any court proceedings in relation to the whole or part of the Dispute until 90 days after service of the Mediation notice, provided that the right to issue proceedings is not prejudiced by a delay. If, within 90 days after service of the Mediation notice, the Dispute is not resolved or either party fails to participate or to continue to participate in the mediation or the mediation terminates, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 30.
LAW AND JURISDICTION
The formation, construction, performance, validity and all aspects whatsoever of the Contract shall be governed by English law and the parties hereby submit to the non-exclusive jurisdiction of the English courts.
ACCEPTABLE USAGE POLICY
This acceptable use policy describes the types of usage which are prohibited under the terms of this Agreement.
You may use our sites and our Services only for lawful purposes. You may not use any of our sites or our Services:
- in any way that breaches any applicable local, national or international law or regulation;
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- for the purpose of harming or attempting to harm minors in any way;
- to send, knowingly receive, upload, download, use or re-use any material which does not comply with our Content Standards below;
- to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam). If you send unsolicited bulk email from our accounts you will be charged the cost of labour to respond to complaints, with a minimum charge of £200 (GBP). If you send bulk email to "opt-in" lists, you must have a method of confirmation or verification of subscriptions and be able to show evidence of subscription for third parties who complain about receiving unsolicited email;
- to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
- attempt to intercept, redirect, or otherwise interfere with communications intended for others;
- attempt to interfere with or deny service to any user or host (e.g.denial of service attacks);
- falsify header information or user identification information;
- introduce malicious programs into the network or server (e.g. viruses, worms, Trojan horses, disabling devices, etc.);
- transmit files containing a computer virus or corrupted data;
- attempt to or actually access or use data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or breach security or authentication measures, without the owner's express prior written authorisation;
- monitor data or traffic on any third party network or system in any way (including but not limited to "packet sniffing") without the system or network owner's express prior written authorisation;
- attempt to circumvent user authentication or security of any host, network, or account ("cracking");
- engage in "hacking," misuse or share user accounts or passwords with any other party (other than in the ordinary course of your business), attempt to violate our security or elsewhere, or attempt to infiltrate any network, without express prior written authorisation of the network owner; or attempt to (or successfully) breach or disrupt Internet communication including, but not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorised to access;
- Not to access without authority, interfere with, damage or disrupt any part of our sites and/or our services or any equipment or network on which our sites and/or our services are stored;
Where elements of the Service permit data to be uploaded, the data must not:
- contain any material which is defamatory of any person;
- contain any material which is obscene, offensive, hateful or inflammatory;
- promote sexually explicit material;
- promote violence;
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- infringe any copyright, database right, trade mark or other intellectual property or other right of any other person;
- be likely to deceive any person;
- be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
- promote any illegal activity;
- be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;
- be likely to harass, upset, embarrass, alarm or annoy any other person;
- be used to impersonate any person, or to misrepresent your identity or affiliation with any person;
- give the impression that they emanate from us, if this is not the case;
- advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.