THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on March 2nd, 2019. It is effective between You and Us as of the date of You accepting this Agreement.
Except to the extent expressly provided otherwise, in these Terms and Conditions:
“Account” means an account enabling a person to access and use the Services;
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
“Agreement” means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
“Beta Services” means Our services or functionality that may be made available to You to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description;
“Content” means information created or obtained by Us from publicly available sources or third party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation;
“Customer Confidential Information” means (a) any information disclosed by or on behalf of You to Us at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure (i) was marked as “confidential” or (ii) should have been reasonably understood by Us to be confidential; and (b) Your Data;
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by You; transmitted by the Platform at the instigation of You; supplied by You to US for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by You (but excluding analytics data relating to the use of the Platform and server log files);
“Customer Indemnity Event” has the meaning given to it in Clause 11.4;
“Customer Personal Data” means any Personal Data that is processed by Us on behalf of You in relation to the Agreement;
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
“Documentation” means applicable documentation and any usage guides and policies as updated from time to time, accessible via qualityofcare.co.uk;
“Effective Date” means the date upon which You complete and submit an online Order Form published by Us on Our website, the date upon which We send to You an order confirmation;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Services” means the products and services that are ordered by You under an Order Form, or provided to You under a free trial, and made available online by Us in accordance with these Terms and Conditions. “Services” exclude Content and Non-Quality of Care Applications;
“Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Services, but excluding any defect, error or bug caused by or arising as a result of (a) any act or omission of You or any person authorised by You to use the Platform or Services, (b) any use of the Platform or Services contrary to the Documentation, whether by You or by any person authorised by You, (c) a failure of You to perform or observe any of its obligations in the Agreement;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Minimum Term” means, in respect of the Agreement, the period of 12 months beginning on the Effective Date;
“Order Form” means an online order form published by Us and completed and submitted by You, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom;
“Platform” means the platform managed by Us and used by Us to provide the Services, including the application and database software for the Services;
“Provider Indemnity Event” has the meaning given to it in Clause 11.1;
“Services” means any products and services that We provide to You, or has an obligation to provide
“Services” means the products and services that are ordered by You under an Order Form or provided to You under a free trial, and made available online by Us to You, under these Terms and Conditions;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the Order Form, the main body of these Terms and Conditions and any amendments to that documentation from time to time;
“Update” means a hotfix, patch or minor version update to any Platform software;
“Upgrade” means a major version upgrade of any Platform software;
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilising authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
- “We,” “Us” or “Our” means Quality of Care, Ltd (“QoC”);
- “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
- “Your Data” means electronic data and information submitted by or for You to the Services, excluding Content and Non-QoC Applications.
2. Free Trial
2.1. If a free trial product is made available and You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2. Any data you enter into the Services, and any during you free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the trial, purchase applicable upgraded Services, or export such data, before the end of the trial period.
2.3. Notwithstanding sections 7, 9 and 10, during the free trial the services, are provided “as-is” without any warranty.
3.1. We will (a) make the Services and Content available to You pursuant to this Agreement and/or applicable Order Forms, (b) provide applicable support for the Services to You at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay, Non-QoC Application, or denial of service attack, (d) provide the Service on an “AS IS” basis to you pursuant to this agreement and the relevant order forms during a subscription term and are not contingent on the delivery of any future functionality or features on any oral or written public comments made by us, (e) reserve the right to modify or discontinue provision of Our services at any time, without notice and without any liability towards you, (f) not be held responsible or liable for timeliness, removal of information, failure to store information, inaccuracy of information, or improper delivery of information, (g) allow access by no more than the specified number of users, (h) allow additional users’ subscriptions to be added during the applicable subscription term at the same pricing as that for the prior users for the remainder of the subscription term in effect at the time the additional User subscriptions are added, (i) apply all the terms and conditions for the old users will be applicable to the new users as well. (j) NO REFUND for cancellation by YOU, please read our refund policy.
3.2. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 below, or (c) as You expressly permit in writing. Where Your use of the Services includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC) within the European Economic Area (EEA), except in respect of any usage during a Free Trial.
3.3. From time to time, We may make Beta Services available to You at no charge. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-QoC Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3.5. The Platform will automatically generate an Account for You on the Effective Date and will provide to You login details for that Account.
3.6. We hereby grant to You a worldwide, non-exclusive licence to use the Services by means of a Supported Web Browser during the Term.
3.7. The licence granted by Us to You under Clause 3.6 is subject to the following limitations: (a) the Services may only be used by the officers, employees, agents and subcontractors of either You or an Affiliate of Yours, (b) the Services may only be used by the named users identified in the Services Order Form, providing that You may change, add or remove a designated named user in accordance with the procedure set out therein, and (c) the Services must not be used at any point in time by more than the number of concurrent users specified in the Services Order Forms, providing that You may add or remove concurrent user licences in accordance with the procedure set out therein.
3.8. Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by Us to You under Clause 3.3 is subject to the following prohibitions (a) You must not sub-license Your right to access and use the Hosted Services, (b) You must not permit any unauthorised person to access or use the Services, (c) You must not use the Services to provide services to third parties, (d) You must not republish or redistribute any content or material from the Services, (e) You must not make any alteration to the Platform and (f) You must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or the Services.
3.9. You shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Services.
3.10. You must not use the Services in any way that causes, or may cause, damage to the Services or Platform or impairment of the availability or accessibility of the Services.
3.11. You must not use the Services: (a) in any way that is unlawful, illegal, fraudulent or harmful or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.12. For the avoidance of doubt, You have no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.13. We may suspend the provision of the Services if any amount due to be paid You to Us under the Agreement is overdue, and We have given to you at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Services on this basis.
4. Use of Services and Content
4.2. A User’s password may not be shared with any other individual, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If you need extra Users for the same care home you can request additional logins from Us. If you own multiple care homes you cannot subscribe and pay under the umbrella organisation and have one login across multiple homes. Each subscription covers a single care home.
4.3. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) be responsible for all information or data of any kind, whether text, software, code, music or sound, photographs or graphics, video or other materials (“content”), made available publicly or privately, will be under the sole responsibility of the person providing the said content, or of the person whose user account is used. (d) use commercially reasonable efforts to prevent unauthorised access to or use of Services and Content, and notify Us promptly of any such unauthorised access or use, (e) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (f) comply with terms of service of any Non-QoC Applications with which You use Services or Content.
4.4. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-QoC Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-QoC Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-QoC product or service, (l) sell your own services to others using Our Services to do so, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
4.5. You will not (a) provide any content or conduct yourself in any way that may be construed as: unlawful; illegal; threatening; harmful; abusive; harassing; stalking; tortious; defamatory; libellous; vulgar; obscene; offensive; objectionable; pornographic; designed to interfere with or disrupt the operation of service provided; infected with a virus or other destructive or deleterious programming routine; giving rise to civil or criminal liability; or in violation of an applicable local, national or international law, (b) impersonate or misrepresent your association with any person or entity, (c) forge or otherwise seek to conceal or misrepresent the origin of any content provided by you, (d) provide any content that may give rise to us being held civilly or criminally liable, or that may be considered a violation of any local, national or international law, including — but not limited to — laws relating to copyrights, trademarks, patents, or trade secrets.
4.6. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.7. Unless specifically permitted by You, You own the data created or stored by You. We shall not modify your data, disclose your data except as compelled by law in accordance with section 7.4. But You grant us permission to access, store, solely as required for the purpose of providing the services to You.
4.8. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data.
4.9. If you register on our website for a free trial, any data You enter into the services, and any customizations made to the services by or for you, during Your free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the trial before the end of the trial period. There is NO REFUND for any cancellations made by you, please read our Refund Policy.
4.10. If you terminate the contract, it is your responsibility to export your data before the end of the subscription period ends. The data will be lost permanently after thirty days of your last payment. There is NO REFUND for any cancellations made by You, please read our Refund Policy.
4.11. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-QoC Application hosted on a Service by You may violate Our External-Facing Services or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-QoC Application or modify the Non-QoC Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-QoC Application until the potential violation is resolved.
5. Fees and Payment for Purchased Services
5.1. Our services are available on a subscription basis. Your subscription will automatically renew based on your subscription, charged to the credit card last used by you. If you would like the payment for the renewal to be made through a different credit card or if you do not wish to renew the subscription, you agree to make the changes in your account settings. The paid subscription is not refunded if you terminate your subscription. We reserve the right to change the subscription fee and renewal terms. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, and (ii) payment obligations are non-cancellable and fees paid are non-refundable.
5.2. If You add additional user(s), they will be subject to the same additional subscription as you are. Subscriptions for all of your user(s) will be lumped as one transaction and charged in the same credit card last used by You.
5.3. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 14.2. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due immediately from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and make changes in your account settings of any changes to such information.
5.4. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.3.
5.5. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is due, You have authorised Us to charge to Your credit card. We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
5.6. Payment Disputes. We will not exercise Our rights under Section 5.4 or 5.5 above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.7. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.7, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.8. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
5.9. Refund Policy: There is NO REFUND. QoC does not offer any refunds on its products and/or subscriptions.
6. Proprietary Rights and Licences
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Services and Content, including all of Our related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3. License to Host Your Data. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You under this Agreement in or to any of Your Data.
6.4. License to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our services.
6.5. You grant Us the right to use Your name and company logo on Our website for publicity purposes.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. The Receiving Party will keep the Confidential Information of the Disclosing Party strictly confidential, (b) not disclose the Disclosing Party Confidential Information to any person without the prior written consent of the Disclosing Party, (c) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information as the Receiving Party uses to protect their own confidential information of a similar nature, being at least a reasonable degree of care, (d) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (e) except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-QoC Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3. Notwithstanding Clause 7.2, We may disclose Your Confidential Information to Our employees, professional advisers, insurers, agents and subcontractors who have a need to access Your Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of Your Confidential Information.
7.4. The restrictions in this Clause 7 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Ours on any recognised stock exchange.
7.5. The provisions of this Clause 7 shall continue in force for a period of 5 years following the termination of the Agreement, at the end of which period they will cease to have effect.
8. Data protection
8.1. Each party shall comply with the Data Protection Laws (the General Data Protection Regulation (“GDPR”)) with respect to the processing of Your Personal Data.
8.2. You warrant to Us that You have the legal right to disclose all Personal Data that You do in fact disclose to Us under or in connection with the Agreement.
8.3. We shall only process Your Personal Data for the purpose of Data processing information.
8.4. We shall only process Your Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 8.
8.5. We shall only process Your Personal Data on the documented instructions of You, including with regard to transfers of Your Personal Data, as set out in these Terms and Conditions or any other document agreed by the parties in writing.
8.6. You hereby authorise Us to make the following transfers of Customer Personal Data: (a) We may transfer Your Personal Data internally to our own employees, offices and facilities, providing that such transfers must be protected by appropriate safeguards, in accordance to the GDPR, (b) We may transfer Your Personal Data to a country, a territory or sector to the extent that the European Commission has decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
8.7. We shall promptly inform You if, in Our opinion, an instruction of Yours relating to the processing of the Your Personal Data infringes the Data Protection Laws.
8.8. Both parties shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for your Personal Data.
9. Representation and Warranties
9.1. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, (d) when used by You in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person and (e) subject to the “Integration with Non-QoC Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
10. Acknowledgements, Warranty Limitations and Disclaimers
10.1. You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, We give no warranty or representation that the Services will be wholly free from defects, errors and bugs.
You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, We give no warranty or representation that the Services will be entirely secure.
You acknowledge We do not warrant or represent that the Services will be compatible with any other software or systems.
You acknowledge that We will not provide any [legal, financial, accountancy or taxation advice] under these Terms and Conditions or in relation to the Services, and, except to the extent expressly provided otherwise in these Terms and Conditions, We do not warrant or represent that the Services or the use of the Services by You will not give rise to any legal liability on your or any other person.
10.2. YOU UNDERSTAND AND AGREE THAT YOUR USE OF OUR SERVICES OR CONTENT PROVIDED (THE “SERVICE”) IS AT YOUR OWN RISK. SERVICES AND CONTENT ARE PROVIDED TO YOU “AS IS”, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY, EITHER IMPLIED OR EXPRESS, THAT ANY PART OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, TIMELY, SECURE, ACCURATE, RELIABLE, OR OF ANY QUALITY, NOR IS IT WARRANTED EITHER IMPLICITLY OR EXPRESSLY THAT ANY CONTENT IS SAFE IN ANY MANNER. YOU UNDERSTAND AND AGREE THAT OUR PROFESSIONAL ADVICE OF ANY KIND AND THAT ANY ADVICE OR ANY OTHER INFORMATION OBTAINED VIA OUR SERVICES MAY BE USED SOLELY AT YOUR OWN RISK, AND THAT WE WILL NOT BE HELD LIABLE IN ANY WAY.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Some jurisdictions may not allow disclaimers of implied warranties, and certain statements in the above disclaimer may not apply to You as regards implied warranties; the other terms and conditions remain enforceable notwithstanding.
11.1. We shall indemnify and shall keep You indemnified against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by You and arising directly or indirectly as a result of any breach by Us of these Terms and Conditions (a “Provider Indemnity Event“).
11.2. You must (a) upon becoming aware of an actual or potential Provider Indemnity Event, notify Us, (b) provide to Us all such assistance as may be reasonably requested by Us in relation to the Provider Indemnity Event, (c) allow Us the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event, and (d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent from Us,
Our obligation to indemnify You under Clause 11.1 shall not apply unless You complies with the requirements of this Clause 11.2.
11.3. If We receive information about an infringement or misappropriation claim related to a Service, We may at Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-QoC Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
11.4. You shall indemnify and shall keep Us indemnified against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by Us and arising directly or indirectly as a result of any breach by You of these Terms and Conditions (a “Customer Indemnity Event“).
11.5. We must (a) upon becoming aware of an actual or potential Customer Indemnity Event, notify You, (b) provide to You all such assistance as may be reasonably requested by You in relation to the Customer Indemnity Event, (c) allow You the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event, and (d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of You.
Your obligation to indemnify Us under Clause 11.4 shall not apply unless We comply with the requirements of this Clause 11.5.
11.6. The indemnity protection set out in this Clause 11 shall be subject to the limitations and exclusions of liability set out in this Agreement.
12. Limitations and exclusions of liability
12.1. Nothing in these Terms and Conditions will (a) limit or exclude any liability for death or personal injury resulting from negligence, (b) limit or exclude any liability for fraud or fraudulent misrepresentation, (c) limit any liabilities in any way that is not permitted under applicable law or (d) exclude any liabilities that may not be excluded under applicable law.
12.2. The limitations and exclusions of liability set out in this Clause 12 and elsewhere in these Terms and Conditions are subject to Clause 12.1 and govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
12.3. Neither party shall be liable to the other party for any direct, indirect, special, incidental, consequential or exemplary damages in respect of but not limited to any losses arising out of a Force Majeure Event, any loss of profits or anticipated savings, revenue or income, goodwill, use or production, business, contracts or opportunities, loss or corruption of any data or other intangible assets, database or software resulting from (a) the use of Services or the inability to use the Services, (b) the cost of obtaining substitute services, (c) unauthorised access to or alteration of your data transmissions, (d) statements by any third party of any third party using the Services, or (e) any other matter relating to Services.
12.4. The aggregate liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of the total amount paid and payable by You to Us under the Agreement in the 12 month period preceding the commencement of the event or events.
13. Force Majeure Event
13.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
13.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must: (a)promptly notify the other, and (b) inform the other of the period for which it is estimated that such failure or delay will continue.
13.3. A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
14. Term, Termination and Effects of Termination
14.1. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
14.2. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term.
14.3. Either party may terminate the Agreement by giving to the other party not less than 30 days’ written notice of termination.
14.4. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if (a) the other party commits any material breach of the Agreement, (b) the other party commits a breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied or (c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
14.5. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if (a) the other party (i) is dissolved, (ii) ceases to conduct all (or substantially all) of its business, (iii) is or becomes unable to pay its debts as they fall due, (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors, (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party, (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement).
14.6. We may terminate the Agreement immediately by giving written notice to You if (a) any amount due to be paid by You to Us under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and (b) We have given to You at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 14.6.
14.7. The rights of termination set out in the Agreement shall not exclude any rights of termination available at law.
14.8. If this Agreement is terminated by You in accordance with Section 14.4 and 14.5, We will NOT REFUND You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 14.4 and 14.5, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
14.9. We will make Your Data available to You for export or download as provided in the Documentation, prior to the end of your subscription. At the end of your subscription period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
14.10. Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.12, 5.4, 7, 8, 12, 14.8, 14.10, 14.11, 16, 17, 18, 19, 20.1, 20.2, 21, 22 and 23
14.11. Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
15.1. Subject to any express restrictions elsewhere in these Terms and Conditions, We may subcontract any of Our obligations under the Agreement, providing that We must give to You, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
15.2. We shall remain responsible to You for the performance of any subcontracted obligations.
15.3. Notwithstanding the provisions of this Clause 15 but subject to any other provision of these Terms and Conditions, the You acknowledge and agree that We may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
16.1. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will NOT REFUND to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17. No waivers
17.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
17.2. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
18.1. If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
18.2. If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
19. Third party rights
19.1. The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
19.2. The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.
20.1. The Agreement may not be varied except in accordance with this Clause 20.
20.2. The Agreement may be varied by means of a written document signed by or on behalf of each party.
20.3. We may vary the Agreement by giving You at least 30 days’ written notice of the proposed variation, providing that if We give You a notice under this Clause 20.3, You shall have the right to terminate the Agreement by giving US written notice of termination at any time during the period of 14 days following receipt of Our notice.
21. Entire agreement
21.1. The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
21.2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
21.3. The provisions of this Clause 20 are subject to Clause 12.1.
22. Law and jurisdiction
22.1. These Terms and Conditions shall be governed by and construed in accordance with English law.
22.2. Any disputes relating to the Agreement shall be subject to the non-exclusive jurisdiction of the courts of England.
23.1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time and (b) any subordinate legislation made under that statute or statutory provision.
23.2. The Clause headings do not affect the interpretation of these Terms and Conditions.
23.3. References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
23.4. In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.