1. Definitions and interpretation
1.1 The definitions and rules of interpretation set out in the schedule shall apply to our Agreement.
1.2 In our Agreement:
1.2.1 each Order Form entered into by the Customer shall form a separate agreement, incorporating these Master SaaS Terms and the Policies (our Agreement);
1.2.2 in the event of any conflict in respect of the provisions of our Agreement and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
(a) the Order Form;
(b) the Policies;
(c) the Master SaaS Terms; and
(d) the Documentation; and
1.2.3 subject to the order of priority between documents in clause 1.2.2, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
1.3 Any obligation of the Supplier under our Agreement to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on the Supplier (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or noncommercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
2. Rights of use
2.1 Upon Order Acceptance and subject to the terms of our Agreement, the Supplier grants the Customer a non-exclusive, non-transferable, personal right to use each Subscribed Service for the Permitted Purpose.
2.2 Access to the Subscribed Services shall be immediate from Order Acceptance. Use of the Subscribed Services is at all times subject to the Customer’s compliance with our Agreement and the requirements identified in our Agreement (including all minimum system requirements).
2.3 The Customer confirms that by signing this Agreement, the Customer shall not be in breach of any other existing agreement that the Customer may have in place.
2.4 The Customer acknowledges that the Services do not include:
2.4.1 any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services);
2.4.2 dedicated data backup or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data).
3. Authorised Users
3.1 The Customer shall ensure that only Authorised Users use the Subscribed Services and that such use is at all times in accordance with our Agreement. The Customer shall ensure that Authorised Users are, at all times whilst they have access to the Subscribed Services, the employees or contractors of the Customer or the Authorised Affiliates.
4.1 The Customer shall indemnify, keep indemnified and hold harmless the Supplier (on the Supplier’s own behalf on behalf of each of the Supplier’s Affiliates) from and against any losses, claims, damages, liability, Data Protection Losses, costs (including legal and other professional fees) and expenses incurred by it (or any of its Affiliates) as a result of the Customer’s breach of our Agreement.
4.2 This clause 4 shall survive termination of our Agreement.
5.1 Support Services shall be available for each Subscribed Service to the Customer for the duration of the respective Subscribed Service Period, to the extent and in the manner specified in the relevant Subscription Service Specific Terms and Order Form.
5.2 The Supplier will use reasonable endeavours to notify the Customer in advance of scheduled maintenance but the Customer acknowledges that it may receive no advance notification for downtime caused by Force Majeure or for other emergency maintenance.
6. Changes to services and terms
6.1 The Supplier may at its absolute discretion make, and notify the Customer of, updated versions of the documents referred to in clause 1.2.2 or other documents referred to in any part of our Agreement (excluding in each case the Order Form) from time to time.
7.1 The Subscription Fee and any other charges (including expenses) expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described in the Pricing Terms.
7.2 The Supplier shall invoice the Customer by either of the following:
7.2.1 monthly in advance for all Subscription Fees; or
7.2.2 annually in advance for all Subscription Fees,
the invoices shall be payable immediately and prior to the Subscribed Services commencing.
7.3 The Fees are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.
7.4 Fees payable to the Supplier under our Agreement shall be paid to the Supplier’s online reseller Paddle.com via the Website.
7.5 The Supplier shall be entitled to increase the Fees for any and all Services at any time by giving 1 months notice to the Customer.
7.6 To the extent our Agreement terminates (other than due to termination by the Customer, the Customer shall not be entitled to any refund or discount of Fees paid for any parts of any month during which the Services cease to be provided.
8.1 Subject to the remainder of this clause 8, the Supplier warrants that:
8.1.1 each Subscribed Service shall operate materially in accordance with its Description when used in accordance with our Agreement under normal use and normal circumstances during the relevant Subscribed Service Period; and
8.1.2 it will provide each of the Services with reasonable care and skill.
8.2 The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that the Supplier shall have no liability for any such delays, interruptions, errors or other problems.
8.3 If there is a breach of any warranty in clause 8.1 the Supplier shall at its option: use reasonable endeavours to repair or replace the impacted Services within a reasonable time or (whether or not it has first attempted to repair or replace the impacted Service) refund the Fees for the impacted Services which were otherwise payable for the period during which the Supplier was in breach of any such warranty (provided such period is at least 10 consecutive days). To the maximum extent permitted by law, this clause 8.3 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 8.1.
8.4 The warranties in clause 8.1 are subject to the limitations set out in clause 14 and shall not apply to the extent that any error in the Services arises as a result of:
8.4.1 incorrect operation or use of the Services by the Customer, any Authorised Affiliate or any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications);
8.4.2 use of any of the Services other than for the purposes for which it is intended;
8.4.3 use of any Services with other software or services or on equipment with which it is incompatible;
8.4.4 any act by any third party (including hacking or the introduction of any virus or malicious code);
8.4.5 any modification of Services (other than that undertaken by the Supplier or at its direction); or
8.4.6 any breach of our Agreement by the Customer (or by any Authorised Affiliate or Authorised User).
8.5 The Customer acknowledges that no liability or obligation is accepted by the Supplier (howsoever arising whether under contract, tort, in negligence or otherwise):
8.5.1 that the Subscribed Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to the Supplier;
8.5.2 that the operation of the Subscribed Services shall not be subject to minor errors or defects; or
8.5.3 that the Subscribed Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible.
8.6 Other than as set out in this clause 8, and subject to clause 14, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
9. Customer’s responsibilities
9.1 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications.
10. Intellectual property
10.1 All Intellectual Property Rights in and to the Services (including in all Applications, Documentation and all Supplier Provided Materials) belong to and shall remain vested in the Supplier or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Applications, Documentation, Supplier Provided Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to the Supplier or such third party as the Supplier may elect. The Customer shall execute all such documents and do such things as the Supplier may consider necessary to give effect to this clause 10.1.
10.2 Except for the rights expressly granted in our Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of our Agreement.
10.3 The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to the Supplier under our Agreement.
10.4 Except for the rights expressly granted in our Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of our Agreement.
10.5 This clause 10 shall survive the termination of our Agreement.
11. Customer Data
11.1 Customer Data shall at all times remain the property of the Customer or its licensors.
11.2 Except to the extent the Supplier has direct obligations under data protection laws, the Customer acknowledges that the Supplier has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Service) complies with all applicable laws and Intellectual Property Rights.
11.3 If the Supplier becomes aware of any allegation that any Customer Data may not comply with any part of our Agreement the Supplier shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful the Supplier shall notify the Customer before taking such action.
11.4 Except as otherwise expressly agreed in our Agreement, the Supplier shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Service Period. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s and Authorised Affiliates’ businesses. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its, its Authorised Affiliates and its Authorised User’s needs) and extracts it from each Subscribed Service prior to the termination of our Agreement or the cessation or suspension of any of the Services.
11.5 Unless otherwise set out in the Order Form or subsequently agreed by the parties in writing, the Customer hereby instructs that the Supplier shall within 60 days of the end of the provision of Services (or any part) relating to the processing of the Customer Data securely dispose of such Customer Data processed in relation to the Services (or any part) which have ended (and all existing copies of it) except to the extent that any applicable laws requires the Supplier to store such Customer Data. The Supplier shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with our Agreement.
12. Confidentiality and security of Customer Data
12.1 The Supplier shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with our Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under our Agreement.
12.2 The Supplier:
12.2.1 undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement or as otherwise reasonably necessary for the provision or receipt of the Services, and
12.2.2 shall be responsible to the Customer for any acts or omissions of any of the persons referred to in clause 12.2.1 in respect of the confidentiality and security of the Customer Data as if they were the Supplier’s own.
12.3 The provisions of this clause 12 shall not apply to information which:
12.3.1 is or comes into the public domain through no fault of the Supplier, its officers, employees, agents or contractors;
12.3.2 is lawfully received by the Supplier from a third party free of any obligation of confidence at the time of its disclosure;
12.3.3 is independently developed by the Supplier (or any of its Affiliates or any person acting on its or their behalf), without access to or use of such Confidential Information; or
12.3.4 is required by law, by court or governmental or regulatory order to be disclosed,
provided that clauses 12.3.1 to 12.3.4 (inclusive) shall not apply to Protected Data.
12.4 This clause 12 shall survive the termination of our Agreement for a period of 2 years.
To the maximum extent permitted by law, the Supplier shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of our Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.
14. Limitation of liability
14.1 The extent of the Supplier’s liability under or in connection with our Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 14.
14.2 Subject to clauses 14.3 and 14.4, the Supplier’s aggregate liability in respect of each individual Subscribed Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with our Agreement) shall not exceed an amount equal to the Subscription Fees for the relevant Subscribed Service paid to the Supplier by the Customer in the 12-month period immediately preceding the first incident giving rise to any claim under our Agreement.
14.3 The Supplier’s total aggregate liability however arising under or in connection with our Agreement shall not exceed an amount equal to the Fees for all Services paid to the Supplier in the 12-month period immediately preceding the first incident giving rise to any claim under our Agreement.
14.4 The Supplier shall not be liable for consequential, indirect or special losses.
14.5 The Supplier shall not be liable for any of the following (whether direct or indirect):
14.5.1 loss of profit;
14.5.2 destruction, loss of use or corruption of data;
14.5.3 loss or corruption of software or systems;
14.5.4 loss or damage to equipment;
14.5.5 loss of use;
14.5.6 loss of production;
14.5.7 loss of contract;
14.5.8 loss of opportunity;
14.5.9 loss of savings, discount or rebate (whether actual or anticipated); and/or
14.5.10 harm to reputation or loss of goodwill.
14.6 Notwithstanding any other provision of our Agreement, the Supplier’s liability shall not be limited in any way in respect of the following:
14.6.1 death or personal injury caused by negligence;
14.6.2 fraud or fraudulent misrepresentation; or
14.6.3 any other losses which cannot be excluded or limited by applicable law.
14.7 This clause 14 shall survive the termination of our Agreement.
15.1 The Supplier may suspend access to the Services to all or some of the Authorised Users if:
15.1.1 the Supplier suspects that there has been any misuse of the Services or breach of our Agreement; or
15.1.2 the Customer fails to pay any sums due to the Supplier by the due date for payment.
15.2 Where the reason for the suspension is suspected misuse of the Services or breach of our Agreement, without prejudice to its rights under clause 20, the Supplier will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
15.3 In relation to suspensions under clause 15.1.2, access to the Services will be restored promptly after the Supplier receives payment in full and cleared funds.
15.4 Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Authorised Users may not have access to the Services.
16. Term and termination
16.1 Our Agreement shall come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, shall continue for the duration of the Service Period.
16.2 Either party may terminate our Agreement or the provision of any of the Subscribed Services for convenience immediately via the Website cancellation platform. For the avoidance of doubt no refunds will be issued to the Customer.
16.3 Either party may terminate our Agreement immediately at any time to the other party if the other party commits a material breach of our Agreement.
17. Consequences of termination
17.1 In accordance with clause 16.2 above, immediately on termination of our Agreement, the rights granted by the Supplier under our Agreement shall terminate and the Customer shall (and shall procure that each Authorised User and Authorised Affiliate shall):
17.1.1 stop using the Services; and
17.1.2 destroy and delete or, if requested by the Supplier, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).
17.2 Termination of our Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination and shall not affect any provision of our Agreement that is expressly or by implication intended to continue beyond termination.
18. Entire agreement
18.1 Our Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
18.2 Each party acknowledges that it has not entered into our Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in our Agreement.
18.3 Nothing in our Agreement shall limit or exclude any liability for fraud.
19.1 No variation of our Agreement shall be valid or effective unless it is:
19.1.1 an Update made in accordance with our Agreement; or
19.1.2 made in writing, refers to our Agreement and is duly signed or executed by, or on behalf of, each party.
20. Assignment and subcontracting
20.1 Except as expressly provided in our Agreement, the Supplier may at any time assign, sub-contract, sub-licence (including by multi-tier), transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under our Agreement.
20.2 Except as expressly permitted by our Agreement, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under our Agreement (including the licence rights granted), in whole or in part, without the Supplier’s prior written consent.
21. Set off
Each party shall pay all sums that it owes to the other party under our Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
22. No partnership or agency
The parties are independent and are not partners or principal and agent and our Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
23.1 If any provision of our Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of our Agreement shall not be affected.
23.2 If any provision of our Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
24.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under our Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
24.2 No single or partial exercise of any right, power or remedy provided by law or under our Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
24.3 A waiver of any term, provision, condition or breach of our Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
25. Third party rights
A person who is not a party to our Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
26. Governing law
Our Agreement and any dispute or claim arising out of, or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, our Agreement, its subject matter or formation (including non-contractual disputes or claims).
DEFINITIONS AND INTERPRETATION
- In our Agreement:
means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010;
means the software or applications used by or on behalf of the Supplier to provide the Subscribed Services;
means, in respect of the relevant Subscribed Service, the Affiliates of the Customer (if any) identified in the Order Form as Authorised Affiliates in respect of that Subscribed Service;
means, in respect of the relevant Subscribed Service, the named users authorised by the Customer to use that Subscribed Service in accordance with the terms of our Agreement;
has the meaning given in the relevant Order Form;
means all data (in any form) that is provided to the Supplier or uploaded or hosted on any part of any Subscribed Service by the Customer or by any Authorised User;
a) the description of the relevant Subscribed Service (as Updated from time to time), which as at Order Acceptance is the latest version (the Description);
b) in respect of each Subscribed Service, the relevant instructions as to how to use that part of the Services made available by the Supplier at [Insert URL] (as Updated from time to time) (the User Manual);
means the Subscription Fees together with any other amounts payable to the Supplier under our Agreement;
means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under our Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;
Intellectual Property Rights
means any rights related to copyright such as moral rights and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
a) whether registered or not;
b) including any applications to protect or register such rights;
c) including all renewals and extensions of such rights or applications;
d) whether vested, contingent or future; and
e) wherever existing.
Master SaaS Terms
means the terms set out in the clauses and other provisions of this document (including the schedule), as Updated from time to time;
means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of the Supplier in connection with the Services, but excluding all Customer Data;
means the effective date of the relevant Order Form;
means the order form ordering the Subscribed Services entered into by or on behalf of the Customer and Supplier, incorporating these Master SaaS Terms and our Agreement. The order process is conducted by the Supplier’s online reseller Paddle.com. Paddle.com is the merchant of record for all orders. Paddle provides all customer service inquiries and returns;
a) scheduled maintenance which the Supplier shall use reasonable endeavours to undertake within a reasonable timeframe on 24 hours notice;
b) emergency maintenance; or
c) downtime caused in whole or part by Force Majeure.
means use solely for the Customer as set out in this Agreement.
means the details of pricing and fees in respect of each part of the Services, as initially provided under the Order Form and updated from time to time in accordance with clause 7.5 or, in respect of any part of the Services for which prices are not expressly agreed, on the Supplier’s Standard Pricing Terms;
a) any breach of our Agreement by the Customer; or
b) any Force Majeure;
means the Subscribed Services and the Support Services;
means the period beginning on Order Acceptance and ending with the last of the Subscribed Service Periods;
Subscribed Service Period
means in respect of each Subscribed Service, the duration during which such services are to be provided as initially set out in the Order Form and as varied in accordance with our Agreement;
means each cloud service to which the Customer has subscribed as set out in the Order Form (and Subscribed Service shall refer to each respective service separately);
means, in respect of each Subscribed Service, the fees payable by the Customer in consideration of that Subscribed Service as set out in the Pricing Terms;
means, TOOLED UP RACCOONS LTD with registered company number 12888329;
Supplier Provided Materials
means all of the Materials provided or made available by or on behalf of the Supplier, but excluding all Customer Data;
Supplier’s Standard Pricing Terms
means the Supplier’s standard pricing terms for each part of the Services, as amended by the Supplier from time to time;
means, in respect of the relevant Subscribed Service, the support services provided by the Supplier to the Customer within 48 hours of being notified;
has the meaning given in clause 19.1.1, and Updated shall be construed accordingly;
means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.
2. In our Agreement, unless otherwise stated:
2.1 the table of contents, background section and the clause, paragraph, schedule or other headings in our Agreement are included for convenience only and shall have no effect on interpretation;
2.2 the Supplier and the Customer are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;
2.3 words in the singular include the plural and vice versa;
2.4 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
2.5 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
2.6 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
2.7 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.