TransparntChoice Limited Terms and Conditions of Service
The glossary in clause 14 sets out the defined terms and rules of
interpretation that apply in this agreement.
1.
Services
1.6
Where the
Solution Type is Cloud, we shall follow our archiving procedures for Customer
Data which are, in our view, necessary to support our recovery goals set out on
our website at https://www.transparentchoice.com/content/security-overview.
These goals may vary from time to time. In the event of any loss or damage to
Customer Data, your sole and exclusive remedy against us shall be us to use
reasonable commercial endeavours to restore the lost or damaged Customer Data
from the latest back-up of such Customer Data maintained by us in accordance
with the archiving procedure described in our back-up policy. We shall not be
responsible for any loss, destruction, alteration or disclosure of Customer
Data caused by any third party (except those third parties sub-contracted by us
to perform services related to Customer Data maintenance and back-up for which
we shall remain fully liable).
1.7
Where the
Solution Type is On-premise, you shall have sole responsibility for backing up
Customer Data. We shall have no
liability to you for any loss, destruction, alteration or disclosure of
Customer Data.
(a)
your use of the Software
or Services will be uninterrupted or error-free; or
(c)
the Software or
the Services will be free from Vulnerabilities or Viruses; or
2.
Cloud solution (applies only where the Solution Type is Cloud)
2.2
In relation to
the Authorised Users, you undertake that each Authorised
User shall keep a secure password for their use of the Services and
Documentation and that each Authorised User shall keep their password
confidential.
(b)
facilitates
illegal activity;
(c)
depicts sexually
explicit images;
(d)
promotes unlawful
violence;
(f)
is otherwise
illegal or causes damage or injury to any person or property;
and we reserve the
right, without liability or prejudice to our other rights, to disable your
access to any material that breaches the provisions of this clause.
2.4
You shall not
(a)
except as may be
allowed by any applicable law which is incapable of exclusion by agreement
between you and us and except to the extent expressly permitted under this
agreement:
(i)
attempt to copy,
modify, duplicate, create derivative works from, frame, mirror, republish,
download, display, transmit, or distribute all or any portion of the Software
and/or Documentation (as applicable) in any form or media or by any means; or
(ii)
attempt to
de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce
to human-perceivable form all or any part of the Software; or
(b)
introduce or
permit the introduction of, any Virus or Vulnerability into our network and
information systems.
2.5
You shall use all
reasonable endeavours to prevent any unauthorised access to, or use of, the
Services and/or the Documentation and, in the event of any such unauthorised
access or use, shall promptly notify us.
3.
On-premise solution (applies only where the Solution Type is On-premise)
3.1
We shall provide
you with one copy of the Software electronically.
3.3
You agree to be
bound by, and warrant that you will at all times comply with, the terms
relating to the Open-Source Software listed, from time to time, on our website.
3.4
In relation to
scope of use:
(c)
except as
expressly stated in this clause 3, you have no right (and shall not permit any
third party) to copy, adapt, reverse engineer, decompile, disassemble, modify,
adapt or make error corrections to the Software in whole or in part except to
the extent that any reduction of the Software to human readable form (whether
by reverse engineering, decompilation or disassembly) is
necessary for the purposes of integrating the operation of the Software with
the operation of other software or systems used by you, unless we are prepared
to carry out such action at a reasonable commercial fee or have provided the
information necessary to achieve such integration within a reasonable period,
and you shall request us to carry out such action or to provide such
information (and shall meet our reasonable costs in providing that information)
before undertaking any such reduction.
(a)
provide us with
all necessary co-operation in relation to this agreement and all necessary access to such
information as may be required by us in order to provide the Services, and carry
out all your other responsibilities set out in this agreement in a timely and
efficient manner (and, in the event of any delays by you, we may adjust any
agreed timetable or delivery schedule as reasonably necessary).
(b)
use the Services
and/or Documentation to provide services to third parties; or
(d)
attempt to
obtain, or assist third parties in obtaining, access to the Services and/or
Documentation, other than as permitted
by this agreement.
(a)
(where the
Solution Type is Cloud) we may, without liability to you, disable the
your password, account, user accounts and access to all or
part of the Services, and we shall be under no obligation to provide any or all
of the Services while the invoice(s) concerned remain unpaid; and
5.3
All amounts and
fees stated or referred to in this agreement:
(a)
shall be payable
in the currency specified in the
Order Form;
(b)
are, subject to clause 10.3(c), non-cancellable and
non-refundable;
You acknowledge and
agree that we and/or our licensors own all Intellectual Property Rights in the
Services, the Software and the Documentation. Except as expressly stated
herein, this agreement does not grant you any rights to, under or in, any
patents, copyright, database right, trade secrets, trade names, trade
marks (whether registered or unregistered), or any other
rights or licences in respect of the Services, the Software or the
Documentation.
7.1
For the purposes
of this clause 7, the terms controller, processor, data
subject, personal data, personal data breach and processing
shall have the meaning given to them in the Data Protection Legislation.
7.3
For the purposes
of the Data Protection Legislation:
(b)
where the
Solution Type is On-premise, we shall process any Customer Personal Data to
which we have access in the course of providing support, as a processor on your
behalf; and
(c)
we shall act as
controller of the Supplier Personal Data.
7.4
Customer
Personal Data. You shall ensure that you
have all necessary appropriate consents and notices in place to enable lawful
transfer of the Customer Personal Data to us and/or lawful collection of the
same by us for the duration and purposes of this agreement. You and we each
agree that we shall process the Customer Personal Data on your behalf in
accordance with the Data Processing Addendum.
7.5
Supplier
Personal Data. By entering into this agreement, you consent to (and
shall procure all required consents, from the Authorised Users and your other
personnel, representatives and agents, in respect of) all actions taken by us
in connection with the processing of Supplier Personal Data, provided these are
in compliance with the then-current version of our privacy policy available at https://www.transparentchoice.com/privacy
(Privacy Policy). In the event of
any inconsistency or conflict between the terms of the Privacy Policy and this
agreement, the Privacy Policy will take precedence.
8.1
You and we each
undertakes to the other not at any time to disclose to any person any
confidential information concerning the business, assets, affairs, customers,
clients or suppliers of the other party or of any member of the group of
companies to which the other party belongs, except as permitted by clause 8.2.
8.2
You and we may
each disclose the other party's confidential information:
8.4
We shall be
permitted to refer to you as a user of the Services on our website, in our
advertising and other promotional materials (regardless of media) and in
discussions with prospective customers. You
hereby grant us a worldwide, non-exclusive, royalty-free, perpetual,
transferable licence to use your trade name, trade marks,
and service marks in connection with the foregoing.
9.1
Without prejudice
to the proper performance by us of our obligations under this agreement, you
shall defend, indemnify and hold us harmless against claims, actions,
proceedings, losses, damages, expenses and costs (including without limitation
court costs and reasonable legal fees) arising out of or in connection with your
use of the Services and/or Documentation (and, where the Solution Type is Cloud,
the Customer Data), subject to clause 9.3.
9.2
We shall defend you,
your officers, directors and employees against any claim that your use of the
Services or Documentation in accordance with this agreement infringes any
United States patent effective as of the Effective Date, copyright, trade mark,
database right or right of confidentiality, and shall indemnify you for any
amounts awarded against you in judgment or settlement of such claims, subject
to clause 9.3.
9.3
In relation to the
indemnities in clause 9.1 and 9.2:
(a)
the indemnified
party shall give the indemnifying party prompt notice of any such claim;
(b)
the indemnified
party shall not make any admission, or otherwise attempt to compromise or
settle the claim and shall provide reasonable co-operation to the indemnifying
party in the defence and settlement of such claim, at the indemnifying party's
expense; and
(c)
the indemnifying
party shall be given sole authority to defend or settle the claim.
(a)
a modification of
the Software, Services or Documentation by anyone other than us; or
(b)
any Open-Source
Software;
10.1
Except as
expressly and specifically provided in this agreement:
(c)
the Services and
the Documentation are provided to you on an "as is" basis.
10.2
Nothing in this
agreement excludes our liability:
(a)
for death or
personal injury caused by our negligence; or
(b)
for fraud or
fraudulent misrepresentation.
10.3
Subject to clause 10.1 and clause
10.2:
11.1
This agreement
shall, unless otherwise terminated as provided in this clause 11,
commence on the Effective Date and shall continue for the Initial Subscription
Term and thereafter shall be renewed automatically for successive periods equal
in duration to the Initial Subscription Term (each a Renewal Term), unless
you or we give written notice of non-renewal to the other not less than 60 days prior to the end of the Initial
Subscription Term or the then current Renewal Term, as the case may be.
(c)
the other party
takes or has taken against it (other than in relation to a solvent
restructuring) any step or action towards its entering bankruptcy,
administration, provisional liquidation or any composition or arrangement with
its creditors, applying to court for or obtaining a moratorium (where the
relevant party is in the United Kingdom, under Part A1 of the Insolvency Act
1986), being wound up (whether voluntarily or by order of the court), being
struck off the register of companies, having a receiver appointed to any of its
assets, or its entering a procedure in any jurisdiction with a similar effect
to a procedure listed in this clause 11.2(c); or
11.3
On termination of
this agreement for any reason:
(c)
(where the
Solution Type is On-premise) you shall immediately destroy or return to us (at our
option) all copies of the Software then in your possession, custody or control
and, in the case of destruction, certify to us that you have done so;
12.1
Force majeure. Neither you nor we
shall be in breach of this agreement nor liable for delay in performing, or
failure to perform, any of your or our obligations under this agreement if such
delay or failure result from events, circumstances or causes beyond your or our
reasonable control. The time for performance of such obligations shall be
extended accordingly.
12.2
Variation. No variation of this agreement shall be effective unless it is in
writing and signed by you and us (or your and our authorised representatives).
12.3
Waiver. No failure or delay by you or us to exercise any right or remedy
provided under this agreement or by law shall constitute a waiver of that or
any other right or remedy, nor shall it prevent or restrict the further
exercise of that or any other right or remedy. No single or partial exercise of
such right or remedy shall prevent or restrict the further exercise of that or
any other right or remedy.
12.4
Rights and
remedies. Except as expressly provided in this agreement, the rights and
remedies provided under this agreement are in addition to, and not exclusive
of, any rights or remedies provided by law.
12.5
Severance. If any provision or part-provision of the agreement
is or becomes invalid, illegal or unenforceable, it shall be deemed modified to
the minimum extent necessary to make it valid, legal and enforceable. If such
modification is not possible, the relevant provision or part-provision shall be
deemed deleted. Any modification to or deletion of a provision or
part-provision under this clause 12.5 shall not affect the validity and
enforceability of the rest of the agreement.
(b)
You and we each
acknowledge that in entering into the agreement you and we do not rely on and
shall have no remedies in respect of any statement, representation, assurance
or warranty (whether made innocently or negligently) that is not set out in the
agreement. You and we each agree that neither you nor we shall have any claim
for innocent or negligent misrepresentation or negligent misstatement based on
any statement in the agreement.
12.8
Third party
rights. This agreement does not confer any rights on any other person or
party to enforce any term of the agreement.
(b)
Any notice shall
be deemed to have been received at the time of transmission, or, if this
time falls outside business hours, when Business Hours resume. In this clause), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not
a public holiday in the place of receipt.
13.
Governing law and jurisdiction
(a)
Governing law. This agreement
and any dispute or claim arising out of or in connection with it or its subject
matter or formation (including non-contractual disputes or claims) shall be
governed by and construed in accordance with the law of England and Wales.
(b)
Jurisdiction. You and we each 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 this agreement
or its subject matter or formation (including non-contractual disputes or
claims).
14.1
Definitions
agreement: the contract between you and us for the supply of
the Services in accordance with the Order Form and these terms.
Authorised Users: those of your employees,
agents and independent contractors who are authorised by you to use the
Services and the Documentation.
Business Day: a day other than a Saturday, Sunday
or public holiday in England when banks in London are open for business.
Cloud: provision of the Services via the internet.
Customer Data: the data inputted by you, by Authorised Users, or by
us on your behalf for the purpose of using the Services or facilitating your
use of the Services.
Customer Personal Data: where the Solution Type is Cloud, any personal data that
we process in connection with this
agreement.
Customisation Services: where applicable (as indicated in the Order Form), the customisation of
the Software to be undertaken by us in accordance with clause 1.3.
Data Processing Addendum: the addendum agreed between you and us separately, which governs our
processing of the Customer Personal Data on your behalf.
Data Protection Legislation: all applicable data protection
and privacy legislation in force from time to time in the UK including the UK
GDPR; the Data Protection Act 2018 and regulations made thereunder; and the
Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as
amended.
Documentation: the document made available by us to
you online via https://www.transparentchoice.com/client-hub or such other web
address as we notify you from time to time which sets out a description of the
Services and the user instructions for the Services.
Effective Date: the
date set out in the Order Form.
Heightened
Cybersecurity Requirements: any laws, regulations, codes, guidance (from
regulatory and advisory bodies, whether mandatory or not), international and
national standards, industry schemes and sanctions, which are applicable to
either you or an Authorised User (but not the us) relating to security of
network and information systems and security breach and incident reporting
requirements.
Initial Subscription Term: the initial term of this agreement as
set out in the Order Form.
Intellectual Property Rights: patents, utility models, rights to
inventions, copyright and neighbouring and related rights, all other rights in
the nature of copyright, trade marks and service
marks, business names and domain names, rights in get-up and trade dress,
goodwill and the right to sue for passing off or unfair competition, rights in
designs, database rights, and all other intellectual property rights, in each
case whether registered or unregistered and including all applications and
rights to apply for and be granted, renewals or extensions of, and rights to
claim priority from, such rights and all similar or equivalent rights or forms
of protection which subsist or will subsist now or in the future in any part of
the world.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
On-premise: provision of the Services via Software
installed on your equipment.
Order Form: An order form, signed by you, that sets out additional details of the
agreement between you and us. In the event no formal order form is signed by you,
payment of an invoice will constitute your acceptance of such invoice as the
Order Form.
Open-Source Software: the open-source software from time to tine
listed on our website.
Payment Terms: the
terms of payment specified in the Order Form.
Renewal Term: has the meaning set out in clause 11.1.
Scope of Subscription: sets out
the limits on use of the Services and Software and is set out in the Order
Form.
Services: the Software to be provided to you by
us (subject to the Scope of Subscription) under this agreement on a
subscription basis according to the Solution Type and Solution Tier, as more
particularly described in the Documentation.
Software: means:
a)
Where the
Solution Type is Cloud, the online software application provided by us via the
internet as part of the Services.
b)
Where the
Solution Type is On-premise, the software provided by us for installation by you
on your own equipment as part of the Services.
Solution Tier: your chosen option for
the Services, as set out in the Order Form.
Solution Type: the
method by which the Services are provided, being Cloud or On-premise
Subscription Fees: the subscription
fees payable by you to us, as set out in the Order Form.
Subscription Term: the Initial Subscription
Term and any Renewal Term.
Supplier Personal Data: any personal data
which we process in connection with this agreement, in the capacity of
a controller.
UK GDPR: has the meaning given to it in the Data Protection
Act 2018.
Virus: any thing or device
(including any software, code, file or programme) which may: prevent, impair or
otherwise adversely affect the operation of any computer software, hardware or
network, any telecommunications service, equipment or network or any other
service or device; prevent, impair or otherwise adversely affect access to or
the operation of any programme or data, including the reliability of any
programme or data (whether by re-arranging, altering or erasing the programme
or data in whole or part or otherwise); or adversely affect the user
experience, including worms, trojan horses, viruses and other similar things or
devices.
Vulnerability: a weakness in the
computational logic (for example, code) found in software and hardware
components that when exploited, results in a negative impact to the
confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed
accordingly.
14.2
Interpretation
A reference to
legislation or a legislative provision:
(a)
is a reference to
it as amended, extended or re-enacted from time to time; and
(c)
Any words
following the terms including, include, in particular, for
example or any similar expression shall be construed as illustrative and
shall not limit the sense of the words, description, definition, phrase or term
preceding those terms.
(d)
A reference to
writing or written includes e-mail.