SERVICE SUBSCRIPTION AGREEMENT FOR ENGAGE EHS
THIS AGREEMENT is made
(1) [Customer Name], a [Customer Company Type], a company incorporated in [Country of registration], under registration number [Registered No.] and having its registered office at [Customer Address] (hereinafter referred to as "the Customer" which expression shall include where the context so admits or requires its assigns and legal successors in title)
(2) BCD Safety & Business Support Ltd t/a Engage EHS a private limited company incorporated in Ireland under registration number 447607 and having its registered office at The Moorings, Lennox Place, Portobello, Dublin, D08NV96, Ireland (hereinafter referred to as "BCD" which expression shall include where the context so admits or requires its assigns and legal successors in title).
each a “Party” and together “the Parties”
NOW IT IS HEREBY AGREED AS FOLLOWS: -
1.1 By accepting this Agreement, by executing a Form that references this Agreement, the Customer warrants, represents and acknowledges that: (i) the Customer has read and understood this Agreement; and (ii) the Customer agrees to be bound by the terms of this Agreement; and (iii) acknowledges that this Agreement governs the Customer’s use of the Service and supersedes any other agreements between the Customer and BCD; and (iv) the information that the Customer provided in registering for this Service is accurate and complete; and (v) the information provided is the Customer’s or within the Customer’s right to use.
1.2 If you enter into this Agreement in your personal capacity, you are the Customer (as defined below).
1.3 If you are entering into this Agreement on behalf of a third party or other legal entity that is to be the Customer, you represent and warrant that: (i) you have the authority to bind such entity and its Affiliates (as defined below) (where applicable) to this Agreement; and (ii) you agree on behalf of that entity and its Affiliates that it will be the Customer; and (iii) authority to enter into this Agreement was given by the Customer with the Customer’s full knowledge of the provisions contained in this Agreement. If you do not have such authority, or if the Customer does not have such knowledge of this Agreement or if you or the Customer do not agree to the terms and conditions of this Agreement, you must not accept this Agreement and you may not use the Service or access the Sites.
1.4 Should the Customer be granted access to or use of the Service prior to acceptance of this Agreement, the terms of this Agreement shall be deemed to have been entered into and accepted by the Customer on the date that access to or use of the Service commences.
1.5 BCD provides the Service through the Sites and the provision of that Service is entirely subject to the terms of this Agreement.
1.6 Obligations, rules and restrictions affecting the Customer in this Agreement shall also bind any agents, licensees, servants, contractors, sub-contractors and employees of the Customer and any Affiliates and any agents, licensees, servants, contractors, sub-contractors and employees of any Affiliates who use or access the Site or Service. Any breach of such obligations, rules and restrictions by such parties shall be deemed to be a breach of same by the Customer.
1.7 By accepting this Agreement, the Customer is also accepting and agreeing to any Forms generated by BCD, including any Forms which vary or alter the terms of this Agreement.
In this Agreement the following words and expressions (that are capitalised for the same purpose) whether appearing under this clause or before it shall have the following meanings:
“Admin User” means the number of persons noted on the Forms who will be responsible for the Customer Account and who will have authorised access to the Database as a read and write user;
“Affiliates” means any person, partnership, joint venture, company, corporation, subsidiary, or other form of enterprise, domestic or foreign, directly or indirectly controlling, controlled by or under common control of the Customer and “Affiliate” shall be construed accordingly;
“Authorised Employees” means BCD’s employees who have a need to know or otherwise access Personal Information to perform its obligations under this Agreement;
“Authorised Persons” means (i) Authorised Employees; and (ii) BCD’s agents who have a need to know or otherwise access Personal Information to perform BCD’s obligations under this Agreement, and who are bound in writing by confidentiality obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Agreement;
“BCD” “we” “us” “our” means BCD Safety & Business Support Limited (trading as Engage EHS), a company registered in Ireland with company number 447607;
“Confidential Information” means all information disclosed by a Party (the “Disclosing Party”) to the other Party (the “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. This shall include but not be limited to all information relating to the Disclosing Party’s business, prospective business, finances, technical processes, computer software (both source code and object code) and Intellectual Property or compilations of two or more items of such information, whether or not each individual item is in itself confidential and all information which has been or may be derived or obtained from any such information;
“Customer”, “you”, “your” means the person, company, organisation or other legal entity and its Affiliates (if applicable) entering into this Agreement and agreeing to be bound by it in their use of the Service;
“Customer Account” means the account created for the Customer’s use of the Service and governed by this Agreement;
“Customer Data” means all data imported or added to the Service for the purpose of using the Site and Service or facilitating the Customer or User’s use of the Site and Services;
“Database” means the database created by the Customer using the Service;
“Documentation” means the training materials and user manuals relating to the use of the Service, as well as any additional documentation that BCD specifically creates for the Customer or otherwise provides to the Customer to assist in the correction of any issue with the Service;
“DPA” means the Data Processing Agreement agreed between the parties and set out in Schedule 3 of this Agreement; The DPA can be accessed here: https://www.effective-software.com/data-processing-agreement
“Feedback” means any suggestion, enhancement, request, recommendation, correction, innovation or other feedback provided by the Customer or Users regarding the Site or Service;
“Fees” means the fees set out in Schedule 1 of this Agreement. These may include the Subscription Fee, the On Boarding Fee and the Training Fee as determined by the BCD products and the support features which the Customer chooses in the BCD order form.
“Force Majeure” means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute or shortage (other than one involving our employees), power shortage, Internet service provider failure or delay (including where BCD ceases to be entitled to access the Internet for whatever reason), Third Party Application or denial of service attack, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
“Form(s)” means any BCD generated ordering document including any addenda and supplements thereto that is entered into between you and us or any of our Affiliates with respect to the Customer’s subscription to the Service including, without limitation, the BCD order form and any agreements or confirmations as to the Term, the Fees or any other matter;
“Highly Sensitive Personal Information” means any individual’s private data including but not limited to: (i) government-issued identification number (including social security number, driver’s license number or state-issued identified number); (ii) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or passwords, that would permit access to an individual’s financial account; or (iii) biometric or health data;
“Intellectual Property” all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Losses” means all losses, including without limitation financial losses, indirect loss including loss of profit (whether director o indirect), special loss, losses incurred by any third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time, damages, legal costs and other expenses of any nature whatsoever;
“Normal Business Hours” means the hours from 8.30 am to 5.00 pm (local Irish time) Monday through to Friday when BCD is open for business and for the avoidance of doubt excluding Saturdays, Sundays and public holidays in Ireland;
“On Boarding Fee” means the one off fee paid by the Customer for the activation, set-up and configuration of the Customer Account, as specified by BCD in the applicable Form(s), which for the avoidance of doubt will be exclusive of VAT;
“Parties” means BCD and the Customer and “Party” shall mean either of them;
“Personal Information” means information provided to BCD by or at the direction of the Customer, in course of BCD’s performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers), in case of both sub-clauses (i) and (ii), including, without limitation, all Highly Sensitive Personal Information;
“Service” means the online provision, by BCD to the Customer, of the cloud based compliance management system, which is accessed through the Customer’s desktop hardware and/or a mobile application that is ordered by the Customer using a Form;
“Service Purpose” means the strict use of the Service by the Customer to manage data, business processes, documentation and action implementation in respect of compliance matters;
“Site(s)” means BCD’s website at www.engage-ehs.com, www.effective-software.com or any bespoke URL created by BCD for the purpose of accessing the Service;
“Software” means BCD’s software and its components, structured database, source code, object code and design through which the Service is delivered;
“Statistical Data” means aggregated, anonymised data derived from the Customer, a User’s use of the Site or Service which does not include any Personal Information or Customer Confidential Information;
“Subscription Fee” means the annual fee specified by BCD in the applicable Form(s) (which for the avoidance of doubt will be exclusive of VAT). The Subscription Fee will be based on a number of factors including, but not limited to, the number of Users, Admin Users, modules being subscribed for, storage required, mobile users, support package, and which may vary for any Customer with multiple locations, groups or associations and which may increase and decrease, inter alia, over time, for example, on renewal of the Term and relative to the number of Users and Admin Users of the Service;
“SLA” means the service level agreement set out in Schedule 2 of this Agreement;
“Term” means the term of each subscription by the Customer which shall be set out in the Form and which can be extended in any applicable Form;
“Termination Fee” means the aggregate of the total Fees (plus VAT) which would have been paid by the Customer to BCD had this Agreement continued in the normal course until the expiry of the Term, less any such fee already paid by the Customer to BCD;
“Third Party Application” means any web-based, mobile, offline or other software application functionality that is provided by the Customer or a third party and interoperates with the Service;
“Training Fee” means the one off fee for specified training, which may be online or in person but limited to no more than 8 hours, as specified by BCD in the applicable Form(s), which for the avoidance of doubt will be exclusive of VAT; and
“User” means any individual who is authorised by you to use the Service, for whom you have purchased a subscription and to whom you (or, when applicable, BCD at your request) have supplied a user identification and password (for the Service utilising authentication), including an Admin User and “Users” shall be construed accordingly. Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.
3. The Service
3.1 We shall: (i) make the Service available to you pursuant to the terms of this Agreement and the applicable Forms; (ii) provide applicable standard support for the Service to you at no additional charge. Upgraded support shall only be provided if purchased in addition, (iii) use commercially reasonable efforts to make the online Service available 24 hours a day, 7 days a week. The calculation of availability excludes: (a) planned downtime (of which we shall give advance electronic notice); and (b) any unavailability caused Force Majeure.
3.2 Beta versions of the Service (which are clearly designated as beta, limited release, for evaluation or other similar descriptions) may in our sole discretion become available to You on occasion at no charge (the “Beta Services”). The Beta Services will be optional and the choice to use them is at Your discretion. The Beta Services are intended for evaluation purposes only and do not constitute part of the Service as defined herein. However, all restrictions, limitations and obligations set out in this Agreement shall apply equally to Your use of any Beta Services and BCD shall have no liability whatsoever arising out of Your use of or in connection with the Beta Services.
3.3 We shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Our personnel except: (i) to provide the Service and prevent or address service or technical problems; (ii) as compelled by law; or (iii) as You expressly permit in writing.
4. Licence to use the Service
4.1 Subject to the Customer paying the Fees in accordance with the terms of this Agreement, BCD grants the Customer a non-exclusive, non-transferable right to permit Users to use the Service (including any associated Intellectual Property and Confidential Information of BCD) during the Term solely for the Service Purpose and the Customer’s internal business operations. Such licence permits the Customer to make cache copies of software or other information necessary for the Customer to receive the Service via the Internet. Where open source software is used as part of the Service, such software use by the Customer will be subject to the terms of the applicable open source licences. No additional implied rights are granted beyond those specifically mentioned in this clause 4.1.
4.2 Notwithstanding Your statutory rights, no right to modify, adapt, or translate the Service or create derivative works from the Services is granted to You.
4.3 You are not permitted to: (i) copy the design of the application or the Database framework; (ii) access or obtain the ‘object code’ or the ‘source code’ for the Software; (iii) examine, reproduce, copy, amend, modify, decompile, reverse engineer, and/or distribute the Software; (iv) use components of the Software for applications not running in the Software; (v) sell, transfer, or assign any right granted under this Agreement; and (vi) during the Term of this Agreement and for a period of two years thereafter, compete with BCD by making and/or selling similar software or provide a similar service to the Service.
4.4 You shall not: (i) make the Service available to or use the Service for the benefit of anyone other than you or the Users or the Admin Users unless expressly stated otherwise in a Form;(ii) sell, resell, license, sublicense, distribute, make available, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (iii) use the Service to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third party rights; (iv) use the Service to store or transmit code, files, scripts, agents or programs intended to do harm (including, for example, viruses, worms, time bombs and Trojan horses); (v) interfere with or disrupt the integrity or performance of the Service or third party data contained therein; (vi) attempt to gain unauthorised access to the Service or its related systems or networks; (vii) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or use the Service to access or use any of BCD’s Intellectual Property except as permitted under this Agreement; (viii) copy the Service or any part, feature, function or user interface thereof; (ix) frame or mirror any part of the Service, other than framing on your own intranets or otherwise for your own internal business purposes; (x) access the Service in order to build a competitive product or service or to benchmark with a competing product or service; or (xii) reverse engineer the Service (to the extent such restriction is permitted by law).
4.5 The Customer shall, so far as is reasonably practicable co-operate with BCD in all matters relating to the Service and provide BCD with reasonable access to the Customer’s premises, office accommodation and other facilities should such access be required by BCD in order to perform the Service.
4.6 Any use of the Service in breach of this Agreement by You, or Users or Admin Users that in BCD’s reasonable judgment threatens the security, integrity or availability of the Service, may result in the immediate suspension of access to the Service, however BCD will use commercially reasonable efforts where appropriate to provide You with prior notice of a proposed suspension.
5. Usage Limits
5.1 The Service is subject to usage limits. Unless otherwise specified; (i) a quantity in a Form refers to Users and/or Admin Users and the Service may not be accessed by more than that number of Users and/or Admin Users; (ii) a User’s and/or Admin Users’ password may not be shared with any other individual; and (iii) except as set out in a Form, a Users’ and/or Admin Users’ identification may only be reassigned to a new individual replacing one who will no longer use the Service.
5.2 If You exceed your usage limit, we will invoice you in respect of the amount of usage exceeded.
6. Intellectual Property Rights
6.1 The Customer acknowledges and agrees that, subject to any limited rights expressly granted to the Customer in this Agreement, BCD and its licensors own and reserve all Intellectual Property rights and title in and to the Software, the Service, the Documentation (save to the extent they incorporate any Customer Data, Customer Intellectual Property of third party owned item). No interest or ownership in the Software, Service, Documentation, Intellectual Property or otherwise is transferred to the Customer under this Agreement.
6.2 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing Intellectual Property.
6.3 The Customer acknowledges that no right is granted herein to any third party, other than the Customer’s contractors and agents acting on behalf of the Customer, to use the Software or the Service, or to the Customer to use the Software or the Service for any third party other than Customer Affiliates unless agreed by the Parties.
6.4 The Customer has the right to access and use the Service subject to the terms of the Agreement.
6.5 The Customer grants BCD, its Affiliates and applicable contractors a non-exclusive, worldwide license limited for the Term to host, copy, transmit and display all electronic data and information submitted by or for the Customer to BCD and any Third Party Application and program code created by or for the Customer using the Service or for use by the Customer with the Service, as reasonably necessary for BCD to provide the Service in accordance with the terms of this Agreement. Subject to the limited licenses granted herein, BCD acquires no right, title or interest from the Customer or its licensors under this Agreement in or to any of the Customer Data and information submitted by or for the Customer to BCD, any Third Party Application or such program code.
6.6 The Customer grants BCD and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its or its Affiliates’ services any Feedback provided by the Customer or Users.
6.7 The Customer grants BCD the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting BCD from using the Statistical Data for business and/or operating purposes, provided that BCD does not share with any third party Statistical Data which reveals the identity of the Customer or any Users or the Customer’s Confidential Information.
6.8 The Customer is not allowed to remove any proprietary marks or copyright notices from the Service.
6.9 BCD may take and maintain technical precautions to protect the Software and Service from improper or unauthorised use, distribution or copying.
7.1 Unless otherwise provided in the applicable Form; (i) the Service is purchased as a subscription; (ii) the Customer may switch their subscription package during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added; (iii) any added subscriptions will terminate on the same date as the underlying subscriptions; and (iv) where applicable additional Admin Users can be added for an agreed price.
7.2 Except as otherwise specified in Schedule 1 or in a Form; (i) the Fees are based on the subscription purchased; (ii) all Fees are non-cancellable and all Fees paid are non-refundable; and (iii) the Subscription Fee cannot be decreased during the relevant Term.
7.3 The Fees set out in Schedule 1, or where applicable in an order form shall be charged for the Term of the Agreement.
7.4 All Fees exclude any Value Added Tax (or other sales tax) legally payable on the date of the invoice, which shall be paid by the Customer in addition, where applicable.
7.5 BCD has the right to increase the Fees by no more than 4% per annum during the Term.
8. Invoicing and Payment
8.1 BCD shall invoice and the Customer shall pay the Fees for use of the Service annually in advance.
8.2 Invoiced charges are due for payment within 30 days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to BCD and notifying BCD of any changes to such information.
8.3 Payment shall be made in the currency and as specified by BCD in the Forms.
8.4 Without prejudice to BCD’s other rights and remedies under this Agreement or otherwise, if the Customer does not pay any sum on or before the due date: (i) the overdue sum may (at BCD’s discretion) 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 (ii) BCD may condition future subscription renewals and Forms on payment terms shorter than those specified in this Agreement; and/or (c) BCD may accelerate any unpaid fee obligations so that all such obligations become immediately due and payable; and/or (iv) BCD may suspend provision of the Service to You until all unpaid amounts are paid in full.
8.5 BCD shall not exercise its rights under clause 8.4 above if You are disputing the applicable charges reasonably and in good faith and are co-operating diligently to resolve the dispute, which shall be determined in our sole discretion.
8.6 BCD reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
8.7 You are responsible for paying all taxes, levies, duties or similar governmental assessments of any nature assessable by any jurisdiction whatsoever that may be associated with Your purchases hereunder. If we are legally obliged to pay or collect any such taxes, levies or duties for which You are responsible under this clause, BCD will invoice You for this cost and You will pay that amount unless You provide BCD with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, BCD are solely responsible for taxes assessable against it based on its income, property and employees.
9. Customer Accounts
9.1 A Customer account will be opened for the Customer and the Customer will be given a link to its Customer account and will be required to choose a password.
9.2 The Customer will follow BCD’s process and instructions in relation to setting up the Customer account.
9.3 Failure to make payment within 30 days of the date of any invoice may result in deactivation or suspension of a Customer account.
9.4 Once a Customer account has a suspended status, access to the Database and other content is denied.
9.5 After 30 days’ suspension, the Customer account, the Database and all Customer Data contained therein will, at BCD’s discretion, be permanently deleted.
9.6 The Customer must not permit, and must report to BCD, any attempt to obtain unauthorised access, through whatever means, to the Customer account and/or the Database.
9.7 The Customer must not use or permit use of the Customer account or the Database, to send unsolicited email or any material for marketing or publicity purposes or other illicit or illegal materials.
9.8 The Customer must not post or write or permit the posting or writing of any infringing, defamatory, obscene or other unlawful information in the Database.
10.1 Confidential Information may be disclosed in the course of performance of this Agreement.
10.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) and it shall: (i) not make the Disclosing Party’s Confidential Information available to any third party; (ii) not use the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (ii) 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 set out in this Agreement.
10.3 Neither Party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this clause. Notwithstanding the foregoing, BCD may disclose the terms of this Agreement to a sub-contractor under terms of confidentiality materially as protective as set forth herein to the extent necessary to perform BCD’s obligations under this Agreement.
10.4 A Party’s Confidential Information shall not be deemed to include information that:
(i) is or becomes publicly known other than through any act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession without breach of any obligation owed to the Disclosing Party before the disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party without breach of any obligation owed to the Disclosing Party; (iv) is independently developed by the Receiving Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11. Representations and Disclaimers
11.1 Each Party represents and warrants that it: (i) has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable law; and (iii) It shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
11.2 BCD warrants to the Customer that: (i) it has the right to licence the Software and Service to the Customer; and (ii) the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice and that support shall be provided in accordance with the SLA.
11.3 No warranty is made regarding the results the Customer can achieve from using the Site and Services or that Site and Services will operate uninterrupted or error free.
11.4 The Customer warrants that: (i) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement; (ii) its purchases are not contingent on the delivery of any future functionality or features by BCD, or dependent on any oral or written public comments made by BCD regarding future functionality or features. The Customer acknowledges that the Service is sold “as is”.
11.5 The Customer acknowledges that any third party content or information provided by BCD via the Site or Service, for example information about compliance regulations is provided “as is”. BCD provides no warranties in relation to such content or information and shall have no liability whatsoever to the Customer for its use or reliance upon such content or information.
11.6 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 satisfactory quality, fitness for purpose or non-infringement, to the maximum extent permitted by applicable law.
12. Data Protection
12.1 Each Party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
12.2 To the extent that BCD processes any Personal Data (as defined in the DPA) contained in Customer Data, on Your behalf, in the provision of the Service, the Parties acknowledge that BCD is a data processor and the Customer is a data controller and the Parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.
12.3 If a third party alleges infringement of its data protection rights, BCD shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
13. Right to Access, Edit, and Remove Data
13.1 Subject to clauses 10 and 12, BCD, its contractors, agents and service providers, will have direct access to and the right to access the data in the Customer Account and the Database for support services until termination of the Service.
13.2 BCD, its contractors, agents and service providers, have the right on reasonable notice in writing to the Customer to temporarily and for no longer than reasonably necessary disable access to the Customer account and the Database where there is a technical problem or for maintenance and upkeep reasons or where inappropriate or illegal material is entered into the Database or in any other circumstances.
13.3 BCD, its contractors, agents and service providers, will not be liable for any claims, demands or Losses arising from such access to or disabling of the Database or the Customer account.
14.1 The Customer acknowledges and accepts that its Customer account and the Database are accessed through its internet service provider and are stored remotely on servers by BCD or a service provider and therefore are subject to the Internet’s inherent risks including unauthorised invasion of privacy, unauthorised publication of information, fraud, and forgery. Although the security features adopted by BCD and/or its service provider may reduce these risks, their elimination cannot be guaranteed. The Customer acknowledges this risk and accepts that BCD and/or its service providers cannot be liable for any claims, demands or Losses resulting from this risk.
14.2 It is the Customer’s responsibility to ensure that the Customer takes all reasonable steps to ensure that the Customer’s computers and related systems which are used to access the Service are protected against the events listed above in clause 14.1. In particular the Customer and Users shall treat any identification, password or username or other security device for use of the Site and Service with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to BCD in writing.
14.3 Where there is an obligation upon the Customer under law or any other regulatory requirement to maintain physical records of digital information entered onto the Database, it is the Customer’s sole responsibility to keep back up records of such information and any documents uploaded into the Database.
14.4 The Customer shall ensure that its network and systems comply with any specification provided by BCD from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer’s systems to BCD’s data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
15. System Availability
15.1 On occasion, it will be necessary to take the Service offline for maintenance, updates, upgrading or other reasons. We will give advance electronic notice of when it is planned that the Service will be offline. All efforts will be made to schedule these activities for off-peak hours (with reference to GMT) but this may not always be possible.
15.2 The Customer hereby consents to the installation of any new releases or upgrades to the Services that BCD may provide. The Customer hereby acknowledges that BCD are under no obligation to provide any support services with respect to any previous versions or releases of the Software.
15.3 The Customer agrees that BCD cannot be responsible for any claims, demands or Losses resulting from any unavailability of the Service.
16. Termination and Expiry
16.1 Either Party may terminate this Agreement upon giving 30 days’ written notice where:
16.1.1 the other Party has committed a material breach of this Agreement, if such breach remains uncured on the expiration of 30 days following receipt of written notice of such breach from the other Party; or
16.1.2 the other Party becomes the subject of a petition in bankruptcy or goes into liquidation or receivership or administration/examinership or any other similar insolvency procedure or arrangement in any jurisdiction;
16.1.3 or a Force Majeure event lasts more than 28 days.
16.2 BCD may terminate this Agreement immediately without notice and without liability (on the part of BCD) of any kind: (i) where the Customer purports to assign the rights or benefits of the Service to a third party without BCD’s consent, other than an assignment within the Customer’s group and agreed in writing between the Parties; (ii) if BCD is prohibited under applicable law, or otherwise from providing the Service.
16.3 The Customer can, without cause, terminate this Agreement with a minimum of 30 days’ notice and, where such notice is served by the Customer and such termination is to take effect during the Term, the Customer shall be liable for the applicable Termination Fee. Upon the expiry of such notice of termination or otherwise upon the termination of this Agreement, the Customer will immediately pay BCD any applicable Termination Fee.
16.4 The Parties agree that prior to three (3) months’ before the expiry of the Term and where the Customer wishes to continue to use the Service beyond such date, the Parties shall meet to review and discuss the operation of the Service and other relevant commercial aspects. If the Customer intends to extend the Term of the Agreement, it will be required to sign a Form provided by BCD to indicate same. If such a Form is not signed prior to the expiry of the Term then, subject to the payment of the relevant fee, this Agreement will automatically renew for a further period of three months to facilitate further negotiations on the renewal of the Agreement. If a Form is not signed prior to the expiry of this three month period then this Agreement shall automatically terminate.
17. Effect of Expiry or Termination
17.1 On expiry or termination of this Agreement: (i) all rights (if any) granted to the Customer shall immediately terminate and revert to BCD;
(ii) the Customer’s access to the Customer account and the Database will be blocked;
(iii) the data within the Database will be exported in JSON format (or such other open standard machine and human readable format deemed appropriate by BCD) and will be at the request of the Customer provided to the Customer within 30 days of termination in a format deemed appropriate by BCD (digital delivery, hardcopy, etc.) depending on size or deleted;
(iv) upon expiry of the 30 day period set out in clause 17 (ii) above, the Customer Account and the Database shall be deleted as set out in the DPA.
17.2 For the avoidance of doubt and as set out above, the Customer will not receive or be entitled to a refund of any part of the Fees on the expiration or termination of the Service.
18.1 BCD shall indemnify, defend and hold harmless the Customer, its directors, officers, employees, agents and licensors against any claim brought the Customer by a third party on the basis of an infringement of any Intellectual Property by the Software or Service (excluding any claim deriving from any Customer or User provided item) and pay any final judgment entered against the Customer on such issue or any settlement thereof, provided: (i) the Customer notifies BCD promptly of each such claim; (ii) BCD is given sole control of the defence and/or settlement; and (iii) the Customer fully co-operates and provides all reasonable assistance to BCD in the defence or settlement.
18.2 If all or part of the Software or Services becomes, or in the opinion of BCD may become, the subject of a claim or suit of infringement, BCD shall at its own expense and sole discretion: (i) Procure for the Customer the right to continue to use the Software or Service or the affected part thereof; (ii) replace the Software or Service or affected part with another suitable non-infringing service or software; (iii) modify the Software or Service or affected part to make the same non-infringing.
18.3 BCD shall have no obligations under clauses 18.1 and 18.2 above to the extent that a claim is based on: (i) a modification of the Software or Service by anyone other than BCD or its Affiliates; (ii) the combination, operation or use of the Solution or Services with other services or software not provided by BCD if such infringement would have been avoided in the absence of such combination, operation or use; or (iii) the negligence or wilful misconduct of the Customer.
18.4 The Customer shall indemnify, defend and hold harmless BCD, its directors, officers, employees, agents and licensors against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or breach by the Customer, a User or Affiliate of any Intellectual Property with respect to use of the Software or Service outside of the scope of this Agreement; or (ii) use by BCD of any Customer Data or Customer, User or Affiliate provided content; or (iii) breaches of the terms of this Agreement by a User or Affiliate; and (iv) breaches of data protection law or regulations or the terms of the DPA by the Customer, a User or an Affiliate.
19.1 Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
19.2 In no event will either Party or its Affiliates have any liability arising out of or related to this Agreement for any Losses, whether an action is in contract or tort and regardless of the theory of liability, even if a Party or its Affiliates have been advised of the possibility of such damages or if a Party’s or its Affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
19.3 Subject to clauses 19.1 and 19.2, the maximum aggregate liability of BCD to the Customer for any claim or claims arising from or related to this Agreement, including any contribution or indemnity shall be limited to the total amount paid by the Customer in the twelve month period prior to date of the first incident out of which any liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability but will not limit the Customer and its Affiliates’ payment obligations under this Agreement.
19.4 The Parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents
20. Announcements and Marketing
20.1 The Customer permits BCD and its Affiliates to refer to it as our customer and the Customer consents to the use and/or display of its trademark, logo, design, and/or business name on the BCS and its Affiliates websites for this purpose and in marketing documentation published and/or distributed by BCD and its Affiliates.
20.2 BCD acknowledges that the Customer owns and retains all rights, title and interest in and to its trademark, logo, design, and/or business name. BCD shall not place or depict the Customer’s trademark, logo, design, and/or business name in any manner or in any materials that denigrate, disparage, tarnish, dilute, misrepresent or otherwise adversely affect the Customer’s reputation.
20.3 The Customer may revoke this permission at any time with immediate effect by giving written notice. In such circumstances the full amount of any associated discount of which the Customer was in receipt of during the Term, shall be immediately due and payable to BCD.
21.1 Except as otherwise specified in this Agreement, all notices related to this Agreement shall be in writing and shall be effective upon: (i) personal delivery, (ii) the second business day after posting, or (iii), except for notices of termination or an indemnity claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by You. All other notices to the Customer shall be addressed to the relevant person designated by You.
22. Entire Agreement and Variation
22.1 This Agreement constitutes the entire agreement and understanding between the Parties and supersede any and all prior agreements, negotiations, representations of any kind, and proposals, written and oral between the Customer and BCD with regard to the subject matter hereof.
22.2 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives). Notwithstanding the aforesaid, BCD may change or modify the terms of this Agreement in order to comply with a change in applicable law, upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of the 30 day period.
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
The delay or failure of BCD to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any actual or further right under this Agreement.
25. Applicable Law, Jurisdiction and Dispute Resolution
25.1 Each Party irrevocably agrees that this Agreement shall be governed by and construed in accordance with the laws of England & Wales without regard to choice or conflicts of law rules and that the courts of England & Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
26. Relationship of the Parties
26.1 In this Agreement, nothing shall be deemed to:
26.1.1 constitute a partnership, franchise, joint venture, fiduciary or employment relationship between the Parties; or
26.1.2 make any Party an agent for any other Party for any purpose whatsoever.
27. Survival of Obligations
Notwithstanding the expiration or termination of this Agreement, clauses 6 (Prohibitions), 4. (Licence) 6 (Intellectual Property), 8 (Invoicing and Payment), 10 (Confidentiality), 11(Representations and Disclaimers), 12 (Data Protection), 14 (Security), 16 (Termination), 17 (Effect of Expiry or Termination), 18 (Indemnity), 19 (Liability), clauses 20 to 28 and any other clauses that by their nature should survive termination, shall survive any such termination or expiration of this Agreement.
28.1 Except as expressly set out in this Agreement, the Customer shall not be entitled to give, sell, transfer, assign, let or otherwise dispose of any or all of its rights and obligations under this Agreement without the prior written consent of BCD.
28.2 BCD may at any time give, sell, transfer, assign, let or otherwise dispose of any or all of its rights and obligations under this Agreement.
28.3 Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
30. No Third Party Rights
Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
This document was updated in February 2020