Triaster Terms of Service
Version 1: 19th April 2023
Please read these terms and conditions (Terms) carefully before subscribing to the Cloud Services.
Your attention is particularly drawn to the provisions of clause 14 (Limitation of Liability).
1. Company Details. Triaster Ltd (company number 02911867) (we and us) is a company registered in England and Wales and our registered office is at Wyvols Court, Basingstoke Road, Swallowfield, Reading RG7 1WY. Our main trading address is 85 Great Portland Street, First Floor, London W1W 7LT. Our VAT number is 603 9034 66. Contacting us. To contact us, please visit https://www.triaster.co.uk/contact. How to give us formal notice of any matter under the Contract is set out in clause 18.2.
2. Definition and Interpretation
The definitions and rules of interpretation in this clause 2 apply in the Terms.
Administrator: the User(s) designated by you to have authority to designate additional Users and/or Administrators. The first User is deemed to be designated as an Administrator.
Applicable Data Protection Laws: means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which we are subject, which relates to the protection of personal data.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Cloud Services: means each service making the Software available to you via the Internet or other network which you order via any of our Websites.
Commencement Date: has the meaning given in clause 4.4.
Content: all text, information, images, audio or video material in whatever medium or form that you or any User uploads to the Cloud Services other than the Customer Data and Customer Personal Data.
Contract: has the meaning given in clause 3.1.
Customer: the person or entity placing an order for the Cloud Services also referred to as you in this Contract.
Customer Data: the data inputted by you, Users, or us on your behalf for the purpose of using the Cloud Services or facilitating your use of the Cloud Services.
Customer Personal Data: any personal data which we process in connection with the Contract, in the capacity of a processor on your behalf.
Downtime: any period during which you are unable to access or use the Cloud Services because of a Service Outage.
EU GDPR: the General Data Protection Regulation ((EU)2016/679).
Event Outside Our Control: has the meaning given to it in clause 17.1
Normal Business Hours: 9:00 am to 5:00 pm local UK time on each Business Day.
Purpose: the purposes for which the Customer Personal Data is processed, as set out in Schedule 2.
Service Outage: has the meaning give to it in clause 6.3.
Software: any software applications provided by us as part of the Cloud Services, including all revised versions and updates.
Subscription: the subscription purchased by you pursuant to clause 10 which entitles Users to access and use the Cloud Services in accordance with these Terms.
Subscription Term: the period beginning on the Commencement Date and ending on the date on which this Contract is terminated in accordance with clause 16.
Triaster Personal Data: any personal data which we process in connection with this Contract in the capacity of a controller.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Uptime Percentage: the uptime percentage calculated in accordance with the following formula:
U = (T-D) / T
D = the number of minutes of Downtime in suffered in the relevant calendar month;
T = total number of minutes in a calendar month; and
U = the uptime percentage.
Uptime Service Level: has the meaning given in clause 6.2.
User: an individual person who is given access to the Cloud Services by an Administrator or by virtue of being the first User of the Cloud Services.
User Account: an account on the Cloud Services for an individual User.
User Subscriptions: the user subscription purchased by you pursuant to Clause 10 which entitle Users to access and use the Cloud Services in accordance with the Contract.
Websites: our websites notified to you from time to time to use and access the Cloud Services.
3. Our Contract with You
3.1 Our contract. These terms and conditions apply to the order by you and supply of the Cloud Services by us to you (Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
3.3 These Terms and the Contract are made only in the English language.
3.4 Your copy. You should print a copy of these Terms or save them to your computer for future reference.
4. Placing an Order and its Acceptance
4.1 Placing your order. Please follow the onscreen prompts to place an order. You may only submit an order using the method set out on our Website. Each order is an offer by you to subscribe to use the Cloud Services subject to these Terms.
4.2 Correcting input errors. Please enter the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
4.3 Acknowledging receipt of your order. After you place your order, you will receive an email from our payment processor acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 4.4.
4.4 Accepting your order. Our acceptance of your order takes place when we send an email to you to accept it (Order Confirmation), at which point and on which date (Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to the Cloud Services confirmed in the Order Confirmation.
4.5 If we cannot accept your order. If we are unable to supply you with a Subscription to the Cloud Services for any reason, we will inform you of this by email, and we will not process your order. If you have already paid for the Cloud Services, we will refund you the full amount.
5. Subscription to the Cloud Services
5.1 Subject to you purchasing the User Subscriptions in accordance with clause 10, the restrictions set out in this clause 5 and the other terms of the Contract, we grant you a non-exclusive, non-transferable, revocable right, without the right to grant sub licences, to permit you, the Customer, via rights of access granted to your Users to use the Cloud Services during the Subscription Term.
5.2 In relation to the Users, you undertake that:
- the maximum number of Users that you authorise to access and use the Cloud Services shall not exceed the number of User Subscriptions you have purchased from time to time;
- you will not allow or suffer any User Account to be used by more than one User unless it has been reassigned in its entirety to another User, in which the prior User shall no longer have any right to access or use the Cloud Services;
- each User shall keep a secure password for their use of the Cloud Services and that each User shall keep their password confidential.
5.4. You shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Contract:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Cloud Services, Software or any associated documentation in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Cloud Services or the Software;
- access all or any part of the Cloud Services in order to build a product or service which competes with the Cloud Services;
- subject to clause 5.9:
- use the Cloud Services to provide services to third parties; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Cloud Services available to any third party except the Users; or
- attempt to obtain, or assist third parties in obtaining, access to the Cloud Services, other than as provided under this clause 5.
5.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Cloud Services and promptly notify us if you become aware of any such unauthorised access or use.
5.6 To enable us to provide the Cloud Services, you hereby grant to us a non-exclusive right and licence to copy, exploit, process, store, transmit and use the Content, Customer Data and Customer Personal Data solely to the extent necessary to provide the Cloud Services.
5.7 You shall procure at your cost, install and maintain all required enabling software and third-party software required to access and use the Cloud Services. You acknowledge that a failure to do so may impact your use of the Cloud Services.
5.8 The rights provided under this clause 5 are granted only to you and shall not be considered granted to any of your subsidiaries or your holding company.
5.9 You may grant access to a User connected to a third party to whom you offer services (Third Party) to use the Cloud Services for the purposes of providing services to that Third Party provided that:
- you have purchased a User Subscription for each User;
- you shall be responsible for:
- configuring the Cloud Services for use by the Third Party and their Users (whether in accordance with the Third Party’s instructions or otherwise) and in a manner that protects the confidentiality of any data or information provided to you by the Third Party or their Users; and
- complying with all applicable requirements of Applicable Data Protection Laws. We shall act as your sub-processor in respect of any personal data which we process in connection with the Contract, in the capacity of a sub-processor on your behalf as processor to the Third Party (Third Party Personal Data) and we will comply with clause 13 in respect of Third Party Personal Data as if it were Customer Personal Data. You will ensure that the Third Party has all necessary appropriate consents in place and has given all data subjects all appropriate notices to enable lawful transfer of Third Party Personal Data to you and us or the lawful collection of the same by you and us for the duration and purposes of this Contract;
- you shall enter into a contract with the Third Party containing terms similar to, and no less onerous than, the provisions of these Terms in respect of the Third Party’s (and their Users) use of the Cloud Services; and
- you shall be liable for all acts and omissions of any Third Party or Users whose User Subscription you pay. You indemnify us against all costs, expenses, claims, loss or damage incurred or suffered by us, or for which we may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill), arising out of any act or omission of any Third Party.
5.10 Each Administrator must have a User Subscription.
6. The Cloud Services, Availability and Availability Measurements
6.1. We will, during the Subscription Term, provide the Cloud Services to you on and subject to the Terms.
6.2. We will provide at least a 99.7% Uptime (Uptime Service Level) during each calendar month of the Subscription Term.
6.3 A Service Outage refers a situation in which an access point on our hosting provider’s backbone network on which the Cloud Services are hosted is unavailable to you except that a Service Outage does not include any situation where the Cloud Services are unavailable to you as a result of:
- any outage or disruption or the portion of the circuit that does not transit the hosting provider's backbone network, as you are responsible for your own internet access and network connectivity;
- planned maintenance, repairs or upgrades:
- unscheduled maintenance or repairs (either during or outside Normal Business Hours) where urgent action is required to ensure that the Cloud Services can continue to operate and/or is secure;
- your, or a User’s, use of the Cloud Services is:
- in breach of these Terms; or
- in a manner inconsistent with any instruction you or Users are issued by us from time to time;
- outages or disruptions caused by you (except to the extent that such outages or disruptions are caused by our duly authorised third parties to whom we sub-contract performance of all or part of the Cloud Services); or
- outages or disruptions attributable in whole or in part to and Event Outside Our Control.
6.4 We reserve the right to modify, temporarily suspend or discontinue any feature of the Cloud Services.
6.5 All availability measurements shall be carried out by us and are based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month.
7. Service Credits7.1 If the Uptime Percentage falls below the Uptime Service Level in a given calendar month, we will credit your account by an amount calculated in accordance with the following formula, up to a maximum of the Charges for the Cloud Services paid by you in the relevant month:
S = C * (100 – (U/T))
C = the Charges for the Cloud Services paid by you in the relevant month
S = the service credit due to you (Service Credit)
U = Uptime Percentage (expressed as a percentage)
T = Uptime Service Level (expressed as a percentage)
7.2 A Service Credit shall not be payable unless you request it in writing within 40 Business Days of the end of the month in relation to which you are entitled to receive a Service Credit. The maximum Service Credit allowable in a given month is limited to an amount equal to the Charges owed or paid by the Customer for the month in which the Service Outage occurred.
7.3 Notwithstanding anything to the contrary in this Contract, we are not obliged to pay Service Credits where the failure to meet the Uptime Service Level arises in connection with any of the following, or attempts to do any of the following:
- denial of services attacks, hacking, malware, viruses; or
- errors or issues with the Customer's Data, your information technology systems or your acts or omissions (including the acts or omissions of your Users), including Your Default (as defined below).
8. Our Obligations
8.1 Subject to clause 2, 8.3 and 8.4, we undertake that the Cloud Services will be performed substantially in accordance with the particulars of it set out on the Website and with reasonable skill and care.
8.2 The undertaking in clause 8.1 shall not apply to the extent of any non-conformance which is caused by:
- use of the Cloud Services contrary to our instructions;
- any modification or alteration of the Cloud Services by any party other than us or our duly authorised contractors or agents.
8.3 We do not warrant that:
- your use of the Cloud Services will be uninterrupted or error-free: or
- the Cloud Services and/or the information obtained by you through the Cloud Services will meet your requirements.
8.4 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Cloud Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.5 If the Cloud Services do not conform with the undertaking in clause 8.1, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
9. Your Obligations
9.1 It is your responsibility to ensure that:
- you will co-operate with us in all matters relating to the Cloud Services and provide us will all necessary access to such information as may be required by us in order to provide the Cloud Services, including but not limited to the Customer Data;
- without affecting your other obligations under the Terms, comply with all applicable laws and regulations with respect to your activities under this agreement;
- you carry out all your responsibilities set out in these Terms in a timely and efficient manner;
- you (and your Users) obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform their obligations under these Terms, including without limitation the Cloud Services;
- your network and systems comply with any relevant specifications provided by us from time to time; and
- be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to the Website, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
9.2 If our ability to perform the Cloud Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 9.1 (Your Default):
- we will be entitled to suspend performance of the Cloud Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Cloud Services, in each case to the extent Your Default prevents or delays performance of the Cloud Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 16 (Termination);
- we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Cloud Services; and
- it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
10.1 In consideration of us providing the Cloud Services you must pay us the Subscription Fees for the User Subscriptions you have ordered (Charges) in accordance with this clause 10.
10.2 The Charges for a Subscription shall be the price quoted for the Subscription for the Cloud Services on our Website from time to time or such other price as we may agree with you in writing from time to time.
10.3 If you wish to change your Subscription to the Cloud Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.
10.4 Our Charges may change from time to time. We will give you not less than 45 days’ prior notice of any change to our Charges for your Subscription by email and the change to the Charges stated in that notice will take effect from the date specified in that notice.
10.5 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Cloud Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
10.6 It is always possible that, despite our reasonable efforts, charges for a Subscription to the Cloud Services may be incorrectly stated on our Website. Where the correct price for the Subscription to the Cloud Services is less than the price stated on our Website, we will charge the lower amount. If the correct price for the Subscription to the Cloud Services is higher than the price stated on our Website, we will contact you in writing as soon as possible to inform you of this error, and we will give you the option of continuing to purchase the Subscription to the Cloud Services at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel Subscription to the Cloud Services and refund you any sums you have paid.
11. How to Pay
11.1 Payment for your Subscription to the Cloud Services is in advance. We will take your first payment upon acceptance of your order and will take subsequent payments monthly in advance.
You can pay for your Subscription using a debit card or credit card. We accept the cards detailed in our payment portal.
11.2 You must provide us with valid, up-to-date and complete credit card or debit card details. By providing us with your credit card details you authorise us to bill such credit card or debit card the Charges in accordance with clause 11.1.
11.3 We will send you an electronic invoice within seven days of the beginning of the month following payment.
11.4 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 16 (Termination):
- we may, without liability to you, disable access to all or part of the Cloud Services to any and all Users (including the Administrator(s)) and we shall be under no obligation to provide any or any of the Cloud Services while the payment under the Contract remains outstanding; and
- you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
11.5 All amounts due under the Contract must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. Intellectual Property Rights
12.1 You acknowledge and agree that all intellectual property rights in or arising out of or in connection with the Software or the Cloud Services (other than intellectual property rights in any materials provided by you, including the Content, Customer Data and Customer Personal Data) is owned by us. Except as expressly stated in these Terms, the Contract does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software or the Cloud Services.
13. Customer Data and Data Protection
13.1 For the purposes of these Terms, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
13.2 We and you hereby agree to comply with all applicable requirements of Applicable Data Protection Laws. This clause 13 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
13.3 For the purposes of Applicable Data Protection Laws:
- we shall act as controller in respect of the personal data and processing activities set out in Part 1 of Schedule 1; and
- we shall process the personal data set out in Part 2 of Schedule 1, as a processor on your behalf in respect of the processing activities set out in Part 2 of Schedule 1.
13.4 Should the determination in clause 3 change, then each party shall work together in good faith to make any changes which are necessary to this clause or the related schedules.
13.6 You will ensure that you have all necessary appropriate consents in place and you have given all data subjects all appropriate notices to enable lawful transfer of Customer Personal Data to us or the lawful collection of the same by us for the duration and purposes of this Contract.
13.7 In relation to the Customer Personal Data, Schedule 2 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
13.8 We shall, in relation to Customer Personal Data:
- process that Customer Personal Data only on your documented instructions, which shall be to process the Customer Personal Data for the purposes set out in Schedule 2, unless we are required by Applicable Laws to otherwise process that Customer Personal Data. Where we are relying on Applicable Laws as the basis for processing Customer Processor Data, we shall notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you on important grounds of public interest. We shall inform you if, in our opinion, your instructions infringe Applicable Data Protection Laws;
- implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which you have reviewed and confirm is appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- ensure that any personnel engaged and authorised by us to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
- assist you insofar as this is possible (taking into account the nature of the processing and the information available to us), and at your cost and written request, in responding to any request from a data subject and in ensuring your compliance with your obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify you without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
- at your written direction, delete or return Customer Personal Data and copies thereof to you on termination of the agreement unless we are required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause Customer Personal Data shall be considered deleted where it is put beyond further use by us; and
- maintain records to demonstrate our compliance with this clause.
13.9 You hereby provide your prior, general authorisation for us to:
- appoint processors to process the Customer Personal Data, provided that we:
- ensure that the terms on which we appoint such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on us in this clause;
- shall remain responsible for the acts and omission of any such processor as if they were our acts and omissions; and
- shall inform you of any intended changes concerning the addition or replacement of the processors, thereby giving you the opportunity to object to such changes provided that if you object to the changes and cannot demonstrate, to our reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, you shall indemnify us for any losses, damages, costs (including legal fees) and expenses suffered by us in accommodating the objection.
- transfer Customer Personal Data outside of the UK as required for the Purpose, provided that we shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, you shall promptly comply with any reasonable request, including any request from us to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
13.10 Either party may, at any time on not less than 30 days' notice, revise clause 13 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply when replaced, but only in respect of such matters which are within the scope of the Amended Terms.
14. Limitation of Liability: Your Attention is Particularly Drawn to this Clause
14.1 Except as expressly and specifically provided in these Terms:
- you assume sole responsibility for results obtained from your use of the Cloud Services and for conclusions drawn from such use. We shall have no liability for any damage causes by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Cloud Services, or any actions taken by us at your direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
- the Cloud Services are provided to you on an “as is” basis.
14.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence; and
- fraud or fraudulent misrepresentation.
14.3 Clause 7 (Service Credits) state your full and exclusive right and remedy, and our only obligation and liability in respect of, the performance and/or availability of the Cloud Services or its non-performance and non-availability.
14.4 Subject to clause 14.1 and 14.2, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- any indirect or consequential loss.
14.5 Subject to clause 14.1 and 14.2, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the total Charges paid under the Contract during the 12 months immediately preceding the date on which the claim arose.
14.7 This clause 14 will survive termination of the Contract.
15.1 Each party (Receiving Party) undertakes to the other Party (Disclosing Party) that it will not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Disclosing Party, except as permitted by clause 15.2.
15.2 The Receiving Party may disclose the Disclosing Party's confidential information:
- to such of its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Contract. The Receiving Party shall ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 15; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 The Receiving Party may only use the Disclosing Party's confidential information for the purpose of fulfilling our respective obligations under the Contract.
16. Term and Termination
16.1 This Contract shall, unless otherwise terminated as provided in this clause 15, commence on the Commencement Date and shall continue until either:
- you give us notice to terminate either in writing or by cancellation of the payment agreement with our payment provider in which case the Contract will end on the date of payment cancellation; and
- we give you not less than one months’ notice in writing to terminate it, in which case it will end on the date stated in the notice.
16.2 Without limiting any of our other rights, we may suspend access to all or any part of the Cloud Services for all Users (including any Administrator(s)), or terminate the Contract with immediate effect by giving written notice to you if:
- you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so;
- you fail to pay any amount due under the Contract on the due date for payment;
- you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
- your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
16.3 In addition, we may, without prejudice to any other rights or remedies available to us, suspend your access to, or use of, the Cloud Services (in whole or in part and on a User by User basis) immediately on notice if:
- there is an attack on the Cloud Services you use or if Customer Data is accessed or manipulated by a third party without your consent;
- we are required by applicable law to suspend your access to or use of the Cloud Services; or
- we reasonably believe that the suspension of the Cloud Services is necessary to protect our infrastructure, network, or the use of the Cloud Services by other customers because of a threat to the security, integrity, or use of the Cloud Services.
16.4 In the event that your access to or use of the Cloud Services is suspending under clause 3, we shall use reasonable endeavours to re-establish or permit access to the Cloud Services as soon as possible following our determination that the cause of the suspension has been resolved.
16.5 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
16.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
16.7 On termination of the Contract for any reason:
- all licences and rights granted under the Contract shall immediately terminate and you and the Users shall immediately cease to use the Cloud Services; and
- we may destroy, delete or otherwise dispose of any Customer Data in our possession.
17. Events Outside our Control
17.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Event Outside Our Control).
17.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
- we will contact you as soon as reasonably possible to notify you; and
- our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
17.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us.
18. Communication Between Us
18.1 When we refer to "in writing" in these Terms, this includes email.
18.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.
18.3 A notice or other communication is deemed to have been received:
- if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
- if sent by email, at 9.00 am the next working day after transmission.
18.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
18.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
19.1 Assignment and transfer.
- We may assign or transfer our rights and obligations under the Contract to another entity.
- You may not assign or transfer your rights or your obligations under the Contract to another person unless we agree in writing prior to any such assignment or transfer.
19.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
19.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
19.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
19.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.19.6 Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.
Roles of the parties to the Contract
Where we act as a controller (User Services):We will act as controller in relation to the personal data you provide to us which we may process to:
- provide you and your Users with technical support;
- analyse trends in support requirements;
- improve our products and services;
- monitoring the use of the Cloud Services and enforcing usage restrictions;
- engaging in general Contract administration;
- advertising and marketing our goods and services to you.
Where we act as a processor (Cloud Services):
We will act as processor in relation to the personal data you provide to us which we may process to:
- host Customer Personal Data in the Cloud Services;
- give you and your Users access to the Cloud Services and allow them to use it;
- processing Customer Personal Data to perform a task instructed by you or your Users in the Cloud Services;
- provide the Cloud Services to Users.
Schedule 21. Subject matter of processing
Processing the Customer Personal Data in providing the Cloud Services to you and your Users in accordance with the terms of this Contract. In so doing we will process personal data about individual Users of the Cloud Services (User Data).
2. Duration of the processing
For the duration of the Contract and for a period of 24 months after termination of expiry of the Contract unless and until you delete the personal data from the Cloud Services.
User Data may be processed for such time as a User remains a User, plus 24 months.
3. Nature and purposes of the processing
Processing the Customer Personal Data to enable the Cloud Services to be provided to you and your Users in accordance with the terms of the Contract and for the purpose of us complying with the terms of the Contract.
User Data is processed to enable individual Users to access to the Cloud Services.
4. Types of personal data being processed
- Identity data: name, username
- Contact Data: email address, telephone number, address
- Financial Data: bank account and other payment information
- Transaction Data: details of services provided to or used by Users
- Special Categories of Personal Data: in certain Cloud Services (MyTime) health information relating to employees who are absent from work or who attend medical appointments
5. Categories of data subject
- Your employees, officers, administrators, contractors or other third parties of your whose personal data in input into or uploaded to the Cloud Services.
- Users for whom you create a User Account.
- Any other data subject whose personal data you upload to the Cloud Services.