ATC Terms of Service
VERSION 1: 31 March 2019
Please read these terms carefully before subscribing to the Service.
Your attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
1. ABOUT US
1.1 Company details. Triaster Ltd (company number 02911867) (we and us) is a company registered in England and Wales and our registered office is at C/O Critchleys Llp; Beaver House 23-38 Hythe Bridge Street Oxford Oxfordshire OX1 2EP. Our main trading address is Fugro House, Hithercroft Road, Wallingford, Oxfordshire, OX10 9RB. Our VAT number is 603 9034 66. We operate the websites https://www.askthecrowd.cloud and https://app.askthecrowd.cloud.
1.2 Contacting us. To contact us telephone our customer service team at +44 (0)870 402 1234 or e-mail firstname.lastname@example.org. How to give us formal notice of any matter under the Contract is set out in clause 19.2.
2. DEFINITIONS AND INTERPRETATION
2.1 The definitions and rules of interpretation in this clause 2 apply in the Terms.
Acceptable Use Policy: our acceptable use policy published from time to time at acceptable-use-policy.
Active Users: A user that has done any of the following:
1. Logged in during the last x days, x being an integer parameter between 28 and 365 specified by the Administrator on the UI of the tool and defaulting to 180;
2. Authored an item of feedback;
3. Commented or voted on an item of feedback.
Administrator: the person designated by you to have authority to designate additional Users and/or Administrators. The first User is deemed to be designated as an Administrator.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning given in clause 4.4.
Content: any content that you or any User uploads to the Service or the Website. Customer Data: the data inputted by you, Users, or us on your behalf for the purpose of using the Service or facilitating your use of the Service.
Downtime: any period during which during which you are unable to access or use the Service because of a Service Outage.
Enterprise Subscription: a Subscription for more than 1,000 Users to access and use the Service in accordance with these Terms.
Event Outside Our Control: has the meaning given to it in clause 17.1.
Maximum Number of Users: in the case of:
(a) a Standard Subscription, 1,000 Active Users; or
(b) an Enterprise Subscription, the number of Active Users that we agree with you in writing before you place your order.
Normal Business Hours: 9:00 am to 5:00 pm local UK time on each Business Day.
Service: the service provided by us from time to time via the website https://www.askthecrowd.cloud and https://app.askthecrowd.cloud or https://www.atc.triaster.co.uk or any other website notified to you from time to time.
Service Outage: has the meaning give to it in clause 6.3.
Software: the online software applications provided by us as part of the Service.
Standard Subscription: a Subscription for up to 1,000 Users to access and use the Service in accordance with these Terms.
Subscription: the subscription purchased by you pursuant to clause 10 which entitles Users to access and use the Service 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.
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 Service by an Administrator or the first User of the Service.
User Account: an account on the Service for an individual User.
3. OUR CONTRACT WITH YOU
3.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply of the Service 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 Language. 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 the site. Each order is an offer by you to subscribe to use the Service 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 (currently Worldpay) 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 Service 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 Service 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 Services, we will refund you the full amount.
5. SUBSCRIPTION TO THE SERVICE
5.1 Subject to you purchasing a Subscription in accordance with clause 10 and the restrictions set out in clause 5 and these Terms, we grant you a non-exclusive, non-transferable right, without the right to grant sublicences, to permit Users (up to the Maximum Number of Users) to use the Service during the Subscription Term.
5.2 In relation to the Users, you undertake that:
(a) 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 Service;
(b) each User shall keep a secure password for their use of the Service and that each User shall keep their password confidential.
5.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that does not comply with our Acceptable Use Policy. We reserve the right, without liability or prejudice to its other rights against you, to disable your access to any material that breaches the provisions of this clause.
5.4 You shall not:
(a) 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 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 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;
(b) access all or any part of the Service in order to build a product or service which competes with the Service;
(c) use the Service to provide services to third parties;
(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Service, 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 Service and promptly notify us if you become aware of any such unauthorised access or use.
5.6 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.
6. THE SERVICE, SERVICE AVAILABILITY AND AVAILABILITY MEASUREMENTS
6.1 We will, during the Subscription Term, provide the Service 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 Service is hosted is unavailable to you except that a Service Outage does not include any situation where the Service is unavailable to you as a result of:
(a) the Service being unavailable due to 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;
(b) planned maintenance, repairs or upgrades:
(i) provided that we will use our reasonable endeavours to give you at least 48 hours notice in advance of any such maintenance;
(c) unscheduled maintenance or repairs (either during or outside Normal Business Hours) where urgent action is required to ensure that the Service can continue to operate and/or is secure;
(d) your, or a User’s, use of the Service is:
(i) in breach of these Terms; or
(ii) in a manner inconsistent with any instruction you or Users are issued by us from time to time;
(e) 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 Service); or
(f) 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 Service.
6.5 All availability measurements shall be carried out by Triaster 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 CREDITS
7.1 If the Uptime Percentage falls below the Uptime Service Level in a given calendar month we will credit your account by an amount calculated as the product of the Uptime Percentage and the Charges for the Service paid by you in the relevant month (Service Credit).
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.
8. OUR OBLIGATIONS
8.1 Subject to clause 7.2, 7.3 and 7.4, we undertake that the Service 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 7.1 shall not apply to the extent of any non-conformance which is caused by:
(a) use of the Service contrary to our instructions;
(b) use of the Service contrary to the provisions of the Acceptable Use Policy;
(c) any modification or alteration of the Service by any party other than us or our duly authorised contractors or agents.
8.3 We do not warrant that:
(a) your use of the Service will be uninterrupted or error-free: or
(b) the Service and/or the information obtained by you through the Service 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 Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.5 If the Service does not conform with the undertaking in clause 7.1, 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 7.1.
9. YOUR OBLIGATIONS
9.1 It is your responsibility to ensure that:
(a) you will co-operate with us in all matters relating to the Service and provide us will all necessary access to such information as may be required by us in order to provide the Service, including but not limited to the Customer Data;
(b) without affecting your other obligations under the Terms, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all your responsibilities set out in these Terms in a timely and efficient manner;
(d) ensure that Users use the Service in accordance with these Terms and shall be responsible for any User’s breach of these Terms;
(e) 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 Service;
(f) ensure that its network and systems comply with the relevant specifications provided by us from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its 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 Service is prevented or delayed by any failure by you to fulfil any obligation listed in clause 8.1 (Your Default):
(a) we will be entitled to suspend performance of the Service until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 16 (Termination);
(b) 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 Service; and
(c) 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 Service you must pay our charges for the Subscription you have ordered (Charges) in accordance with this clause 9.
10.2 The Charges are:
(a) for a Standard Subscription; the price quoted for the Standard Subscription for the Service on our site from time to time; and
(b) for an Enterprise Subscription, the price agreed by you and us in writing before you place your order.
10.3 If you wish to change your Subscription to the Service 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.
10.5 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the 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, price for a Subscription to the Service may be incorrectly stated on our site. Where the correct price for the Subscription to the Service is less than the price stated on our site, we will charge the lower amount and if the correct price for the Subscription to the Service is higher than the price stated on our site, 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 Service 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 Service and refund you any sums you have paid.
11. HOW TO PAY
11.1 Payment for your Subscription to the Service is in advance. We will take your first payment upon acceptance of your order and will take subsequent payments monthly in advance.
11.2 You can pay for your Subscription using a debit card or credit card. We accept the cards detailed on the Website:
You must provide us with valid, up-to-date and complete credit card details. By providing us with your credit card details you authorise us to bill such credit 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. For any failed or cancelled payments, a £20 administration fee will be levied.
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):
(a) we may, without liability to you, disable access to all or part of the Service to all Users (including the Administrator) and we shall be under no obligation to provide any or any of the Service while the payment under the Contract remains outstanding; and
(b) 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 10.4 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 All intellectual property rights in or arising out of or in connection with the Software or the Service (other than intellectual property rights in any materials provided by you) is owned by us. Except as expressly stated in these Terms, the Contract does not grant you any rights to, under or in, any Intellectual Property Rights in the Software or the Service.
12.2 Clauses 15 and 16 set out in our Terms of Website Use apply to any Content that you upload to the Website or the Service.
13. CUSTOMER DATA AND DATA PROTECTION
13.1 We will use any personal information you or a User provides to us to:
(a) provide the Service;
(b) process your payment for the Service; and
(c) inform you about similar products or services that we provide, but you may stop receiving these at any time by contacting us.
14. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 Except as expressly and specifically provided in these Terms:
(a) you assume sole responsibility for results obtained from your use of the Service and for conclusions drawn from such use;
(b) 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
(c) the Service is 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:
(a) death or personal injury caused by negligence; and
(b) 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 Service 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:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) 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.
14.6 Nothing in these Terms limits or affects the exclusions and limitations set out in our Terms of Website Use.
14.7 This clause 14 will survive termination of the Contract.
15.1 We each undertake that we 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 one another's business, affairs, customers, clients or suppliers, except as permitted by clause 15.2.
15.2 We each may disclose the other's confidential information:
(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 Each of us may only use the other'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:
(a) you give us notice to terminate either in writing or by cancellation of the payment agreement with Worldpay in which case the contract will end on the date of payment cancellation; and
(b) 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 Service for all Users (including any Administrator), or terminate the Contract with immediate effect by giving written notice to you if:
(a) 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;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) 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;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) 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 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.
16.4 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.
16.5 On termination of the Contract for any reason:
(a) all licences granted under the Contract shall immediately terminate and you shall immediately cease to use the Service; and
(b) we may destroy, delete or otherwise dispose of any Customer Data in our possession unless we receive, no later than ten days after the effective date of the termination of this agreement, notice in writing from you for the delivery to you of the then most recent back-up of the Customer Data. We shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning, destroying, deleting or disposing of Customer Data.
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 the workforce of the Supplier or 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:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) 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. COMMUNICATIONS 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:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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
(c) 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.
(a) We may assign or transfer our rights and obligations under the Contract to another entity.
(b) 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.