Published: 24/04/19
Katherine Colby Hydrologists Limited (Company No. 10266262) of Lansdown Road Motors, Lansdown, Stroud, England, GL5 1BU ("Supplier") has developed mobile application software ("App") that allows the mapping, logging, and collating of Customer Data by end-user subscribers of the App while out in the field. The Supplier's end-user licence agreement can be found at portal.naturalfloodmanagementapp.com/terms-of-service.
The Supplier has also developed a software application allowing App subscribers to access, view, and download Customer Data from the Supplier's website at portal.naturalfloodmanagementapp.com.
The Customer wishes to use the subscribed service, as hosted by the Supplier, and the Supplier has agreed to provide and the Customer has agreed to take and pay for the Subscribed Service subject to these Terms.
Upon Order Acceptance and subject to the terms of the Agreement, the Supplier grants the Customer a non-exclusive, non-transferable, personal right to:
during the Subscribed Service Period for the Permitted Purpose.
The Customer acknowledges that use of the Subscribed Service is at all times subject to the Customer's compliance with the Agreement.
The Customer acknowledges that the Services do not include any:
These are the responsibility of the Customer unless otherwise agreed in writing.
The Customer shall ensure that only Authorised Users use the Subscribed Service and that such use is at all times in accordance with the Agreement. The Customer shall ensure that Authorised Users are, at all times whilst they have access to the Subscribed Service, the employees or contractors of the Customer.
The Customer shall keep a list of all Authorised Users and shall notify the Supplier within two Business Days if any updates to the list of Authorised Users are made or required, including when Authorised Users cease to be employed or engaged by a relevant entity such that they are no longer entitled to be Authorised Users.
The Customer shall ensure that the number of Authorised Users for the Subscribed Service does not exceed the number of Purchased Authorised User Accounts at any time. The Customer may remove one individual as an Authorised User and replace them with another individual in accordance with the Agreement. However, Authorised User accounts cannot be shared or used by more than one individual at the same time.
Without prejudice to any other right or remedy of the Supplier, if the Customer breaches clause 3.3:
The Customer shall:
The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators), shall keep confidential and not share with any third party their password or access details for any Subscribed Service.
The Customer shall (and shall ensure all Authorised Users shall) at all times comply with the Acceptable Use Policy and all other provisions of the Agreement.
If any password has been provided to an individual that is not an Authorised User, the Customer shall, without delay:
Clauses 3.5 to 3.8 (inclusive) shall survive termination or expiry of the Agreement.
The Customer shall indemnify, keep indemnified and hold harmless the Supplier from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by the Supplier as a result of the Customer's breach of the Agreement.
Support Services shall be available for the Subscribed Service to the Customer for the duration of the Subscribed Service Period, to the extent and in the manner specified in the Support Services Policy.
The Supplier shall, during the Subscribed Service Period, use commercially reasonable endeavours to make the Subscribed Service available 24 hours a day, seven days a week, except during periods of Permitted Downtime.
The Supplier will use reasonable endeavours to notify the Customer in advance of any planned maintenance but the Customer acknowledges that it may receive no advance notification for downtime caused by Force Majeure or for unscheduled or emergency maintenance.
The Customer acknowledges that the Supplier shall be entitled to modify the features and functionality of the Subscribed Service. The Supplier shall use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the Subscribed Service by the Supplier's customers generally.
The Supplier may, without limitation to the generality of this clause, establish new limits on the Subscribed Service (or any part), including limiting the volume of data which may be used, stored, or transmitted in connection with the Subscribed Service.
The Subscription Fees and any other charges (including expenses) shall be paid by the Customer at the rates and in the manner described in the Supplier's Standard Pricing Terms.
The Customer shall on the Effective Date provide the Supplier with valid and up-to-date credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details. If the Customer provides:
If the Supplier has not received payment within 30 days of the due date:
All Subscription Fees shall be payable in pounds sterling and are exclusive of VAT, which shall be added at the appropriate rate.
The Supplier may increase the Subscription Fees by providing at least six weeks' notice, no more than once every 12 months.
If the Agreement terminates or expires (other than due to termination by the Customer under clause 17.3), the Customer shall not be entitled to any refund or discount of the Subscription Fees paid for any part of any month during which the Subscribed Service ceases to be provided.
Subject to the remainder of this clause 8, the Supplier warrants that:
The Subscribed Service might be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks. The Customer acknowledges that such risks are inherent in cloud services and the Supplier shall have no liability for such delays, interruptions, errors or other problems.
If there is a breach of any warranty in clause 8.1, the Supplier shall at its option use reasonable endeavours to:
Warranties in clause 8.1 do not apply to errors caused by:
Except as expressly set out in this clause 8 and subject to clause 14.2.4, all other warranties, terms or conditions (whether implied by law, custom, or otherwise) are excluded to the fullest extent permitted by law.
The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times comply with all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications.
All Intellectual Property Rights in and to the Subscribed Service (including in all Applications and Documentation) belong to and shall remain vested in the Supplier or the relevant third-party owner. The Customer and any Authorised User shall not acquire any title, rights of ownership, or Intellectual Property Rights of any kind in the Subscribed Service or its components. No Intellectual Property Rights of either party are transferred or licensed as a result of the Agreement.
If the Customer acquires any Intellectual Property Rights in the Applications, Documentation or any other part of the Subscribed Service, it shall assign or procure the assignment of such rights with full title guarantee to the Supplier (or to a third party as designated by the Supplier). The Customer shall execute any documents necessary to effect this clause.
The Customer grants the Supplier a royalty-free, non-transferable, non-exclusive licence to use, copy and otherwise utilise the Customer Data and Customer Systems as necessary to provide the Services and exercise the Supplier's rights under the Agreement.
The Customer shall not infringe any Intellectual Property Rights covered by this clause during or after the Subscribed Service Period. If the Customer becomes aware of any such infringement, it must notify the Supplier immediately.
This clause 10 shall survive termination or expiry of the Agreement.
Customer Data shall at all times remain the property of the Customer or its licensors.
Except to the extent that the Supplier has direct obligations under data protection laws, the Supplier:
The Customer is solely responsible for ensuring the above.
If the Supplier suspects Customer Data is in breach of the Agreement, it may:
and where feasible, it will notify the Customer in advance.
The Supplier performs regular backups for internal business continuity but is not responsible for ensuring Customer Data is never lost, damaged or inaccessible. To the fullest extent permitted by law, the Supplier has no liability for data loss.
Unless otherwise agreed in writing, the Supplier shall delete Customer Data within 60 days of service termination, except where required by law to retain it. The Supplier is not liable for deletion carried out in accordance with the Agreement.
The Customer acknowledges that the Subscribed Service may enable it to access and/or download Third-Party Data, and that it does so solely at its own risk.
The Supplier:
During the Subscribed Service Period and for seven (7) years thereafter, the Customer shall maintain full and accurate records of:
The Customer shall allow the Supplier access to its premises and systems to:
as needed to verify the Customer’s compliance with the Agreement. The Supplier may take copies of such records as part of the audit.
The Supplier’s liability under or in connection with the Agreement—whether in contract, tort, negligence, misrepresentation, or otherwise—shall be limited as specified in this clause.
Except as expressly provided in the Agreement:
Subject to clause 14.2:
The Supplier may suspend access to the Subscribed Service (in whole or in part) for all or some Authorised Users if:
If suspension is due to suspected misuse or breach, the Supplier may investigate and decide to restore or continue suspension at its discretion.
Access will be promptly reinstated once the Supplier receives full and cleared payment for outstanding amounts.
Subscription Fees shall remain payable during any suspension period, regardless of access availability.
Unless otherwise stated in the Order, the Subscribed Service Period shall automatically renew for 12-month periods upon expiry, starting from the first Renewal Date.
Either party may terminate the Subscribed Service on the next Renewal Date by providing written notice at least 45 days before that date. If notice is not given in time, the Agreement renews for another 12 months.
The Agreement begins on Order Acceptance and continues for the Subscribed Service Period unless terminated earlier in accordance with the Agreement.
The Supplier may terminate the Agreement for convenience by giving at least 30 days’ written notice to the Customer.
Either party may terminate the Agreement immediately if the other party:
The Supplier may terminate immediately if:
On termination or expiry of the Agreement:
Termination does not affect any accrued rights or obligations up to that point, nor any clauses intended to survive termination.
The Agreement constitutes the entire agreement between the parties, superseding all prior discussions, proposals, and understandings.
Each party acknowledges that it has not relied on any representations not expressly stated in the Agreement and waives any right to remedies for any such reliance.
Notices must:
Notices are deemed received:
Any change of contact details must be notified under clause 20.1. The update becomes effective on the stated date or, if none, five Business Days after deemed receipt.
This clause does not apply to service of legal or arbitration documents.
No variation of the Agreement shall be valid or effective unless:
Except as expressly provided in the Agreement, the Supplier may at any time:
with any or all of its rights or obligations under the Agreement.
Except as expressly permitted by the Agreement, the Customer shall not:
with any or all of its rights or obligations under the Agreement (including the licence rights granted), in whole or in part, without the Supplier's prior written consent.
Each party shall pay all sums that it owes to the other party under the Agreement:
except as may be required by law.
The parties are independent entities. Nothing in the Agreement shall be construed to create:
between the parties.
Neither party shall have, nor shall represent that it has, any authority to:
If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of the rest of the Agreement shall not be affected.
If any provision (or part thereof) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable with some deletion or modification, it shall apply with such changes as are necessary to make it legal, valid and enforceable.
If such modification is not possible, the affected clause shall be severed, and the parties shall negotiate in good faith a mutually acceptable alternative.
No failure, delay or omission by either party in exercising any right, power or remedy under the Agreement shall operate as a waiver of it.
No single or partial exercise of any right, power or remedy shall preclude any other or further exercise of that or any other right, power or remedy.
A waiver of any term, condition or breach shall only be effective if:
and shall apply only for the specific instance and purpose for which it is given.
A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
This does not affect any right or remedy of a third party that exists or is available apart from that Act.
Each party represents and warrants to the other that it has:
The Agreement and any dispute or claim arising out of, or in connection with, it or its subject matter or formation (including non-contractual disputes or claims) shall be:
The parties irrevocably agree that: