Terms and conditions
IMPORTANT NOTICE: THIS IS A LEGALLY BINDING AGREEMENT BY SUBSCRIBING TO USE THE APPLICATION OR BY ACCESSING OR USING THE APPLICATION YOU INDICATE YOUR AGREEMENT TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”)
This Agreement is a legal agreement between Touch Systems Limited a company registered in England & Wales under no. 02430509 whose registered office is at The Exchange, Haslucks Green Road, Shirley, Solihull, West Midlands, B90 2EL, United Kingdom (“we/us/our”) and the sole trader, partnership or company who wishes to use the Application on the terms of this Agreement (“you/your”).
IMPORTANT NOTICE TO ALL USERS:
Please note that these terms include important exclusions of liability.
1.1. In this Agreement the following terms have the following meanings:
the online, web-based application service, including offline components, if any, provided by us as indicated in the online order form;
Data Protection Legislation
i) the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and, from 25 May 2018, the General Data Protection Regulation (“GDPR”);
ii) any laws which implement any of the foregoing; and
iii) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
any explanatory or written materials (whether printed or electronic) and any modification or addition to such materials as we may provide to you for the purposes of describing the functionality or operation of the Application;
any failure of the Application to operate in all material respects in accordance with the Documentation, but excluding any failure or error resulting from (a) operator error or use of the Application in a manner inconsistent with the Documentation, (b) any breach of the Agreement, (c) your failure to implement recommendations in respect of Solutions or Faults previously advised by us, (d) any improper use, misuse or unauthorised alteration of the Application by you, or (e) your computer equipment or any third party services or products not supplied or approved by us for use with the Application;
in relation to you, any other body corporate which is your holding company or subsidiary and any other body corporate which is a subsidiary of your holding company (and “holding company” and “subsidiary” shall have the meaning given to them by section 1159 Companies Act 2006);
either of the following outcomes (a) a correction of a Fault or (b) a workaround in relation to a Fault (including reversal of any changes to the Application if deeded appropriate by us;
your employees and representatives who access and use the Application through a User Account;
an account allocated by you to a single designated employee or representative;
the data inputted by you or on your behalf for the purpose of using the Application or facilitating your use of the Application or data retrieved by you or on your behalf through the Application;
1.2. “Contract Period”, “Hosted Server Provider”, “Subscription Fee” and “Subscription Package” shall each have the meaning given to them in the online order form.
1.3. Any words following the terms “include”, “includes”, “including”, “for example”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Use of the Application
2.1. In consideration of you abiding by the terms of this Agreement and paying the Subscription Fee in accordance with the payment terms set out in the online order form, we grant to you a limited, non-exclusive, non-transferable, non-sub-licensable, right to access and use the Application and the Documentation in accordance with the Subscription Package and subject to the provisions of this Agreement.
2.3. You may use the Application for your internal business purposes only (but not other entities associated or affiliated persons or entities that form part of your Group unless expressly agreed by us in writing and then only to the extent they remain a part of your Group).
2.4. We may modify the Application from time to time provided that the performance and functionality of the Application will not be materially decreased from that available at the date of the Agreement.
2.5. The number of User Accounts is limited to the number indicated in the online order form. You shall ensure that each User Account is used by a single designated User and that User does not share their User Account access details with anyone else. Subject to the foregoing you may reassign User Accounts to different Users at any time by changing the applicable settings in the Application.
2.6. You shall be solely responsible for any third party (which shall include your employees) accessing or using the Application through your user access.
2.7. You shall be responsible for keeping any user access information for your User Accounts secure and confidential and you shall be solely responsible for any unauthorised access to your User Accounts and/or the Application resulting from a breach of this clause 2.7.
2.8.1. attempt in any way to circumvent or otherwise interfere with any security precautions, procedural controls, or other measures related to or incorporated into the Application (and the software used in support thereof) or attempt to gain unauthorised access to the Application (and the software used in support thereof) or its related information technology systems or networks;
2.8.2. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
2.8.3. send or store unlawful, infringing, offensive, obscene, discriminatory, threatening or otherwise unlawful, immoral or tortious material;
2.8.4. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
2.8.5. interfere with or disrupt the integrity or performance of the Application or its related information technology systems or networks or the data contained therein;
2.8.6. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer, transmit, distribute or exploit any portion of the Application (and the software used in support thereof); or
2.8.7. access all or any part of the Application (including but not limited to the software used in support thereof) in order to build a product or service which competes with the Application.
2.9. You shall:
2.9.1. prevent unauthorised access to, or use of, the Application;
2.9.2. supervise and control use of the Application and ensure that the Application is used by your employees and representatives in accordance with the terms of this Agreement; and
2.9.3. comply with all applicable laws and regulations with respect to your activities under the Agreement including in relation to your use of the Application and the data that you upload to or transmit from the Application.
3.1. If at any time during the Contract Period you anticipate your use of the Application increasing to levels beyond that permitted by your Subscription Package you may upgrade your subscription package to the next level up of subscription package that we make available to our customers (“Upgraded Subscription Package”) immediately on payment of the Upgraded Subscription Fee (as defined below). The Upgraded Subscription Package shall (subject to your right to upgrade again) then apply for the remainder of the Contract Period and any following Contract Periods and the terms of the Agreement shall continue to apply with the necessary modifications. The Subscription Fee shall be adjusted to the then current rate for the applicable subscription package as stated in our then current price list (“Upgraded Subscription Fee”) and you shall pay the Upgraded Subscription Fee in accordance with the payment terms set out in the online order form for any following Contract Periods.
3.2. If you anticipate your use of the Application reducing you may downgrade to the next level down of subscription package that we make available to our customers (“Downgraded Subscription Package”) on no less than 30 days’ notice in writing to us such notice to take effect from the end of the then current Contract Period. The Downgraded Subscription Package shall then apply for the following Contract Periods and the terms of the Agreement shall continue to apply with the necessary modifications. The Subscription Fee shall be adjusted to the then current rate for the applicable subscription package as stated in our then current price list (“Downgraded Subscription Fee”) and you shall pay the Downgraded Subscription Fee in accordance with the payment terms set out in the online order form for any following Contract Periods.
3.3. If you wish to change your Contract Period from monthly to annually (or vice versa) you may do so on no less than 30 days’ notice in writing to us such notice to take effect from the end of the then current Contract Period.
3.4. You shall permit us to audit your use of the Application and we may access your use of the Application for the purposes of confirming your compliance with the terms of the Agreement. Our audit shall be conducted in such a manner so as to cause minimal disruption to your business. Our audits shall be performed at our expense. If any audit reveals that your use of the Application is beyond that permitted by your Subscription Package we may require you to upgrade your Subscription Package in accordance with the provisions in clause 3.1 (save that such upgrade shall take effect immediately without the need for notice).
4.1. We shall use reasonable endeavours to make the Application available 24 hours a day 7 days a week, except for:
4.1.1. planned maintenance carried out during the maintenance window of 17.00 to 09.00 (UK time); and
4.1.2. unscheduled maintenance which will wherever possible (but cannot be guaranteed) be performed outside the hours of 09.00 to 17.00 (UK time) Monday to Friday.
4.2. If, for any reason, we anticipate the Application being unavailable for any extended period for maintenance, we will, wherever possible, give you notice of such unavailability.
4.3. We will provide reasonable non-priority email support in relation to any Fault you identify with the Application (additional support services will be subject to additional terms and conditions and will be subject to an additional fee).
4.4. If you find a Fault with the Application you should promptly notify us by telephoning our help desk or using the ‘live chat’ function on our website at www.claritygo.com. We shall use reasonable endeavours to provide a Solution to such Fault. Time for the provision of such services shall not be of the essence. You warrant that there are no third parties who would have a claim against us as a result of our provision of such services to you.
4.5. We shall not be responsible for any charges, losses or delays resulting from us being prevented from or delayed in performing our obligations under the Agreement by any of your acts or omissions or by any of the acts or omissions of those accessing the Application through your user access.
4.6. Notwithstanding the foregoing, we:
4.6.1. do not warrant that the Application and/or the information obtained by you through it will meet your requirements or that its operation will be uninterrupted or error free. All warranties, representations or guarantees of any kind, express or implied, including, but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result are excluded; and
4.6.2. shall not be responsible for acts or omissions of any Users that result in a failure or disruption of the Application.
5. Your Data
5.1. As between us and you, you shall own all right, title and interest in and to Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
5.2. We may access your User Accounts, including Your Data, for the purposes of providing the Application and performing our obligations under the Agreement. You grant to us the non-exclusive right to use, copy, store, transmit and display Your Data to the extent necessary to provide the Application and to perform our obligations under the Agreement.
5.3. We will use reasonable endeavours to archive Your Data on a regular basis and to retain it for the period permitted by your Subscription Package. In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for us to use reasonable endeavours to restore such lost or damaged data from the latest back-up of such data maintained by us in accordance with our archiving procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except for third parties authorised to act on our behalf).
5.4. Your Data is available to download from the Application in CSV format. We recommend that you, on a reasonably regular basis, download and make back-ups of Your Data.
5.5. You agree to provide any notices and obtain any consents related to your use of the Application including those relating to the collection, use, transfer and disclosure of personal information. You shall, on request, provide us with evidence to our reasonable satisfaction that you have such consents.
5.6. We will treat your data and confidential and, save as provided in clause 11 and/or to the extent that disclosure is required by law or a court of competent jurisdiction, we will not disclose your confidential information to any third party.
6. Subscription Fee
6.1. You will pay the Subscription Fee in full (without any set-off, deduction or withholding) by online payments using a credit or debit card in accordance with the payment terms set out in the online order form.
6.2. All amounts and fees stated or referred to in the Agreement are exclusive of, and you shall pay, all applicable taxes, duties and levies ruling at the date of payment.
6.3. The Subscription Fee shall, provided that you stay on the same Subscription Package and use the Application within the limits of your Subscription Package, be fixed for the Contract Period. Thereafter we may increase the Subscription Fee.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. You acknowledge that the Application (including the software in support thereof) is our (or our licensors) confidential information and that you shall treat it as such and not disclose it to any third party save for those employees and representatives that are aware that the Application is our (or our licensors) confidential information and are bound to treat it as such.
7.2. You acknowledge that you have no right to have access to the Application in source code form.
7.3. You will not attempt in any way to remove, conceal or overwrite any copyright notices or circumvent any technical protection matters incorporated into the Application to protect the intellectual property rights in the Application from being misappropriated.
7.4.1. communicate or otherwise make available the Application to any third party;
7.4.2. use the Application for a third party’s benefit; or
7.4.3. use the Application for any purpose other than as permitted under this Agreement.
7.5. You acknowledge that damages alone may not be an adequate remedy for any breach of this Agreement and that accordingly we shall be entitled to the remedies of injunction, specific performance and/or other equitable relief for any threatened or actual breach of this clause 7.
7.6.1. any software or application you can show to our reasonable satisfaction has been independently developed by you, or a third party, without reference to the Application;
7.6.2. the extent that the Application is already in the public domain; or
7.6.3. the extent that disclosure is required by law or a court of competent jurisdiction.
8.1. You accept responsibility for the selection of the Application to achieve your intended results and, except as expressly provided in the Agreement, you assume sole responsibility for results obtained from your use of the Application.
8.2.1. death or personal injury resulting from our negligence;
8.2.2. fraud or fraudulent misrepresentation;
8.2.3. any other liability that cannot be excluded or limited by law.
8.3. Subject to clause 8.2, we shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
8.3.1. loss of profits, sales, business, or revenue;
8.3.2. business interruption;
8.3.3. loss of anticipated savings;
8.3.4. loss or corruption of data or information;
8.3.5. loss of business opportunity, goodwill or reputation; or
8.3.6. any indirect or consequential loss or damage.
8.4. Subject to clause 8.2 and clause 8.3, our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the annual Subscription Fee (if your Subscription Fee is paid on a monthly basis this shall be the aggregate of the amounts paid by you over the year).
8.5. Subject to clause 8.2, we shall be discharged of all liability arising under or in connection with the Agreement unless (without extending statutory limitation) proceedings are begun and served within 12 months after you became aware (or should reasonably have become aware) of the facts giving rise to such liability.
9.1. We will defend and indemnify you against a claim that the Application used in accordance with this Agreement actually or allegedly infringes upon any intellectual property right of a third party provided that:
9.1.1. you do not, without our prior written approval, make any admission relating to the claim;
9.1.2. you notify us in writing within 7 days of the claim;
9.1.3. we have sole control and conduct of all negotiations and proceedings; and
9.1.4. you provide us with the assistance, information and authority necessary to perform our obligations under this clause 9.
9.2. In the event the Application is legally held or is believed by us to infringe, we shall have the option, at our expense, to:
9.2.3. if the options in clause 9.2.1 and clause 9.2.2 cannot be accomplished on reasonable terms, terminate this Agreement and reimburse a reasonable proportion of the Subscription Fee.
9.3. We shall not be liable for any claim for infringement resulting from:
9.3.1. any combination of the Application (in whole or in part) with any other services or products not supplied or approved by us for use with the Application; or
9.3.2. Your Data.
9.4. This clause 9 states our entire liability and your exclusive remedy for infringement of any intellectual property rights.
9.5. You will defend and indemnify us against:
9.5.1. any claims made against us for actual or alleged infringement of any third party rights arising out of or accruing from any breach by you of the terms of this Agreement; or
9.5.2. any misuse of the Application (including the uploading or transmitting of data contrary to the terms of the Agreement) by anyone accessing the Application through one of your User Accounts.
10. Term and TERMINATION
10.1. The Agreement is, subject to earlier termination in accordance with this clause 10, effective for the Contract Period and shall continue thereafter subject to either party serving 30 days’ written notice on the other party to terminate such notice to take effect at the end of the then current Contract Period.
10.2. Without limiting our other rights or remedies, we may suspend our performance of or (whether or not such performance has previously been suspended) terminate the Agreement, without liability to you, by giving you notice in writing at any time or times if you:
10.2.1. fail to make any payment when and as due or otherwise default in any of your obligations under the Agreement;
10.2.2. are unable to pay your debts in the ordinary course of business;
10.2.3. have a receiver, manager, administrator, administrative receiver or trustee in bankruptcy (as the case may be) appointed for all or any part of your undertaking, assets or income, have a resolution passed or a petition presented to any court for your winding up (compulsorily or voluntarily), enter into any composition or arrangement with your creditors (whether formal or informal), have any distraint or execution levied on any of your assets, suffer any action similar to any of the foregoing in any jurisdiction; or
10.2.4. we bona fide believe any of the foregoing matters may occur.
10.3. The Agreement may be terminated by either party where the other:
10.3.1. breaches a material obligation of the Agreement and, where the breach is remediable, the party in breach has failed to remedy it within 28 days after written notice giving full particulars of the breach; or
10.3.2. repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement.
10.4. If you terminate the Agreement pursuant to clause 10.3, we shall refund you on a pro-rata basis for any unused proportion of the Subscription Fee paid in advance.
10.5. On termination of the Agreement for any reason:
10.5.1. you shall immediately pay all outstanding amounts to us;
10.5.2. all rights granted to access or use the Application shall immediately terminate and you shall immediately cease to access or use the Application;
10.5.3. we will delete or destroy any of Your Data that we have in our possession or control:
10.5.3.1. immediately on your written request to us; or
10.5.3.2. if no such request is received, on the expiry of 3 months from the date of termination. We provide this 3 month period so that you can:
10.5.3.2.1 change your mind and re-subscribe to the Application (which you can do through your User Account) if you do so within 3 months of termination, Your Data will be available in your User Account; or
10.5.3.2.2 make a written request to us to export named contacts and deliver those named contacts to you. Such contacts will be delivered to you as soon as reasonably practicable provided that (a) you have paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and (b) you pay our reasonable charges, costs and expenses incurred in exporting and delivering contacts to you;
10.5.4. the accrued rights/remedies of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination (including clause 7, clause 8, clause 10, clause 11 and clause 12), shall not be affected or prejudiced.
11.1. To the extent that we process any “Personal Data” on your behalf when performing our obligations under the Agreement, you and we record the intention that you shall be the “Data Controller” and the Licensor shall be the “Data Processor” (in each case as defined in the Data Protection Legislation) and in any such case where required by the Data Protection Legislation:
11.1.1. we shall act only on your documented instructions (which you acknowledge and agree shall include the terms of the Agreement);
11.1.2. we have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
11.1.3. we will, at your expense, use reasonable endeavours to assist you with any subject access request that you receive relating to Personal Data that we process on your behalf under the Agreement;
11.1.4. we will not cause or permit Personal Data to be transferred outside the EU unless:
220.127.116.11. the transfer is on the basis of a valid adequacy decision made by the European Commission;
18.104.22.168. appropriate safeguards are in place (as set out in the Data Protection Legislation); or
22.214.171.124. such transfer is otherwise permitted under applicable Data Protection Legislation;
11.1.5. we shall ensure that access to the Personal Data that we process on your behalf under the Agreement shall be limited to our employees and permitted subcontractors (you hereby acknowledge and agree that the Hosted Server Provider shall act as our subcontractor in order to allow us to perform our obligations under the Agreement) who are subject to binding written confidentiality obligations; and
11.1.6. we shall ensure that any permitted subcontractor is appointed subject to a binding written contract containing materially the same obligations as under this clause 11 and that any permitted subcontractor complies with all such obligations.
11.2. You and we shall comply at all times with the Data Protection Legislation and shall not do anything to put the other party in breach of its obligations under the Data Protection Legislation.
11.3. You warrant that, in relation to the Personal Data for which you are Data Controller, you hold appropriate consents from each Data Subject to share their Personal Data with us or our subcontractors (as permitted in accordance with clause 11.1.5) in order to allow us to perform our obligations under the Agreement. You shall on request provide evidence to our reasonable satisfaction that you have such consents.
11.4. In respect of any actual or reasonably suspected unauthorised access to or acquisition of Your Data or Personal Data that we process on your behalf under the terms of the Agreement we shall promptly notify you and provide you with details of such breach.
11.5. We shall maintain, in accordance with the Data Protection Legislation, written records of all categories of processing activities carried out on your behalf.
11.6. We shall, in accordance with the Data Protection Legislation, make available to you such information as is reasonably necessary to demonstrate our compliance with the obligations of Data Processors under the Data Protection Legislation, and allow and contribute to audits, including inspections, by you (or your nominated auditor) for this purpose, subject to you:
11.6.1. giving us reasonable prior notice;
11.6.2. ensuring the confidentiality of all information generated as a result;
11.6.3. ensuring that such audit or inspection is undertaken at a mutually agreed time and date, with minimal disruption to our business and the business of our customers; and
11.6.4. paying our reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.
11.7. On termination of this Agreement we shall cease processing Personal Data on your behalf and shall delete, destroy or deliver Personal Data to you as provided in clause 10.5.3.
11.9. We recommend that you employ a firewall as a perimeter security measure and other internet security measures including anti-virus software. We will not be responsible for any loss or damage resulting from or arising out of your failure to employ security measures to protect your systems.
12. OTHER IMPORTANT TERMS
12.1. Authority: The person accepting this Agreement on your behalf confirms that he/she is authorised to enter into this Agreement on your behalf and to bind you to its terms and conditions and that you are not a consumer.
12.2. No Agency: Nothing in this Agreement is intended to, or shall be deemed to, establish any agency, partnership or joint venture between you and us. Neither you nor we may bind the other in any way.
12.3. Events Outside Our Control: We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks.
12.4. Assignment: We may, at any time, assign or transfer the Agreement or any part of it and/or any rights and obligations arising under it (including the benefit of any guarantee or warranty) to any person, firm or company and you shall if we require, enter into a novation agreement with us and the transferee or such other documentation as is necessary to give effect to any such assignment or transfer. You may only transfer your rights or obligations under this Agreement to another person if we agree in writing.
12.5. Third Party Rights: A person not a party to this Agreement shall not have any rights under/in connection with it.
12.6. Entire Agreement: This Agreement constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Agreement.
12.7. No Waiver: If we fail to insist that you perform any of your obligations under this Agreement, 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 and will not mean that you do not have to comply with those obligations. A waiver of any right is only effective if it is in writing. A waiver of any right shall not prevent us from enforcing that or any other right against you if you breach such right again on a separate occasion.
12.8. Severance: Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
12.9. Law & Jurisdiction: This Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.