TransparntChoice Limited Terms and Conditions of Service
The glossary in clause 14 sets out the defined terms and rules of interpretation that apply in this agreement.
1.3 Where so specified in the Order Form or we shall perform the Customisation Services. We shall use reasonable endeavours to meet any agreed performance dates, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.
1.6 Where the Solution Type is Cloud, we shall follow our archiving procedures for Customer Data which are, in our view, necessary to support our recovery goals set out on our website at https://www.transparentchoice.com/content/security-overview. These goals may vary from time to time. In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described in our back-up policy. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up for which we shall remain fully liable).
1.7 Where the Solution Type is On-premise, you shall have sole responsibility for backing up Customer Data. We shall have no liability to you for any loss, destruction, alteration or disclosure of Customer Data.
1.9 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 Software, Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2. Cloud solution (applies only where the Solution Type is Cloud)
2.1 Subject to the terms and conditions of this agreement, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation in accordance with the Solution Tier and the Scope of Subscription during the Subscription Term.
2.2 In relation to the Authorised Users, you undertake that each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised User shall keep their password confidential.
and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
2.4 You shall not
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between you and us 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 and/or Documentation (as applicable) 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; or
(b) introduce or permit the introduction of, any Virus or Vulnerability into our network and information systems.
2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify us.
3. On-premise solution (applies only where the Solution Type is On-premise)
3.2 Subject to the terms and conditions of this agreement, we hereby grant you a non-exclusive, non-transferrable and non-assignable licence for the Subscription Term to use the Software and the Documentation.
3.3 You agree to be bound by, and warrant that you will at all times comply with, the terms relating to the Open-Source Software listed, from time to time, on our website.
3.4 In relation to scope of use:
(c) except as expressly stated in this clause 3, you have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by you, unless we are prepared to carry out such action at a reasonable commercial fee or have provided the information necessary to achieve such integration within a reasonable period, and you shall request us to carry out such action or to provide such information (and shall meet our reasonable costs in providing that information) before undertaking any such reduction.
3.5 Once in any period of 12-months you shall, on our request, provide us with a written statement confirming that you are complying with the terms of this licence, which shall be signed by one of your officers. You warrant and undertake that each such statement that you provide will be true, accurate and complete.
(a) provide us with all necessary co-operation in relation to this agreement and all necessary access to such information as may be required by us in order to provide the Services, and carry out all your other responsibilities set out in this agreement in a timely and efficient manner (and, in the event of any delays by you, we may adjust any agreed timetable or delivery schedule as reasonably necessary).
(c) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(d) own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
(c) subject to clause 12.7(a), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(a) (where the Solution Type is Cloud) we may, without liability to you, disable the your password, account, user accounts and access to all or part of the Services, and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
(a) shall be payable in the currency specified in the Order Form;
5.4 We shall be entitled to increase the Subscription Fees with effect from each anniversary of the Effective Date upon 90 days' prior notice to you and the Order Form shall be deemed to have been amended accordingly.
You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services, the Software and the Documentation. Except as expressly stated herein, this agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Software or the Documentation.
7.1 For the purposes of this clause 7, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Data Protection Legislation.
7.2 You and we shall each comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, your or our obligations or rights under Data Protection Legislation.
7.3 For the purposes of the Data Protection Legislation:
(b) where the Solution Type is On-premise, we shall process any Customer Personal Data to which we have access in the course of providing support, as a processor on your behalf; and
7.4 Customer Personal Data. You shall ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to us and/or lawful collection of the same by us for the duration and purposes of this agreement. You and we each agree that we shall process the Customer Personal Data on your behalf in accordance with the Data Processing Addendum.
8.1 You and we each undertakes to the other not at any time to disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 8.2.
(a) to your and our respective employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising your or our rights or carrying out your or our obligations under or in connection with this agreement. You and we shall each ensure that your and our employees, officers, representatives, contractors, subcontractors or advisers to whom you or we disclose the other party's confidential information comply with this clause 8; and
8.3 Neither you nor we shall use any of the other party's confidential information for any purpose other than to exercise your or our rights, or you perform your or our obligations, under or in connection with this agreement.
8.4 We shall be permitted to refer to you as a user of the Services on our website, in our advertising and other promotional materials (regardless of media) and in discussions with prospective customers. You hereby grant us a worldwide, non-exclusive, royalty-free, perpetual, transferable licence to use your trade name, trade marks, and service marks in connection with the foregoing.
9.1 Without prejudice to the proper performance by us of our obligations under this agreement, you shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and/or Documentation (and, where the Solution Type is Cloud, the Customer Data), subject to clause 9.3.
9.2 We shall defend you, your officers, directors and employees against any claim that your use of the Services or Documentation in accordance with this agreement infringes any United States patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, subject to clause 9.3.
(a) the indemnified party shall give the indemnifying party prompt notice of any such claim;
(b) the indemnified party shall not make any admission, or otherwise attempt to compromise or settle the claim and shall provide reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party's expense; and
(c) the indemnifying party shall be given sole authority to defend or settle the claim.
9.4 In the defence or settlement of any claim to which clause 9.2 applies, we may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on five Business Days' notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
(b) any Open-Source Software;
9.6 The foregoing and clause 10.3(b) state your sole and exclusive rights and remedies, and our (including our employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
(a) you assume sole responsibility for results obtained from the use of the Services and the Documentation by you, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction;
(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 this agreement; and
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
(c) in respect of all other loss or damage which does not fall within clause 10.3(b), our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
11.1 This agreement shall, unless otherwise terminated as provided in this clause 11, commence on the Effective Date and shall continue for the Initial Subscription Term and thereafter shall be renewed automatically for successive periods equal in duration to the Initial Subscription Term (each a Renewal Term), unless you or we give written notice of non-renewal to the other not less than 60 days prior to the end of the Initial Subscription Term or the then current Renewal Term, as the case may be.
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium (where the relevant party is in the United Kingdom, under Part A1 of the Insolvency Act 1986), being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 11.2(c); or
(c) (where the Solution Type is On-premise) you shall immediately destroy or return to us (at our option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to us that you have done so;
(e) any rights, remedies, obligations or liabilities of you or us that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
12.1 Force majeure. Neither you nor we shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of your or our obligations under this agreement if such delay or failure result from events, circumstances or causes beyond your or our reasonable control. The time for performance of such obligations shall be extended accordingly.
12.2 Variation. No variation of this agreement shall be effective unless it is in writing and signed by you and us (or your and our authorised representatives).
12.3 Waiver. No failure or delay by you or us to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.4 Rights and remedies. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
12.5 Severance. If any provision or part-provision of the agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.5 shall not affect the validity and enforceability of the rest of the agreement.
(a) The agreement constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) You and we each acknowledge that in entering into the agreement you and we do not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the agreement. You and we each agree that neither you nor we shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the agreement.
(b) Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours, when Business Hours resume. In this clause), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
13. Governing law and jurisdiction
(a) Governing law. This 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 governed by and construed in accordance with the law of England and Wales.
(b) Jurisdiction. You and we each irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
agreement: the contract between you and us for the supply of the Services in accordance with the Order Form and these terms.
Authorised Users: those of your employees, agents and independent contractors who are authorised by you to use the Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Cloud: provision of the Services via the internet.
Customer Data: the data inputted by you, by Authorised Users, or by us on your behalf for the purpose of using the Services or facilitating your use of the Services.
Customer Personal Data: where the Solution Type is Cloud, any personal data that we process in connection with this agreement.
Customisation Services: where applicable (as indicated in the Order Form), the customisation of the Software to be undertaken by us in accordance with clause 1.3.
Data Processing Addendum: the addendum agreed between you and us separately, which governs our processing of the Customer Personal Data on your behalf.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 and regulations made thereunder; and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Documentation: the document made available by us to you online via https://www.transparentchoice.com/client-hub or such other web address as we notify you from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date set out in the Order Form.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either you or an Authorised User (but not the us) relating to security of network and information systems and security breach and incident reporting requirements.
Initial Subscription Term: the initial term of this agreement as set out in the Order Form.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, all other rights in the nature of copyright, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
On-premise: provision of the Services via Software installed on your equipment.
Order Form: An order form, signed by you, that sets out additional details of the agreement between you and us. In the event no formal order form is signed by you, payment of an invoice will constitute your acceptance of such invoice as the Order Form.
Open-Source Software: the open-source software from time to tine listed on our website.
Payment Terms: the terms of payment specified in the Order Form.
Scope of Subscription: sets out the limits on use of the Services and Software and is set out in the Order Form.
Services: the Software to be provided to you by us (subject to the Scope of Subscription) under this agreement on a subscription basis according to the Solution Type and Solution Tier, as more particularly described in the Documentation.
a) Where the Solution Type is Cloud, the online software application provided by us via the internet as part of the Services.
b) Where the Solution Type is On-premise, the software provided by us for installation by you on your own equipment as part of the Services.
Solution Tier: your chosen option for the Services, as set out in the Order Form.
Solution Type: the method by which the Services are provided, being Cloud or On-premise
Subscription Fees: the subscription fees payable by you to us, as set out in the Order Form.
Subscription Term: the Initial Subscription Term and any Renewal Term.
Supplier Personal Data: any personal data which we process in connection with this agreement, in the capacity of a controller.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
(c) Any words following the terms including, include, in particular, for example 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.
(d) A reference to writing or written includes e-mail.