Master service agreement (Terms and Conditions)

Terms and Conditions

Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services shall be governed by these Terms and Conditions. Use of the Hosted Services shall be considered as the Customer's express acceptance of these Terms and Conditions.

1. Definitions

1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:

"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Authentication" means a successful login to the Hosted Services;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

"Charges" means the following amounts: a) amounts calculated from the Provider's standard time-based charging rates as given on the Provider’s Website(s); and b) such amounts as may be agreed in writing by the parties from time to time;

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer" means the person or entity identified as such in Section 1 of the Services Order Form;

"Customer Confidential Information" means: a) any information disclosed by the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure: i) was marked or described as "confidential"; or ii) should have been reasonably understood by the Provider to be confidential; and b) the Customer Data;

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

"Customer Indemnity Event" has the meaning given to it in Clause 14.3;

"Customer Personal Data" means Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;

"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Effective Date" means the date upon which the Customer first authenticates him or herself to the Hosted Services;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected;

"Hosted Services" means any computer software which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions either on a paid, trial, and/or free-of-charge basis;

"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of: a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services; b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer; and/or c) a failure of the Customer to perform or observe any of its obligations in the Agreement;

"Hosted Services Specification" means the specification for the Platform and Hosted Services set out on: a) the Provider’s Website(s); and/or b) any documentation provided to the Customer by the Provider;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

"Minimum Term" means, in respect of the Agreement, the period of 12 months beginning on the Effective Date;

"Permitted Purpose" means the proper intended function of the Hosted Services;

"Personal Data" has the meaning given to it in the Data Protection Act 1998;

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services;

"Provider" means Red Piranha Labs Limited, a company incorporated in England (registration number 05055009);

"Provider’s Website(s)" means: (a) any website or websites managed by the Provider for the purposes of publishing materials pertaining to the Hosted Services; and/or (b) content and materials pertaining to the Hosted Services published on other websites not managed by the Provider; (c) "Provider Indemnity Event" has the meaning given to it in Clause 14.1;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;

"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari;

"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

"Update" means a hotfix, patch or minor version update to any Platform software; and

"Upgrade" means a major version upgrade of any Platform software.

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17.

3. Hosted Services

3.1 The Provider shall create an Account for the Customer and shall provide to the Customer details for that Account for the purposes of Authentication.

3.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer during the Term.

3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations: a) the Hosted Services may only be used by [the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and b) the Hosted Services may only be used by the named users registered on the Hosted Services, providing that the Customer may change, add or remove a designated named user by using tools within the software.

3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions: a) the Customer must not sub-license its right to access and use the Hosted Services; and b) the Customer must not permit any unauthorised person to access or use the Hosted Services;

3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.

3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 1 (Acceptable Use Policy).

3.7 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

3.8 The Customer must not use the Hosted Services: a) in any way that is unlawful, illegal, fraudulent or harmful; or b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

3.10 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

4. Support Services

4.1 The Provider shall provide the Support Services to the Customer during the Term.

4.2 The Provider shall provide the Support Services with reasonable skill and care.

4.3 The Provider shall provide the Support Services in accordance with Schedule 2 (Support SLA).

4.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

5. Customer obligations

5.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such: a) co-operation, support and advice; b) information and documentation; and c) governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

5.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.

6. Customer Data

6.1 The Customer hereby grants to the Provider a non-exclusive licence to the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement.

6.2 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

6.3 The Provider shall create a back-up copy of the Customer Data at least [daily], shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.

6.4 Within the period of 5 Business Days following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

7. No assignment of Intellectual Property Rights

7.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

8. Charges

8.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

8.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 7.2.

8.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

8.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.

9. Payments

9.1 The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.

9.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 9.

9.3 The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).

9.4 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may charge the Customer interest on the overdue amount at the rate of 2% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Provider acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 9.4 constitute a substantial remedy within the meaning of that Act.

10. Provider's confidentiality obligations

10.1 The Provider must: a) keep the Customer Confidential Information strictly confidential; b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions; c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care; d) act in good faith at all times in relation to the Customer Confidential Information; and e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

10.2 Notwithstanding Clause 10.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

10.3 This Clause 10 imposes no obligations upon the Provider with respect to Customer Confidential Information that: a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality; or b) is or becomes publicly known through no act or default of the Provider;

10.4 The restrictions in this Clause 10 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.

10.5 The provisions of this Clause 10 shall continue in force for a period of 5 years following the termination of the Agreement, at the end of which period they will cease to have effect.

11. Data protection

11.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).

11.2 The Provider warrants to the Customer that: a) it will act only on instructions from the Customer in relation to the processing of Customer Personal Data; b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Personal Data and against loss or corruption of Customer Personal Data; c) it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement; and d) it will process the Customer Personal Data in compliance with all applicable laws;

11.3 The Provider shall notify the Customer promptly if: a) any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable; b) the Provider receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or c) the Provider receives a request from a data subject for access to any of the Customer Personal Data.

11.4 The Provider shall co-operate with the Customer in relation to: a) any request from the Customer to amend or delete any of the Customer Personal Data; b) any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and c) any request from a data subject for access to any of the Customer Personal Data, at the cost and expense of the Customer.

11.5 The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under the Agreement; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.

11.6 The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel are informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider's duties in respect of that Personal Data.

12. Warranties

12.1 The Provider warrants to the Customer that: a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions; b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

12.2 The Provider warrants to the Customer that the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification.

12.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person.

12.4 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

12.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

13. Acknowledgements and warranty limitations

13.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

13.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

13.3 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

14. Indemnities

14.1 The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a "Provider Indemnity Event").

14.2 The Customer must: a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider; b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event; c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, without prejudice to the Provider's obligations under Clause 14.1.

14.3 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a "Customer Indemnity Event").

14.4 The Provider must: a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer; b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event; c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer, without prejudice to the Customer's obligations under Clause 14.3.

15. Limitations and exclusions of liability

15.1 Nothing in these Terms and Conditions will: a) limit or exclude any liability for death or personal injury resulting from negligence; b) limit or exclude any liability for fraud or fraudulent misrepresentation; c) limit any liabilities in any way that is not permitted under applicable law; or d) exclude any liabilities that may not be excluded under applicable law.

15.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in these Terms and Conditions: a) are subject to Clause 15.1; and b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

15.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

15.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

15.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.

15.6 Neither party shall be liable to the other party in respect of any loss of use or production.

15.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

15.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

15.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

16. Force Majeure Event

16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must: a) promptly notify the other; and b) inform the other of the period for which it is estimated that such failure or delay will continue.

16.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

17. Termination

17.1 The Provider may terminate the Agreement by giving to the Customer not less than 30 days' written notice of termination. The Customer may terminate the Agreement by giving to the Provider not less than 30 days' written notice of termination.

18. Effects of termination

18.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 3.10, 9.2, 9.4, 10, 14, 15, 18, 21, 22, 23, 24, 25.1, 25.2, 26, 27, and 28].

18.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

18.3 Within 30 days following the termination of the Agreement for any reason: a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties' other legal rights.

19. Notices

19.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Clause 19.2): a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

19.2 The Provider's contact details for notices under this Clause 19 are as per the registered address of the Provider at Companies House.

19.3 The addressee and contact details set out in Section 5 of the Services Order Form and Clause 19.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 19.

20. Subcontracting

20.1 The Provider must not subcontract any of its obligations under the Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

21. Assignment

21.1 The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under these Terms and Conditions.

21.2 The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer's contractual rights and obligations under these Terms and Conditions.

22. No waivers

22.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

22.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

23. Severability

23.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

23.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

24. Third party rights

24.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

24.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

25. Variation

25.1 The Agreement may not be varied except in accordance with this Clause 25.

25.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.

25.3 The Provider may vary the Agreement by giving to the Customer at least 30 days' written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 25.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during.

26. Entire agreement

26.1 The main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

26.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

26.3 The provisions of this Clause 26 are subject to Clause 15.1.

27. Law and jurisdiction

27.1 These Terms and Conditions shall be governed by and construed in accordance with English law.

27.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.

28. Interpretation

28.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to: a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and b) any subordinate legislation made under that statute or statutory provision.

28.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

28.3 References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

28.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Schedule 1 (Acceptable Use Policy)

1. Introduction

1.1 This acceptable use policy (the "Policy") sets out the rules governing: a) the use of Hosted Services (the "Services"); and b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").

1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to the Provider (and "we" and "our" should be construed accordingly).

1.3 By using the Services, you agree to the rules set out in this Policy.

1.4 We will treat your Authentication to the Services as your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

1.5 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

2. General usage rules

2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.

2.2 You must not use the Services: a) in any way that is unlawful, illegal, fraudulent or harmful; or b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.3 You must ensure that all Content complies with the provisions of this Policy.

3. Unlawful Content

3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2 Content must not: a) be libellous or maliciously false; b) be obscene or indecent; c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right; d) infringe any right of confidence, right of privacy or right under data protection legislation; e) constitute negligent advice or contain any negligent statement; f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity; g) be in contempt of any court, or in breach of any court order; h) constitute a breach of racial or religious hatred or discrimination legislation; or i) constitute a breach of official secrets legislation;

3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4. Graphic material

4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.

4.2 Content must not depict violence.

5. Negligent advice

5.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.

5.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

6. Etiquette

6.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

6.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

6.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.

6.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.

6.5 You must not use the Services for the purpose of deliberately upsetting or offending others.

6.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.

6.7 You must at all times be courteous and polite to other users of the Services.

7. Marketing and spam

7.1 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

7.2 You must not send any spam to any person using any email address or other contact details made available through the Services or that you find using the Services.

7.3 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

8. Gambling

8.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

9. Monitoring

9.1 You acknowledge that we may actively monitor the Content and the use of the Services.

10. Data mining

10.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

11. Hyperlinks

11.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

12. Harmful software

12.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

12.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

Schedule 2 (Support SLA)

1. Introduction

1.1 This Schedule 4 sets out the service levels applicable to the Support Services.

2. Helpdesk

2.1 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.

2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

2.3 The Provider shall ensure that the helpdesk is accessible by email and using the Provider's web-based ticketing system.

2.4 The Provider shall ensure that the helpdesk is operational during Business Hours during the Term.

2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

3. Response and resolution

3.1 Issues raised through the Support Services shall be categorised as follows: a) critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable; b) serious: a core function of the Hosted Services is significantly impaired; c) moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and d) minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.

3.2 The Provider shall determine, acting reasonably, into which severity category an issue falls.

3.3 The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

4. Provision of Support Services

4.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

5. Limitations on Support Services

5.1 If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed 4 hours then: a) the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and b) the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.

5.2 The Provider shall have no obligation to provide Support Services in respect of any issue caused by the improper use of the Hosted Services by the Customer.

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