Quality Clouds Ltd. Terms and conditions

1. DEFINITIONS AND INTERPRETATION 

1.1
In this agreement unless the context otherwise requires, the following words and expressions shall have the following meanings:

    "Agreement" means these terms and conditions
    "Access Period" means the period agreed with Quality Clouds Ltd (QCL) for the selected Product unless terminated earlier in accordance with this agreement
    "Authorised Users" means employees or contractors of the Client issued with passwords by QCL to access the Product
    "Client Data" means data input by the Client and stored by QCL on behalf of the Client including but not limited to data identifying Authorised Users
    "Confidential Information" means all information concerning the business, finances, technology, clients or commercial affairs of a party or its clients which is described as confidential by the party providing the information or which, by its nature, should be assumed to be confidential, including but not limited to, the identity of Authorised Users
    "Environment" means the code available for scanning by the Product at the Client specified URL
    "Fees" means the fees agreed with QCL as amended pursuant to clause 6.2
    "Intellectual Property Rights" means patents, trade marks, Internet domain names, service marks, registered designs, applications for registration of any of the foregoing, copyright, database rights, design rights, trade and business names and any other similar protected rights in any country
    "Portal" means the users point of access to the Product at QCL's then current website as the same may be varied pursuant to this agreement
    "QCL" means Quality Clouds Limited (Company Number 09522753 registered in England and Wales)
    "Product Description" means the description of the Product in the end user information provided to the Client in hard copy or electronic form and or made available through the Portal or within the Product
    "Product" means the SaaS quality assessment product you are using and accessed via the Portal together with the results generated as a consequence of using the Product
    "Scan" means a scan of the Environment performed by the Product
    "Support Services" means the services described in clause 5.1.

1.2
If there are any additional terms agreed between QCL and the Client then these shall apply to and form part of this agreement and if there is any inconsistency or ambiguity between such terms and those below then the additional terms shall prevail to the extent necessary to resolve such inconsistency or ambiguity.

2. PROVISION OF THE SERVICES

2.1
In consideration of the payment of the Fees (when apply) and subject to the terms and conditions of this agreement, QCL shall provide the Client with:

    2.1.1
    access to and use of the Product for the specified number of Scans on the specified maximum number of Environments by its Authorised Users via the Portal during the Access Period;
    2.1.2
    the Support Services;

2.2
Any services provided by QCL in addition to those referred to in clause 2.1 shall be charged to the Client on a time and materials basis.
2.3
Any customisation of the Product for the Client shall be the subject of a separate professional services agreement but once completed the customised version and any changes to the Product Documentation shall be licensed pursuant to this agreement.
2.4
Following the Expiry Date the Client will be given the option for the data held by QCL in connection with the Product to be returned, deleted or stored subject to payment of the applicable charge. If the Client does not make any election within 28 days of being given the option by QCL, QCL shall serve notice on the Client that it intends to delete the data and if no such election is received within a further 7 days QCL may delete the data and the Client will pay QCL's then current fees for deletion.

3. ACCESS TO QUALITYCLOUDS

3.1
The Client is responsible for providing QCL with the details of the individuals that are to be issued with personal identification information (username and password) ("PII") that will allow access to the Product.
3.2
Subject to the Client providing the necessary information QCL will issue the PII to the Authorised Users using the e mail addresses supplied by the Client so that the Authorised Users may access the Product during the Access Period where apply.
3.3
The Client will be responsible for any unauthorised use or misuse of PII issued to its Authorised Users. The Client shall keep confidential the PII issued by QCL and not disclose it to third parties. The Client will notify QCL immediately in writing upon becoming aware of any known or suspected misuse of PII.
3.4
QCL shall use its reasonable endeavours to ensure that during the term of this Agreement the Authorised Users have access to the Product during the Access Period subject to routine and emergency maintenance and repairs.
3.5
The Client is responsible for ensuring that: (i) the Authorised Users have adequate access to the internet, (ii) the Client's systems, system activity and firewalls do not hinder or prevent access to the Product, (iii) the Authorised User's have an up to date browser supported by the Product (iv) the Environment to be subject to a Scan is supported by the Product. QCL will provide the Client with information necessary for the Client to be able to meet its responsibility under this clause 3.5.
3.6
QCL shall have no liability to the Client in respect of the Client’s or Authorised Users’ inability to access the Product or errors in the functioning of the Product which are attributable to: (i) an Event of Force Majeure (see clause 14); (ii) non compliance with Clause 7.1; (iii) operator error; or (iv) provision of incorrect information by the Client.
3.7
QCL shall use up to date industry recognised virus protection software in the operation of the Product.
3.8
QCL shall be entitled to suspend access to the Product: (i) on reasonable notice to the Client for such period as may be reasonably required for maintenance, repairs or improvements; and (ii) without prior notice to the Client for exceptional operational reasons and in such circumstances QCL shall provide the Client with an explanation for any suspension.

4. QUALITYCLOUDS WARRANTY

4.1
The Clients acknowledges and accepts that the use of the Product shall not be uninterrupted or error free. QCL warrants that the Product shall be free from material defects and shall function substantially in accordance with the Product Description.
5
SUPPORT SERVICES FOR SUBSCRIPTIONS
5.1
The support services supplied to the Client are as follows:

    5.1.1
    set up of Client's named individuals as Authorised Users;
    5.1.2
    if requested, assisting the Client to add, remove or amend the details of any Authorised User;
    5.1.3
    guidance to Client Rep on configuration of the Product using tools within the Product accessible by the Client's Authorised User;
    5.1.4
    correction of errors or faults in the functionality of the Product up to it's interface with the world wide web;
    5.1.5
    improvements in the functionality and operation of the Product released within the Product subscribed to by the Client;
    5.1.6
    hosting of the Client's data stored within the Product subject to reasonable use.

5.2
QCL may make an additional charge for any assistance or support supplied by QCL and requested by the Client which falls outside of the Support Services. Additional charges will be levied on a time and materials basis and shall be charged at QCL's standard rates last notified/agreed to/with the Client.
5.3
QCL shall provide support only to the Client's nominated representative ("Client Rep") using either e mail or phone. Support requests should be made by the Client Rep using the support e mail address or telephone number supplied by QCL. Requests can be made between GMT 0900 and 1800 hours on weekdays other than public holidays.
5.4
QCL shall notify the Client if it considers that the storage capacity being used by the Client within the Product exceeds what QCL considers reasonable. In which case QCL shall advise the Client of any additional charge that may be payable and the parties shall seek in good faith to agree a reasonable charge for such excess for the remainder of the Access Period. In the absence of any agreement within 28 days of such notice, QCL may remove Client data on a FIFO basis to reduce the storage capacity being used by the Client.
5.5
When requiring access to the Support Services the Client shall provide sufficient material and information to enable QCL to duplicate or identify the problem being reported by the Client. QCL shall attempt to solve such problem as soon as reasonably possible after notification of the problem by the Client.
5.6
QCL shall not be obliged to provide support in respect of any problem attributable to an Event of Force Majeure (see clause 14). Should QCL agree to provide any support that falls within such exclusion, QCL shall be entitled to make an additional charge in accordance with its standard scale of charges from time to time in force.

6. FEES AND OFF-LINE PAYMENTS

6.1
The Client shall pay QCL’s invoices within 30 days of the date of invoice, without deduction, set-off or counterclaim. All amounts stated are gross amounts but exclusive of VAT or other sales tax which shall be paid by the Client, if applicable, at the then prevailing rate subject to receipt of a valid VAT invoice or other sales tax invoice. The Fees are payable in advance and are non refundable. Additional support fees are payable monthly in arrears.
6.2
QCL may increase the Fees on not less than 3 months notice to the Client any such increase shall not be made at less than 12 month intervals and shall apply with effect from the payment period following the increase.
6.3
The Client shall reimburse QCL's travel, accommodation and subsistence expenses incurred in the provision of the Support Services with the prior approval of the Client.
6.4
If the Client does not make payment by the due date, QCL may, without prejudice to any other rights and remedies at its option: (i) charge the Client interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and (ii) suspend the Authorised Users’ access to the Product.

7. THE CLIENT’S PARTICIPATION

7.1
The Client shall ensure that its computer systems used for accessing and participating in the Product meet the minimum requirements as required by and made known to the Client by QCL.
7.2
The Client shall provide QCL in a timely fashion with such assistance and information as QCL may reasonably require in the set up and provision of the Product and the Support Services.
7.3
The Client shall not nor shall it seek to:

    7.3.1
    attempt to test or penetrate any of our servers, databases or application code;
    7.3.2
    remove or circumvent security and authentication processes and logic;
    7.3.3
    disrupt the Product by means of frequent and repeated access to the Portal beyond what would be considered reasonable use for its own business purposes;
    7.3.4
    access or modify any application code, server or client side;
    7.3.5
    access any area of the Portal to which it is not allowed access;
    7.3.6
    use any of the Product to distribute virus applications, spamming, or malware;
    7.3.7
    offer, supply or resell any or all of the Product to any third party

8. NO-CHARGE PRODUCTS

8.1
We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below
(“No-Charge Products”)
. Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for commercial purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products we make available
(“Beta Versions”)
are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes QC’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.

9. INTELLECTUAL PROPERTY RIGHTS

9.1
The Client acknowledges that the Intellectual Property Rights in the Product, the Portal and the structure and arrangement of the Client Data within the Product shall be the property of QCL. The Client will not obtain any rights in the Product, the Portal and the databases therein other than those expressly granted to it under this agreement.
9.2
Intellectual Property Rights in the Client Data shall not be affected by their inclusion and storage within the Product. Save that the method of storage and the structure of the data within the Product may be protected as a compilation or database and all Intellectual Property Rights in such compilation and/or database shall belong to QCL.
9.3
QCL may use the results of the Client's use of the Product for analytical purposes provided that neither the Client nor any other employee, officer, agent or contractor of the Client shall be identifiable from such use.

10. QUALITYCLOUDS INDEMNITY

10.1
QCL shall at its own expense defend or, at its option, settle any third party claim or suit alleging that the use by the Client of the Product but not any data stored therein, in accordance with this agreement or any part of it infringes any third party’s Intellectual Property Rights ("a Claim") and agrees to be responsible for any reasonable costs involved and to pay any damages finally awarded against the Client in any such Claim by a court of competent jurisdiction provided that: (i) the Client shall immediately notify QCL if a Claim is made against the Client and agrees to grant to QCL exclusive control of all litigation and negotiations in connection with such Claim; (ii) the Client shall at the request and expense of QCL afford to QCL all reasonable assistance for the purpose of contesting any Claim; (iii) the Client shall not make any admissions (save where required by court order or governmental regulations) which may be prejudicial to the defence or settlement of any Claim without the approval of QCL (not to be unreasonably withheld or delayed).

11. CONTENT, SECURITY AND DATA PROTECTION

11.1
The Client shall ensure that any data or software made available to QCL by the Client in connection with this agreement is lawful. To the extent that such data contains Personal Data (as defined in the Data Protection Act 1998 as amended ("the Act")), the Client warrants, as separate and independent warranties, that: (i) it has obtained the Data Subject's consent to use their Personal Data for processing and storage as set out in this agreement and the relevant Product Description; and, (ii) it has complied with its obligations under the Act.
11.2
QCL will carry out the processing (as defined by the Act) of Personal Data made available to QCL by or on behalf of the Client or an Authorised User only to the extent necessary for the proper operation of the Product and will not divulge the whole or any part of the Personal Data to any person, except to the extent necessary for the provision of the Product or as permitted by the Client or the Data Subject of such Personal Data.
11.3
QCL will ensure that it has appropriate security measures in place to safeguard against any unauthorised access or damage to or accidental loss, destruction or disclosure of Client Data. If requested by the Client, QCL shall provide an up to date copy of its Security Policy and shall adhere to the same with respect to the Product and the Client Data.
11.4
QCL shall promptly notify the Client of any known or suspected breach of security or unauthorised disclosure of the Client's Data and shall take all reasonable steps to limit and or prevent such breach or disclosure. If there is such a breach or disclosure QCL shall keep the Client regularly and frequently informed of the extent of such breach or disclosure and the steps being taken by QCL to deal with the same. QCL shall comply with all reasonable request of the Client to limit any such breach or disclosure provided that it is technically feasible and does not result in QCL incurring any additional cost or expense.

12. LIMITATION OF LIABILITY

12.1
This clause 11 sets out the full extent of QCL's liability to the Client under or in connection with this agreement no matter how such liability arises and whether for breach of contract, tortious acts or omissions (not limited to negligence) or breach of statutory duty.
12.2
A party’s liability to the other party for death or personal injury resulting from its negligence or for fraudulent misrepresentation shall not be limited.
12.3
Subject to Clause 11.2, QCL shall not be liable to the Client for: (i) any indirect or consequential loss or damage; (ii) loss of profit; (iii) loss of business; (iv) loss of reputation; (v) depletion of goodwill; and, (vi) subject to clause 11.4 any loss of, damage to or corruption of Client Data.
12.4
Subject to Clause 11.2, QCL’s liability in respect of: (i) damage to the Client’s tangible property resulting directly from QCL’s negligence or that of its employees shall not exceed £500,000 for any one event or series of connected events; (ii) any loss of, damage to or corruption of Client Data shall be limited to reconstituting such data from back ups without charge to the Client (iii) impaired, limited or no access to the Product in any year shall not exceed the Fees for such year proportionate to such access calculated on a straight line basis; and, (iv) any other and all losses not covered by the foregoing shall not exceed, in aggregate, the Fees paid by the Client under this agreement for the year in which the incident giving rise to the liability occurred and if more than one incident gives rise to the same liability then the year in which the first in the series of incidents occurred.
12.5
Other than for breach of clause 10, QCL shall not have any liability under this agreement for the Client Data.
12.6
Unless expressly set out in this agreement all conditions, warranties, representations (unless made fraudulently) or other terms implied by statute or law are excluded to the fullest extent permitted by law.

13. TERMINATION OF THIS AGREEMENT

13.1
This agreement shall come into force on the date on which it is signed/accepted by the parties and, unless terminated earlier pursuant to this Clause 12, shall continue until the Client Data has been returned or removed pursuant to clause 12.5
13.2
QCL may terminate this agreement by 5 Business Days’ notice to the Client if the Client: (i) fails to pay any fees as they fall due; or, (ii) has accessed or used or permitted access to or use of the Product otherwise than in accordance with the terms of this agreement.
13.3
Either Party may terminate this agreement immediately by notice in writing to the other if:

    13.3.1
    the other commits any material breach of any term of this agreement which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;
    13.3.2
    an order is made or a resolution is passed for the winding-up of the other or an order is made for the appointment of an administrator to manage the affairs, business and property of the other or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other's assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other takes or suffers any similar or analogous action in consequence of debt.

13.4
The Client may terminate this agreement at the end of the Access Period or each anniversary thereof by giving QCL not less than 3 months written notice. Otherwise, the agreement shall automatically renew for a further period of the same duration as the Access Period.
13.5
Any termination shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

14. CONFIDENTIALITY

14.1
Each party shall keep strictly confidential all Confidential Information received directly or indirectly from the other party. Such Confidential Information shall not be disclosed to any third party other than the employees and authorised subcontractors of the receiving party without the prior written consent of the party to whom such Confidential Information belongs. Neither the party receiving Confidential Information nor its employees or authorised subcontractors shall use any such Confidential Information for any purpose other than the performance of the agreement. Further, each party shall procure that such employees and subcontractors act in a manner consistent with the obligations of confidentiality set out herein. This clause shall not apply to Confidential Information if and to the extent that: (i) it is required to be disclosed by any court of competent jurisdiction or by a governmental or regulatory authority or where there is a legal right, duty or requirement to disclose, provided that where possible and without breaching any such requirements, 2 days’ prior notice is given to the other party of such disclosure; (ii) it is information which is, at the date of this agreement or subsequently, in the public domain through no fault of the party receiving such information; (iii) the receiving party can demonstrate subsequently came into its knowledge by means of disclosure by a third party free from any obligation of confidentiality; (iv) the receiving party can show it was information in the possession of the receiving party prior to disclosure under this agreement; or (v) it is information that is independently developed by personnel of the receiving party having no access to the other party’s Confidential Information.
14.2
The obligations of this clause shall survive termination of this agreement.

15. FORCE MAJEURE

15.1
Neither party shall have any liability to the other under this agreement to the extent that the performance of its obligations is delayed, hindered or prevented by an Event of Force Majeure. "Event of Force Majeure" shall mean fire, storm, flood, earthquake, accident, adverse weather conditions, explosions, Acts of God, terrorism or the threat thereof, nuclear, chemical or biological contamination, compliance with any law, governmental controls, restrictions or prohibitions, strikes, lock-outs, industrial action, employment dispute, protests, public disorder, traffic congestion, accident, breakdown, vandalism, interruptions in communications or power supply, shortages of materials or supplies, failure or malfunction of computer systems or any other event or circumstance outside the control of a party to this agreement.

16. NOTICES

16.1
Any notice, request, instruction or other document to be given by a party under this agreement shall be delivered by hand, sent by pre-paid first class post, or by e-mail transmission to the recipient's usual address or such other address as may be notified by that party in accordance with this clause 15.1.
16.2
Unless proved otherwise, a notice shall be deemed to have been received if delivered by hand, at the time of delivery; if sent by e-mail during the day of transmission as long as the sender can show satisfactory transmission on a week day (not a public holiday) between 9.00am and 5.00pm CET; and if sent by post, 48 hours after posting.

17. GENERAL

17.1
The terms and conditions of this agreement are the entire agreement between the parties with regard to their subject matter. Each party acknowledges that in entering into this agreement it does not do so on the basis of, and does not rely on any representation, unless made fraudulently, warranty or other provision not expressly contained in this agreement. Any variation to this agreement must be in writing and signed on behalf of both parties. If a court decides that any part of this agreement cannot be enforced, that particular part of this agreement will not apply, but the rest of this agreement will. A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under this agreement shall not prevent the exercise of that or any other right. The Client may not assign or transfer any benefit, interest or obligation under this agreement. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement.

18. GOVERNING LAW AND JURISDICTION

18.1
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.