Effective 1st October 2023
1. DEFINTION & INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in the Contract.
“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation; it also means staff from third party organisations that are Clients of the Customer, or staff and contractors working for other organisations that are contracted to the Client. Users from third party organisations must have non-disclosure agreements in place with the Supplier to be Authorised Users;
“Business Day” means any day which is not a Saturday, Sunday or public holiday in the UK;
“Survey Data” means the anatomised data collected about the Recipients generated by the Software from time to time;
“Survey Information” means any information provided by the Recipients directly to the Customer as a result of any Survey including personal data;
“Client(s)” means the third party organisation(s) the Customer is in business with;
“Client Services” means the services provided by the Supplier to the Client including access to Software as more particularly described in the Statement of Work;
“Customer” means the organisation (e.g. the advisory firm) so named on the Statement of Work to who the Services are provided by the Supplier;
“Customer Data” means the data inputted by the Customer, Authorised Users, Clients or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;
“Contract” means the contract which comes into existence on completion of a Statement of Work that is subject to a Master Contract Agreement with the Customer;
“Documentation” means any documents, information or resources made available to the Customer by the Supplier online via website or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;
“Effective Date” means the date set out in the Statement of Work;
“Inappropriate Content” has the meaning given to it in clause 2.3;
“Normal Business Hours” means 8.00 am to 5.00 pm EST, each Business Day;
“Order Form” means any Statement of Work or document signed by the Supplier and the Customer
“Services” means the subscription services provided by the Supplier to the Customer under the Contract or any other website notified to the Customer by the Supplier from time to time, including but not limited to access to the Software, as more particularly described in the Contract;
“Software” means the online software applications provided by the Supplier as part of the Services;
“Supplier” means BetterTrack UK Ltd
“Support Services” means the Supplier’s support services in relation to the Services as more particularly described in the Contract;
“User Subscription” means the user subscription purchased by the Customer pursuant to clause 8.1 which entitles Authorised Users to access and use the Services and the Documentation for Surveys in accordance with the Contract; and
“Virus” means anything 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 hole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. AUTHORISED USER ACCESS
2.1 Subject to the Customer purchasing the User Subscription through an approved Statement of Work, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.
2.2 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for his/her use of the Services and Documentation and that each Authorised User shall keep his/her password confidential.
2.3 Authorised Users shall not access, store, distribute or transmit any Viruses, or any Customer Data during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity;
(f) causes damage or injury to any person or property; or
(g) is in breach of any third party Intellectual Property Rights (“Inappropriate Content”); and the Supplier reserves the right, without liability to the Customer, to remove any Customer Data that breaches the provisions of this clause.
2.4 Authorised Users and Customers shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
(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 reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties other than the Clients; or
(d) subject to clause 18.1 and clause 3, 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
(e) attempt to obtain, or assist third parties other than the Clients in obtaining, access to the
Services and/or Documentation, other than as provided under this clause 2.
(f) Maintaining awareness and compliance with published security policies, procedures, standards and applicable regulatory requirements
2.5 The Customer 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, promptly notify the Supplier.
(i) Ensuring equipment is not left unattended
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding Customer of the Customer.
3. CLIENT ACCESS
3.1 The Customer may grant access to designated Client Authorised Users and the Supplier shall grant access to the Client Authorised Users in accordance with the provisions of the Contract.
3.2 If the Customer wishes the Client or any other Third Party to use the Services, the Customer shall notify the Supplier who will provide access to Authorised Users
3.3 The Customer undertakes that each Client Authorised User shall keep a secure password for his/her use of the Client Services and that each Client Authorised user shall keep his/her password confidential.
3.4 The Customer shall:
(a) procure that the Client complies with the provisions of clause 2.2 to 2.5 of these terms and conditions with the word “Customer” being replaced by “Client” and shall obtain from the Client enforceable undertakings to comply with these clauses in terms at least as extensive and binding upon the Client as the terms of the Contract are upon the Customer;
(b) at all times, be responsible for the Client’s compliance with the obligations set out in the
Contract; and shall be liable to the Supplier for the actions or omissions of the Client in relation to the Client’s use of the Client Services as if they were the actions or omissions of the Customer.
4.1 The Supplier shall, during the Subscription Term, provide the Services, the Client Services and make available the Documentation to the Customer on and subject to the terms of the Contract.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 1130pm to 12am am UK time on Sunday; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the
Supplier has used reasonable endeavours to give the Customer at least 4 ‘Normal Business Hours’ notice in advance.
5. CUSTOMER & CLIENT DATA
5.1 The Customer and Client shall own their respective rights, title and interest in and to all of the Customer or Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer or Client Data.
5.2 The Supplier shall follow its internal archiving procedures for Customer and Client Data. In the event of any loss or damage to Customer and Client Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer and Client Data from the latest back-up of such Customer and Client Data maintained by the Supplier in accordance with the archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer and Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer and Client Data maintenance and back-up).
6. FURTHER INFORMATION
6.1 The full terms of the Supplier contract with the Customer are defined in a master agreement with a Statement of Work that includes details of Numbers of Authorised Users, Limitation of Liability, Term & Termination, Indemnities, Data Protection, Intellectual Property Rights, and Warranties