CloudBank – TERMS AND CONDITIONS

These terms and conditions are agreed between Brownsman Limited registered at The Old Pub, East Quayside, Newcastle upon Tyne, NE6 1LR and the Customer. By agreeing to the Services, the Customer is agreeing to these terms and conditions.

1. DEFINITIONS

    

   1. The definitions in this clause apply in this agreement.
      • Authorised Users: those employees and independent contractors of the Customer who are entitled to use the Services under this agreement, as further described in clause 3.2(b).
      • Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5.
      • Customer Data: the data specified by the Customer.
      • Effective date: the date of this agreement.
      • Fees: the fees payable to the Supplier for the Services or part thereof.
      • Installation Services: the configuration and related work, to be performed by the Supplier to configure the Software so that the Software conforms with the Technical Specification.
      • Services: the Installation Services, Direct Remote Backup Services and Ongoing Support.
      • Software: the Supplier’s proprietary software in machine-readable object code form only, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this agreement.
      • Technical Specification: the functionality and performance specifications for the Software. Which can be found on the Supplier’s website.
      • 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.
   2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

 

2. SERVICES

    

   1. The Customer (or Supplier for an additional fee) shall perform the Installation Services in accordance with the instructions and upon the date provided by the Supplier. Where the Supplier is performing the Installation Services, it shall use reasonable endeavours to meet the agreed performance dates, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.
   2. Within five days following the Installation Services, the Customer shall review the Service to confirm that it functions in material conformance with the Technical Specification. If the Service fails in any material respect to conform with the Technical Specification, the Customer shall immediately notify the Supplier.
   3. With respect to any difficulties the Customer might have during the Installation Services, the Supplier shall for an additional fee use reasonable endeavours to correct any such error within a reasonable time and, on completion, submit the corrected Service to the Customer. The provisions of this clause 2.3 shall then apply again, up to two additional times. If the Supplier is unable to correct such error after a further two attempts, either party may terminate this agreement without further liability to the other party.
   4. If the Customer does not provide any written comments in the five-day period described above, or if the Service is found to conform with the Technical Specification, the Service shall be deemed accepted.

 

3. AUTHORISED USERS

    

   1. The Supplier shall appoint a number of Authorised Users.
   2. In relation to Authorised Users:

   (a) the Customer’s access to the Services shall be limited to those individual Authorised Users;
   (b) the Customer shall maintain a written list of current Authorised Users of the Software, and the Customer shall provide such list to the Supplier as may be reasonably requested by the Supplier from time to time;
   (c) the Customer shall ensure that each Authorised User keeps secure the unique password for his use of the Software and that such password kept confidential. The Supplier has no means of recovering the password or the Customers Data;
   (d) the Supplier may audit the Software regarding the name and password for each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s normal conduct of business; and
   (e) if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.

   3. In relation to the Software:

   (a) the Supplier hereby grants to the Customer on and subject to the terms and conditions of this agreement a revocable, non-exclusive, non-transferable licence to allow Authorised Users to access the binary form of the Software and to use the Software solely for the Customer’s business purposes;
   (b) the Customer shall not store, distribute or transmit any Viruses, or any material through the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
   (c) the rights provided under this clause 3.3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
   (d) the Customer shall not:
   (i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
   (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
   (iii) access all or any part of the Software in order to build a product or service which competes with the Software and/or the Services
   (iv) use the Software to provide services to third parties; or
   (v) subject to clause 17.1, transfer, temporarily or permanently, any of its rights under this agreement, or
   (vi) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 3.3(d); and
   (e) the Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use.

 

4. CUSTOMER DATA

    

   1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
   2. The Supplier shall follow its own archiving procedures for Customer Data. In the event of any loss or damage to Customer 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 Data from the latest back-up of such Customer Data maintained by the. The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up).

 

5. SUPPLIER’S OBLIGATIONS

    

   1. The Supplier undertakes that the Services will be performed substantially in accordance with the Technical Specification and with reasonable skill and care.
   2. The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier’s instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Software does not conform with the foregoing warranty, Supplier may, at its discretion, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, Supplier does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free.
   3. In the event access to the Supplier’s Server is restricted for a period exceeding [24] hours, the Customer’s sole remedy will be the extension of the Services to accommodate every completed 24 hour period.
   4. This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.

 

6. CUSTOMER’S OBLIGATIONS

    

   • The Customer shall:
     (a) provide the Supplier with:
     (i) all necessary co-operation in relation to this agreement; and
     (ii) all necessary access to such information as may be required by the Supplier;
     in order to render the Services, including but not limited to Customer Data, security access information and Software interfaces to the Customer’s other business applications;
     (b) provide such personnel assistance, as may be reasonably requested by the Supplier from time to time;
     (c) comply with all applicable laws and regulations with respect to its activities under this Agreement; and
     (d) carry out all other Customer responsibilities set out in this agreement or in any of the Schedules in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary.

    

7. CHARGES AND PAYMENT

    

   1. The Customer shall pay to the Supplier the Fees.
   2. The Customer shall where applicable pay for the Installation Services (where the Supplier is asked to perform the same) upfront and thereafter the Fees monthly in advance on an agreed payment date.
   3. The Customer shall where agreed in advance, reimburse the Supplier for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by the Supplier in performance of the Services.
   4. All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
   5. Where the Fees are not received on the payment date in accordance with clause 7.1, this shall constitute a material breach which if not remedied within 7 days from the payment date shall lead to the immediate suspension of the services and thereafter termination in accordance with clause 12.2a.

 

8. PROPRIETARY RIGHTS

    

   1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
   2. The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

 

9. CONFIDENTIALITY

    

   1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
      (a) is or becomes publicly known other than through any act or omission of the receiving party; or
      (b) was in the other party’s lawful possession before the disclosure; or
      (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
      (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

   2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
   3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
   4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
   5. The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier’s Confidential Information.
   6. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
   7. This clause 9 shall survive termination of this agreement, however arising.

 

10. INDEMNITY

     

    1. The Customer shall defend, indemnify and hold harmless the Supplier 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 the Customer’s use of the Software or Services, provided that:
       (a) the Customer is given prompt notice of any such claim;
       (b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
       (c) the Customer is given sole authority to defend or settle the claim.

    2. The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

 

11. LIMITATION OF LIABILITY

     

    1. This clause 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
       (a) any breach of this agreement;
       (b) any use made by the Customer of the Services, the Software, the Installation Services or any part of them; and
       (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

    2. Except as expressly and specifically provided in this agreement:
       (a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by loss, errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction unless such damage caused by loss, errors or omissions in any information, instructions or scripts is as a sole result of the proven negligence of the Supplier; and
       (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.

    3. Nothing in this agreement excludes the liability of the Supplier:
       (a) for death or personal injury caused by the Supplier’s negligence; or
       (b) for fraud or fraudulent misrepresentation.

    4. Subject to clause 11.3:
       (a) the Supplier 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; and
       (b) the Supplier’s 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 price paid for the Services during the 12 months preceding the date on which the claim arose.

 

12. TERM AND TERMINATION

     

    1. This agreement shall commence on the Effective Date and shall continue for the period of one year unless otherwise terminated as provided in this clause 12. After this, the agreement shall automatically renew for yearly periods, unless either party serves 30 days notice to the other of it’s intention to terminate.
    2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
       (a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing of the breach; or
       (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
       (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
       (d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
       (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
       (f) the other party ceases, or threatens to cease, to trade; or
       (g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

    3. On termination of this agreement for any reason:
       (a) all licences granted under this agreement shall immediately terminate;
       (b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
       (c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for an extension of time up to 30 days to allow the Customer to retrieve Customer Data. Where requested and at an additional cost, the Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
       (d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

 

13. FORCE MAJEURE

     

    • The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

     

14. WAIVER

     

    1. A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    2. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

 

15. SEVERANCE

     

    1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

 

16. ENTIRE AGREEMENT

     

    1. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
    2. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

 

17. ASSIGNMENT

     

    • The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

     

18. NO PARTNERSHIP OR AGENCY

     

    • Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

     

19. THIRD PARTY RIGHTS

     

    • This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

     

20. NOTICES

     

    • Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.

     

21. GOVERNING LAW AND JURISDICTION

     

    1. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
    2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).