Terms and Conditions
EveryCloud Security Limited
The definitions and rules of interpretation in this clause apply in each and every Contract (as defined below):
means any applicable legislation, authorisations, permissions, rules, regulations, orders and guidelines relating to the provision, marketing and/or use of the Services (as may be varied or superseded from time to time) and includes, without limitation, the Communications Act 2003, the Telecommunications Act 1984, anti-bribery and anti- corruption including but not limited to the Bribery Act 2010 and/or any directives or other requirements issued by OFCOM from time to time, in each case as amended, replaced or updated from time to time;
means the date of signature of the relevant Order Form or the date of the Service being provided by EVC, whichever is the later;
means the entire agreement between EVC and the Customer for the Services which shall comprise the terms and conditions set out in these Terms, in the Order Form and in the End User License Agreement;
means the person(s), firm or company with whom EVC makes a Contract as identified in the Order Form, and any reference to “you” and “your” is a reference to the Customer;
"Data Protection Legislation"
means all applicable data protection and privacy legislation in force from time to time and applicable to the processing of personal data in accordance with these Terms, including the UK GDPR; the Data Protection Act 2018 (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426), in each case as amended, replaced or updated from time to time ;
shall take the meaning as defined in the Data Protection Legislation;
any person authorised by Customer to use the Services;
"End-User License Agreement" or "EULA"
means the license agreement between the Third Party Supplier and the Customer which is appended to the Contract and which the Customer shall be required to agree to in order to obtain the Services from EVC;
means Everycloud Security Limited whose registered office is at 1a The Quadrant Courtyard, Quadrant Way, Weybridge, Surrey, England, KT13 8DR and whose registered company number is 9989679, and any reference to “us” “we” and “our” is a reference to EVC;
"Event of Force Majeure"
means any act, event, omission or accident beyond the reasonable control of a party and that could not have been reasonably anticipated or avoided by a party, which prevents it from, or delays it in, performing its obligations under this Contract;“Group” means, in relation to a company, that company, any company of which it is a Subsidiary (its holding company) and any other Subsidiary of such holding company; and each company in a group is a member of the group. Unless the context requires otherwise, the application of the definition of Group to any company at any time shall apply to the company as it is at that time;
"Intellectual Property Rights"
means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights including those of any 3rd party Service providers, in each case whether registered or unregistered and including all applications for (and rights to apply for and be granted)renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world in the Services.
means any claim brought by a third party against the Customer alleging that the Intellectual Property Rights infringes its rights;
means the minimum term of the Contract which shall commence on the Service Commencement Date and, subject to clause 3.3, shall end following the period set out in the Order Form or, if no period is set out in the Order Form, a period of twelve (12) months from and including the Service Commencement Date;
means the form prepared by EVC in respect of a request for the Services;
means all such “personal data”, as defined in Article 4 of the UK GDPR, as is, or is to be, processed by the Data Processor on behalf of the Data Controller;
"Personal Data Breach"
means unauthorised or unlawful Processing of Personal Data or accidental loss or destruction of, or damage to, Personal Data;
as defined in the Data Protection Legislation (“Process” and “Processing” shall be construed accordingly);
means any schedules as set out in the [Order Form]
means any proposal prepared by EVC in respect of a request for the Services;
means the automatic renewal of the Minimum Term as set out in clause 3.3;
means the Software to be provided by EVC under the Contract, including Third Party Supplier services identified in the Order Form;
"Service Commencement Date"
means the date that EVC notifies the Customer that the Services are live;
means any maintenance to any hardware, networks or systems affecting the provision or use of the relevant Services which is notified to the Customer by EVC or directly via a Third Party Supplier at least fourteen (14) days prior where reasonably practical.
means the Service or Licence subscribed to via EveryCloud and subject to the Software Vendor’s EULA;
means in relation to a company (a holding company) means a subsidiary (as defined in section 1159 of the Companies Act 2006) and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company.
means the payment due following an early termination of the Minimum Term, as set out in clause 3.2.
means these Terms and Conditions;
"Third Party Supplier"
means the third party selected by EVC to enable EVC to perform the Services;
means the UK GDPR as defined in section 3(10) of the Data Protection Act 2018 as amended by the DP Brexit Regulations and as amended, updated or replaced from time to time, being the effective data protection legislation within the UK;
means value added tax chargeable under English law for the time being and any similar additional tax.
2. APPLICATION OF TERMS
2.1 These Terms shall apply to and be incorporated into the Contract. If, however, there is any conflict between these Term and any terms contained, or referred to, in the Order Form, the terms of the Order Form shall prevail.
2.2 The Order Form constitutes an offer by the Customer to purchase Services on these Terms and the terms of the Product Schedules. No offer placed by the Customer shall be accepted by EVC other than:
2.2.1 by an Order Form being countersigned by EVC; or
2.2.2 by EVC confirming via email its acceptance of an Order Form signed by the Customer; or
2.2.3 (if earlier) by EVC starting to provide the Services, when a contract for the supply and purchase of the Services on these Terms will be established.
2.3 It is your responsibility to evaluate the Services being purchased, including any specific functionality requirement, prior to submitting a signed Order Form to EVC. Upon our acceptance of an Order Form you will be bound to purchase the Services referred to.
2.4 The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not be applicable in any way or govern the Contract, which shall be governed by the Terms in all dealings between the parties without exception.
2.5 No Contract shall come into existence except in accordance with clause 2.2. Any Quotation shall be valid for a period of 30 days from its date, provided that the EVC has not previously withdrawn it.
2.6 The Contract constitutes the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that it has not relied on any warranty, statement, promise or representation made or given by or on behalf of EVC or its Third Party Supplier which is not set out in the Contract.
3.1 The Minimum Term is the term stated in the Order Form.
3.2 Except where termination is due to circumstances in clause 7.5 or 7.6, if the Customer terminates the Contract during the Minimum Term the Customer shall pay to EVC an amount equal to the balance of payments that would otherwise have been due from the Customer for the remainder of the Minimum Term (“Termination Payment”).
3.3 Following the Minimum Term, the Contract will automatically renew for a further 12 month term (“Renewal Term”), unless the Customer provides EVC with notice in writing to terminate the Contract at the end of the then current Minimum Term or Renewal Term, such notice must be received by EVC at least ninety (90) days prior to the end of the Minimum Term or any subsequent Renewal Term.
3.4 The terms for the Renewal Term shall be the same as the terms contained herein, subject to any changes that may be agreed by the parties as follows:
3.4.1 Following any renewal of the Contract pursuant to clause 3.3, EVC may apply an increase of five per cent (5%) of the Charges for the Minimum Term or the cost of inflation for the year of the Renewal Term, whichever is the higher (the “Revised Charges”).
3.4.2 The Revised Charges shall be payable from and including the expiration of the Minimum Term.
3.4.3 In the event that the Revised Charges are more than 5%, the parties shall negotiate any increase above 5% in good faith and should the parties fail to agree the Revised Charges within thirty (30) days of the expiration of the Minimum Term then either party shall be at liberty to give written notice to the other to terminate the Contract with immediate effect.
3.5 Further to any request from the Customer to terminate the Contract, EVC shall issue a Contract Cancellation Form or email detailing the amounts payable and agreed under the Contract by the Customer prior to termination and in order for the termination to take effect. The Customer must either sign the Contract Cancellation Form issued by EVC and return this to EVC, or accept the terms of the termination email sent by EVC, and the Customer must pay all amounts stated on the Customer Cancellation Form or email within fourteen (14) days of the date of such form or email before the termination will be valid. If such payment is not made within fourteen (14) days of the date of EVC’s Contract Cancellation Form or email, the Customer’s request to terminate shall be deemed to have been withdrawn and the Contract shall continue in full. Until any valid termination takes effect, EVC shall be entitled to continue to charge the Customer for all fees due under the Contract.
4. PROVISION OF THE SERVICES
4.1 EVC OBLIGATIONS
4.1.1 EVC agrees to:-
184.108.40.206 exercise reasonable care and skill in providing the Services;
220.127.116.11 comply with all Applicable Laws;
18.104.22.168 use reasonable endeavours to perform its obligations under the Contract in line with any agreed timetable set out in the Order Form. However, whilst time shall not be of the essence in relation to any aspect of the Contract, EVC shall use reasonable endeavours to meet any timetable and shall keep the Customer reasonably informed if EVC foresees any issues which are reasonably likely to impact the timetable;
22.214.171.124 maintain accurate records relating to the performance of its obligations under these Terms; and
126.96.36.199 make available upon reasonable notice (and at the Customer’s expense), such information as the Customer may reasonably require for the purposes of supporting the Customer’s annual audit.
4.2 EVC RIGHTS
4.2.1 EVC or the Third Party Supplier may:-
188.8.131.52 for operational reasons, change the technical specification of the Services, provided that any such changes do not have a materially adverse effect on the performance or provision of the Services;
184.108.40.206 suspend the Services because of matters outside of its reasonable control and within the reasonable control and/or ambit of the Third Party Supplier. In the event EVC has to suspend the Services, EVC shall give the Customer as much notice as is reasonably possible. If EVC suspends all or part of the Services pursuant to this clause 220.127.116.11, the Customer shall not be obliged to pay the relevant Charges for the period from the start of the suspension of Services until such time as the Services recommence in accordance with the Contract;
18.104.22.168 suspend the Services for Scheduled Maintenance and uses all reasonable endeavours to carry out such action outside the Customer’s ordinary business hours.
22.214.171.124 EVC may, from time to time and without prior notice, change the Services and make any required amendments to these Terms, in order to comply with any applicable legal, regulatory or statutory requirements. If EVC requests a reasonable change to the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to such change.
4.2.2 Our support hours are from 09:00 to 17:30 Monday to Friday excluding bank holidays in England (“Support Hours”). If you become aware of an interruption to any Service (“Service Interruption”), please call our main customer services telephone number specified on our website and obtain a fault log number. The time at which you obtain the fault log number shall be the “Service Interruption Notification Point”.
4.2.3 If we are required to arrange an on-site visit due to a Service Interruption, EVC reserves the right to charge a reasonable “fault not found” fee, should the on-site visit identify that the cause of the Service Interruption is not our responsibility. This may include (but is not limited to) power surges, outages, etc.
4.2.4 In the absence of any specific service level agreement, EVC will use all reasonable endeavours respond to notifications of Service Interruptions and associated communications received by telephone or email within four (4) hours during the Support Hours. EVC does not provide any assurance or guarantee in relation to the resolution time for any Service Interruption.
4.3 CUSTOMER OBLIGATIONS
4.3.1 The Customer shall:
126.96.36.199 enter into the End User License Agreement;
188.8.131.52 comply with the requirements of all Applicable Laws;
184.108.40.206 provide reasonable co-operation with EVC in all matters relating to the Services;
220.127.116.11 as soon as reasonably possible, notify EVC of any faults relating to the Services and in such cases, the Customer shall furnish EVC with any information reasonably required to assist in the enforcement of the Service User’s obligations and/or the investigation of the suspicion or allegation as soon as reasonably practicable once such information is within the Customer’s possession;
18.104.22.168 ensure that the security and confidentiality (including password setting and changing) in relation to the Customer’s use of the Services and/or to any Third Party Supplier portal to support the Services is properly maintained and managed;
22.214.171.124 not store, distribute or transmit any material through the Services that:
a) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
b) facilitates illegal activity;
c) depicts sexually explicit images; and/or
d) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender re-assignment or
e) any other illegal activities.
4.3.2 Each party agrees to accept full responsibility and indemnify the other party from and against all losses, damage, costs, claims or expenses suffered by the party as a result of any act or omission by the other party in connection with the provision of Services which results in a failure to adhere to any other requirement under the Privacy and Electronic Communications (EC Directive) Regulations 2003 or any replacement legislation.
5.1 We will notify you following the installation and/or setup of the Services, and of the date of the completion of the installation/setup, which shall also be the Service Commencement Date. This provision applies equally to new Services and upgrades of existing Services. If any parts of the Service commence on different dates, each part of the Service shall have its own individual Service Commencement Date, and therefore its own individual Minimum Term and Renewal Term thereafter. Where elements of the Service have different Service Commencement Dates, they will each be treated as individual and distinct Contracts for any termination purposes. For the avoidance of doubt this clause 5.1 does not apply to standard upgrades to the Service carried out by EVC.
5.2 Charges shall start to accrue for the Services from the Service Commencement Date. Where the Services replace existing Services, charges under the replaced Services shall stop accruing at this time. Where you unreasonably delay any troubleshooting, installation or re-installation, we may treat an earlier date as the Service Commencement Date for the purposes of this clause 5.
6.1 The extent of EVC’s liability in relation to the supply of any Services shall be limited to EVC using reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given to EVC by the supplier of the Services. Except for any express warranties provided by EVC, EVC makes no other warranties relating to the Services, express or implied and expressly excludes any warranty of fitness for a particular purpose or merchantability.
EVC SERVICES AND ANY THIRD PARTY SUPPLIERS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
6.2 EVC shall not be obliged to assist the Customer with any claim under any warranty provided by a supplier of the Services, as required by clause 6.1 if:
(a) the Customer makes any further use of such Services after giving a notice to EVC that the Services do not comply with a manufacturers’ warranty;
(b) any defect arises because the Customer failed to follow the manufacturers or EVC’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Services or (if there are none) good trade practice;
(c) the defect arises as a result of EVC following any instructions supplied by the Customer;
(d) the Customer alters or repairs such Services without the written consent of EVC;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Services differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.3 To make a claim under this Warranty, the Customer must notify EVC in writing within the applicable warranty period. Such notice shall include the nature of the defect, description of the defective Services and any other relevant information.
7.1 Termination by EVC for cause
7.1.1 Without prejudice to any other rights or remedies which the parties may have, EVC may terminate the Contract without liability to the Customer immediately on giving notice to the Customer if:
126.96.36.199 the Customer fails to pay any amount due under the Contract under the terms of clause 13 following the provision of thirty (30) days’ notice to the Customer of the same by EVC; or
188.8.131.52 the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of it being notified in writing of the breach; or
184.108.40.206 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
220.127.116.11 there is a change of control of the Customer (as defined in section 1124 of the Corporation Tax Act 2010) that we have not given our prior written consent).
7.2 Consequences of Termination
7.2.1 On termination of the Contract for any reason:
18.104.22.168 the Customer shall immediately pay to EVC an amount equal to any outstanding, undisputed, unpaid invoices and interest up to date of termination and, in respect of Services supplied but for which no invoice has been submitted, EVC may submit an invoice, which shall be payable immediately on receipt if undisputed;
22.214.171.124 the Services shall immediately cease;
126.96.36.199 both parties shall immediately cease to use the Trademarks and return all Confidential Information (as defined in clause 9) of the other;
188.8.131.52 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
7.2.2 On termination of the Contract (however arising), clauses 10, 11, 12, 13, 14 and 20 shall survive and continue in full force and effect and EVC’s (but not the Customer’s) rights contained in clause 8 shall remain in full force and effect.
7.2.3 On termination of this Contract under this clause 7, EVC shall end the provision of all Services provided under the Contract.
7.4 Termination by EVC for convenience
7.4.1 The Contract may be terminated by EVC at any time by giving the Customer 3 (three) months’ written notice.
7.5 Termination by Customer for cause
7.5.1 Without prejudice to any other rights or remedies which the parties may have, the Customer may terminate the Contract without liability to EVC on giving notice to the Customer if EVC commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of it being notified in writing of the breach.
7.6 Termination by either party unable to pay its debts
7.6.1 Either party may terminate this Contract with immediate effect by giving notice to the other party if the other party is unable to pay its debts (within the meaning of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or a substantial part of its assets or it enters into or proposes any composition or arrangement with its creditors or anything generally analogous to the foregoing occurs in any applicable jurisdiction occurs regarding the subject matter hereto.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 As between the Customer, EVC and any Third Party Supplier, all Intellectual Property Rights shall be owned by the party that supplied them.
8.2 EVC grants to the Customer free of charge a non-exclusive, non-transferable, worldwide licence to use the Services including any product names of the Services (“Trademarks”) in the manner anticipated under the Order Form. If the Contract terminates or is materially breached by the Customer, this licence shall automatically terminate.
8.3 EVC claims exclusive ownership of all right, title and interest in and to the Trademarks together with any new or revised trademarks, tradenames and logos that EVC may adopt to identify it or any of its Services. The Customer shall not claim any rights in the Trademarks or take any action that threatens or challenges EVC’s proprietary rights therein.
8.4 The Customer must not, without the prior written consent of EVC, copy, de-compile or modify any Intellectual Property Rights, (including those contained in any software), nor copy any manuals or documentation supplied to the Customer by EVC.
8.5 With the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed), EVC may use the Customer’s logo, trademark, and/or name with respect to a specific advertisement, promotion or other marketing material or event in connection with the sale and promotion of its services to other actual or potential customers.
8.6 Subject to clause 8.1, nothing in this Contract shall entitle the Customer to use any intellectual property in connection with the Services without the prior written consent of EVC.
8.7 Subject to clause 8.8, EVC shall indemnify the Customer against any IPR Claim.
8.8 To qualify for such indemnity under clause 8.7, the Customer must (i) give EVC prompt written notice of any such IPR Claim (ii) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of EVC and (ii) allow EVC to control, and fully co- operate with EVC in, the defence and all related settlement negotiations. The foregoing shall not apply to the extent that the IPR Claim is the result of the negligence or wilful misconduct of the Customer.
9.1 Each party shall keep in confidence any information relating to the other party (whether written or oral howsoever stored) of a confidential nature (including software and, where relevant, manuals) obtained under or in connection with this Contract and shall not without written consent (such consent not to be unreasonably withheld or delayed) of the other party disclose that information to any person other than:-
9.1.1 their employees or professional advisers;
9.1.2 the employees of a Group company who need to know the information in order to fulfil the party’s obligations under this Contract or in order to provide or receive the Services.
9.2 Both parties shall keep in strict confidence any information (whether written or oral and howsoever stored) relating to the Services. Both parties shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging its obligations under this Contract, and shall ensure that such employees, agents or sub- contractors are subject to obligations of confidentiality corresponding to those which bind them.
9.3 This clause 9 shall not apply to:-
9.3.1 any information which is in the public domain other than through a breach of this Contract;
9.3.2 information lawfully in the possession of the recipient before the disclosure under this Contract took place;
9.3.3 information obtained from a third party who is free to disclose it; and
9.3.4 information which a party is requested to disclose and, if it did not, would be required by law to do so.
9.4 Both parties shall upon written request of the other either return or destroy the Confidential Information and any copies or extracts thereof, save where that other party is required to retain copies for legal, regulatory or risk management purposes. Either party may request written confirmation of the other of its compliance with this clause 9.4.
9.5 Both parties acknowledge that a breach of this clause 9 (Confidential Information) may cause the other irreparable injury and damage. Both parties agree that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the other party at law or in equity.
10.1 The Customer shall pay the charges for the Services as set out in the Order Form and/or the Proposal which shall apply for the Minimum Term (“the Charges”).
10.2 Payment for the Services shall be made as stated in the Order Form and/or the Proposal. In the absence of any agreed payment terms, payment shall be made by the Customer to EVC within thirty (30) days of the date of receipt of the invoice (“Due Date”).
10.3 All Charges are exclusive of VAT. VAT at the rates as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services will be payable by the Customer and specified on all invoices.
10.4 All payments payable and undisputed to EVC under the Contract shall become due immediately upon termination of this Contract.
10.5 If the Customer fails to pay EVC any sum due pursuant to the Contract, the Customer shall be liable to pay interest, costs and/or compensation under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended by the Late Payment of Commercial Debts Regulation 2013).
10.6 The Customer will be responsible for all Charges incurred in respect of any Services even if such Charges were incurred through, or as a result of, fraudulent or unauthorised use of the Services (other than where such Charges are incurred through, or as a result of, EVC’s fraud or unauthorised use of the Services). EVC may, but is not obliged to, detect unauthorised or fraudulent use of the services.
For the purposes of this clause 10.7, the term Currency Fluctuation shall mean a change (upwards or downwards) of at least two (2) points in the exchange rate of the US dollar ($ / USD) to British Pound Sterling (£ / GBP), the impact of which causes a material change in the balance of a party’s benefits and obligations under this Agreement.
10.7 In the event of a Currency Fluctuation, either party may submit a request to the other party to re-negotiate the Charges (Currency Fluctuation Notice). The Currency Fluctuation Notice shall:
10.7.1 be submitted in writing;
10.7.2 include details and evidence of the Currency Fluctuation and the resulting impact including the increased burden or loss of benefit suffered or anticipated by the party that suffered (or reasonably anticipates suffering) a detrimental change to its benefits and/or obligations under this Agreement caused by the Currency Fluctuation (Disadvantaged Party);
10.7.3 specify the changes that the Disadvantaged Party is proposing to this Agreement to remove or alleviate the effect of the Currency Fluctuation; and
10.7.4 be delivered promptly following the date of the Disadvantaged Party’s actual knowledge of the impact of the Currency Fluctuation.
10.8 Following receipt of the Currency Fluctuation Notice by the other party, the parties agree to use reasonable endeavours to promptly renegotiate this Agreement in good faith so as to avoid or mitigate the Currency Fluctuation to the extent reasonably possible.
10.9 If the parties are unable to agree written amendments to this Agreement in accordance with clause 10.7 within seven (7) days of the date of receipt of the Currency Fluctuation Notice, then the matter shall be referred to the Chief Executives of each party (or persons of equivalent seniority). The Chief Executives (or equivalent) will meet within seven (7) days to discuss the dispute and attempt to resolve it on the same basis as set out in clause 10.7 within ten (10) days.
10.10 If the parties are unable to agree written amendments to this Agreement within the period set out in clause 10.9 the Disadvantaged Party may terminate this Agreement in accordance with clause 7 provided that at the time such notice is served relevant written amendments to this Agreement have still not been agreed between the parties.
11. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1 Both parties sole remedy shall be governed by these Terms. This clause 11 sets out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the other in respect of:
11.1.1 any breach of the Contract;
11.1.2 any provision of the Services to the Customer;
11.1.3 any use made by the Customer of the Services; and
11.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 Nothing in these Terms limits or excludes the liability of either party:
11.2.1 for death or personal injury resulting from negligence; or
11.2.2 for any damage or liability incurred by the other as a result of fraud or fraudulent misrepresentation by the other party.
11.3 Subject to clause 11.2 and 11.4, either parties total 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 the Contract shall be limited to the aggregate amount paid or payable for the Services during the twelve (12) months prior to any claim.
11.4 Subject to clause 11.2, neither party shall, in any event, be liable for any direct, indirect, special, incidental or consequential damages arising from:
11.4.1 loss of profits;
11.4.2 loss of business;
11.4.3 depletion of goodwill and/or similar losses;
11.4.4 loss of anticipated savings;
11.4.5 loss of contract; or
11.4.6 loss of use;
even if the other party is aware of the likelihood of such damages occurring. All other indirect or consequential loss is wholly excluded under the Contract.
11.5 EVC shall not be responsible for any damages or expenses resulting from alteration or unauthorized use of the Services or from the unintended and unforeseen results obtained by EVC or any Customer resulting from such use.
12.1 Save as otherwise set out in these Terms, any variation to these Terms and/or any Order Form shall be agreed by the parties in writing.
13. DATA PROTECTION
13.1 This Clause 13 only applies to the extent that EVC is Processing Personal Data on behalf of Customer.
13.2 Both Parties will comply with all applicable requirements of the Data Protection Legislation.
13.3 The Parties acknowledge that for the purposes of the Data Protection Legislation, Customer is the Controller and EVC is the Processor.
13.4 The Personal Data Annex sets out the scope, nature and purpose of Processing by EVC, the duration of the Processing, the types of Personal Data and the categories of Data Subject.
13.5 Without prejudice to the generality of Clause 13.2:
(a) Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to EVC for the purposes of these Terms; and
(b) EVC will:
(i) Process Personal Data only on the written instructions of Customer, including regarding transfers of Personal Data outside of the European Economic Area, unless EVC is required to do so by a legal obligation and, if so EVC will notify Customer of this before such Processing, unless a legal obligation prohibits this;
(ii) ensure that all personnel authorised by EVC to Process Personal Data are obliged to keep the Personal Data confidential;
(iii) ensure that it has in place appropriate technical and organisational measures designed to protect against a Personal Data Breach, appropriate to the harm that might result from such Personal Data Breach and the nature of the Personal Data to be protected EVC shall have regard to the state of technological development and the cost of implementing any measures, including, where appropriate:
(A) pseudonymising and encrypting Personal Data;
(B) ensuring confidentiality, integrity, availability and resilience of its systems and services;
(C) ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and
(D) regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it;
(c) notify Customer without undue delay if it becomes aware of a Personal Data Breach;
(d) assist Customer in responding to any requests from Data Subjects and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, save that if this is not within the reasonable remit of the Services and at a reasonable cost, this will be at Customer’s cost;
(e) at Customer’s written direction, delete (or put Beyond Use) or return Personal Data to Customer once provision of the Services has ceased, unless required by a legal obligation to store the Personal Data; and
(f) maintain records and information to demonstrate it compliance with Clauses 13.5(b), 13.6 and 13.7 and, where this is not sufficient, allow for audits by Customer or Customer’s auditor solely to demonstrate compliance, at Customer’s cost, provided that:
(A) will not exercise its audit rights more than once in any three (3) year period, save where Customer reasonably believes that a further audit is required due to Personal Data Breach;
(B) will give at least thirty (30) days’ written notice of its intention to audit, including specific details on the scope of the audit and any required evidence;
(C) conduct its audit during normal business hours and limits it audit to a maximum of two (2) Business Days; and
(D) takes all reasonable measures to prevent material business interruption to EVC;
(ii) such audit is subject to the confidentiality provisions of the Terms; and
(iii) EVC may demonstrate its compliance with Clauses 13.5(b), 13.6 and 13.7 by complying with an approved code of conduct or by obtaining an approve certification.
13.6 Customer consents to EVC appointing the Third-Party Processors to assist it in providing the Services. If EVC intends to change any of the Third-Party Processors, it will notify Customer by updating the Third-Party Processor List (as set out in www.everycloud.co.uk/privacy) thereby giving Customer the opportunity to object to such change.
13.7 EVC shall ensure that all agreements with the Third-Party Processors will incorporate terms that are substantially similar to those set out in this Clause 13. If a Third-Party Processor fails to fulfil its data protection obligations to Customer, EVC will remain fully liable to Customer for such Third-Party Processor’s obligations.
14.1 Each right or remedy of EVC under this Contract is without prejudice to any other right or remedy of EVC whether under this Contract or not.
14.2 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.3. Failure or delay by EVC in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4 Unless expressly provided in this Contract, no term of this Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
14.5 To the extent that any provision of these Terms conflicts with any provisions in any other documentation provided to the Customer, the Terms will prevail in all circumstances.
14.6 These Terms (together with all other documents to be entered into pursuant to it) sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between the parties, relating to its subject matter. Each party acknowledges that in entering into these Terms (and any other document to be entered into pursuant to it) it does not rely on any representation, warranty, collateral contract or other assurance of any person (whether party to these Terms or not) that is not set out in these Terms or the documents referred to in it. Each party waives all rights and remedies which, but for this Clause, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance. The only remedy available to any party in respect of any representation, warranty, collateral contract or other assurance that is set out in these Terms (or any document referred to in it) is for breach of contract under the terms of these Terms (or the relevant document).
14.7 The rights and remedies of the parties in connection with these Terms are cumulative and, except as expressly stated in these Terms, are not exclusive of any other rights or remedies provided by law or equity or otherwise. Except as expressly stated in these Terms (or at law or in equity in the case or rights and remedies provided by law or equity) any right or remedy may be exercised (wholly or partially) from time to time.
15. RESTRICTION ON ASSIGNMENT
15.1 Neither party shall be entitled to assign any of its rights or obligations under the Contract without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.
16.1 Any notice to be served on either party shall be in writing and delivered by hand or sent by prepaid post to the addressee at the following address:-
To EVC: Everycloud Security Limited, 1a The Quadrant Courtyard, Quadrant Way, Weybridge, Surrey, England, KT13 8DR
To the Customer: the Customer’s address shown on the Order Form or any address the Customer notifies to EVC in writing as an address to which invoices should be sent or, if the Customer is a Company, its registered office.
16.2 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by email.
16.3 A notice shall be treated as having been received:
16.3.1 if delivered by hand between 9.00 am and 5.00 pm on a Business Day (which time period is referred to in this Clause as "Business Hours"), when so delivered; and if delivered by hand outside Business Hours, at the next start of Business Hours; and
16.3.2 if sent by first class post at 9.00 am on the second (2nd) Business Day after posting if posted on a Business Day and at 9.00 am on the third (3rd) Business Day after posting if not posted on a Business Day.
17. THIRD-PARTY FINANCE
17.1 This clause 17 applies to all Contracts which are being funded by the Customer using third party finance services.
17.2 EVC will only deliver Services if (i) credit clearance is provided by the third party finance provider, and (ii) the Customer signs and returns all paperwork and completes all requirements necessary for the third party finance service to release payment to EVC. The Customer will use all reasonable endeavours to comply with this clause as soon as possible following EVC accepting a Contract.
18. FORCE MAJEURE
Neither party shall be liable for any failure to perform, or delay in performing any of its obligations (other than payment and indemnity obligations) if and to the extent that the failure or delay is caused by an Event of Force Majeure and the time for performance of the obligations of performance which is affected by an Event of Force Majeure shall be extended accordingly. If such an Event of Force Majeure continues for a period of sixty (60) days or more, then the other party shall be entitled to terminate these Terms with immediate effect by giving notice in writing to the party affected by the Event of Force Majeure. If the Contract is terminated under this clause 18, the Customer shall not be held liable for any Termination Payment.
19. GOVERNING LAW AND JURISDICTION
19.1 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English Law.
19.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contracts subject matter.
20.1 Each party agrees that during the continuance of these Terms and for a period of twelve (12) months following termination thereof (however arising) that it shall not directly or indirectly canvass, or seek to solicit any of staff, agents, or contractors of the other party without paying such party 30% of the staff, agent or contractors annual gross salary or charge paid by the party to that person as a genuine pre-estimate of the loss that the party would suffer as a result unless the recruitment of such staff or agent or contractor has been obtained through them responding to a bona fide recruitment advertisement.
21. DISPUTE RESOLUTION
21.1 If any dispute arises in connection with this agreement that cannot be dealt with via discussion with EVC’s Customer Services department, the parties will attempt to settle it by:
(a) firstly, a senior manager of the Customer and EVC exchanging full details of the dispute and then meeting to seek to resolve the dispute;
(b) if 21.1 (a) is not achieved, secondly, a Director/CEO of the Customer and EVC exchanging any further details relating to the dispute and then meeting to seek to resolve the dispute;
(c) if 21.1 (a) or (b) is not achieved, thirdly, the parties will attempt to settle the dispute by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR within seven (7) days of a party requesting a mediator be appointed and the mediation shall take place in London within seven (7) days of the mediator’s appointment.
24.2 During the process of resolving a dispute in accordance with clause 21.1, the Customer will not issue any court proceedings.
End User License Agreement
TO BE ATTACHED
PERSONAL DATA ANNEX
Scope of Processing
EVC Processes Personal Data to enable it to provide, manage, enhance, review and service the Services and to discharge any legal obligations imposed upon it.
Nature and Purpose of Processing
EVC Processes the Personal Data to:
(a) make informed decisions about End Users and the Services;
(b) perform day to day management of accounts and Services;
(c) [in accordance with the Customer’s instructions, ]record information to make its Services more accessible;
(d) provide, maintain and bill the Services;
(e) provide access to online platforms;
(f) meet its legal and regulatory obligations and to comply with orders of the court or other bodies having lawful jurisdiction;
(g) authenticate End Users;
(h) identify, manage and resolve incidents;
(i) assess and report on the credit-worthiness of customers or potential customers;
(j) take any other action to the extent necessary to discharge an obligation pursuant to the Terms; and
(k) receive, manage and resolve requests, queries, complaints and claims [in order to ensure the effectiveness of the Services or in accordance with the Customer’s instructions].
Categories of Personal Data
The Personal Data Processed shall concern the following categories of Personal Data only:
(a) account data e.g. caller line identification/telephone numbers, account number, device ID, IP address, service history and usage data;
(b) personal data e.g. name, title, date of birth, address and circuit ID;
(c) financial data e.g. credit or debit card details and bank details;
(d) interaction history and connection data e.g. authentication logs, online alias and service performance data;
(e) company data where this identifies a Data Subject e.g. company name and company registered number;
(f) contact information e.g. email address;
(g) social media details e.g. profile IDs and handles;
(h) identification related data e.g. passport and driving licence;
(i) professional life data e.g. job title and employer;
(j) Product information e.g. speed logs; and
(k) special categories of Personal Data e.g. data relating to physical or mental health and biometric data for voice recognition software or the implementation of security measures.
Categories of Data Subject
The Personal Data Processed shall concern the following categories of Data Subjects only, acknowledging that the extent of data collected is determined and controlled by the Customer at its discretion:
(a) officers and staff of Customer, including employees, consultants, volunteers, agents, temporary workers, casual workers and other individuals authorised to act on behalf of Customer; and
(b) Ends Users or their authorised representatives.
Duration of Processing
EVC shall Process Personal Data for no longer than is necessary for the purposes for which it is Processed.