Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services shall be governed by these Terms and Conditions
1. Definitions
Except for definitions otherwise defined herein, capitalised terms and expressions used in this Agreement shall have the following meaning:
1.1. "Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
1.2. "Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
1.3. "Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
1.4. "Business Day" means any weekday other than a bank or public holiday in England;
1.5. "Business Hours" means the hours of 09:00 to 17:30 GMT/BST on a Business Day;
1.6. "Charges" means the following amounts:
a) the amounts specified in the Order Form / Statement of Work;
b) such amounts as may be agreed in writing by the parties from time to time; and
c) amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before the date of the Agreement) by the time spent by the Provider's personnel performing the Support Services (rounded down by the Provider to the nearest quarter hour);
1.7. "Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
1.8. "Customer" means the person or entity identified as such in Section 1 of the Order Form / Statement of Work;
1.9. "Customer Confidential Information" means:
a) any information disclosed by the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential; and
b) the Customer Data;
1.10. "Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
1.11. "Customer Indemnity Event" has the meaning given to it in Clause 17.3;
1.12. "Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;
1.13. "Data Protection Laws" means all applicable laws relating to the processing of Personal Data as set out in the Data Processing Addendum (“DPA”) to be read in conjunction with these Terms and Conditions;
1.14. “Data Processing Addendum or DPA” means the separate agreement that is incorporated into this agreement that sets out the laws governing the processing of personal data under this agreement and the specific handling of such data;
1.15. "Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
1.16. "Effective Date" means the date upon which the parties execute a signedOrder Form / Statement of Work; or, following the Customer completing and submitting the online Order Form published by the Provider on the Provider's website, the date upon which the Provider sends to the Customer an order confirmation;
1.17. "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
1.18. "Hosted Services" means Matters.Cloud, , which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
1.19. "Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
1.20. "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
1.21. "Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
1.22. "Minimum Term" means, in respect of the Agreement, the period of 30 days beginning on the Effective Date;
1.23. "Mobile App" means the mobile application known as Matters.Cloud Mobile that is made available by the Provider through the Google Play Store and the Apple App Store;
1.24. "Permitted Purpose" means the provision of a Service by the Service Provider to the Service Recipient under this Agreement;
1.25. “Personal Data”, “Data Subject”, “Controller”, “Processor” and “Process” shall be interpreted in accordance with applicable Data Protection Laws.
1.26. “Personal Data Breach” means a breach of security leading to the destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data.
1.27. "Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services and the system and server software used to provide the Hosted Services;
1.28. "Provider" means Cintelli Limited, a company incorporated in England and Wales (registration number 10738716)
1.29. "Provider Indemnity Event" has the meaning given to it in Clause 17.1;
1.30. "Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions.
1.31. "Order Form" means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
1.32. "Statement of Work" means an online specification of services to be provided which is published by the Provider and completed and submitted by the Customer, or a hard-copy specification signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
1.33. "Set Up Services" means the configuration, implementation and integration of the Hosted Services in accordance with Section 2 of the Services Order Form;
1.34. "Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
1.35. "Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
1.36. "Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
1.37. "Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Order Form / Statement of Work, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
1.38. "Update" means a hotfix, patch or minor version update to any Platform software; and
1.39. "Upgrade" means a major version upgrade of any Platform software.
2. Term
2.1. The Agreement shall come into force upon the Effective Date.
2.2. The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 20.
2.3. Unless the parties expressly agree otherwise in writing, each Order Form / Statement of Work shall create a distinct contract under these Terms and Conditions.
3. Set Up Services
3.1. The Provider shall provide the Set Up Services to the Customer.
3.2. The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided in accordance with any timetable set out in the Order Form / Statement of Work.
3.3. The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 18.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.
3.4. Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.
4. Hosted Services
4.1. The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date.
4.2. The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.3. The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
b) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Order Form, providing that the Customer may add or remove user licences in accordance with the procedure set out therein.
4.4. Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
a) the Customer must not sub-license its right to access and use the Hosted Services;
b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
c) the Customer must not use the Hosted Services to provide services to third parties;
d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
4.5. The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
4.6. The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.
4.7. The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 1 (Acceptable Use Policy).
4.8. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.9. The Customer must not use the Hosted Services:
a) in any way that is unlawful, illegal, fraudulent or harmful; or
b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.11. The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Maintenance Services
5.1. The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2. The Provider shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.
5.3. The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).
5.4. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
6. Support Services
6.1. The Provider shall provide the Support Services to the Customer during the Term.
6.2. The Provider shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.
6.3. The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
6.4. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer obligations
7.1. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
a) co-operation, support and advice;
b) information and documentation; and
c) governmental, legal and regulatory licences, consents and permits,
d) as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
7.2. The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.
8. Customer Data
8.1. The Customer is the Data Controller. The Provider is the Data Processor. The data that is processed by the Provider is done so at the request of the Customer and the Customer remains the owner of the Customer Data.
8.2. The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, subject always to any express restrictions elsewhere in the Agreement.
8.3. The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person.
8.4. The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
8.5. Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 8.4. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
9. Mobile App
9.1. The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.
10. No assignment of Intellectual Property Rights
10.1. Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
11. Charges
11.1. The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions. For the avoidance of doubt, the Provider shall not charge for the provision of Support Services to identify or resolve errors in the Hosted Services.
11.2. If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 11.2.
11.3. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
11.4. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 60 days' written notice of the variation expiring on any anniversary of the date of execution of the Agreement.
12. Payments
12.1. The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.
12.2. The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 12.
12.3. The Customer must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).
12.4. If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may charge the Customer interest on the overdue amount at the rate of 3% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Provider acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 12.4 constitute a substantial remedy within the meaning of that Act.
13. Provider's confidentiality obligations
13.1. The Provider must:
a) keep the Customer Confidential Information strictly confidential;
b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer
c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
d) act in good faith at all times in relation to the Customer Confidential Information; and
e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
13.2. Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
13.3. This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
b) is or becomes publicly known through no act or default of the Provider; or
c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
13.4. The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
13.5. The provisions of this Clause 13 shall continue in force indefinitely following the termination of the Agreement.
14. Data protection
14.1. The Data Processing Addendum (DPA) will constitute a part of this agreement. Data will be processed in accordance with the DPA and clauses in the DPA shall prevail if in conflict with clauses herein. The DPA can be found on the Matters.Cloud website at www.matters.cloud/data-processing-addendum
14.2. In the event that the Provider Processes Customer Personal Data under an Agreement, the parties record their intention that the Provider is the Processor and the Customer is the Controller of such Personal Data. Annex 1 of the DPA sets out the subject-matter and duration of the Processing of Customer Personal Data, the nature and purpose of the Processing, the type of Personal Data and the categories of Data Subjects.
15. Warranties
15.1. The Provider warrants to the Customer that:
a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and
c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
15.2. The Provider warrants to the Customer that:
a) the Platform and Hosted Services will conform in all material respects with the documentation.
b) the Hosted Services will be free from Hosted Services Defects;
c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
e) the Platform will incorporate security features reflecting the requirements of good industry practice.
15.3. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.
15.4. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
15.5. If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
b) procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.
15.6. The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
15.7. All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
16. Acknowledgements and warranty limitations
16.1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
16.2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, however the Provider will implement appropriate technical and organisational measures to ensure a level of security in accordance with the DPA.
16.3. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Documentation or as agreed in writing between the parties from time to time; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
16.4. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
17. Indemnities
17.1. The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of these Terms and Conditions (a "Provider Indemnity Event").
17.2. The Customer must:
a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
c) unless in conflict with any terms of insurance allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
and the Provider's obligation to indemnify the Customer under Clause 17.1 shall not apply unless the Customer complies with the requirements of this Clause 17.2.
17.3. The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions (a "Customer Indemnity Event").
17.4. The Provider must:
a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,
and the Customer's obligation to indemnify the Provider under Clause 17.3 shall not apply unless the Provider complies with the requirements of this Clause 17.4.
17.5. The indemnity protection set out in this Clause 17 shall be subject to the limitations and exclusions of liability set out in the Agreement.
18. Limitations and exclusions of liability
18.1. Nothing in these Terms and Conditions will:
a) limit or exclude any liability for death or personal injury resulting from negligence;
b) limit or exclude any liability for fraud or fraudulent misrepresentation;
c) limit any liabilities in any way that is not permitted under applicable law; or
d) exclude any liabilities that may not be excluded under applicable law.
18.2. The limitations and exclusions of liability set out in this Clause 18 and elsewhere in these Terms and Conditions:
a) are subject to Clause 18.1; and
b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
18.3. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
18.4. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
18.5. Neither party shall be liable to the other party in respect of any loss of revenue or income.
18.6. Neither party shall be liable to the other party in respect of any loss of production.
18.7. Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
18.8. Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 18.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 8.3 and Clause 8.4.
18.9. Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
18.10. The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events
19. Force Majeure Event
19.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
19.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
a) promptly notify the other; and
b) inform the other of the period for which it is estimated that such failure or delay will continue.
c) A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
20. Termination
20.1. The Provider may terminate the Agreement by giving to the Customer not less than 90 days' written notice of termination, expiring after the end of the Minimum Term.
20.2. The Customer may terminate the Agreement by giving to the Provider not less than 30 days' written notice of termination, expiring after the end of the Minimum Term.
21. Effects of termination
21.1. Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 9, 12.2, 12.4, 13, 14, 17, 18, 21, 24, 25, 26, 27, 28.1, 28.2, 29, 30 and 31.
21.2. Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
21.3. Within 30 days following the termination of the Agreement for any reason:
a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
c) without prejudice to the parties' other legal rights.
22. Notices
22.1. Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Section 5 of the Services Order Form and Clause 22.2):
a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
22.2. The Provider's contact details for notices under this Clause 22 are as follows: 1 Cedar Office Park, Cobham Road, Wimborne, England, BH21 7SB
22.3. The addressee and contact details set out in Section 5 of the Order Form / Statement of Work and Clause 22.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 22.
23. Subcontracting
23.1. Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
23.2. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
23.3. Notwithstanding the provisions of this Clause 23 but subject to any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
24. Assignment
24.1. The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under these Terms and Conditions.
24.2. The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.
25. No waivers
25.1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
25.2. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
26. Severability
26.1. If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
26.2. If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
27. Third party rights
27.1. The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
27.2. The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
28. Variation
28.1. The Agreement may not be varied except in accordance with this Clause 28.
28.2. The Agreement may be varied by means of a written document signed by or on behalf of each party.
28.3. The Provider may vary the Agreement by giving to the Customer at least 30 days' written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 28.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider's notice.
29. Entire agreement
29.1. The Order Form / Statement of Work, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
29.2. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
29.3. The provisions of this Clause 29 are subject to Clause 18.1.
30. Law and jurisdiction
30.1. These Terms and Conditions shall be governed by and construed in accordance with English law.
30.2. Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
31. Interpretation
31.1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
b) any subordinate legislation made under that statute or statutory provision.
31.2. The Clause headings do not affect the interpretation of these Terms and Conditions.
31.3. References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
31.4. In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
SCHEDULE 1 (ACCEPTABLE USE POLICY)
1. Introduction
1.1. This acceptable use policy (the "Policy") sets out the rules governing:
a) the use of the website at www.matters.cloud, any successor website, and the services available on that website or any successor website (the "Services"); and
b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2. References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Cintelli Limited (and "we" and "our" should be construed accordingly).
1.3. By using the Services, you agree to the rules set out in this Policy.
1.4. We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
2. General usage rules
2.1. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2. You must not use the Services:
a) in any way that is unlawful, illegal, fraudulent or harmful; or
b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3. You must ensure that all Content complies with the provisions of this Policy.
3. Marketing and spam
3.1. You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
3.2. Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
3.3. You must not send any spam to any person using any email address or other contact details made available through the Services or that you find using the Services.
3.4. You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.
SCHEDULE 2 (AVAILABILITY SLA)
1. Introduction to availability SLA
1.1. This Schedule 2 sets out the Provider's availability commitments relating to the Hosted Services.
1.2. In this Schedule 2, "uptime" means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.
2. Availability
2.1. The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.9% during each calendar month.
2.2. The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.
2.3. The Provider shall report uptime measurements to the Customer in writing, in respect of each calendar month, within 10 Business Days following a request from the customer.
3. Service credits
3.1. In respect of each calendar month during which the Hosted Services uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with the provisions of this Part 3.
3.2. The service credits earned by the Customer shall be as follows:
▪ 98% - 100% uptime: 0% credit
▪ 90% - 97.9% uptime: 15% credit
▪ 80% - 89.9% uptime: 30% credit
▪ 79.9% or less uptime: 100% credit
To receive credits, the Subscriber must submit a request for credits to the provider by e-mail or other written communication within 48 hours of resolution of the service unavailability incident for credits are requested.
3.3. The Provider shall deduct an amount equal to the service credits due to the Customer under this Part 3 from amounts invoiced in respect of the Charges for the Hosted Services. All remaining service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.
3.4. Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the uptime guarantee in Paragraph 2.1, except where the failure amounts to a material breach of the Agreement.
3.5. Upon the termination of the Agreement, the Customer's entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Provider in respect of Hosted Services following such termination.
4. Exceptions
4.1. Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1:
a) a Force Majeure Event;
b) a fault or failure of the internet or any public telecommunications network;
c) a fault or failure of the Provider's hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
d) a fault or failure of the Customer's computer systems or networks;
e) any breach by the Customer of the Agreement; or
f) scheduled maintenance carried out in accordance with the Agreement.
SCHEDULE 3 (MAINTENANCE SLA)
1. Introduction to Maintenance SLA
1.1. This Schedule 3 sets out the service levels applicable to the Maintenance Services.
2. Scheduled Maintenance Services
2.1. The Provider shall where practicable give to the Customer at least 24 hours prior notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 3.
2.2. The Provider shall provide all scheduled Maintenance Services outside Business Hours.
3. Updates
3.1. The Provider shall give to the Customer written notice of the application of any updates to the Platform that are likely to affect the availability of the Hosted Service.
3.2. The Provider shall apply Updates to the Platform as follows:
a) third party security Updates shall be applied to the Platform promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update;
b) the Provider's security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
c) other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer or agreed by the parties from time to time.
SCHEDULE 4 (SUPPORT SLA)
1. Introduction to Support SLA
1.1. This Schedule 4 sets out the service levels applicable to the Support Services.
2. Helpdesk
2.1. The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.
2.2. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
2.3. The Provider shall ensure that the helpdesk is accessible by email
2.4. The Provider shall provide a special telephone number for the Customer to report critical issues.
2.5. The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.