Terms and Conditions

An extract of the services contract is provided below.  For a full set of terms please contact an account manager at .

Services

The Supplier shall, during the Term, use commercially reasonable endeavours to provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

1. Planned maintenance carried out during the maintenance window of [10.00 pm to 5.00 am UK time]; and
2. Unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer notice in advance.

The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.

Use of the services

Subject to the restrictions set out in the conditions of this agreement, the Supplier hereby grants to the Customer for use by Authorised Users located in the Territory in relation to Customer Data relating to the Territory:

1. A non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation and any Output during the Term solely for the Customer's internal business operations; and
2. A non-exclusive, non-transferable right (with no right to sublicense) to use [in the Territory] during the Term any Software (e.g. client application) which the Customer is permitted to download by the Supplier in order to be able to access and use the Services solely for the purposes of accessing and using the Services as permitted by this agreement.

In relation to the Authorised Users, the Customer undertakes that:

1. The maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed that defined in the contract;
2. Each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than [MONTHLY] and that each Authorised User shall keep his password confidential;
3. If any of the audits referred to in the agreement reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual;
4. If any of the audits referred to in the agreement reveal that the Customer has underpaid Fees to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in Service Order Form.

The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

1. Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. Facilitates illegal activity;
3. Depicts sexually explicit images;
4. Promotes unlawful violence;
5. Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
6. Causes damage or injury to any person or property;

and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

The Customer shall not:

1. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
2. And except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
3. Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4. Access all or any part of the Software, Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
5. Use the Software, Services and/or Documentation to provide services to third parties; or
6. License, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, Services and/or Documentation available to any third party except the Authorised Users, or
7. Attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this agreement; and

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

Customer data

The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available at MinotaurCloud website, or other location as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time.  In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

The parties shall comply with their respective obligations under any data privacy laws applicable to the supply of Customer Data and the provision and use of the Services, as the case may be.

If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

1. The Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement;
2. The Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
3. The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
4. The Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
5. Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

Supplier's obligations

The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and the SLA and with reasonable skill and care.

The undertaking in the contract shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in the contract.

Notwithstanding the foregoing, the Supplier:

1. Does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
2. Is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

Customer's obligations

The Customer shall provide the Supplier with:

1. All necessary co-operation in relation to this agreement; and
2. All necessary access to such information as may be required by the Supplier;

in order to render the Services, including but not limited to Customer Data, security access information and configuration services;

1. Comply with all applicable laws and regulations with respect to its activities under this agreement;
2. Carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
3. Ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
4. Obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
5. Ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

be solely responsible for procuring and maintaining its network network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

The Supplier shall be entitled to monitor the Customer's use of the Services.  If, at any time whilst using the Services, the Customer exceeds the amount of throughput/number of users set out in Order Form, then as part of the Fees the Supplier shall inform the Customer and the Supplier shall be entitled to be paid for such excess usage based on its then current fees for such additional usage.

The Supplier shall be entitled to increase the Fees at the start of each Renewal Period upon 90 days' prior notice to the Customer and the contract shall be deemed to have been amended accordingly.

Proprietary rights

The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software, Services and the Documentation, including any output (Output) generated as part of the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or the Documentation.

The Supplier confirms that it has all the rights in relation to the Software, Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

Confidentiality

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.  A party's Confidential Information shall not be deemed to include information that:

1. Is or becomes publicly known other than through any act or omission of the receiving party;
2. Was in the other party's lawful possession before the disclosure;
3. Is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
4. Is independently developed by the receiving party, which independent development can be shown by written evidence; or
5. Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

Specific clauses shall survive termination of this agreement, however arising.

Indemnity

The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Software, Services and/or Documentation including without limitation the supply of any Customer Data, provided that:

1. The Customer is given prompt notice of any such claim;
2. The Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
3. The Customer is given sole authority to defend or settle the claim.

The Supplier shall, subject to specific clauses in the contract, defend the Customer, its officers, directors and employees against any claim that the Software, Services or Documentation infringes any [United Kingdom] patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

1. The Supplier is given prompt notice of any such claim;
2. The Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
3. The Supplier is given sole authority to defend or settle the claim.

In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Software and Services, replace or modify the Software and/or Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 30 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

1. A modification of the Software, Services or Documentation by anyone other than the Supplier; or
2. The Customer's use of the Software, Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
3. The Customer's use of the Software, Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

Limitation of liability

This sectio sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

1. Any breach of this agreement;
2. Any use made by the Customer of the Services and Documentation or any part of them; and
3. Any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

Except as expressly and specifically provided in this agreement:

1. The Customer assumes sole responsibility for results obtained from the use of the Software, Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
2. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
3. The Software, Services and the Documentation are provided to the Customer on an "as is" basis.

Nothing in this agreement excludes the liability of the Supplier:

1. For death or personal injury caused by the Supplier's negligence; or
2. For fraud or fraudulent misrepresentation.

Subject to the above:

1. The Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
2. The Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.

Term and termination

This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

1. Either party notifies the other party of termination, in writing, at least [60 days] before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
2. Otherwise terminated in accordance with the provisions of this agreement;

and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:

1. The other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
2. An order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
3. An order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
4. A receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
5. The other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
6. The other party ceases, or threatens to cease, to trade; or
7. There is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or
8. The other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

On termination of this agreement for any reason:

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

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