Terms of service
Vortex IOT Limited - Terms of service
VORTEX IoT Limited (VORTEX IoT) provides its services through www.vortexiot.com, www.loglet.io and associated web and mobile applications. These terms apply to all services provided through these two domains, regardless of the medium of delivery. VORTEX IoT.io service enables software developers to integrate authentication, identity management, transaction authorization, encryption keys and customer support capabilities into their applications, including mobile, web-based and desktop applications. VORTEX IoT provides its services subject to the terms and conditions contained in these Terms of Service (this “Agreement”). To become eligible to use VORTEX IoT’s services under this Agreement, you must review and accept the terms of this Agreement by clicking on the “I Accept” button or other mechanism provided.
Please review the terms of this Agreement carefully. Once accepted, this Agreement becomes a binding legal commitment. If you have any questions, you can reach the VORTEX IoT team at https://vortexiot.com/about.
If you are a government user or otherwise accessing or using any VORTEX IoT service in a government capacity, this Amendment to VORTEX IoT Terms of Service shall apply to you.
Terms & Conditions
The Customer’s attention is particularly drawn to the provisions of clause 17
- In these Conditions: “conditions” are the terms and conditions set out in this document and as amended from time to time in accordance with clause 20
- “Vortex IoT”: Vortex IoT limited. Registered in England and Wales, company number 11001894.
- “Authorised Users”: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Goods, Services and the Documentation, as further described in clause 6.
- “Business Day”: a day (other than a Saturday, Sunday or public holiday) when the banks in London are open for business.
- “confidential information”: information that is proprietary or confidential and is either clearly labelled as such, or identified as Confidential Information in clause 15.6 or clause 15.7
- “Contract”: is the contract for the purchase and sale of the Products under these terms and conditions.
- “Customer”: is the person or company identified in the Order that the Supplier may agree to provide Products to in accordance with these terms and conditions.
- 1.8 “Customer Account”: the Customer’s account with the Supplier in respect of the Goods and Services.
- “Customer Application”: any software application developed by the Customer using the Goods and Services or any application made available by the Customer that interfaces with the Services but excluding any Customer Content.
- “Customer Content”:
- all text, information, data, software, executable code, images, audio or video material, in whatever medium or form, inputted, recorded or gathered by the Customer, Authorised Users or the Supplier on the Customer’s behalf for the purpose of using, developing or maintaining any Customer Application or using the Goods and Services or facilitating the Customer’s or any End-User’s use of the Services; and
- all End-User Content,
- but excluding all authentication information provided in relation to the Customer Account.
- “Data Protection Legislation”: (i) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and (ii) any successor legislation to the GDPR or the Data Protection Act 2018.
- “Documentation”: the documents, instructions, code samples and online help files made available to the Customer by the Supplier online via www.vortexiot.com and www.loglet.io or any other website or mobile application or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Goods and Services and the user instructions for the Goods and Services.
- “Effective Date”: has the meaning given to it in clause 2.3
- “End-User”: any person the Customer permits access to use any Customer Application.
- “End-User Account”: the account held and maintained with the Customer by any End-User as a prerequisite to accessing and using the relevant Customer Application on the Platform.
- “End-User Content”:
- all text, information, data, images, audio or video material, in whatever medium or form, inputted, recorded or gathered by any End-User in relation to the use of any Customer Application or the Goods and Services; and
- all information related to any End-User that is processed or stored by any Customer Application,
- but excluding all authentication information provided in relation to any End-User Account.
- ”Excluded Fields of Use”:
- a) any medical device, whether or not regulated by any national or regional medical or healthcare regulatory body;
- those fields of use in relation to which the use of the Goods and
Services, or the suspension of them (wholly or in part), has the
potential to cause or contribute to death or personal injury.
- “Force Majeure” has the meaning given in clause 19
- “Goods”: the hardware (or any part of the hardware) set out in the Order which relates to Customer’s use of the Services.
- “Initial Subscription Term”: the initial term of 12 months from the Effective Date.
- “Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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, and Intellectual Property Rights include, without limitation, any Marks.
- “IP Claim” any claim brought against the Customer by any third party alleging that the Customer’s use of the Services infringes any copyright, database right or registered trademark, registered design right or registered patent in the United Kingdom.
- “Marks”: any trademarks, trade names, service marks, trade dress, logos, URLs and domain names or any identifying slogans and symbols of a party to this agreement, whether or not registered.
- “Normal Business Hours”: 8.00 am to 6.00 pm local UK time, each Business Day.
- “Open-Source Software”: any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Goods and Services or the Software, or with which the Goods and Services or the Software is compiled or to which it is linked.
- “Order” means the Customer’s order for the goods and/or services, as set out in the Customer’s purchase order.
- “Products”: means Goods and/or Services including, but not limited to, provision of consultancy services, hardware, licence of software and data to be provided by the Supplier to the Customer in accordance with these terms and conditions.
- ”Platform”: the Supplier’s infrastructure and cloud computing platform and runtime environment, as described in the Documentation.
- “Renewal Period”: the period described in clause 18.1.
- “Services”: the services provided by the Supplier to the
Customer under this agreement via www.vortexiot.com and www.loglet.io or
any other website or mobile application notified to the Customer by the
Supplier from time to time, as more particularly described in the
- the provision of the Platform, the Software and the Support;
- the hosting of any Customer Applications on the Platform;
- Vortex IoT API; and
- such other services as the Supplier may decide, at its discretion, to integrate into the Platform from time to time.
- “Software”: the online software applications provided by the Supplier as part of the Services.
- “Subscription Fees”: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Order.
- “Subscription Term”: has the meaning given in clause 18.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
- “Supplier”: Vortex IoT Limited registered in England and Wales with company number 11001894.
- “Support”: the support to be provided to the Customer under clause 8.3.
- “User Subscriptions”: the user subscriptions purchased by the Customer pursuant to clause 13 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
- “Virus”: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- “Vortex IoT API”: an application-programming interface for the Goods and Services (or feature of the Services) provided to the Customer by the Supplier.
- Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly
- Clause and paragraph headings shall not affect the interpretation of this agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
- A reference to writing or written includes e-mail.
2. Acceptance of offer
- The Order constitutes an offer by the Customer to purchase the Services and use the Goods in accordance with these terms and conditions
- Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of this agreement nor have any contractual force.
- The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Effective Date”).
- The Supplier agrees to allow the Customer to use the Goods for the Subscription Term for the purposes of the Customer’s use of the Services.
- The Supplier shall deliver the Goods to the location that is set out in the Order.
- Each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any).
- If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request.
- Any date or time quoted for dispatch and delivery is to be treated as an estimate only. Time of delivery is not of the essence and the Supplier shall not be liable for any loss or damages, whether direct or indirect, as a result of a delay in dispatch or delivery.
- Delivery of the Goods shall be completed on the Goods’ arrival at the delivery location. If the Customer notifies the Supplier in writing that it shall collect the Goods from the Supplier’s premises, then delivery shall be completed when the Goods are handed to the customer or its carrier (as applicable).
- If the Customer fails to accept delivery of the Goods on the date delivery of the Goods is attempted then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under this agreement the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
- If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
- Any request by the Customer for cancellation of any Order or for the rescheduling of any deliveries will only be considered by the Supplier if made at least 24 hours before dispatch of the Goods and shall be subject to acceptance by the Supplier at the Supplier’s sole discretion, and subject to a reasonable administration charge thereof by the Supplier. The Customer hereby agrees to indemnify the Supplier against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the Order and its cancellation or rescheduling.
- The Supplier warrants that on delivery the Goods shall conform in all
material respects with their description and any applicable
Specification. Subject to clause 4.1, if:
- the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause and in such written notice the Customer provides sufficient information as to the reasons why the Customer considers the Goods do not comply with the warranty set out in clause 4.1
- the Supplier is given a reasonable opportunity of examining such Goods;
- the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business;
- in the opinion of the Supplier, the Goods do not comply with the warranty set out in clause 4.1; the Supplier, subject to clause 4.3, shall, at its option and cost, repair or replace the defective Goods.
- To the extent the Goods do not comply with the warranty set out in clause 4.1 due to any fault, act or omission of any party other than the Supplier, the Customer shall be liable for any costs incurred by the Supplier to repair or replace (at its option) such defective Goods.
- Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in 4.1.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this agreement.
- The provisions of this clause shall apply to any repaired or replacement Goods supplied by the Supplier.
5. Title and Risk
- The Supplier shall at all times retain ownership of the Goods and the Customer shall not do or allow to occur anything which might adversely affect the Supplier’s right, title or interest in the Goods.
- The risk in the Goods shall pass to the Customer on completion of delivery of the Goods as set out in clause 3.
- The Customer shall hold the Goods as the Supplier’s fiduciary
agent and bailee and shall keep the Goods properly stored, protected and
insured and identified by not removing, defacing or obscuring any
identifying mark or packaging on or relating to the Goods. The Customer
shall be entitled to use the Goods for the Subscription Term and must:
- operate and use the Goods solely in connection with its use of the Services in accordance with these Conditions and must not use the Goods for any other purpose;
- comply with any of the Supplier’s instructions in respect of use of the Goods;
- not (or attempt to) access, transmit, store or distribute any Viruses on the Goods or via the Goods or attempt to copy, modify, duplicate, create derivative works from or otherwise exploit the Goods without the written approval of the Supplier;
- maintain the Goods in good working order and keep them insured against all risks for their full price from the date of delivery;
- notify the Supplier immediately if it becomes subject to any of the events listed in clause 18.2; and
- give the Supplier such information relating to the Goods as the Supplier may require from time to time.
- Until such time as and unless the property in the Goods passes to the Customer, the Supplier shall be entitled at any time to require the Goods to be delivered to the Supplier and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
- The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier.
- If, the Customer becomes subject to any of the events listed in
clause 18.2 then, without limiting any other right or remedy the
Supplier may have, the Supplier may at any time:
- require the Customer to deliver up all Goods in its possession; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. User subscriptions
- Subject to the Customer purchasing the User Subscriptions in
accordance with clause 7.3 and clause 13, the restrictions set out
in this clause and the other terms and conditions of this agreement, the
Supplier hereby grants to the Customer a non-exclusive, nontransferable
right during the Subscription Term:
- to permit the Authorised Users to use the Services and the Documentation solely to develop, upload and run Customer Applications on the Platform;
- to integrate the Services into any Customer Application, to provide the Services, solely as integrated into any Customer Application, to End-Users and to permit those Services to be used in association with the Customer’s Marks;
- to permit End-Users to run Customer Applications on the Platform and to use in accordance with this agreement such of the Services as have been integrated into those Customer Applications;
- to use the Software for the purposes set out in clause 6.1a) and Clause 6.1b) except in relation to any Excluded Fields of Use.
- In relation to the Authorised Users, the Customer undertakes that:
- the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from the Supplier from time to time;
- it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case theprior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
- each Authorised User shall keep a secure password for his use of the Services and Documentation and each Authorised User shall keep his password confidential;
- it shall maintain a written, up to date list of current Authorised Users and provide a copy of such list to the Supplier within 5 Business Days of receipt of the Supplier’s written request in that respect;
- it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Supplier’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice (being not less than 10 days), in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and
- if any of the audits referred to in clause 6.2e) 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.
- The Customer shall comply with the Acceptable Use Policy in
relation to the Customer’s use of the Services, including all Customer
Applications and Customer Content and the Customer shall not access,
store, distribute or transmit any Viruses, or any material during the
course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property.
- If the Customer becomes aware that any Customer Application or
Customer Content or an End-User’s use of a Customer Application or
Customer Content breaches the Acceptable Use Policy or this clause 6,
the Customer shall:
- immediately suspend the relevant Customer Application;
- remove the relevant Customer Content; and
- if relevant, suspend the relevant End-User Account and that End-User’s access to the relevant Customer Application and Customer Content.
- If the Customer is in breach of this clause 6, the Supplier may
(but shall not be obliged to) remove the relevant Customer Content and:
- disable the Customer’s or the relevant End-User’s access to the relevant Customer Application or any material that breaches the Acceptable Use Policy; and
- disable the Customer Account,
- for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights and without prior notice to the Customer or the relevant End-User.
- The Customer shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- and except to the extent expressly permitted under 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
- attempt to reverse compile, disassemble, reverse engineer or
otherwise reduce to human perceivable form all or any part of the Software;
- access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
- use the Services and/or Documentation to provide services to third parties or to provide any services in the Excluded Fields of Use;
- subject to clause 25, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, provided that the provision of Services to End-Users is permitted to the extent necessary to enable them to use the relevant Customer Application; or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 6.
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- The Customer shall:
- use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier; and
- comply with any further obligations set out in Documentation that govern use of the Services development of Customer Applications.
- The rights provided under this clause are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
- Any Open-Source Software provided by the Supplier shall be used by the Customer in accordance with the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed Such terms and conditions shall govern such use to the extent that they expressly supersede this agreement. The Customer acknowledges that Open Source Software is provided “as is” and the Customer agrees that the Supplier shall have no liability or obligation under the indemnity at clause 16 or any IP Claim which arises in whole or in part from the Customer’s use of any Open Source Software.
7. Additional User Subscriptions
- Subject to clause 7.2 and clause 7.3 the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
- If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 5 days of its approval of the Customer’s request.
- If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Order (or otherwise communicated by the Supplier to the Customer) and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
- The Supplier shall, during the Subscription Term:
- provide the Services and access to the Platform and make available the Documentation to the Customer on and subject to the terms of this agreement; and
- enable End-Users to connect via the internet to any Customer Application
that the Customer has deployed on the Platform and to use in accordance
with this agreement such of the Services as have been integrated into
that Customer Application.
- The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least five Normal Business Hours’ notice in advance.
- The Supplier will, as part of the Services provide the Customer with the Supplier’s standard customer Support services during Normal Business Hours in accordance with the Service Level Agreement in effect at the time that the Services are provided. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
- Notwithstanding any other provision in this agreement, the Customer acknowledges and agrees that it is responsible for technical support of all Customer Applications.
- From time to time the Supplier may:
- modify the Services by issuing updates; and
- make new features, functionality, applications or tools available in
respect of the Services, whose use may be subject to the Customer’s
acceptance of further terms and conditions,
- and shall give the Customer reasonable written notice of material
modifications to the Services and any such new features, functionality,
applications or tools. For clarity, any modification to the Subscription
Fees shall be dealt with in accordance with clause 13.6.
9. Data Protection
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
- The parties acknowledge that:
- if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the data controller, and the Supplier is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
- the personal data may be transferred or stored outside the
European Economic Area and the United Kingdom or the country where the
Customer, the Authorised Users or the End-Users are located in order to
carry out the Services and the Supplier’s other obligations under this
- Without prejudice to the generality of clause 9.1 the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of this agreement so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer’s behalf.
- Without prejudice to the generality of clause 9.1 the Supplier
shall, in relation to any Personal Data processed in connection with the
performance by the Supplier of its obligations under this agreement:
- process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
- not transfer any Personal Data outside of the European Economic
Area and the United Kingdom unless the following conditions are
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject 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;
- (notify the Customer without undue delay on becoming aware of a Personal Data breach;
- at the written direction of the Customer, delete or return
Personal Data and copies thereof to the Customer on termination of the
agreement unless required by Applicable Law to store the Personal Data;
- maintain complete and accurate records and information to demonstrate its compliance with this clause 9
- Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
- The Customer does not consent to the Supplier appointing any third-party processor of Personal Data under this agreement.
- Either party may, at any time on not less than 30 days’ notice, revise this clause 9
- by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
10. Third Party Providers
11. Supplier's obligations in relation to the services
- The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 11.1 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, the Supplier will, at its expense, use all
reasonable commercial endeavours to correct any such nonconformance
promptly, or provide the Customer with an alternative means of
accomplishing the desired performance. Such correction or substitution
constitutes the Customer’s sole and exclusive remedy for any breach of
the undertaking set out in clause 11.1. Notwithstanding the foregoing, the Supplier:
- does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
- the Services will be free from Vulnerabilities or Viruses; or
- 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.
- The parties acknowledge and agree that:
- the Supplier is not responsible or liable for the deletion of or failure to store any of the Customer Applications, the Customer Content, and other communications maintained or transmitted through use of the Services; and
- the Customer is solely responsible for securing and backing up all Customer Applications and Customer Content. 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.
12. Customer's obligations
The Customer shall:
- provide the Supplier with:
- all necessary co-operation in relation to this agreement; and
- all necessary access to such information as may be required by the Supplier;
in order to provide the Goods and Services, including Customer Content, security access information and configuration services;
- without affecting its other obligations under this agreement, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under this agreement;
- 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;
- ensure that the Authorised Users and End-Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for breach of this agreement caused or contributed to by any acts or omissions on the part of any Authorised User or End-User;
- 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 Goods and the Services;
- 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, maintaining and securing its 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 or any End-User’s network connections or telecommunications links or caused by the internet.
13. Price, Charges and Payment
- The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions and any enhanced support fees in accordance with this clause 13.
- The Customer shall pay any invoice in respect of the Subscription Fees in full and in cleared funds. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
- The Customer shall on the Effective Date pay each invoice within
7 days of the date of such invoice and shall provide to the Supplier
valid, up-to-date and complete credit card details or approved purchase
order information acceptable to the Supplier and any other relevant
valid, up-to-date and complete contact and billing details and, if the
- its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
- on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term;
- subject to clause 18.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
- its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
- on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
- subject to clause 18.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.
- its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
- If the Supplier has not received any payment within 7 days after
the due date, and without prejudice to any other rights and remedies of
- the Supplier may, without liability to the Customer, disable the Customer Account and password and the Customer’s access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% above the Bank of England’s base rate from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- All amounts and fees stated or referred to in this agreement:
- shall be payable in pounds sterling;
- are, non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
- The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 7 and any enhanced support fees payable pursuant to clause 8.3 at the start of each Renewal Period upon 60 days’ prior notice to the Customer and this agreement shall be deemed to have been amended accordingly.
14. Proprietary Rights
- The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Goods and the Services (whether integrated into a Customer Application or not), the Documentation, the Software, the Platform, Supplier’s Marks and the Vortex IOT API. The Customer and/or its licensors shall own all Intellectual Property Rights in the Customer Content, the End-User Content and, the Customer Application excluding the Goods and Services, the Documentation, the Software, the Platform, the Supplier’s Marks and the Vortex IOT API. Except as expressly stated in this agreement, this agreement does not grant the Customer any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of the Goods, the Services, the Documentation or the Supplier’s Marks.
- The Supplier hereby grants to the Customer a non-exclusive, nontransferable right during the Subscription Term to carry out any acts that would otherwise be restricted by any of the Supplier’s Intellectual Property Rights in the Customer Content and all Customer Applications for the sole purpose of enabling the Supplier to provide the Services to the Customer in accordance with this agreement.
- The Customer shall engage all Authorised Users on written contractual terms that include an assignment to the Supplier of any and all Intellectual Property Rights in and to the relevant Customer Application.
- The Supplier confirms that it has all the rights in relation to the Goods, the Services, the Documentation and the Supplier’s Marks that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
- If the Customer wishes to display the Supplier’s Marks in relation to its use of the Goods or the Services, the Customer shall obtain a written licence from the Supplier.
- 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:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 15.4, each party shall hold the other’s Confidential Information in confidence and 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 (and also, in the case of the Customer only, by the End-Users) in breach of the terms of this agreement.
- A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- 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’s Confidential Information includes the Customer Content and details of all Customer Applications (other than any integrated services elements).
- No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
- The above provisions of this clause 15 survive termination of this agreement, however arising.
- The Customer shall defend, indemnify and hold harmless the
Supplier against claims, actions, proceedings, losses, damages, expenses
and costs (including court costs and reasonable legal fees) arising out
of or in connection with:
- the Customer Content or any Customer Application;
- the Customer’s Marks; or
- the Customer’s or any End-User’s use of the Goods and the Services and/or Documentation.
- The Supplier shall defend the Customer, its officers, directors and employees against any claim that the use of any of the Goods and the Services or the Documentation or any of the Supplier’s Marks 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 this indemnity does not apply to the extent that any such claim relates to the use of any Open-Source Software.
- The obligations of the Customer and the Supplier under clause 16.1 and clause16.2 respectively are conditional on:
- the indemnifying party being given prompt notice of any relevant claim;
- the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party’s expense; and
- the indemnifying party being given sole authority to defend or settle such claim.
- Except as specifically provided in this agreement, the enforcement and protection of a party’s Intellectual Property Rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.
- In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on two 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
subcontractors be liable to the Customer to the extent that the alleged
infringement is based on:
- a modification of the Goods and Services or Documentation by anyone other than the Supplier;
- the use of the Goods and Services or Documentation by the Customer or any End-User in combination with any Customer Content or any Customer Application;
- the use of the Goods and Services or Documentation by the Customer or any End-User in a manner contrary to the instructions given to the Customer by the Supplier; or
- the use of the Goods and Services or Documentation by the Customer or any End-User after notice to the Customer of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing and clause 17.3(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
17. Limitation of Liability
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
- Except as expressly and specifically provided in this agreement:
- the Customer assumes sole responsibility for results obtained from the use of the Goods, the Services and the Documentation by the Customer or any End-User, 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 or any End-User in connection with the Good and Services, or any actions taken by the Supplier at the Customer’s direction;
- 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;
- neither the Software nor the Documentation nor the Goods nor the Services, are designed, made or intended for any of the Excluded Fields of Use.
- Nothing in this agreement excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier’s negligence; or
- for fraud or fraudulent misrepresentation.
- Subject to clause 17.1 and clause 17.2:
- 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
- the Supplier’s total aggregate liability in contract including in respect of the indemnity at clause 16 and 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 Subscription Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.
18. Term and Termination
- This agreement shall, unless otherwise terminated as provided in
this clause 18, commence on the Effective Date and shall continue for
the Initial Subscription Term and, thereafter, this agreement shall be
automatically renewed for successive periods of 12 months (each a
Renewal Period), unless:
- either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- otherwise terminated in accordance with the provisions of this agreement;
- and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
- Without affecting any other right or remedy available to it,
either party may terminate this agreement with immediate effect by
giving written notice to the other party if:
- the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- aperson becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 18.2c) to clause 18.2j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
- Without effecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if, in the opinion of the Supplier, the Customer breaches clause 6 (and if in the opinion of the Supplier the breach is irremediable), does not act in accordance with the intention of Acceptable Use Policy, or otherwise shares Confidential Information with any third party.
- On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Goods, Services and/or the Documentation;
- each party shall return and make no further use of any Goods, equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- without limiting the effect of clause 18(b), the Supplier may
require the Customer immediately to return the Goods, all copies of the
Software, the Documentation, the Supplier’s.
Confidential Information and any other materials or to erase the same from the Customer’s computer and communications systems and devices used by the Customer (but not those used by any End-User in relation to any Customer Application), including such systems and data storage services provided by third parties (to the extent technically and legally practicable) in accordance with clause 10. The Customer may, at the Supplier’s request, be required to confirm in writing that all such copies have been returned or so erased;
- the Supplier may destroy or otherwise dispose of any of the Customer Content and Customer Applications 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 Content and Customer Application. 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 Content and Customer Applications;
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
- any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement, including clause 1 (Interpretation), clause 9 (data protection), clause 15(Confidentiality),16 (Indemnity) and clause 18 (Term and termination), shall remain in full force and effect; and
- any outstanding balance becomes immediately due and payable.
19. Force Majeure
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
- No variation of this agreement by the Customer shall be effective unless it is in writing and signed by the both the Customer and the Supplier (or their authorised representatives).
- The Supplier reserves the right to amend these Conditions from timeto-time as it deems necessary
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22. Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
- If any provision or part-provision of this agreement is deemed deleted under clause
- the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Entire Agreement
- This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
- No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract.
- The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
- The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
26. No Partnership or Agency
Notwithstanding 5.3 , nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27. Third Party Rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address given by them for such purpose.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
29. Governing Law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).