Parties
Agreement
1.1 Except to the extent expressly provided otherwise, in this Agreement:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in United States;
"Business Hours" means the hours of 09:00 to 17:00 Central U.S. Time on a Business Day;
"Charges" means the following amounts:
(a) [the amounts specified in Part 3 of Schedule 1 (Hosted Services particulars)];
(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 this Agreement)] by the time spent by the Provider's personnel performing [the Support Services] (rounded [down by the Provider to the nearest quarter hour])];
"Customer Confidential Information" means:
(a) any information disclosed by [or on behalf of ]the Customer to the Provider [during the Term] OR [at any time before the termination of this Agreement] (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
(b) [the Customer Data]; and
(c) [specify other confidential information];
"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];
"Documentation" means [the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer];
"Effective Date" means [the date of execution of this Agreement];
"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]);
"Hosted Services" means [name of hosted services][, as specified [in the Hosted Services Specification],] which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having [an adverse effect] OR [a material adverse effect] on [ the appearance, 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 this 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];
]
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in [Part 2 of Schedule 1 (Hosted Services particulars) and in the Documentation];
"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);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Mobile App" means the mobile application known as [mobile application name] that is made available by the Provider through [the Google Play Store and the Apple App Store];
"Permitted Purpose" means [specify purpose or purposes];
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"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, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed]];
"Schedule" means any schedule attached to main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"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];
"Supported Web Browser" means [the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari][, or any other web browser that the Provider agrees in writing shall be supported];
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means [a hotfix, patch or minor version update to any Platform software]; and
"Upgrade" means [a major version upgrade of any Platform software].
2.1 This document was created using a template from SEQ Legal (http://www.seqlegal.com).
You must retain the above credit, unless you purchase a licence to use this document without the credit. You can purchase a licence at: http://www.website-contracts.co.uk/seqlegal-licences.html. Warning: use of this document without the credit, or without purchasing a licence, is an infringement of copyright.
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force [indefinitely] OR [until [date]] OR [until [event]], subject to termination in accordance with Clause 18.
4.1 [The Provider shall ensure that the Platform will[, on the Effective Date,] automatically generate an Account for the Customer and provide to the Customer login details for that Account.] OR [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 the Customer]];
(b) [the Hosted Services may only be used by the named users identified in [Schedule 1 (Hosted Services particulars)] OR [[identify document]], providing that the Customer may change, add or remove a designated named user in accordance with [the procedure set out therein]]; and
(c) [the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in [Schedule 1 (Hosted Services particulars)] OR [[identify document]], providing that the Customer may add or remove concurrent user licences in accordance with [the procedure set out therein]].
4.4 Except to the extent expressly permitted in this Agreement 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 Provider shall use[ all] reasonable endeavours to maintain the availability of the Hosted Services to the Customer [at the gateway between the public internet and the network of the hosting services provider for the Hosted Services], but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(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 Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with Schedule 2 (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 2 (Acceptable Use Policy).
4.9 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.
4.10 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.
4.11 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.
4.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this 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.
5.1 The Provider shall provide the Maintenance Services to the Customer [during the Term].
5.2 The Provider shall where practicable give to the Customer [at least 10 Business Days'] prior written 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 main body of this Agreement.
5.3 The Provider shall give to the Customer [at least 10 Business Days'] prior written notice of the application of an Upgrade to the Platform.
5.4 The Provider shall give to the Customer written notice of the application of any security Update to the Platform and [at least 10 Business Days'] prior written notice of the application of any non-security Update to the Platform.
5.5 The Provider shall provide the Maintenance Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry] OR [[specify standard(s)]].
5.6 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this 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.
6.1 The Provider shall provide the Support Services to the Customer [during the Term].
6.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry] OR [[specify standard(s)]].
6.4 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.
6.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this 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.
7.1 The Customer hereby grants to the Provider a non-exclusive licence to [copy, reproduce, store, distribute, publish, 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 this Agreement[, together with 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 this Agreement].
7.2 The Customer warrants to the Provider that [the Customer Data] OR [the use of the Customer Data by the Provider in accordance with this Agreement] will not:
(a) [breach the provisions of any law, statute or regulation];
(b) [infringe the Intellectual Property Rights or other legal rights of any person]; or
(c) [give rise to any cause of action against the Provider],
in each case [in any jurisdiction and under any applicable law].
7.3 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 30 days].
7.4 [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 7.3]. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
8.1 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 this Agreement shall not govern any such use, rights, obligations or liabilities.
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
10.2 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 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider].
10.4 The Provider may elect to vary [any element of the Charges] by giving to the Customer not less than [30 days'] written notice of the variation[ expiring [on any anniversary of the date of execution of this Agreement]][, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds[[ 2]% over] the percentage increase, during the same period, in [the Retail Prices Index (all items) published by the UK Office for National Statistics]].
11.1 The Provider shall issue invoices for the Charges to the Customer [in advance of the period to which they relate] OR [from time to time during the Term] OR [on or after the invoicing dates set out in Part 3 of Schedule 1 (Hosted Services particulars)].
11.2 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 11] OR [the receipt of an invoice issued in accordance with this Clause 11][, providing that the Charges must in all cases be paid before the commencement of the period to which they relate].
11.3 The Customer must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Provider to the Customer from time to time).
11.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of [8% 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); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
12.1 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] OR [no less onerous than those contained in this Agreement]];
(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].
12.2 Notwithstanding Clause 12.1, 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.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement 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].
12.4 The restrictions in this Clause 12 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.
12.5 The provisions of this Clause 12 shall continue in force [indefinitely following the termination of this Agreement] OR [for a period of [5 years] following the termination of this Agreement, at the end of which period they will cease to have effect].
13.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement[, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998)].
13.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and
(c) [it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Customer].
14.1 The Provider warrants to the Customer that:
(a) [the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement];
(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 this Agreement]; and
(c) [the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement].
14.2 The Provider warrants to the Customer that:
(a) [the Platform and Hosted Services will conform in all[ material] respects with the Hosted Services Specification];
(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].
14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach [any laws, statutes or regulations applicable under English law].
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement 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 this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems [specified as compatible in the Hosted Services Specification]; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any [legal, financial, accountancy or taxation advice] under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, 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.
16.1 Nothing in this Agreement 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.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any losses arising out of a Force Majeure Event.
16.4 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of profits or anticipated savings.
16.5 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of revenue or income.
16.6 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of use or production.
16.7 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss of business, contracts or opportunities.
16.8 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any loss or corruption of any data, database or software[; providing that this Clause 16.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4].
16.9 [Neither party shall be liable to the other party] OR [The Provider shall not be liable to the Customer] OR [The Customer shall not be liable to the Provider] in respect of any special, indirect or consequential loss or damage.
16.10 The liability of [each party to the other party] OR [the Provider to the Customer] OR [the Customer to the Provider] under this Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events].
16.11 The aggregate liability of [each party to the other party] OR [the Provider to the Customer] OR [the Customer to the Provider] under this Agreement shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the Customer to the Provider under this Agreement].
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
17.2 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 this 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.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1 Either party may terminate this Agreement by giving to the other party [at least 30 days'] written notice of termination.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or
(d) [if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
]
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.11, 8, 11.2, 11.4, 12, 16, 19, 22 and 23].
19.2 The termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within [30 days] following the termination of this 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 this 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 this Agreement,
without prejudice to the parties' other legal rights.
20.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 20.2 and Part 4 of Schedule 1 (Hosted Services particulars)):
(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]] ,
[additional list items]
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.
20.2 The Provider's contact details for notices under this Clause 20 are as follows: [contact details].
20.3 The addressee and contact details set out in Clause 20.2 and Part 4 of Schedule 1 (Hosted Services particulars) 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 20.
21.1 The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer[, providing that the Customer must not unreasonably withhold or delay the giving of such consent].
OR
21.1 The Provider may subcontract any of its obligations under this 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].
21.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
21.3 Notwithstanding any other provision of this Agreement, 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].
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision 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 (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with [English law].
22.8 The courts of United States shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
23.1 In this Agreement, 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.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 In this Agreement, 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.
Execution
The parties have indicated their acceptance of this Agreement by executing it below.
SIGNED BY [[individual name] on [...............], the Provider] OR [[individual name] on [...............], duly authorised for and on behalf of the Provider]:
........................................
SIGNED BY [[individual name] on [...............], the Customer] OR [[individual name] on [...............], duly authorised for and on behalf of the Customer]:
........................................
Schedule 1 (Hosted Services particulars)
The Customer is [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]].
[Specify Hosted Services and any relevant usage limitations]
[Insert financial provisions]
[Customer contractual notices address details]
Schedule 2 (Acceptable Use Policy)
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of [the website at [URL], 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 [identify provider] (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].
1.5 You must be [at least 18 years of age] to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age .
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.
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content[, and the use of Content by us in any manner licensed or otherwise authorised by you,] must not:
(a) [be libellous or maliciously false];
(b) [be obscene or indecent];
(c) [infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right];
(d) [infringe any right of confidence, right of privacy or right under data protection legislation];
(e) [constitute negligent advice or contain any negligent statement];
(f) [constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity];
(g) [be in contempt of any court, or in breach of any court order];
(h) [constitute a breach of racial or religious hatred or discrimination legislation];
(i) [be blasphemous];
(j) [constitute a breach of official secrets legislation]; or
(k) [constitute a breach of any contractual obligation owed to any person].
[additional list items]
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question[, and in particular for children[ over 12 years of age]].
4.2 Content must not depict violence[ in an explicit, graphic or gratuitous manner].
4.3 Content must not be pornographic[ or sexually explicit].
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true[; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion].
6.1 Content must not consist of or contain any [legal, financial, investment, taxation, accountancy, medical or other professional] advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
8.1 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].
8.2 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].
8.3 You must not send any spam[ or other marketing communications] to any person using any email address[ or other contact details] made available through the Services or that you find using the Services.
8.4 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.
9.1 You must not use the Services for any purpose relating to [gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity].
10.1 You acknowledge that [we may actively monitor the Content and the use of the Services] OR [we do not actively monitor the Content or the use of the Services].
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Free SaaS agreement: drafting notes
This is a short-form agreement covering the B2B provision of software-as-a-service.
Date
Section: Date of execution
Parties
Section: Two parties: companies, individuals or partnerships
Section 1
Section 2
Agreement
Clause 1: Definitions
Clause 1.1
Definition of Account
Definition of Business Day
Definition of Business Hours
Definition of Charges
Definition of Customer Confidential Information
Definition of Customer Data
Definition of Documentation
Definition of Effective Date
Definition of Force Majeure Event
Definition of Hosted Services
Definition of Hosted Services Defect
Definition of Hosted Services Specification
Definition of Mobile App
Definition of Permitted Purpose
Definition of Platform
Definition of Support Services
Definition of Supported Web Browser
Definition of Update
Definition of Upgrade
Clause 2: Credit
Optional element. Although you need to retain the SEQ Legal credit, you should remove the inline copyright warning from this document before use.
Clause 3: Term
Clause 3.2
Clause 4: Hosted Services
Clause 4.1
Clause 4.2
Clause 4.3
Optional element.
Clause 4.4
Clause 4.5
Optional element.
Clause 4.6
Optional element.
Clause 4.7
Optional element.
Clause 4.8
Optional element.
Clause 4.12
Optional element.
Clause 5: Maintenance Services
Optional element.
Clause 5.1
Clause 5.2
Optional element.
Clause 5.3
Optional element. Will the Provider have an obligation to give to the Customer prior written notice of the application of an upgrade?
Clause 5.4
Optional element. Will the Provider have an obligation to give to the Customer prior written notice of the application of updates?
Clause 5.5
Clause 5.6
Optional element. Will the Provider have a right to suspend the maintenance services in the event that the Customer fails to pay any amount due under the contract?
Clause 6: Support Services
Optional element.
Clause 6.1
Clause 6.3
Clause 6.4
Clause 6.6
Optional element.
Clause 7: Customer Data
Optional element.
Clause 7.1
Clause 7.2
Optional element.
Clause 7.3
Optional element.
Clause 7.4
Optional element.
Clause 8: Mobile App
Optional element.
Clause 10: Charges
Clause 10.2
Optional element.
Clause 10.3
Clause 10.4
Clause 11: Payments
Clause 11.1
Clause 11.2
Clause 11.3
Optional element.
Clause 11.4
Optional element.
Clause 12: Provider's confidentiality obligations
Optional element.
Clause 12.1
Clause 12.2
Clause 12.3
Clause 12.5
Clause 13: Data protection
Will the Provider process personal data on behalf of the Customer?
This provision is designed to aid a party disclosing personal information to the other party, for processing by that other party, to comply with the requirements of the Data Protection Act 1998 relating to such disclosures.
Clause 13.1
Optional element.
Clause 13.2
Clause 14: Warranties
Clause 14.1
Clause 14.2
Optional element.
Clause 14.3
Optional element.
Clause 14.4
Optional element.
Clause 14.5
Optional element.
Clause 15: Acknowledgements and warranty limitations
Optional element.
Clause 15.2
Optional element.
Clause 15.3
Optional element.
Clause 15.4
Optional element.
Clause 16: Limitations and exclusions of liability
Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts may rule that particular limitations and exclusions of liability in contracts are unenforceable. The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in its standard terms and conditions, but will also sometimes intervene where a term has been individually negotiated. The courts may be more likely to rule that provisions excluding liability, as opposed to those merely limiting liability, are unenforceable. If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts, that provision should be drafted as an independent term, and be numbered separately from the other provisions. It may improve the chances of a limitation or exclusion of liability being found to be enforceable if the party seeking to rely upon it specifically drew it to the attention of the other party before the contract was entered into. Exclusions and limitations of liability in UK contracts are primarily regulated by the Unfair Contract Terms Act 1977 ("UCTA"). Contracts regulated by UCTA cannot exclude or restrict a party's liability for death or personal injury resulting from negligence (Section 2(1), UCTA). Except insofar as the relevant term satisfies the requirements of reasonableness, such contracts cannot exclude or restrict liability: (i) for negligence (which includes a breach of an express or implied contractual obligation to take reasonable care or exercise reasonable skill) (Section 2(2), UCTA); or (ii) for misrepresentation (Section 3, Misrepresentation Act 1967). In addition, if a contract is regulated by UCTA, and one of the parties is dealing on the other's written standard terms of business, then except insofar as the relevant contractual term satisfies the requirements of reasonableness the other party cannot: (i) exclude or restrict his liability in respect of a breach of contract; or (ii) claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of him; or (iii) claim to be entitled, in respect of the whole or any part of his contractual obligation, to render no contractual performance at all (see Section 3, UCTA). UCTA includes various other restrictions, particularly in the case of contracts for the sale of goods and contracts under which possession or ownership of goods passes. If you wish to try to limit/exclude for liability in respect of reckless, deliberate, personal and/or repudiatory breaches of contract, you should specify this in relation to the relevant provision (for example, using the following wording: "The limitations and exclusions of liability in this Clause [number] will apply whether or not the liability in question arises out of any reckless, deliberate, personal and/or repudiatory conduct or breach of contract"). In many circumstances, however, the courts will find these types of limitations and exclusions to be unenforceable. Somewhat different rules apply to limitations of liability in contracts with consumers, and these provisions should not be used in relation to such contracts. These guidance notes provide a very incomplete and basic overview of a complex subject. Accordingly, you should take legal advice if you may wish to rely upon a limitation or exclusion of liability.
Clause 16.1
Do not delete this provision (except upon legal advice). Without this provision, the specific limitations and exclusions of liability in the document are more likely to be unenforceable.
Clause 16.3
Clause 16.4
Optional element.
Clause 16.5
Optional element.
Clause 16.6
Optional element.
Clause 16.7
Optional element.
Clause 16.8
Optional element.
Clause 16.9
Optional element.
"Consequential loss" has a special meaning in English law: it means any loss that, whilst not arising naturally from the breach, was specifically in the contemplation of the parties when the contract was made.
Clause 16.10
Optional element. Do you want to include a per event liability cap in this document?
Liability caps may be unenforceable in practice.
Clause 16.11
Optional element. Do you want to include an aggregate liability cap in this document?
Liability caps may be unenforceable in practice.
Clause 17: Force Majeure Event
Optional element.
Clause 17.1
Clause 17.2
Optional element.
Clause 17.3
Optional element.
Clause 18: Termination
Clause 18.1
Clause 18.3
Clause 19: Effects of termination
Clause 19.3
Optional element.
This provision will not be suitable in all circumstances. The appropriate treatment of charges upon termination will vary from contract to contract. Note, also, that this provision only deals with charges in respect of "Services".
Clause 20: Notices
Optional element.
Clause 20.2
Clause 21: Subcontracting
Optional element.
Clause 21.1
Clause 21.1
Clause 21.2
Optional element.
Clause 21.3
Optional element.
Clause 22: General
Clause 22.1
Optional element.
Clause 22.2
Optional element.
Clause 22.3
Optional element.
This is intended to prevent, for example, one party wrongfully claiming that a term of the contract was changed in a telephone call.
Clause 22.4
Optional element.
Clause 22.5
Optional element.
This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.
Clause 22.6
Optional element.
Clause 22.7
This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.
Clause 22.8
Optional element.
As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.
Clause 23: Interpretation
Should provisions concerning the interpretation of the document be included?
Clause 23.1
Optional element.
Clause 23.2
Optional element.
Clause 23.3
Optional element.
This provision is designed to exclude the application of a rule of interpretation known as the ejusdem generis rule. That rule may affect the interpretation of contractual clauses that list particular examples or instances of some more general idea, by limiting the scope of the general idea by reference to those particular examples or instances.
Execution
Section: Execution as a contract (individuals, companies or partnerships)
Schedule 1 (Hosted Services particulars)
Part 1: Customer details
Part 2: Specification of Hosted Services
Part 3: Financial provisions
Part 4: Contractual notices
Schedule 2 (Acceptable Use Policy)
Optional element.
Part 1: Introduction
Paragraph 1.1
Paragraph 1.2
Paragraph 1.3
Optional element.
Paragraph 1.4
Optional element.
Paragraph 1.5
Optional element. Do any age restrictions apply to the use of the services?
Part 3: Unlawful Content
Paragraph 3.1
This very general prohibition against unlawful user content may be supplemented by rules relating to specific kinds of illegality, as well as prohibitions upon lawful but undesirable content.
Paragraph 3.2
Optional element.
Paragraph 3.3
Optional element.
Part 4: Graphic material
Optional element.
Paragraph 4.1
Paragraph 4.2
Optional element.
Paragraph 4.3
Optional element.
Part 5: Factual accuracy
Optional element.
Paragraph 5.2
Optional element.
Part 6: Negligent advice
Optional element.
Paragraph 6.1
Optional element.
Paragraph 6.2
Optional element.
Part 7: Etiquette
Optional element.
Part 8: Marketing and spam
Optional element.
Paragraph 8.1
Paragraph 8.2
Paragraph 8.3