NCS App Standard Terms and Conditions
NCS APP
Standard TERMS AND CONDITIONS
Version: January 2022
Previous versions are available here.
BACKGROUND:
THESE STANDARD TERMS AND CONDITIONS, TOGETHER WITH ANY AND ALL OTHER DOCUMENTS REFERRED TO HEREIN (TOGETHER REFERRED TO AS THE TERMS AND CONDITIONS), SET OUT THE TERMS OF USE UNDER WHICH YOU MAY USE AN NCS APP (“THE NCS APP”). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND ENSURE THAT YOU UNDERSTAND THEM.
IN SETTING UP THE ACCOUNT AND USING THE NCS APP YOU CONFIRM THAT YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS AND CONDITIONS, DO NOT SET UP THE ACCOUNT.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
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“Account” |
means an account with Us as required to access and use the NCS App; |
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“App Specific Terms and Conditions” |
means those additional terms and conditions applicable to the specific NCS App in the Subscription. Past and current versions of App Specific Terms and Conditions can be found at https://www.nolanbusinesssolutions.co.uk/knowledgebase/nolan-cloud-services/general-information/guides. Where there is a conflict of interpretation between Terms and Conditions and App Specific Terms and Conditions, the App Specific Terms and Conditions shall take priority; |
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“Cancellation Notice” |
A notice from You sent to accounts@nolanbusinesssolutions.com where you wish to cancel a Subscription, or by cancelling via the NCS Website; |
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“Content” |
means any data in your control or within your ERP Systems which the NCS app may connect to (whether by Links or otherwise) which is used to fulfil the functionality of the NCS App and which we may process and store; |
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“Contract” |
has the meaning given in Clause 4.1. These Terms and Conditions, together with any and all other documents referred to herein are hereby incorporated by reference in the Contract; |
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“ERP System” |
means the relevant third party enterprise resource planning system licensed to You; |
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“Intellectual Property Rights” |
means patents, registered designs, registered trade and service marks, registered copyright and modifications to and applications for any of the foregoing and the right to apply for protection for such registered rights anywhere in the world and inventions, discoveries, copyright, database right, unregistered trade or service marks, brand names or know-how and any similar or equivalent rights whether capable of registration or not arising, applied for or granted worldwide |
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“Links” |
means those electronic connections as set out in App Specific Terms and Conditions set up by You or by Us with Your authority; |
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“Month/ Monthly” |
means a period of time between the same dates in successive calendar months; |
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“NCS Privacy Policy” |
means the privacy policy available at https://www.nolanbusinesssolutions.co.uk/privacy-statement; |
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“NCS Website” |
Means the Nolan cloud services website found at nolancloudservices.com or such other domain as may be Notified to You; |
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“Notify/ Notification” |
means a communication to You via the NCS Website or email to such details provided in the Account information. Such notices may relate to matters including, but not limited to, Our cancellation of a Subscription, changes to these Terms and Conditions, changes to the NCS App, requests to refresh payment methods, and changes to your Account; |
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“Order” |
means your order for a Subscription; |
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“Reseller” |
means a third party authorised by Us. The Reseller may invoice You direct but the Contract is between You and Us; |
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“Subscription Confirmation” |
means the Notification to confirm your Order; |
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“Subscription” |
means the non- exclusive, non-transferable rights to access and use the NCS App subject to these Terms and Conditions during the Subscription Period; |
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“Subscription Fee” |
means the fee(s) payable per Month in advance for access to the NCS App being a base fee plus additional amounts where the NCS App is required for multiple accounts (as further set out in the App Specific Terms and Conditions); |
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“Subscription Period” |
means the period from the date of the Subscription Confirmation until the end of the Month in which cancellation may occur as provided in these Terms and Conditions; |
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“Support” |
has the meaning given in clause 8; |
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“Transaction” |
has the meaning given in the relevant App Specific Terms and Conditions; |
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“Trial” |
means the free access to the NCS App granted to You for evaluation purposes and subject to the provisions of Clause 3; |
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“Trial Confirmation” |
means the Notification to confirm the Trial; |
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“Trial Period” |
means 30 days from the Trial Confirmation; |
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“We/Us/Our (and the non-capitalised versions)” |
means Nolan Business Solutions public limited company, a limited company registered in England under company number 02305512, whose registered address is Cedar House, Ancells Road, Fleet, Hampshire, GU51 2UN; and |
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“You/ Your/ Yours (and the non-capitalised versions)” |
whether the NCS App is obtained directly or through a Reseller, means the business (company, partnership or sole trader) as identified the “Company” during set up of the Account. |
2. Information About Us
2.1 The NCS App is owned and operated by Us.
2.2 We are a data controller registered with the ICO (UK) under number ZA386449.
3. Trial of the NCS App
3.1 For a Trial You will be required to set up an Account for a Trial but no payment will be taken at that stage. We will send a Trial Conformation if Your request is approved by Us.
3.2 During the Trial Period We grant You a non-exclusive, non-transferable licence to use the NCS App in Your business for evaluation purposes only.
3.3 To the extent permitted by law and subject to the other non-excludable rights and remedies you may have under law in relation to the NCS App, during the Trial Period, you hereby agree that the NCS App and any Support is provided AS IS with no representation, guarantee or warranty of any kind as to its functionality, quality, performance, suitability or fitness for purpose. All other terms, conditions, representations and warranties expressed or implied whether by statute or otherwise are hereby expressly excluded.
3.4 If, in your sole opinion, the NCS App has met your requirements, and you wish to continue to use the NCS App beyond the end of the Trial Period, you can decide whether to obtain the equivalent Subscription Fee version. Once the appropriate Subscription Fee has been paid these Terms and Conditions shall continue in force (except that this Clause 3 shall no longer apply). You should notify Us and manage Your Account accordingly / make payment for a paid Subscription before the expiry of the Trial Period to ensure continuity.
3.5 If, on expiry of the Trial Period you;
3.5.1 notify us that you have decided that the NCS App does not meet your requirements; or
3.5.2 You do not proceed to make payment for a paid Subscription
Your access to NCS App and use of Links shall cease and We will close the Account. Any Content will be deleted by Us after 90 days.
3.6 During a Trial Period these Terms and Conditions apply save for the following Clauses; Clause 4, Clause 5.2 and 5.4, Clause 7, Clause 9, 10 and 11, Clause 13.2.
4. Access to the NCS App
4.1 By completing details as required for your Account You are making Us a contractual offer that We may, at Our sole discretion, accept. Subject to this and successful payment of the first Subscription Fee Our acceptance is indicated by Us sending you a Subscription Confirmation by email. Only once We have sent you a Subscription Confirmation will there be a legally binding contract between Us and you (“the Contract”).
4.2 If We do not accept or cannot process your Subscription purchase for any reason, no payment will be taken under normal circumstances. If We have taken any payment in such circumstances, the payment will be refunded to you as soon as possible and in any event within 30 days.
4.3 By purchasing a Subscription, you are expressly requesting that you wish access to the NCS App to be made available to you immediately. Please be aware that We do not offer any Subscriptions that do not begin immediately. To make full use of an NCS App it may then be necessary for You to provide Us with further information or Links. These requirements are set out in App Specific Term and Conditions.
4.4 When creating an Account, the information you provide must be accurate and complete. If any of your information changes at a later date, it is your responsibility to ensure that your Account is kept up-to-date.
4.5 Where a Reseller is involved and You are invoiced by the Reseller, this does not limit our ability to seek payment of unpaid amounts due under these Terms and Conditions from You;
4.6 Where You are required to create a password for your Account, It is your responsibility to keep your password safe. You must not share your Account with anyone else. If you believe your Account is being used without your permission, please contact Us immediately. We will not be liable for any unauthorised use of your Account.
4.7 Any personal information provided by You (including employee information) for your Account will be collected, used, and held in accordance with the NCS Privacy Policy.
5. Our Warranties and disclaimers
5.1 We warrant that;
5.1.1 We own the Intellectual Property Rights in the NCS App and/or have the right to grant a licence to you;
in creating the NCS App, We have not knowingly infringed the intellectual property rights of third parties.
5.2 You acknowledge that the NCS App is of such a complexity that there will be inherent defects and that therefore we can give no warranty that the NCS App is free from error or defect or that operation of the NCS App shall be secure, uninterrupted or compatible with all your systems or all future versions of the ERP System. We do not offer any warranty related to the NCS App and/or the Support provided, either express or implied, including but not limited to implied warranties of fitness for purpose or satisfactory quality, save for any non-excludable rights and remedies you may have under law.
5.3 You acknowledge that the NCS App has been developed as a standard product for use by a wide variety of users and so we are unable to warrant that the NCS App will meet any particular user needs. You shall take full responsibility for ensuring that the NCS App is suitable for your intended purposes and to facilitate investigation into such suitability, we offer a free Trial.
5.4 We make all reasonable efforts to ensure that the actual function of the NCS App corresponds with the description given in the App Specific Terms and Conditions in all material respects.
5.5 No part of The NCS App or any accompanying documentation (whether provided in electronic form or otherwise) constitutes advice on which you should rely and is provided for general information purposes only. Professional or specialist advice should always be sought before taking any action concerning the use of the NCS App in your business.
5.6 We are not responsible for accuracy of any Content.
5.7 We are not responsible for the availability of the Links.
5.8 Where the NCS App involves the completion of submission of information to a third party, a reconciliation of any kind (where by way of rule or otherwise) or any payment instruction directly or via a Link (an Instruction), it is Yor responsibility to check the accuracy of the Instruction before allowing the NCS App to complete the Instruction.
5.9 We exercise all reasonable skill and care to ensure that the NCS App is secure and free from viruses and other malware. We do not, however, guarantee that the NCS App is secure or free from viruses or other malware and accept no liability in respect of the same, as detailed in Clause 14.5.
5.10 You are responsible for protecting your hardware, software, data and other material from viruses, malware and other internet security risks.
5.11 You must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via the NCS App.
5.12 You must not attempt to gain unauthorised access to any part of the NCS App, the server on which the NCS App is stored, or any other server, computer, or database connected to the NCS App.
5.13 By breaching the provisions of Clauses 5.10 to 5.12 you may be committing a criminal offence under the Computer Misuse Act 1990. Any and all such breaches will be reported to the relevant law enforcement authorities and We will cooperate fully with those authorities by disclosing your identity to them. Your right to use the NCS App will cease immediately in the event of such a breach.
6. Your Warranties
6.1 You warrant that at all relevant times;
6.1.1 You shall ensure compliance with these Terms and Conditions at all times during the Trial Period and Subscription Period.
6.1.2 You are responsible for the acts and omissions of your employees, agents and sub-contractors who may have access to the NCS App on your behalf (or who access the NCS App in an unauthorised manner);
6.1.3 The individual completing and confirming the Account details on Your behalf has Your authority to bind You into the Contract;
6.1.4 You have a licence to use the ERP System;
6.1.5 You shall ensure that the ERP System meets the minimum version as set out in App Specific Terms and Conditions from time to time;
6.1.6 You (and the individual doing so on your behalf) have authority to set up the Links or to authorise Us to set up the Links using Your credentials; and
6.1.7 Your use of the NCS App and Links shall be in accordance with applicable law.
6.2 Where Your use of the NCS App exceeds the number of Transactions as set out in the App Specific Terms and Conditions We reserve the right to increase the Subscription Fee.
7. Changes to the NCS App and Availability
7.1 We may from time to time make changes to the NCS App:
7.1.1 Minor changes may be required to make underlying technical alterations, for example, to fix an error or to address a security issue;
7.1.2 Minor changes may be made to reflect changes in the law or other regulatory requirements;
7.1.3 To update the NCS App as may be required by new releases, versions or updates to the ERP System;
7.1.4 To develop and improve the NCS App;
We will Notify of any material changes and where action is required by You.
7.2 We will use reasonable endeavours to ensure that the NCS App is available at all times. In certain limited cases, however, We may need to temporarily suspend availability to make certain changes outlined under Clause 3.2. Unless We are responding to an emergency or an urgent issue, We will Notify You in advance of any planned interruptions to the availability of the NCS App.
7.3 If We need to suspend the NCS App for longer than 5 working days, you may also have a right to cancel. Please refer to Clause 11.2.3 for details.
8. Support
8.1 In relation to and without prejudice to the generality of Clause 5.2 above, we provide support to You via the NCS Website, by email and by phone. You agree that We may also log into the ERP System as a user to be able to provide support remotely or to make any changes as required by Clause 7.1. You accept that, although we will use reasonable endeavours to solve problems identified by you, the nature of NCS App is such that no guarantee can be provided that any particular problem will be solved. You accept that, where a particular problem requires an update to the NCS App, the scheduling of any new releases and the functionality those releases contain shall be under our sole control.
Scope of Support: Break fix support will be provided on the NCS App. Support for the ERP System is not within scope under this contract.
Service Level: Any query will be responded to within 2 hours during the Hours of Support.
How to obtain Support: Support will be provided by emailing support@nolanbusinesssolutions.com or online chat within NCS. We will on occasion telephone You if it is felt it will lead to a faster resolution and you may be asked if you would like to do a screen sharing session with Us.
Hours of Support: 09:00 – 17:30 GMT, Monday – Friday excluding UK public holidays.
Monthly allowance for Support: Maximum of 2 hours per month per NCS App
8.2 Support will be free of charge save where Your use is in excess of the monthly allowance as above. We will Notify you when this occurs and include it in the next Subscription Fee due.
8.3 Where you require support which is over and above the parameters above We will provide this subject to agreement of additional terms and charges.
9. Subscription Fee Changes
9.1 We reserve the right to change the Subscription Fee from time to time and as necessary. Changes to the Subscription Fee shall apply no earlier than 15 days after Notification to You. If We do not receive a Cancellation Notice from You within 10 days of a Notification concerning a change to the Subscription Fee We will treat the change to the Subscription Fee as accepted and process the next payment accordingly.
9.2 All prices are exclusive of VAT.
10. Payment
10.1 The Subscription Fee is a monthly payment, payable in advance. Your Subscription will not start until the first payment has been taken by Our third party payment provider.
10.2 For subsequent months We will show invoices in the NCS Website and they will be emailed to You. Payment will be promptly taken by direct debit. or using the credit card or debit card details you provide to us for this purpose.
11. Cancellation
11.1 We offer a limited short-term cancellation right if you have purchased a Subscription by mistake. To action this send the Cancellation Notice within 30 days of the start of the Subscription Period. Please note that this option is available only if you have not used the NCS App. If We can trace any use of the NCS App during that period, you will not be able to cancel under this provision. Where we are able to cancel under this provision we will refund the Subscription Fee paid and close the Account immediately.
11.2 You may cancel the Subscription at any time by sending Us a Cancellation Notice in the following limited circumstances:
11.2.1 We have informed you of an upcoming change to the NCS App, the Subscription Fee or to these Terms and Conditions (or documents referred to in them) that you do not agree to; or
11.2.2 There is a risk that the availability of the NCS App may be significantly impacted due to events outside of Our control; or
11.2.3 We have informed you that We have suspended, or are planning to suspend, availability of The NCS App for a period greater than 5 working days; or
11.2.4 We have breached these Terms and Conditions in any material respect and the breach is not capable of remedy or, where capable of remedy, We have been served notice of the breach, we have failed to remedy the breach within 30 days.
11.3 Save as provided in Clause 11.1 above, where you cancel the Subscription;
11.3.1 no refund in respect of amounts paid in advance will be provided;
11.3.2 access to the NCS App will cease on the day of cancellation; and
11.3.3 the Account will be closed at the end of the Subscription Period.
11.4 In addition to specific rights of cancellation set out herein, We may cancel the Subscription at any time by sending a Notification where You are in breach of these Terms and Conditions. Where We cancel the Subscription;
11.4.1 no refund in respect of amounts paid in advance will be provided;
11.4.2 access to the NCS App will cease on the day of cancellation;; and
The Account will be closed at the end of the Subscription Period.
11.5 Retired NCS App: We reserve the right to retire an NCS App (and therefore to send You Notification of cancellation). The Notification will include a date on which access to the NCS App will cease. Your access to the NCS App will continue until this date. We will refund any payments made in advance pro-rata to reflect any period you have paid for in advance but do no longer have access to the NCS App. We will then close the Account.
11.6 At the end of a Trial Period or Subscription Period We will close down Links set up in order to provide the functionality of the NCS App.
11.7 Closing your Account will result in You no longer having access to Content. To avoid losing anything that you may require after cancellation, please ensure that you back up any Content. Please note that this is Content that we store only. If Content has been transferred in to the ERP System or any other system you use this is no longer Content and is within your control in all respects.
12. Our Intellectual Property Rights and Licence
12.1 During the Subscription Period We grant You a limited, non-exclusive, revocable, non-transferable licence to use the NCS App for Your own business purposes, subject to these Terms and Conditions.
12.2 Subject to the licence granted to Us under Clause 12.3, You retain the ownership of all Intellectual Property Rights in Content (subject to any third party rights in that Content and the terms of any licence under which you use such Content).
12.3 You grant Us a non-exclusive, revocable right to use the Content as required under these Terms and Conditions. Where you revoke this right the NCS App may not function.
12.4 All Intellectual Property Rights in the NCS App belong to or have been licensed by Us.
12.5 By accepting these Terms and Conditions, you hereby undertake:
12.5.1 Not to copy, download or otherwise attempt to acquire any part of the NCS App;
12.5.2 Not to disassemble, decompile or otherwise reverse engineer the NCS App;
12.5.3 Not to allow or facilitate any use of the NCS App that would constitute a breach of these Terms and Conditions; and
12.5.4 Not to embed or otherwise distribute the NCS App on any website, ftp server or similar.
13. Indemnities
13.1 YOU AGREE TO INDEMNIFY US FROM ANY LIABILITY, PENALTY (SO FAR AS PERMITTED BY LAW), LOSS OR DAMAGE WHICH MAY ARISE FROM YOUR USE OF THE NCS APP, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE RESULTING YOUR BREACH OF THESE TERMS AND CONDITIONS OR AN BREACH OF DATA PROTECTION LEGISLATION, USE OF CONTENT ON YOUR BEHALF OR IF A THIRD PARTY CLAIMS THAT YOUR USE OF THE NCS APP CAUSES ANY SUCH LIABILITY, LOSS OR DAMAGE, EXCEPT IN THE CIRCUMSTANCES IN CLAUSE 13.2 BELOW.
13.2 If any claim is brought against you alleging that your use of the Intellectual Property Rights associated with the NCS App in accordance with these Terms and Conditions infringes the rights of any third party, you shall promptly notify us and supply full details of the claim. We shall consult together on an appropriate course of action and seek to minimise the effect of any claim on the respective businesses. We shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim. We will pay any damages and costs awarded against you in connection with any claim subject to a maximum of the aggregate sum of Subscription Fees paid to us by you in the 12 months prior to the claim.
13.3 We shall have the right, at our sole choice, to either:
13.3.1 use reasonable endeavours to negotiate terms for continued use by you of the claimed infringing part of the NCS App; or
13.3.2 use reasonable endeavours to amend the NCS App to make it non-infringing; or
13.3.3 Cancel the Subscription with immediate effect without further liability to you save for any refund of amounts paid in advance.
14. Our Liability
14.1 TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE ACCEPT NO LIABILITY FOR ANY FORESEEABLE LOSS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE USE OF (OR INABILITY TO USE) THE NCS APP OR THE USE OF OR RELIANCE UPON ANY CONTENT INCLUDED IN THE NCS APP.
14.2 TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE ACCEPT NO LIABILITY FOR LOSS OR DAMAGE THAT IS NOT FORESEEABLE.
14.3 TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE EXCLUDE ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES (WHETHER EXPRESS OR IMPLIED) THAT MAY APPLY TO THE NCS APP OR ANY CONTENT INCLUDED IN THE NCS APP. WE SHALL NOT BE RESPONSIBLE FOR ANY LOSS, CORRUPTION OR INACCURACY OF THE CONTENT.
14.4 WE ACCEPT NO LIABILITY FOR LOSS OF PROFITS, SALES, BUSINESS OR REVENUE; LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; LOSS OF ANTICIPATED SAVINGS; BUSINESS INTERRUPTION; OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.
14.5 WE EXERCISE ALL REASONABLE SKILL AND CARE TO ENSURE THAT THE NCS APP IS FREE FROM VIRUSES AND OTHER MALWARE. WE ACCEPT NO LIABILITY FOR ANY LOSS OR DAMAGE RESULTING FROM A VIRUS OR OTHER MALWARE, A DISTRIBUTED DENIAL OF SERVICE ATTACK, OR OTHER HARMFUL MATERIAL THAT MAY ADVERSELY AFFECT YOUR HARDWARE, SOFTWARE, DATA OR OTHER MATERIAL THAT OCCURS AS A RESULT OF YOUR USE OF THE NCS APP (INCLUDING THE DOWNLOADING OF ANY CONTENT FROM IT) OR ANY OTHER WEBSITE OR SERVICE THAT WE MAY PROVIDE A LINK TO.
14.6 WE NEITHER ASSUME NOR ACCEPT RESPONSIBILITY OR LIABILITY ARISING OUT OF ANY DISRUPTION OR NON-AVAILABILITY OF THE NCS APP RESULTING FROM EXTERNAL CAUSES INCLUDING, BUT NOT LIMITED TO, ISP EQUIPMENT FAILURE, HOST EQUIPMENT FAILURE, COMMUNICATIONS NETWORK FAILURE, NATURAL EVENTS, ACTS OF WAR, OR LEGAL RESTRICTIONS AND CENSORSHIP.
14.7 NOTHING IN THESE TERMS AND CONDITIONS EXCLUDES OR RESTRICTS OUR LIABILITY IN ANY SITUATION WHERE IT WOULD BE UNLAWFUL FOR US TO DO SO INCLUDING FRAUD OR FRAUDULENT MISREPRESENTATION, FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, OR FOR ANY OTHER FORMS OF LIABILITY WHICH CANNOT BE EXCLUDED OR RESTRICTED BY LAW.
14.8 SUBJECT TO THE ABOVE OUR TOTAL AGGREGATE LIABILITY TO YOU HOWSOEVER CAUSED SHALL BE LIMITED IN ALL CASES TO THE AGGREGATE SUM OF THE SUBSCRIPTION FEES PAID UNDER THE RELEVANT CONTRACT IN THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
15. Content and Customer Data
Definitions: In this Clause the following definitions shall apply:
“Customer Data” means any Content which includes Personally Identifiable Data.
”Personally Identifiable Data” means any information relating to an identified or identifiable natural person; and
“UK GDPR” means GDPR so far as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data
Any data protection terms used in this Clause and not defined shall have the meaning given in the UK GDPR.
15.1 General Statement: We will store and process Content only for any purpose required for any NCS App. Our servers are located in the UK through our sub-processor Microsoft Azure.
15.2 Retention: Content will be deleted from our servers 90 days from end of Trial Period (where Subscription does not follow) or Subscription Period whichever is the earlier.
15.3 Further to Clause 12.3 We acknowledge that, where applicable, all rights, title and interest in and to the Content belongs to you. You acknowledge that in obtaining the Content, Customer Data in such Content may be transferred through different jurisdictions as determined by the location of the data source (i.e. your bank account) to Us and you agree that you shall have sole responsibility for the compliance of such transfer and the legality, reliability, integrity and quality of the Content.
15.4 You acknowledge that except to the extent Content is the Customer Data and to the extent only as a processor, we shall not be responsible for any loss, corruption or inaccuracy of the Customer Data we hold.
15.5 You acknowledge that you determine the nature and content of the data within the Content. To the extent the Content contains Customer Data which is subject to data protection legislation, we will act as a processor of the Customer Data on your behalf, and Clauses 15.6 to 15.8 shall apply only to such Customer Data. The details of the processing are set out at the end of this Clause or as may be updated in any App Specific Terms and Conditions.
15.6 As the controller of the Customer Data, you are responsible for;
15.6.1 ensuring you have a lawful basis for the use of the Customer Data as required by all aspects of the NCS App and, including obtaining any necessary authorisations or consents from data subjects; and
15.6.2 complying with all applicable data protection legislation as may apply to the use of Customer Data as a consequence of the NCS App.
15.7 We will;
15.7.1 process the Customer Data only to the extent necessary for the purposes of these Terms and Conditions and in accordance with your written instructions set out in this clause (except where we are required by law to process the Customer Data other than in accordance with your instructions, in which case, we will inform you of the relevant legal requirement prior to such processing, unless the law prohibits the provision of such information on important grounds of public interest);
15.7.2 implement appropriate technical and organisational measures in accordance with the data protection legislation to ensure a level of security appropriate to the risks that are presented by such processing;
15.7.3 ensure that any employees or other persons authorised to process the Customer Data are subject to appropriate obligations of confidentiality;
15.7.4 notify you, as soon as reasonably practicable, about any request or complaint received from a data subject (without responding to that request, unless authorised to do so by you) and at your cost, assist you by technical and organisational measures, insofar as possible, for the fulfilment of your obligations in respect of such requests and complaints;
15.7.5 at your request and cost, and taking into account the nature of the processing and the information available to us, use reasonable endeavours to, assist you with your compliance with your obligations under Articles 32 to 36 of the UK GDPR / GDPR (where applicable);
15.7.6 where We change the location of the Content from the UK we will ensure any such transfer meets the relevant requirements under Articles 44 - 50 of the UK GDPR or GDPR where this is applicable to you;
15.7.7 at your request and cost, make available all information necessary to demonstrate our compliance with this Clause 15 and on reasonable advance notice in writing otherwise permit, and contribute to, audits carried out by you (or your authorised representative) with respect to the Customer Data, save that you shall (or shall ensure your authorised representatives shall):
(a) sign a non-disclosure agreement in terms acceptable to us prior to undertaking such audit;
(b) be accompanied by one of Our employees at all times whilst on site during the audit;
(c) use your reasonable endeavours to ensure that the conduct of any such audit does not unreasonably disrupt our normal business operations; and
(d) comply with our relevant IT and security policies whilst carrying out any such audit.
15.8 You acknowledge and agree We may engage third party processors to carry out our processing obligations under this Agreement. Sub-processors will, at all times, be subject to data processing obligations equivalent to those set out in this Clause 15, and we will remain liable to you for such sub-processors. Our current third party sub-processors in addition to Microsoft Azure will be set out in App Specific Terms and Conditions.
Personally Identifiable Data: details of processing
Controller: You
Processor: Us
Nature, purpose and subject matter of processing: We will process Customer Data contained within the Content as necessary to provide the features of the NCS App that are hosted on Our cloud environment.
Duration of processing: the Subscription Period plus 90 days OR if for a Trial, the Trial Period plus 90 days
Categories of data: You are solely responsible for determining what Customer Data is contained in the Content. Any categories of Personally Identifiable Data could be included.
Data subjects: You are solely responsible for determining what Customer Data is contained in the Content. Any categories of data subjects could be included.
16. Other Important Terms
16.1 We may transfer (assign) Our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (this may happen, for example, if We sell Our business). If this occurs, you will be informed by Us in writing. Your rights under these Terms and Conditions will not be affected and Our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them.
16.2 Your use of the NCS App is personal to you and for your business purposes only. You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without Our express written permission.
16.3 The Contract is between you and Us. Subject to Clause 16.1 it is not intended to benefit any other person or third party (which shall include a Reseller) in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.
16.4 If any of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
16.5 No failure or delay by Us in exercising any of Our rights under these Terms and Conditions means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms and Conditions means that We will waive any subsequent breach of the same or any other provision.
16.6 The parties agree that those provisions that by their nature are intended to survive the Trial Period or Subscription Period shall survive the resultant termination of the Contract notwithstanding the cause of termination.
16.7 In the event of conflict of interpretation between provisions of these conditions and App Specific Terms and Conditions, the App Specific Terms and Conditions shall take priority.
17. Changes to these Terms and Conditions
17.1 We may alter these Terms and Conditions, App Specific Terms and Conditions, the NCS Privacy Policy and any other document referred to herein at any time. If We do so, we will Notify you of this and any such changes will become binding on you upon your first use of the NCS App after the Notification of date set out in the Notification.
17.2 In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
18. Disputes
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause.
The number of arbitrators shall be one.
The seat, or legal place, of arbitration shall be London.
The language to be used in the arbitral proceedings shall be English.
The governing law of the contract shall be the substantive law of England and Wales.
END
