Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services shall be governed by these Terms and Conditions, and the Provider will ask for the Customer’s express written acceptance of these Terms and Conditions before providing any such services to the Customer.
1.1 In these Terms and Conditions, except to the extent expressly provided otherwise:
“Agreement” means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of [09:00 to 17:00] [GMT/BST] on a Business Day;
“Charges” means the amounts specified within the Services Order Form.
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
“Customer” means the person or entity identified upon completing the Services Order Form;
“Customer Confidential Information” means:
any information disclosed by (or on behalf of) the Customer to the Provider (during the Term) whether disclosed in writing, orally or otherwise that at the time of disclosure:
(i) was described as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential; and
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding personal data with respect to which the Provider is a data controller;
“Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
“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 following the Customer completing and submitting the Services Order Form;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“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, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars)];
“Hosted Services” means the Dataholics application which is a Zoho marketplace extension as specified in the documentation, which will be made available by the Provider to the Customer as a service that is installed onto their Zoho CRM in accordance with these Terms and Conditions;
“Hosted Services Defect” means a defect, error or bug in the Platform having an 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 Hosted Services;
(b) any use of the Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in the Agreement;
“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, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Minimum Term” means, in respect of the Agreement, the period of 1 or 12 months beginning on the Effective Date subject to the option selected by the Customer (monthly or annual) within the Services Order Form;
“Personal Data” means personal data under any of the Data Protection Laws;
“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;
“Provider” means The Dataholics App Ltd, a company incorporated in England and Wales (registration number 14581751) having its registered office at 67 Bird Hall Lane, Stockport, England, United Kingdom, SK3 0XA;
“Services Order Form” means an online order form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
“Free Trial” means that the Customer will have access to the Hosted Services for a fixed term period or until all the free credits have been used – whichever occurs first.
“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;
“Term” means [the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2];
“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and the Schedule, including any amendments to that documentation from time to time;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; and
“User Interface” means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 15 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
4. Hosted Services
4.1 The Customer may gain access to the Hosted Services once they have installed it onto their Zoho CRM software in accordance with provisions agreed within the Services Order Form or as a free trial user.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of the User Interface 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 User Interface may only be accessed within the Zoho CRM software;
(b) the User Interface may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
(c) the User Interface maybe used by any CRM user based on the profiles selected by the Customer during installation of the application or as changed within settings at a later date;
4.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person or application 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;
4.5 The Customer shall implement and maintain reasonable security measures relating to CRM access to ensure that no unauthorised person or application may gain access to the Hosted Services.
4.6 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer comply with Schedule 1 (Acceptable Use Policy).
4.7 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.
4.8 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
4.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4.12 Free Trial users must agree to and be subject to these Terms and Conditions and Schedule 1 – Acceptable User Policy.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall provide the Support Services with reasonable skill and care.
6.3 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer obligations
7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice; and
(b) information and documentation;
as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
8. No assignment of Intellectual Property Rights
8.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
9.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
10.1 The Provider shall issue invoices for the Charges to the Customer monthly or annually based on the provisions of the completed Services Order Form.
10.2 The Customer must pay the Charges to the Provider within the period of 30 days following the receipt of an invoice issued in accordance with this Clause 13.
10.3 The Customer must pay the Charges by debit card, credit card, or direct debit using such payment details as are notified by the Provider to the Customer from time to time.
10.4 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may charge the Customer interest on the overdue amount at the rate of 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);
11. Data protection
11.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
11.2 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 the Agreement.
11.3 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 15.
11.4 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
11.5 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
11.6 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by [applicable law]. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
11.7 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
11.8 The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data
11.9 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third-party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes.
11.10The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
11.11 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.11.
11.12 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 11 and the Data Protection Laws. The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.12, providing that no such charges shall be levied with respect to the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
11.13 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
11.14 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer[ in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 11.The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 11.14, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.
15.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
12. Disclaimer of Warranties
12.1 You expressly understand and agree that the use of the Hosted Services at your sole risk. The Hosted Services is provided on an as-is-and-as-available basis.
12.2 The Provider expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
12.3 The Provider makes no warranty that the services will be uninterrupted, timely, secure, or error free. Use of any material downloaded or obtained through the use of the services shall be at your own discretion and risk and you will be solely responsible for any damage to your computer system or data that results from the use of the services or the download of any such material.
12.4 No advice or information, whether written or oral, obtained by you from the Provider, its employees or representatives shall create any warranty not expressly stated in the agreement.
13. Limitations and exclusions of liability
13.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 13.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
13.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
13.4 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
13.5 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
13.6 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
13.7 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) £600 or
(b) the total amount paid by the Customer to the Provider under the Agreement in the 12-month period preceding the commencement of the event or events.
14. Force Majeure Event
14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
14.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
15.1 The Provider may terminate the Agreement by giving to the Customer not less than 30 days’ written notice of termination. The Customer may terminate the Agreement by giving to the Provider not less than 30 days’ written notice of termination, expiring after the end of the Minimum Term.
15.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and the breach is not remediable;
(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
15.3 Subject to applicable law, either party may terminate the 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 the 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.
15.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 15.4.
15.5 The rights of termination set out in the Agreement shall not exclude any rights of termination available at law.
16. Effects of termination
16.1 Upon the termination of the Agreement, the provisions of these Terms and Conditions shall cease to have effect, except of such provisions of these Terms and Conditions which by their nature should survive termination, including without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.
16.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.
17. Law and jurisdiction
17.1 These Terms and Conditions shall be governed by and construed in accordance with [English law].
17.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of [England].
SCHEDULE 1 (ACCEPTABLE USE POLICY)
1.1 This acceptable use policy (the “Policy“) sets out the rules governing:
(a) the use of the Dataholics App (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 the Dataholics App Ltd (and “we” and “our” should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
3. Marketing and spam
3.1 You must not send any spam to any person using any email address or other contact details made available through the Services or that you find using the Services.
3.2 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
3.3 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
4.1 You acknowledge that we may actively monitor the use of the Services.
5. Data mining
5.1 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.
6.1 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.