Standard Terms & Conditions for Sheetloom SaaS Usage
We agree to contract with you to you on the following terms. These constitute an agreement between us and you and must be read together with any other documents explicitly agreed to be part of this Agreement. Any other terms contained in any other document are excluded unless their inclusion is expressly agreed in writing between us.
- Definitions
- “we”, “our” and “us” means Millersoft Ltd, a company incorporated in Scotland under number SC162541 and whose registered office is at Stuart House, Eskmills Park, Station Road, Musselburgh, Midlothian, EH217PB, United Kingdom.
- “Authorised User” means your employees, agents and independent contractors who are authorised by you to use the Services;
- “Business Day” means a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business;
- “Initial Term” means the initial term of this Agreement;
- “Intellectual Property” means any and all patents, patent applications, know-how, trademarks, trademark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights created, developed, or used in connection with this Agreement;
- “Normal Business Hours” means 9.00am – 5.00pm local UK time, each Business Day;
- “Renewal Period” means the period (if any) after the Initial Term;
- “Services” means the subscription services provided by us to you under this Agreement;
- “Software” means the online software application provided by us as part of the Services;
- “Subscription Fees” means the subscription fees payable by you to us for the User Subscriptions;
- “Term” means the Initial Term together with any subsequent Renewal Period;
- “User Subscriptions” means the user subscriptions purchased by you which entitle Authorised Users to access and use the Services under this Agreement;
- User Subscription
- We grant to you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term solely for your internal business operations.
- In relation to the Authorised Users, you agree that:
- the maximum number of Users that you authorise to access and use the Services shall not exceed that agreed in a Statement of Work, Service Level Agreement or any other document, that being the number of User Subscriptions you have purchased from us;
- you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
- you shall maintain a written, up to date list of current Authorised Users and provide such list to us within 5 Business Days of our written request at any time;
- you shall permit us to audit the Services in order to establish the use by each Authorised User. Such audit may be conducted no more than once per year (unless we have reasonable grounds for suspicion in which case it may be more often), and shall be at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to interfere substantially with your normal conduct of business; and
- if we discover that you have underpaid Subscription Fees to us, then without prejudice to our other rights, you shall pay to us an amount equal to such underpayment within 10 Business Days of the date of our notification to you of the underpayment.
- You shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services in order to build a product or service which competes with the Services; or
- use the Services to provide services to third parties; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this clause.
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
- You may, from time to time during the Term, purchase additional User Subscriptions in excess of the number already purchased.
- Services and Term
- We shall, during the Term, provide the Services to you on the terms of this Agreement.
- We shall use commercially reasonable endeavours to make the Services available as per the SLA, except for maintenance (normally performed outside Normal Business Hours), provided that we have tried to give you reasonable notice in advance.
- Unless otherwise agreed, this Agreement shall last for an initial term of one year. It shall then continue for further periods of one year unless either party shall give to the other at least 30 days’ notice in writing to terminate on the anniversary of its start.
- Your Data
- You shall own all right, title and interest in and to all of your data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of your data.
- We shall not be responsible for any loss, destruction, alteration or disclosure of your data caused by any third party.
- We shall both comply with our respective obligations under data protection legislation. If we are acting as a processor of personal data for you, the provisions set out in the Schedule shall apply to this Agreement.
- Our Obligations
- We undertake that the Services will be performed with reasonable skill and care.
- If not we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach. We:
- do not warrant that your use of the Services will be uninterrupted or error-free; or that the Services will meet your requirements; and
- are not responsible for any delays, delivery failures, or any other loss or damage resulting from (i) the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities, (ii) disruption to or failure of the service caused by a failure of the AWS service and;
- cannot warrant that the SaaS will work with versions of Microsoft Excel beyond the existing version (at the date of this contract), currently being version 16.73 for Mac, and Windows version 2302. However, we will endeavour to ensure compatibility as the soon as is reasonably possible.
- We will, consistent with industry standard practices, implement and maintain physical, administrative and technical safeguards and other security measures to protect the Software from known or reasonably anticipated threats or hazards.
- We will conduct regular penetration testing or other appropriate security testing and security assessments against the Sheetloom Software. Upon your request, We will provide a copy of or online viewing access to reports summarizing such testing and audits.
- We shall remedy material issues identified from the security testing and audits in a timely manner.
- Your Obligations, you shall provide us with:
- all necessary co-operation in relation to this Agreement; and
- all necessary access to such information as may be required by us in order to provide the Services, including but not limited to your data, security access information and configuration services;
- comply with all applicable laws and regulations with respect to your activities under this Agreement;
- ensure that the Authorised Users use the Services in accordance with the terms of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
- pay the Subscription Fees to us for the User Subscriptions in advance; and
- acknowledge that we own all intellectual property rights in the Services. Except as expressly stated this Agreement does not grant you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
- Intellectual Property
- We warrant to you that no material will be provided by us as part of the Services which infringe any third party Intellectual Property rights. You warrant to us that no material will be provided by you to us for use in the Services which infringe any third party Intellectual Property rights.
- If a claim for the infringement of third party Intellectual Property Rights is made or threatened against either party in connection with material provided by it under this Agreement, it shall indemnify the other against any and all costs, expenses, damages or other losses suffered, or payments made by the other in connection with the claim and any associated judgment or settlement.
- Extent of Liability
- Nothing in this Agreement shall be construed as restricting or excluding the liability of either party for death or personal injury resulting from its negligence or for fraud or fraudulent misrepresentation.
- Subject to the immediately preceding sub-clause, we shall be liable to you under this Agreement in respect of all direct loss or damage caused by our acts or omissions or those of our employees, agents or sub-contractors, other than Excluded Loss (whether or not the possibility of such loss arising on a particular breach of contract or duty has been brought to our attention at the time of making this Agreement). In this clause the expression "Excluded Loss" means all special loss and all third party claims, lost management time, economic loss or other loss of business, production, revenue, profit, goodwill or anticipated savings, anticipated tax mitigation, loss of data, others whether arising in contract, tort (including negligence), breach of statutory duty or otherwise.
- Our liability to you under this Agreement, whether in respect of breach of contract, tort (including negligence), breach of statutory duty or otherwise, shall in no event exceed the amount payable by you to us over a 12 month period across all Contracts.
- For the avoidance of doubt, in no event shall either party be liable to the other for any indirect or consequential loss of any nature and howsoever caused.
- We will not be liable under any warranty or any other provision of this Agreement to the extent that any failure of any of the Software to comply with any warranty, or to the extent that any error, defect, bug or deficiency in any of the Software, or our failure to correct or delay in correcting it, results from The Buyer or any Affiliate not having complied with this Agreement, or from any other act or omission on The Buyer's or any Affiliate’s part, on the part of any User or on the part of any other person.
- Termination
- Either party shall be entitled to terminate this Agreement immediately by written notice to the other if the other commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy it, within 30 days after receipt of a written notice giving full details of the breach and requiring it to be remedied.
- Either of us can also terminate this Agreement if the other is the subject of a bankruptcy order (or the equivalent in any other jurisdiction) or the other becomes insolvent or make any arrangement or composition with, or an assignment for the benefit of, its creditors or if any of its assets are the subject of any form of seizure. If either of us is a company, the other can terminate this contract forthwith if the first party goes into liquidation, either voluntary or compulsory, or if a receiver or administrative receiver or administrator is appointed.
- Confidentiality
- Each party shall keep secret and treat as confidential all information obtained from the other which is either stated to be confidential or could reasonably be regarded as confidential and shall not disclose such information to any person other than its employees, agents or sub-contractors where such disclosure is required for the performance of the party’s obligations under this Agreement. This clause shall not extend to information which was already in the lawful possession of a party before this Agreement, or which is already in the lawful possession of a party before this Agreement, or which is already public knowledge or becomes so subsequently (other than as a result of a breach of this clause) or which is trivial or obvious. The obligations of confidentiality under this clause shall continue after the end of this Agreement.
- Either party may provide Confidential Information to auditors, HM Revenue and Customs, any other tax authority, any regulatory body to which either party is subject, or any other person having a right, duty or obligation to know either partyr's business, but then only in pursuance of that right, duty or obligation.
- Either party will ensure that the parties mentioned in 10.2 are made aware, before the disclosure to them, of any of The Confidential Information, that it is confidential and that they owe a duty of confidence.
- Force Majeure
- Neither party shall be liable for any breach of this Agreement caused by matters beyond its reasonable control, including, but not limited to, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving a party’s employees), failures or interruptions of electricity supplies, weather of exceptional severity or acts of local or central government or other authorities.
- General
- The terms of this Agreement represent the entire agreement between the parties and supersede any previous agreement whether recorded in writing or otherwise.
- Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may have been notified to the party giving the notice.
- No waiver or any amendment to these terms shall be effective unless in writing and signed by both you and us.
- A person who is not a party to these terms may not enforce any of them under this Agreements (Rights of Third Parties) Act 1999.
- If there is a dispute between the Parties, before commencing any court or similar proceeding, the Parties will discuss the issues in good faith with a view to resolving the dispute amicably. Where appropriate, the Parties may also consider alternative dispute resolution, including litigation by either party.
- This Agreement shall be governed by the laws of England and we both agree to submit to the exclusive jurisdiction of the English Courts.