PLEASE READ THESE LICENCE TERMS CAREFULLY
BY USING THE TRUSTD MTD PLATFORM FROM TRACED YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE TRUSTD MTD PLATFORM.
We, Traced Limited (“Traced”) (company number 12194411) with our registered office 1b Blackfriars House, Parsonage, Manchester, Greater Manchester, England, M3 2JA, England, license you (“Customer”) to use:
- The ‘Trustd MTD’ platform and any updates or supplements to it.
- The related online or electronic documentation (Documentation).
as permitted in these terms.
1. DEVICE SUBSCRIPTIONS
1.1 Subject to the Customer purchasing and paying for Device Subscriptions, the restrictions set out in this clause 1 and the other terms and conditions of this agreement, Traced hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
1.2 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential.
1.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
1.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
1.3.2 facilitates illegal activity;
1.3.3 depicts sexually explicit images;
1.3.4 promotes unlawful violence;
1.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
1.3.6 is otherwise illegal or causes damage or injury to any person or property;
and Traced reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
1.4 The Customer shall not:
1.4.1 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:
126.96.36.199 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
188.8.131.52 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
1.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
1.4.3 use the Services and/or Documentation to provide services to third parties; or
1.4.4 subject to clause 13.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
1.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 1; or
1.4.6 introduce or permit the introduction of, any Virus or Vulnerability into Traced’s network and information systems.
1.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Traced.
1.6 The rights provided under this clause 1 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2. ADDITIONAL DEVICE SUBSCRIPTIONS
2.1 Subject to clause 2.2 and clause 2.3, the Customer may, from time to time during any Subscription Term, purchase additional Device Subscriptions Traced shall grant access to the Services in respect of such Device Subscriptions in accordance with the provisions of this agreement.
2.2 If the Customer wishes to purchase additional Device Subscriptions, the Customer shall notify Traced in writing.
2.3 Traced shall activate the additional Device Subscriptions as soon as reasonably practicable from receipt of the Customer’s request and the Customer shall pay promptly the relevant fees for such additional Device Subscriptions and, if such additional Device Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Traced for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
3.1 Traced shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
3.2 Traced shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that Traced has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
3.3 Traced will, as part of the Services, provide the Customer with Traced’s standard support services during Normal Business Hours in accordance with the Service Plan in effect at the time that the Services are provided. Traced may amend the Terms in the Service Plan in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Traced’s then current rates.
4. CUSTOMER DATA
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
4.2 Traced shall follow its archiving procedures for Customer Data as set out in the Service Plan, as such document may be amended by Traced in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Traced shall be for Traced to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Traced in accordance with the archiving procedure described in its Service Plan. Traced shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Traced to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 4.9).
4.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
4.5 The parties acknowledge that:
4.5.1 if Traced processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and Traced is the processor for the purposes of the Data Protection Legislation.
4.5.2 the Service Plan sets out the scope, nature and purpose of processing by Traced, the duration of the processing and the types of personal data and categories of data subject.
4.5.3 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users and Device Users are located in order to carry out the Services and Traced’s other obligations under this agreement.
4.6 Without prejudice to the generality of clause 4.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Traced for the duration and purposes of this agreement so that Traced may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
4.7 Without prejudice to the generality of clause 4.4, Traced shall, in relation to any personal data processed in connection with the performance by Traced of its obligations under this agreement:
4.7.1 process that personal data only on the documented written instructions of the Customer unless Traced is required by applicable Data Protection Legislation to process personal data. Where Traced is relying on applicable Data Protection Legislation as the basis for processing personal data, Traced shall promptly notify the Customer of this before performing the processing required applicable Data Protection Legislation unless those applicable laws prohibit Traced from so notifying the Customer;
4.7.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
184.108.40.206 the Customer or Traced has provided appropriate safeguards in relation to the transfer;
220.127.116.11 the data subject has enforceable rights and effective legal remedies;
18.104.22.168 Traced complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
22.214.171.124 Traced complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
4.7.3 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
4.7.4 notify the Customer without undue delay on becoming aware of a personal data breach;
4.7.5 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by applicable Data Protection Legislation to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
4.7.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and immediately inform the Customer if, in the opinion of Traced, an instruction infringes the Data Protection Legislation.
4.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
4.9 The Customer consents to Traced appointing the parties listed in the Service Plan as a third-party processor of personal data under this agreement. Traced confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and which Traced reasonably believes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Traced, Traced shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.
4.10 Either party may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
5. TRACED’S OBLIGATIONS
5.1 Traced undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Traced’s instructions, or modification or alteration of the Services by any party other than Traced or Traced’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Traced will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.
5.3.1 does not warrant that:
126.96.36.199 the Customer’s use of the Services will be uninterrupted or error-free; or
188.8.131.52 that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
184.108.40.206 the Software or the Services will be free from Vulnerabilities; or
220.127.116.11 the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
5.3.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.4 This agreement shall not prevent Traced from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5.5 Traced warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
6.1.1 provide Traced with:
18.104.22.168 all necessary co-operation in relation to this agreement; and
22.214.171.124 all necessary access to such information as may be required by Traced;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
6.1.2 without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
6.1.3 carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Traced may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
6.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Traced, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
6.1.6 ensure that its network and systems comply with the relevant specifications provided by Traced from time to time; and
6.1.7 be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Traced’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
7. CHARGES AND PAYMENT
7.1 If The Customer purchases Device Subscriptions through a Partner, all fees, taxes and payment terms shall be agreed exclusively between the Partner and The Customer. Otherwise, The Customer shall pay the Subscription Fees to Traced for the Device Subscriptions in accordance with this clause 7 and the Service Plan.
7.2 The Customer shall on the Effective Date provide to Traced’s payment provider valid, up-to-date and complete credit card details or approved purchase order information acceptable to Traced and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
7.2.1 its credit card details to Traced’s payment provider, the Customer hereby authorises Traced via its payment provider to bill such credit card:
126.96.36.199 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
188.8.131.52 subject to clause 12.1, on a monthly basis where the Subscription Term is monthly or, for annual Subscription Terms, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
7.2.2 its approved purchase order information to Traced, Traced shall invoice the Customer:
184.108.40.206 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
220.127.116.11 subject to clause 12.1, on a monthly recurring basis where the Subscription Term is monthly or, for annual Subscription Terms, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
7.3 If Traced has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Traced:
7.3.1 Traced may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Traced shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
7.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this agreement:
7.4.1 shall be payable in pounds sterling;
7.4.2 are, subject to clause 11.3.2, non-cancellable and non-refundable;
7.4.3 are exclusive of value added tax, which shall be added to Traced’s invoice(s) at the appropriate rate.
7.5 If, at any time whilst using the Services, the Customer exceeds the storage parameters specified in the Service Plan, Traced shall charge the Customer, and the Customer shall pay, Traced’s then current excess data storage fees, or, at Traced’s discretion, Traced may delete any data exceeding the storage parameters.
7.6 Traced shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Device Subscriptions purchased pursuant to clause 2.3 and the excess storage fees payable pursuant to clause 7.5 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Service Plan shall be deemed to have been amended accordingly.
8. PROPRIETARY RIGHTS
8.1 The Customer acknowledges and agrees that Traced and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
8.2 Traced confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to clause 9.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Traced’s Confidential Information.
9.6 Traced acknowledges that the Customer Data is the Confidential Information of the Customer.
9.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9.8 The above provisions of this clause 9 shall survive termination of this agreement, however arising.
10.1 The Customer shall defend, indemnify and hold harmless Traced against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s misuse of the Services and/or Documentation, or breach of any part of the terms of this agreement, provided that:
10.1.1 the Customer is given prompt notice of any such claim;
10.1.2 Traced provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
10.1.3 the Customer is given sole authority to defend or settle the claim.
10.2 Traced shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
10.2.1 Traced is given prompt notice of any such claim;
10.2.2 the Customer provides reasonable co-operation to Traced in the defence and settlement of such claim, at Traced’s expense; and
10.2.3 Traced is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, Traced may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall Traced, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.4.1 a modification of the Services or Documentation by anyone other than Traced, except where instructed by Traced; or
10.4.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Traced; or
10.4.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Traced or any appropriate authority.
10.5 The foregoing and clause 11.3.2 state the Customer’s sole and exclusive rights and remedies, and Traced’s (including Traced’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. LIMITATION OF LIABILITY
11.1 Except as expressly and specifically provided in this agreement:
11.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Traced shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Traced by the Customer in connection with the Services, or any actions taken by Traced at the Customer’s direction;
11.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
11.1.3 the Services and the Documentation are provided to the Customer on an “as is” basis.
11.2 Nothing in this agreement excludes the liability of Traced:
11.2.1 for death or personal injury caused by Traced’s negligence; or
11.2.2 for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
11.3.1 Traced shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
11.3.2 Traced’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the Device Subscriptions during the 12 months immediately preceding the date on which the claim arose.
12. TERM AND TERMINATION
12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, provided it is not a trial period in which case this agreement will automatically end, thereafter, this agreement shall be automatically renewed for successive periods identical to the Initial Subscription Term (each a “Renewal Period”), unless:
12.1.1 either party notifies the other party of termination, in writing, in accordance with the notice period shown in the Service Plan before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
12.1.2 otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
12.2.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
12.2.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
12.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
12.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
12.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
12.2.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
12.2.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
12.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
12.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.3 to clause 12.2.9 (inclusive); or
12.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 On termination of this agreement for any reason:
12.3.1 all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
12.3.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
12.3.3 Traced may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 4.7.3, unless Traced receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Traced shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Traced in returning or disposing of Customer Data; and
12.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13.1 Force majeure. Traced shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Traced or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
13.2 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.4 Rights and remedies. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13.5 Severance. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
13.6 Entire agreement. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.
13.7 Assignment. The Customer shall not, without the prior written consent of Traced, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. Traced may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
13.8 No partnership or agency. Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13.9 Third party rights. This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.10 Notices. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax or email to the other party’s fax number or email address as notified by that other party in advance. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax or email shall be deemed to have been received at the time of transmission (provided the sender received no bounce notification).
13.11 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
14.1 The definitions and rules of interpretation in this clause apply in this agreement.
“App”: the Traced mobile application software to be installed on a Device and any updates or supplements to it.
“Authorised Users”: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 1.
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5 or clause 9.6.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
“Customer Data”: the data collected from a Device or inputted by the Customer, Authorised Users, or Traced on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
“Data Protection Legislation”: (a) all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and (b) any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Device”: the device on which the App is installed.
“Device Subscriptions”: the subscription for the management of the App per install per device purchased by the Customer pursuant to clause 7.1 which entitle Device Users to access and use the Services and the Documentation in accordance with this agreement.
“Device User”: the user of a Device on which the App is installed.
“Documentation”: the document made available to the Customer by Traced online via https://control.traced.app/ and https://traced.app/control/ or such other web address notified by Traced to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
“Effective Date”: the date of this agreement which is the first payment.
“Heightened Cybersecurity Requirements”: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
“Initial Subscription”: the initial term of this agreement as set out in the Service Plan.
“Normal Business Hours”: 8.00 am to 6.00 pm local UK time, each Business Day.
“Partner”: a Traced authorized reseller from which The Customer purchases Device Subscriptions.
“Renewal Period”: the period described in clause 12.1.
“Service Plan”: the description of the Services including support and back-up of Customer Data available at https://traced.app/wp-content/uploads/2021/08/Traced-Service-Plan-Oct21.pdf.
“Services”: the subscription service platform for the management of the App on Devices provided by Traced to the Customer under this agreement via https://control.traced.app/ or any other website notified to the Customer by Traced from time to time, as more particularly described in the Documentation.
“Software”: the online software applications provided by Traced as part of the Services.
“Subscription Fees”: the subscription fees payable by the Customer to Traced for the Device Subscriptions, as set out in the Service Plan.
“Subscription Term”: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
“Virus”: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability”: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be construed accordingly.
14.2 References to clauses are to the clauses of this agreement. Clause headings shall not affect the interpretation of this agreement.
14.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
14.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.