SaaS Agreement for app.setyl.com
Dated the date of registration to Setyl.
These terms and conditions shall govern your use of our service.
Setyl Ltd, a company incorporated in England and Wales (registration number 12677958) having its registered office at 5 Glenbuck Studios, London, KT6 6BX (the "Provider"); and
Setyl Ltd is a provider of non-custom software designed to aid businesses in managing their IT hardware and software subscriptions.
Customer is a business, located anywhere globally, signing up and registering an account provided by Setyl Ltd.
In this Agreement, except to the extent expressly provided otherwise:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
"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 following amounts:
the amounts specified in Section 2 of Schedule 1 (Hosted Services particulars); and
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer Confidential Information" means:
any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
should have been reasonably understood by the Provider to be confidential; and
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Indemnity Event" has the meaning given to it in Clause 16.3;
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding personal and company data with respect to which the Provider is a data controller;
"Data Protection Laws" means all 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 the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means Setyl, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Section 1 of Schedule 1 (Hosted Services particulars) and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"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 Indemnity Event" has the meaning given to it in Clause 16.1;
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
Third Party Services" means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider; and
This Agreement shall come into force upon the Effective Date.
3. Hosted Services
The Provider shall provide, or shall ensure that the Platform will provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
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.
The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
the User Interface may only be used through a Supported Web Browser; and
Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
the Customer must not sub-license its right to access and use the Hosted Services;
the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
the Customer must not use the Hosted Services to provide services to third parties;
the Customer must not republish or redistribute any content or material from the Hosted Services;
the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
The parties acknowledge and agree that Schedule 3 (Availability SLA) shall govern the availability of the Hosted Services.
The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 2 (Acceptable Use Policy).
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.
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.
The Customer must not use the Hosted Services:
in any way that is unlawful, illegal, fraudulent or harmful; or
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. Scheduled maintenance
The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 4.
The Provider shall where practicable give to the Customer at least 5 Business Days' prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
The Provider shall ensure that all scheduled maintenance is carried out outside Business Hours.
5. Support Services
The Provider shall provide the Support Services to the Customer during the Term.
The Provider shall provide the Support Services with reasonable skill and care.
The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
6. Customer obligations
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:
co-operation, support and advice;
information and documentation; and
that the website will operate without fault; or
governmental, legal and regulatory licences, consents and permits,
as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.
7. Customer Data
The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 14 days.
8. Integrations with Third Party Services
The Hosted Services are integrated with certain Third Party Services; and the Provider may integrate the Hosted Services with additional Third Party Services at any time.
Notwithstanding the presence of any Third Party Services integration, particular Third Party Services shall only be activated with respect to the Hosted Services account of the Customer by:
the Customer; or
The Provider shall use reasonable endeavours to maintain any integration with Third Party Services that has been activated with respect to the Hosted Services account of the Customer. Subject to this, the Provider may remove, suspend, deactivate or limit any Third Party Services integration at any time in its sole discretion.
The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.
The Customer acknowledges and agrees that:
the activation of Third Party Services with respect to the Hosted Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted Services to the relevant Third Party Services and vice versa;
the Provider has no control over, or responsibility for, any disclosure, modification, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third Party Services;
the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and use of Customer Personal Data by, a provider of Third Party Services is lawful; and
Additional Charges may be payable by the Customer to the Provider in respect of the activation and/or use of a Third Party Services integration.
Subject to Clause 17.1:
the Provider gives no guarantees, warranties or representations in respect of any Third Party Services; and
the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Services or any provider of Third Party Services.
9. No assignment of Intellectual Property Rights
The Customer shall pay the Charges to the Provider in accordance with this Agreement.
If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.
All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.
The Customer must pay the Charges to the Provider within the period of 5 days following the receipt of an invoice issued in accordance with this Clause 11.
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).
12. Provider's confidentiality obligations
The Provider must:
keep the Customer Confidential Information strictly confidential;
not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care; and
Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, referral partner, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
is or becomes publicly known through no act or default of the Provider; or
The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
13. Data protection
Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement:
The Provider shall only process the Customer Personal Data during the Term and for not more than 90 days following the end of the Term, subject to the other provisions of this Clause 13.
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 any place outside the United Kingdom), as set out in this Agreement or any other document agreed by the parties in writing.
The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
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.
Notwithstanding any other provision of this 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.
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.
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 Customer may terminate this Agreement on 7 days' written notice to the Provider, providing that such notice must be given within the period of 7 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 13.
The 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.
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 13.15.
The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay.
The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 13. 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 13.17, 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.
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.
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 13. 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 13.19, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of this Agreement or any security breach affecting the systems of the Provider.
The Provider warrants to the Customer that:
the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
The Provider warrants to the Customer that:
the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
the Hosted Services will be free from Hosted Services Defects;
the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
15. Acknowledgements and warranty limitations
The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of this Agreement (a "Provider Indemnity Event").
The Customer must:
upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a "Customer Indemnity Event").
The Provider must:
upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
and the Customer's obligation to indemnify the Provider under Clause 16.3 shall not apply unless the Provider complies with the requirements of this Clause 16.4.
17. Limitations and exclusions of liability
Nothing in this Agreement will:
limit or exclude any liability for death or personal injury resulting from negligence;
limit or exclude any liability for fraud or fraudulent misrepresentation;
limit any liabilities in any way that is not permitted under applicable law; or
The limitations and exclusions of liability set out in this Clause 17 and elsewhere in this Agreement:
are subject to Clause 17.1; and
govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 17.7 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4.
Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the greater of:
The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the greater of:
18. Force Majeure Event
If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
promptly notify the other; and
inform the other of the period for which it is estimated that such failure or delay will continue.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
Either party may terminate this Agreement by giving to the other party not less than 30 days' written notice of termination.
Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
the other party:
ceases to conduct all (or substantially all) of its business;
is or becomes unable to pay its debts as they fall due;
is or becomes insolvent or is declared insolvent; or
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
The Provider may terminate this Agreement immediately by giving written notice to the Customer if:
any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
20. Effects of termination
Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.11, 8.7, 11.2, 11.4, 12, 13, 16, 17, 20, 21, 22, 23, 24, 25.1, 25.2, 26, 27 and 28.
Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
Within 30 days following the termination of this Agreement for any reason:
the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
Save to the extent expressly permitted by applicable law, the Provider must not assign, transfer or otherwise deal with the Provider's contractual rights and/or obligations under this Agreement without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Provider may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.
22. No waivers
No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
24. Third party rights
This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
This Agreement may not be varied except in accordance with this Clause 25
This Agreement may be varied by means of a written document signed by or on behalf of each party.
26. Entire agreement
The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
27. Law and jurisdiction
This Agreement shall be governed by and construed in accordance with English law.
In this Agreement, a reference to a statute or statutory provision includes a reference to:
that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
any subordinate legislation made under that statute or statutory provision.
The Clause headings do not affect the interpretation of this Agreement.
References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
Schedule 1 (Hosted Services particulars)
1. Specification of Hosted Services
Use of app.setyl.com for the purpose of maintaining the IT hardware and software within the registered business
2. Financial provisions
As listed within the pricing section of app.setyl.com
Schedule 2 (Acceptable Use Policy)
This acceptable use policy (the "Policy") sets out the rules governing:
the use of the website at [app.setyl.com], any successor website, and the services available on that website or any successor website (the "Services"); and
the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
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 Setyl Ltd (and "we" and "our" should be construed accordingly).
By using the Services, you agree to the rules set out in this Policy.
We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
2. General usage rules
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.
You must not use the Services:
in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
3. Unlawful Content
Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
be libellous or maliciously false;
be obscene or indecent;
infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
infringe any right of confidence, right of privacy or right under data protection legislation;
constitute negligent advice or contain any negligent statement;
constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
be in contempt of any court, or in breach of any court order;
constitute a breach of racial or religious hatred or discrimination legislation;
constitute a breach of official secrets legislation; or
4. Graphic material
Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
Content must not depict violence in an explicit, graphic or gratuitous manner.
5. Factual accuracy
Content must not be untrue, false, inaccurate or misleading.
Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
Content must not be liable to cause annoyance, inconvenience or needless anxiety.
You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
You must not use the Services for the purpose of deliberately upsetting or offending others.
You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
You must ensure that Content does not duplicate other content available through the Services.
You must ensure that Content is appropriately categorised.
You should use appropriate and informative titles for all Content.
8. Marketing and spam
You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
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.
9. Regulated businesses
You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
11. Data mining
13. Harmful software
The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
Schedule 3 (Availability SLA)
1. Introduction to availability SLA
This Schedule 3 sets out the Provider's availability commitments relating to the Hosted Services.
The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.9% during each calendar month.
Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Section 2.1:
a Force Majeure Event;
a fault or failure of the internet or any public telecommunications network;
a fault or failure of the Provider's hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
a fault or failure of the Customer's computer systems or networks;
any breach by the Customer of this Agreement; or
Schedule 4 (Support SLA)
The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.
The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
The Provider shall ensure that the helpdesk is accessible by telephone and email.
The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
3. Provision of Support Services
4. Limitations on Support Services
If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed 10 then:
the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and
the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.