1.1 These terms and conditions apply to the use by an individual, institutional or corporate subscriber ('Subscriber') of the Smart Forecast cloud-based software ('Software') specified on the Subscription Plan selected by the Subscriber during Sign-up on www.smartforecast.co.uk 'TSC Order Form').
1.2 Provision of the Software is conditional on payment by the Subscriber of all amounts set out in the TSC Order Form in accordance with this Agreement.
1.3 If you are using a trial subscription of the Software, the Software will be accessible until the end of the trial period, unless you purchase a subscription. During the trial period, the Software is provided "AS-IS" (with no warranty) and the Support Terms will not apply. TSC may suspend, limit, or terminate your trial subscription at any time (and will not be liable for any damages related to your use of the Software during this trial period). Unless you purchase a subscription to the Software by the end of the trial period, you will not be able to further access the data stored in the Software and it will be deleted (and may not be recoverable).
2.1 Software Subscription. Subject to the payment of the Subscription Fees and the terms and conditions of this Agreement, you may access and use the Software in the configuration described in the TSC Order Form for your own internal business purposes during the Subscription Term and in accordance with any other terms and conditions set out in the TSC Order Form. You may change the Subscription Plan at any time to one of the alternative plans then available and the Subscription Fees for the change will be prorated for the remainder of the applicable Subscription Term. TSC provides technical support and updates for the Software during the Subscription Term according to the Support Terms.
2.2 Professional Services. Any professional services to be performed by TSC in connection with the configuration and implementation of the Software will be described in a separate statement of work and will be performed pursuant to the terms of a separate professional services agreement, however, the terms and conditions of this Agreement will apply to the professional services provided.
2.3 In these terms and conditions;
"Affiliate" in respect of a corporate entity means any other corporate entity which directly or indirectly, controls, is controlled by or is under common control with such entity and the term "control" (including the terms "controlled by" and "under common control with") in relation to an entity means the ownership of 51% or more of the voting securities in that entity;
"Authorised User(s)" means the named individual(s) identified in the TSC Order Form by the Subscriber and for whom a subscription (each with a user login and password) to use the Software has been purchased;
"Confidential Information" means any non-public information that is marked or identified as confidential (or under the circumstances of the disclosure or the nature of the information, it would reasonably be understood to be confidential or proprietary) at the time of disclosure.
"Customer Data" means the data and information you upload to and/or create while using the Software.
"Protected Information" means sensitive, personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information.
"Software" means Smart Forecast, the TSC developed cloud-based software that is listed in the TSC Order Form.
"Subscriber Group" means a corporate subscriber and its Affiliates as at the date of the TSC Order Form, which may be updated by Subscriber upon written notice to TSC;
"Subscription Fees" means the subscription fees listed in your TSC Order Form for the use of the Software.
"Subscription Term" means the subscription term listed in the TSC Order Form.
"Support Terms" means the support terms provided in Section 5.1.
"TSC" means The Smart Cube Limited and/or its subsidiaries, as indicated on the TSC Order.
"Unauthorised" in relation to a person means any person other than an Authorised User, but excludes administrative and support staff who provide technical and other support services to Authorised Users but do not otherwise use the Licensed Materials.
"Uptime Availability" means the availability of the Software provided in Section 6.3.
"You" means the Subscriber or Subscriber Group as required by the context.
2.4 Passwords are for the personal use of the individual to whom they are issued and may not be made available to others for the purpose of using the Software. If TSC suspects that a password is being used by an unauthorised person it may cancel the password.
3.1 All intellectual property rights, including but not limited to copyright and database rights, in the Software (in both machine readable and printed form) are and remain the property of TSC or its third party licensors.
4.1 Software Access. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other services needed to access the Software. As part of the initial registration process, TSC will provide you with an administrative username and password for your account. You agree to promptly notify TSC of any suspected or unauthorized use of your account (that you become aware of).
4.2 Authorized Users. You determine the access controls for your Authorized Users. You are responsible for the activity occurring under your account by Authorized Users (and their compliance with this Agreement). Authorized User passwords are for named individual users and cannot be shared or used by more than one user at a time, although, you may reassign an Authorized User in your account (but not their password) to a new Authorized User who is replacing a former Authorized User (who no longer requires access or use of the Software).
4.3 Restrictions. You may not use the Services other than as authorized in this Agreement (or in your Order). You may not (1) resell, sublicense, or share the Software with or for any third party (unless authorized in your Order), (2) use the Software for unlawful or illegal purposes, (3) access the Software for competitive purposes, (4) attempt to derive the source code of the Software or to interfere with its functionality, or (5) attempt to disable or circumvent any security features of the Software, or permit unauthorized access to the Software.
5.1 Technical Support. TSC provides technical support by email in accordance with this Agreement or as published on www.smartforecast.co.uk where different. TSC provides technical support 12 hours per day Monday through Friday (excluding nationally recognized holidays), during the published support hours for your specific region. TSC will respond to technical support requests within the published target response time for your region. When submitting a problem report, you must (1) notify TSC of the problem with the Software and provide information regarding the problem (to enable TSC to reproduce the problem), and (2) provide TSC with reasonable assistance, as requested, to help troubleshoot the problem. TSC will not be responsible for providing support for problems in the operation or performance of the Software if the problem relates to errors in your data, formulas, databases, access to other software or databases, or from any unauthorized use or modification of the Software (based on the documentation that is provided with the Software).
5.2 Software Updates. TSC makes updates (error corrections, bug fixes, and enhancements) to the Software on an ongoing basis. Except in the case of urgent updates, TSC schedules maintenance during appropriate, non-peak usage hours (that minimizes the impact on all users, worldwide) and will provide advance notice of any planned unavailability (to the extent possible).
5.3 Service Levels. TSC shall use all reasonable endeavours in accordance with good industry practice to ensure that the Software is available to Subscribers and Authorised Users excluding downtime for regular or emergency maintenance which shall be kept to a minimum. Time is not of the essence in respect to the availability of the Software and TSC's sole obligation is to effect such availability as soon as is practically possible.
Subject to the above:
1.The service level target for platform availability is 99.95% or better. The maintenance windows below are not included in the service level target percentage.
2.On a quarterly basis, TSC will publish a planned maintenance calendar for the upcoming 6 (six) months.
3.In case of any incident regarding the Software, Subscriber would be notified via e-mail. Whenever possible, the home page of the Software will also be updated with an appropriate message to notify users of any outage.
6.1 The Software is provided by TSC on an 'as is' basis and TSC excludes to the extent permitted by law all implied warranties relating to fitness for a particular purpose.
6.2 The total aggregate liability of each Party in connection with use of the Software (other than for death or personal injury caused by its negligence or that of its agents or in respect of its indemnification obligations) shall not exceed the amount paid or payable by the relevant Subscriber for the then current subscription term.
6.3 The liability of TSC to Subscriber for interruptions to availability of the Software caused by circumstances within its control shall not exceed the amount paid by the relevant Subscriber for access to the Software. The only obligation of TSC in respect of interruptions caused by circumstances outside its control shall be to use all reasonable efforts to have the Software availability reinstated.
6.4 TSC shall be under no liability for any failure, delay or omission by it arising from any cause beyond its control, including, but not limited to acts of God, acts or regulations of any governmental or supra-national authority, war or national emergency, denial of service attacks, fire, civil disobedience, strikes, lock-outs and industrial disputes. If the force majeure event continues for a period of thirty days or more, Subscriber may terminate this Agreement upon written notice to TSC.
6.5 Neither party shall be liable to the other party in contract, tort (including negligence) or otherwise for the following losses arising out of, or in connection with, this Agreement: (a) indirect or consequential loss or damage; or (b) (whether they arise directly or indirectly) loss of business, revenue, opportunity, profits, goodwill or data. EACH PARTY HEREBY WAIVES ALL CLAIMS AGAINST THE OTHER PARTY, ITS OFFICERS, EMPLOYEES, AND AGENTS, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOST BUSINESS, REVENUE, OPPORTUNITIES, PROFITS, GOODWILL, AND DATA AND DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER ALLEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, OR IN TORT INCLUDING WITHOUT LIMITATION, NEGLIGENCE, EXCEPT AS OTHERWISE SPECIFICALLY PERMITTED UNDER THIS AGREEMENT.
7.1 TSC will defend, indemnify and hold you harmless from and against any claim brought against you by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by you (including reasonable attorneys' fees) as a result of the claim, which alleges that the Software infringes any intellectual property right of a third party. If the use of the Software is (or in TSC's opinion is likely to be) enjoined due to such a claim, TSC will either (1) procure the right to continue using the Software under the terms of this Agreement, (2) replace or modify the Software so that it is non-infringing (but functionally equivalent), or (3) if TSC is unable to achieve either of these options, then TSC may cancel your license with respect to the infringing Software and refund you the unused portion of the Subscription Fees paid for the Software for which the use is legally prohibited. This section describes TSC's entire responsibility and your sole remedy for any infringement claim or action regarding the Software.
7.2 You will defend, indemnify and hold TSC harmless from and against any claim brought against TSC by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by TSC (including reasonable attorneys' fees) as a result of the claim, which alleges the access, use, or provision of any Customer Data in connection with your use of the Software violates any applicable law, regulation, or the proprietary rights of others.
7.3 Process. These indemnity obligations are conditioned on the indemnified party promptly notifying the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by such delay), the indemnified party giving the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and the indemnified party cooperating and, at the indemnifying party's request and expense, assisting in such defense. The indemnified party may participate in the defense of the claim using its own counsel (at its own expense). The indemnifying party may not settle the claim without the indemnified party's consent if such settlement imposes a payment or other obligation on the indemnified party.
8.1 TSC may without notice and without compensation suspend access to the Software by Subscriber and/or one or more Authorised Users if (i) the Subscriber is in default of its payment obligations or (ii) TSC has reasonable grounds to suspect the Subscriber or such Authorised User (s) to be in breach of these terms and conditions, though TSC shall use reasonable efforts to notify Subscriber or Authorized User reasonably in advance of suspension.
8.2 TSC may withdraw access to the Software by giving the Subscriber thirty (30) days written notice expiring at any time and a refund for the remainder of the relevant subscription period on a pro rata basis of the subscription fee already paid by the Customer.
8.3 On expiry of a subscription without renewal, or on termination of a subscription for any reason during the subscription term, the Subscriber shall cease all use of the Software immediately.
8.4 Expiry or termination of a subscription shall be without prejudice to the accrued rights and obligations of the parties and, in particular, sections 3, 4, 6 and 7 shall survive termination for whatever reason.
8.5 All Subscriptions shall automatically renew each month for an additional monthly term following payment of the monthly Subscription Fees.
The initial payment of the Subscription fees is payable at the time of the Order and fees shall be billed monthly in advance thereafter, or as otherwise provided on the TSC Order Form.
TSC reserves the right to increase the subscription fees with 90 days' notice on an annual basis or as otherwise provided on the TSC Order Form.
All invoices will be raised in Great Britain Pounds (GBP).
All fees referred to in the Agreement are inclusive of VAT at 20% and the Subscriber may request a VAT Invoice by request to the Support email address. All payments shall be paid in full without any set-off or counterclaim and free from any deduction or withholding.
10.1 Customer Data. You own and retain all rights to your Customer Data. You are responsible for the accuracy, quality, integrity, and legality of your Customer Data. You agree to abide by (and be responsible for your compliance with) applicable laws and regulations regarding your access and use of Customer Data with the Software and you acknowledge that the Software is not designed (or intended) to process or manage any Protected Information.
10.2 Data Security. You are responsible for (1) properly configuring the access rights for your Authorized Users, (2) your Authorized User's access and use of the Software, and (3) the secure transmission of your Customer Data to the Software. TSC will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data in accordance with good industry practice. TSC will promptly notify you of any actual or suspected breaches of security that may result in the unauthorized access, use or disclosure of your Customer Data and will cooperate with you in the investigation and remediation of any such breach of security. TSC will also cooperate with you in responding to reasonable inquiries from you (or from your regulators or data controllers) regarding TSC's compliance with its data security obligations under this Agreement.
10.3 Data Access and Controls. You manage and control access to your account (by Authorized Users) and the use and processing of your Customer Data by the Software. Customer Data will not be accessed by TSC except as necessary (by authorized personnel) to identify, investigate, or resolve technical problems with the Software or to verify your compliance with the terms of this Agreement. Customer Data that is accessed by TSC will (1) be kept confidential, (2) handled according to applicable laws and regulations, and (3) not be shared with any unauthorized personnel or commingled with other customer's data.
10.4 Disclosure of Data. TSC may disclose Customer Data if the disclosure is necessary to comply with a valid court order or subpoena or to comply with applicable law, rule or regulation of a governmental authority. TSC will promptly notify you of the request for such disclosure (unless prohibited by such process) and will cooperate with you if you choose to contest the disclosure, seek confidential treatment of the Customer Data to be disclosed, or to limit the nature or scope of the Customer Data to be disclosed.
In addition to the confidential treatment of Customer Data pursuant to the terms of Section 10, each of the parties acknowledges that, whether in the performance of this Agreement or otherwise, it may receive or become aware of information relating to the other party, its clients, business or affairs, which information is confidential to the other party ("Confidential Information"). Each party will keep all Confidential Information of the other party confidential and take reasonable steps to keep it secure and protected against theft, damage, loss or unauthorised access and will not at any time without the prior written consent of the other party use or disclose any of the other party's Confidential Information other than for the sole purpose of the performance of its obligations and the exercise of its rights under this Agreement. Notwithstanding the above, TSC shall be entitled to disclose the Confidential Information of the Subscriber to its affiliates, independent contractors and professional advisers on a strictly need to know basis for the sole purpose of the performance of its obligations under this Agreement provided always that such persons are aware of the obligations of confidentiality under this Agreement and TSC shall use reasonable endeavors to procure compliance with such obligations of confidentiality. The obligations of confidentiality shall not apply to any Confidential Information to the extent to which it: (a) is in the public domain; (b) is lawfully received by the recipient from a third party on an unrestricted basis; (c) is already known to the recipient before receipt from the discloser; or (d) is required to be disclosed by law, regulation or pursuant to an order of a competent authority, regulatory body, recognised stock exchange or to a professional adviser, provided the recipient provides the discloser with reasonable written notice prior to any such disclosure.
12.1 Materials and features may be added to and removed from the Software without notice provided the Software operations are not materially diminished.
12.2 The Materials and information included in the Software are provided for reference purposes only. They are not intended either as a substitute for professional advice or judgement or to provide legal or other advice with respect to particular circumstances.
Each Party agrees to abide at all times with all the applicable laws and regulations (including, but not limited to, privacy laws, data protection legislations etc.) that may be in place from time to time.
The failure of either Party at any time to enforce any provisions of this Agreement or to exercise any right herein provided, shall not be considered as a waiver of such right or any other provision or in any way effect the validity of this Agreement.
The invalidity of any portion of this Agreement by a court with legal jurisdiction shall not affect the remaining portions of this Agreement or any part thereof, and this Agreement shall be construed, as if the invalid portion or portions had not been inserted therein.
This Agreement shall be modified only by an instrument in writing and signed by duly authorised representatives of the Parties. Representatives of the Parties who sign this Agreement and any modification thereto personally warrant and represent that they have been duly authorised to bind such Party with respect to this Agreement and/or modification hereof.
Any notice required or permitted to be given hereunder shall be sent by registered post or equivalent, facsimile, courier or other electronic transmission and shall be addressed to Parties on the address first-mentioned above.
The Agreement shall be construed and have effect in accordance with the laws of England and Wales.
This Agreement, including any related TSC Order Forms, represents the entire agreement and understanding of the Parties and all prior or concurrent agreements, whether written or oral, in regard to the subject matter hereof are and have been merged herein and superseded hereby. This Agreement may be executed by the Parties in one or more counterparts, and each of which when so executed shall be an original, but all such counterparts shall constitute one and the same instrument.