PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS. IT ALSO CONTAINS A DISCLAIMER OF WARRANTY AND A LIMITATION OF LIABILITY CLAUSE.
- WHAT IS DACORD.CO.UK?
- The DACORD service provides centralized access to various public and private data sources along with various related features.
- The Services are accessed through the website at www.dacord.co.uk (the “Website”).
- WHAT ARE THESE TERMS?
- These Terms of Service set out the terms on which DACORD offers the Services.
- Capitalised terms used herein shall have the meaning given in Schedule 1.
- References to the “Customer” or “you” are to the legal entity or person responsible for payment for the Services and any person using the Services as an Authorised User of such legal entity or person.
- DACORD has the meaning given in Schedule 1.
- Capitalised terms used herein have the meanings given in Schedule 1.
- ACCEPTANCE OF THESE TERMS
- By using the Services, you accept and agree to be bound by these Terms.
- DACORD may at any time modify these Terms. We will notify you of any changes to these Terms either by emailing you (at the email address entered by you into the registration form on the Website) and/or by posting a notice on the Website. By continuing to use the Services after changes to these Terms of Service are made and notified to you, you agree to be bound by such changes.
- USER SUBSCRIPTIONS
- Subject to the Customer purchasing one or more User Subscriptions in accordance with clause 9, the restrictions set out in this clause 4 and the other terms and conditions of these Terms, DACORD hereby grants to the Customer a non‐exclusive, non‐transferable right to permit the Customer and its Authorised Users to use the Services during the Subscription Term.
- The Customer undertakes that:
- it will not allow or suffer its User Subscriptions to be used by any other person (other than its Authorised Users); and
- it will keep a secure password in respect of each User Subscription for the use of the Services by each Authorised User and shall procure that each Authorised User keeps his password confidential.
- The Customer shall not (and shall procure that no Authorised User shall) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property,
- The Customer shall not (and shall procure that no Authorised User shall):
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services in order to build a product or service which competes with the Services; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party, or
- attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 4.
- The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
- DACORD shall, during the Subscription Term, provide the Services to the Customer on and subject to these Terms with reasonable skill and care. Provision of the Services shall be on a non-exclusive basis.
- DACORD shall use commercially reasonable endeavours to make the Services available
24 hours a day, seven days a week, except for:
- planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
- unscheduled maintenance performed outside Normal Business Hours, provided that DACORD has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
- Notwithstanding the foregoing, DACORD:
- does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
- 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- CUSTOMER'S OBLIGATIONS
The Customer shall:
- provide DACORD with:
- all necessary co-operation in relation to these Terms; and
- all necessary access to such information as may be required by DACORD,
- comply with all applicable laws and regulations with respect to its activities under these Terms;
- carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for DACORD, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by DACORD from time to time;
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to DACORD’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; and
- ensure that any output (whether in electronic or printed form), conclusions, presentation or other summary derived from the Customer’s use of the Services shall contain DACORD’s logo and website url.
- provide DACORD with:
- CUSTOMER DATA
- The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
- In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for DACORD to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by DACORD. DACORD shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
- If DACORD processes any personal data on the Customer’s behalf when performing its obligations under these Terms, the parties acknowledge and agree that the Customer shall be the data controller and DACORD shall be a data processor in respect of such Customer Data and in any such case:
- the Customer represents and warrants that it is entitled to transfer the relevant personal data to DACORD so that DACORD may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer's behalf;
- the Customer shall inform the relevant third parties of, and shall procure that they shall have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
- each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
- The parties shall comply with Schedule 2. In the event of conflict between the provisions of this clause 7 and Schedule 2, the provisions of Schedule 1 shall prevail.
- The Customer acknowledges and agrees that DACORD and/or its licensors own all Intellectual Property Rights in the Services and the Website. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyrights, 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 Website.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party's Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- The Customer shall pay the Subscription Fees to DACORD for the User Subscriptions in accordance with this clause 9.
- The Customer shall on the date of entry into these Terms provide to DACORD valid, up- to-date and complete credit card details or approved purchase order information acceptable to DACORD and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
- its credit card details to DACORD, the Customer hereby authorises DACORD to bill such credit card:
- on the date of acceptance of these Terms for the Subscription Fees payable in respect of the Initial Subscription Term; and
- subject to clause 13, at the end of the Initial Subscription Term and the end of each subsequent Renewal Term for the Subscription Fees payable in respect of the next Renewal Term;
- its approved purchase order information to DACORD, DACORD shall invoice the Customer:
- on the date of acceptance of these Terms for the Subscription Fees payable in respect of the Initial Subscription Term; and
- subject to clause 13, at the end of the Initial Subscription Term and the end of each subsequent Renewal Term for the Subscription Fees payable in respect of the next Renewal Term,
- DACORD may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and DACORD shall be under no obligation to provide any or all of the Services while any invoice remains unpaid; and
- interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of DACORD’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
- shall be payable in Pounds Sterling;
- are non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to DACORD 's invoice(s) at the appropriate rate.
- This clause 10 sets out the entire financial liability of DACORD (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
- arising under or in connection with these Terms;
- in respect of any use made by the Customer of the Services or any part of them; and
- in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
- Except as expressly and specifically provided in these Terms:
- the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. DACORD shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to DACORD by the Customer in connection with the Services, or any actions taken by DACORD at the Customer's direction;
- 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 these Terms; and
- the Services are provided to the Customer on an "as is" basis.
- Nothing in these Terms excludes the liability of DACORD:
- for death or personal injury caused by DACORD's negligence; or
- for fraud or fraudulent misrepresentation.
- Subject to clause 10.2 and clause 10.3:
- DACORD 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 these Terms; and
- DACORD's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
- The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.
- DACORD makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
- DACORD does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
- Any notice required to be given under these Terms 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 these Terms, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in these Terms.
- 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 email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
- These Terms shall, unless otherwise terminated as provided in this clause 13, commence on the date of acceptance of these Terms and shall continue for the Initial Subscription Term. These Terms may be renewed for successive periods of 1 month (each a Renewal Period), until terminated by DACORD giving the Customer no less than 2 weeks notice in writing of its intention to terminate these Terms at the end of the relevant Renewal Period or the Customer giving DACORD no less than 3 months notice in writing of its intention to terminate these Terms at the end of the relevant Renewal Period or otherwise terminated in accordance with the provisions of clause 13.2; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
- Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate these Terms without liability to the other if:
- the other party commits a material breach of any of the terms of these Terms and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
- an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
- an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
- a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
- the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
- the other party ceases, or threatens to cease, to trade; or
- the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
- On termination of these Terms for any reason:
- all licences granted under these Terms shall immediately terminate;
- 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;
- DACORD may destroy or otherwise dispose of any of the Customer Data in its possession unless DACORD receives, no later than ten days after the effective date of the termination of these Terms, a written request for the delivery to the Customer of the then most recent back‐up of the Customer Data. DACORD 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 DACORD in returning or disposing of Customer Data; and
- the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
- The Customer shall not, without the prior written consent of DACORD, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms
- DACORD 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 these Terms.
- These Terms, and any documents referred to herein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
- If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
- Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
- DACORD shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, 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 DACORD 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.
- These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Nothing in these Terms 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).
- These Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
- The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).
The rules of interpretation in this Schedule 1 shall apply throughout the Terms.
References to the masculine gender shall include references to the feminine gender.
Capitalised terms used in these Terms shall have the following meanings:
Affiliate: means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with, such party. "Control," for purposes of this definition, means ownership or control, directly or indirectly, of at least 50% of the voting interests of the subject entity.
Authorised User: an employee or contractor of the Customer or a Customer Affiliate who has been issued with a password and username relating to a unique User Subscription paid for by the Customer.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information.
Customer: has the meaning given in clause 2.3.
Customer Data: the data inputted by the Customer, or DACORD on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
DACORD: Dependable Real Time Systems Limited, a limited company incorporated in England with registered number 04361290 and registered address at 86 Westbourne Road, Sheffield S10 2QT.
Fees Schedule: the schedule of fees published on the Website as amended from time to time in accordance with clause 9.5.
Initial Subscription Term: the initial term of these Terms which shall be one calendar month.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 13.1.
Services: the subscription services provided by the Supplier to the Customer under these Terms via the Website.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscription.
Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Terms: has the meaning given in clause 2.2.
User Subscription: the user subscription purchased by the Customer pursuant to clause 9 which entitles the Customer to access and use the Services in accordance with these Terms.
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.
Website: has the meaning given in clause 1.2.
- If DACORD processes any Personal Data on behalf of Customer, it shall: (a) not Process, transfer, modify, amend or alter Personal Data or disclose or permit the disclosure of Personal Data to any third party other than in accordance Customer’s written instructions unless Processing is required by EU or EU Member State law to which DACORD is subject, in which case it shall, to the extent permitted by such law, inform Customer of that requirement before Processing that Personal Data; (b) not publish, disclose or divulge any Personal Data to any third party (including a Data Subject) unless directed to do so in writing by Customer; (c) not authorise any person to process the Personal Data ("sub-processor") other than with the prior written consent of Customer; (d) remain fully liable for any failure of a sub-processor in relation to the Processing of any Personal Data; and (e) not (and procure that its sub-processors shall not) transfer Personal Data outside the EEA unless authorised in writing by Customer to do so.
- DACORD shall implement appropriate T&OM to ensure a level of security appropriate to the risk and take all measures required pursuant to Article 32 GDPR.
- DACORD shall take reasonable steps to ensure the reliability of any person who may have access to the Personal Data, ensuring that access is strictly limited to those individuals who need to access the Personal Data, as strictly necessary for the purposes set out in paragraph 1.1 in the context of that individual's duties to DACORD, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
- DACORD shall promptly notify Customer if it receives a request from a Data Subject under any DP Laws, and reasonably assist Customer to enable Customer to comply with the exercise of such rights by a Data Subject and/or to comply with any assessment, enquiry, notice or investigation under any DP Laws in respect of the Personal Data or this Agreement.
- DACORD shall notify Customer without undue delay upon becoming aware of a PDB by providing Customer with sufficient information to meet any obligations to report a PDB.
- DACORD shall co-operate with Customer and take such reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each PDB. In the event of a PDB, DACORD shall not inform any third party without first obtaining Customer’s prior written consent, unless notification is required by law to which DACORD is subject, in which case notification shall be given to the extent permitted by such law.
- DACORD will allow its data processing facilities, procedures and documentation to be submitted for scrutiny by Customer’s auditors in order to ascertain compliance with the DP Laws and this Schedule. DACORD shall provide full co operation to Customer in respect of any such audit and shall provide Customer with evidence of compliance with its obligations under this Agreement. DACORD shall immediately inform Customer if, in its opinion, an instruction pursuant to this paragraph 1.7 infringes relevant DP Laws.
- DACORD shall provide reasonable assistance to Customer with any data protection impact assessments which are required under Article 35 GDPR and with any prior consultations to any Supervisory Authority which are required under Article 36 GDPR, in each case solely in relation to Processing of the Personal Data by DACORD on behalf of Customer and taking into account the nature of the Processing and information available to DACORD.
- DACORD shall cease Processing, as soon as reasonably practicable and in any event within 30 days, upon the termination or expiry of this Agreement (or, if sooner, the Service to which it relates) and as soon as possible thereafter, either return or securely wipe from its systems the Personal Data and any copies of it or of the information it contains.
- The subject matter, and the purpose, of Processing herein is the provision of the Services and such Processing may take place throughout the Term. The nature of the Processing shall be the operations necessary to enable DACORD to provide the Services. This Processing shall be in relation to Customer customers and/or employees and may include names, contact details, dates of birth, ID numbers, usernames, passwords and logon data, as well as Special Categories of Personal Data. Customer’s obligations and rights, as Data Controller, are as set out in this Agreement. Customer reserves the right to amend this Schedule at any time by written notice if necessary to comply with DP Laws or guidance from a Supervisory Authority, or if required to take account of any changes to the Processing of Personal Data pursuant to the Agreement.
Definition of terms used in Schedule 2:
"DP Laws" means the EU Data Protection Directive 95/46/EC as implemented in the appropriate local territories of the European Union until 25 May 2018 (the “GDPR Date”) and the General Data Protection Regulation (EU) 2016/679 ("GDPR") on and from the GDPR Date (as amended and superseded from time to time), and/or all applicable laws, rules, regulations, regulatory guidance, regulatory requirements from time to time, in each case in each jurisdiction where the Services are delivered in relation to data privacy.
"PDB" means Personal Data Breach.
"Process/Processing", "Data Controller", "Data Processor", "Data Subject", "Personal Data", "Personal Data Breach" and "Special Categories of Personal Data" have the same meaning as in the DP Laws.
"Supervisory Authority" means: (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of DP Laws.
"T&OM" means technical and organisational measures.