Terms and Conditions

Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions.

1.      Definitions

1.1    In these Terms and Conditions:

"Acceptance Criteria" means:

(a)    the Platform and Hosted Services conforming in all material respects with the Hosted Services Specification; and

(b)    the Hosted Services being free from Hosted Services Defects;

"Acceptance Period" means a period of 30 Days following the making available of the Hosted Services to the Customer for the purposes of testing in accordance with Clause 4 or any repeated making available of the Hosted Services to the Customer for the purposes of testing in accordance with Clause 4, or such other period or periods as the parties may agree in writing;

"Acceptance Tests" means a set of tests designed to establish whether the Hosted Services meet the Acceptance Criteria, providing that the exact form of the tests need not be communicated by the Customer to the Provider but shall be assumed by the Provider to have been met if the Customer does not advise the Provider the Acceptance Test has not been met by the end of the Acceptance Period.

"Access Credentials" means the usernames, passwords and other credentials enabling access to any Customer management areas of the Hosted Services where applicable.

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Anti-Corruption Laws" means all applicable anti-bribery and anti-corruption laws including the Bribery Act 2010;

"Anti-Slavery Laws" means all applicable anti-slavery and anti-human trafficking laws including the Modern Slavery Act 2015;

"Anti-Tax Evasion Laws" means all applicable anti-tax evasion laws including the Criminal Finances Act 2017;

"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;

"CCN" means a change control notice issued in accordance with Clause 17;

"CCN Consideration Period" means the period of 10 Business Days following the receipt by a party of the relevant CCN from the other party;

"Change" means any change to the scope of the Services OR any change to the Agreement;

"Charges" means the following amounts:

(a)    the amounts specified in the Starter Plan in the pricing section online at www.mapitapp.co.uk;

(b)    such amounts as become applicable based on Customer usage in relation to the available plans or as may be agreed in writing by the parties from time to time;

"Confidential Information" means the Provider Confidential Information and the Customer Confidential Information;

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer" means the person or entity identified in email correspondence or by a Serviced Request online form;

"Customer Confidential Information" means:

(a)    any information disclosed by or on behalf of the Customer to the Provider during the Term OR at any time before the termination of the Agreement whether disclosed in writing, orally or otherwise that at the time of disclosure:

(i)     was marked or described as "confidential"; or

(ii)     should have been reasonably understood by the Provider to be confidential; 

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer and or their clients; transmitted by the Platform at the instigation of the Customer or their clients; supplied by the Customer and or their clients 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 27.3;

"Customer Personal Data" [means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding personal data with respect to which the Provider is a data controller;

"Customer Representatives" means the person or persons identified as such in the Services Request online form or by email correspondence, and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

"Customer Systems" means the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with, the Hosted Services;

"Customisation" means a customisation of the Hosted Services, whether made through the development, configuration or integration of software, or otherwise;

"Data Protection Laws" means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;

"Documentation" means any documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Effective Date" means 30 days after the date upon which the Provider sends to the Customer an order confirmation subsequent to the Customer completing and submitting a free trial request as published by the Provider on the Provider's website or as agreed by email, 

"EU GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;

"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, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means a customised version of the Mapitapp app which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;

"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect OR 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:

(a)    any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;

(b)    any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(c)     a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(d)    an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;

"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;

"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

"Minimum Term" means, in respect of the Agreement, the period of 1 month beginning on the Effective Date;

"Personal Data" means personal data under any of the Data Protection Laws;

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services;

"Provider" means Mapitapp Ltd, a company incorporated in England and Wales registration number 13169131 having its registered office at 35 Charles Avenue, Nottingham, NG9 2SH;

"Provider Confidential Information" means:

(a)    any information disclosed by or on behalf of the Provider to the Customer during the Term OR at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential including the financial terms of the agreement.

"Provider Indemnity Event" has the meaning given to it in Clause 27.1;

"Remedy Period" means a period of 20 Business Days following the Customer giving to the Provider a notice that the Hosted Services have failed the Acceptance Tests, or such other period as the parties may agree in writing;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

"Services Request" means an online order form published by the Provider and completed and submitted by the Customer, or a written request or acceptance by email from the Customer to the Provider in each case incorporating these Terms and Conditions by reference;

"Set Up Services" means the configuration, implementation and integration of the Hosted Services.

"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 the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

"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;

"UK GDPR" means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;

"Update" means a hotfix, patch or minor version update to any Platform software];

"Upgrade" means a major version upgrade of any Platform software; and

"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services where provided by the Provider.

2.      Term

2.1    The Agreement shall come into force upon the Effective Date.

2.2    The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 30 or any other provision of these Terms and Conditions.

2.3    Unless the parties expressly agree otherwise in writing, each request for a trial period shall create a distinct contract under these Terms and Conditions.

3.      Set Up Services

3.1    The Provider shall provide the Set Up Services to the Customer.

3.2    The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided promptly and in accordance with any separate written agreement with respect to bespoke customisation.

3.3    The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 28.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

3.4    Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

4.      Acceptance procedure

4.1    During each Acceptance Period, the Customer shall carry out the Acceptance Tests.

4.2    The Provider shall provide to the Customer at the Customer's cost and expense all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Customer may reasonably request.

4.3    If the Customer fails to give to the Provider a written notice, then the Hosted Services shall be deemed to have passed the Acceptance Tests.

5.      Hosted Services

5.1    The Provider shall provide, or shall ensure that the Platform will provide to the Customer upon the acceptance or deemed acceptance of the Hosted Services by the Customer the Access Credentials necessary to enable the Customer to make available the Hosted Services to the Customers’ own customers.

5.2    The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services for the internal business purposes of the Customer. 

5.3    The licence granted by the Provider to the Customer under Clause 5.2 is subject to the following limitations:

(a)    the User Interface may only be used through a Supported Web Browser

(b)    the User Interface may only be used by the officers, employees and customers of the Customer;

5.4    Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 5.2 is subject to the following prohibitions:

(a)    the Customer must not sub-license its right to access and use the Hosted Services;

(b)    the Customer must not permit any unauthorised person or application to access or use the Hosted Services;

(c)     the Customer must not republish or redistribute any content or material from the Hosted Services which originated in source from the Provider;

(f)     the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.

5.5    The Customer shall implement and maintain reasonable security measures relating to the Access Credentials where applicable to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials where applicable.

5.6    The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.

5.7    The Customer must comply with Schedule 1 (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 1 (Acceptable Use Policy).

5.8    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.

5.9    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.

5.10  The Customer must not use the Hosted Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

5.11  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.

6.      Customisations

6.1    The Provider and the Customer may agree that the Provider shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in writing by the parties.

6.2    All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider. 

6.3    From the time and date when a Customisation is first delivered or made available by the Provider to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customisation shall be governed by Clause 5.

6.4    The Customer acknowledges that the Provider may make any Customisation available to any of its other customers or any other third party at any time.

7.      Scheduled maintenance

7.1    The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform.

7.2    The Provider shall ensure that all scheduled maintenance is carried out outside Business Hours.

8.      Support Services

8.1    The Provider shall provide the Support Services to the Customer during the Term.

8.2    The Provider shall provide the Support Services with reasonable skill.

8.3    The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

9.      Customer obligations

9.1    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:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)     governmental, legal and regulatory licences, consents and permits,

         as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.

9.2    The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement. 

10.    Customer Systems

10.1  The Customer shall ensure that the Customer Systems comply, and continue to comply during the Term, with the requirements of Section 4 of the Services Order Form[ in all material respects], subject to any changes agreed in writing by the Provider.

11.    Customer Data

11.1  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 the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.

11.2  The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights of any person and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.

11.3  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 30 days.

11.4  Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 11.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

12.    Integrations with Third Party Services

12.1  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.

12.2  Subject to Clause 28.1:

(a)    the Provider gives no guarantees, warranties or representations in respect of any Third Party Services; and

(b)    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.

13.    Mobile App

13.1  The parties acknowledge and agree that in the use of any Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.

14.    No assignment of Intellectual Property Rights

14.1  Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

15.    Representatives

15.1  The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in the Agreement will be given by a Provider Representative to a Customer Representative, and the Customer:

(a)    may treat all such instructions as the fully authorised instructions of the Provider; and

(b)    may decline to comply with any other instructions in relation to that subject matter.

15.2  The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in the Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:

(a)    may treat all such instructions as the fully authorised instructions of the Customer; and

(b)    may decline to comply with any other instructions in relation to that subject matter.

18.    Charges

18.1  The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

18.2  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 18.2.

18.3  All amounts stated in or in relation to these Terms and Conditions 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.

18.4  The Provider may elect to vary any element of the Charges by giving to the Customer not less than 90 days' written notice of the variation expiring on any anniversary of the date of execution of the Agreement. This does not effect the Customer’s right to terminate the Agreement.

Clauses 19 & 20 removed

21.    Payments

21.1  The Provider shall issue invoices for the Charges to the Customer monthly on the anniversary date of the Effective Date of the Agreement.

21.2  The Customer must pay the Charges to the Provider within 7 days of the invoice date.

21.3  The Customer must pay the Charges by direct debit using such payment details as are notified to the Provider by the Customer from time to time.

21.4  If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:

(a)    charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

(c)     Terminate this Agreement and terminate the provision of Hosted Services with immediate effect.

22.    Confidentiality obligations

22.1  The Provider must:

(a)    keep the Customer Confidential Information strictly confidential;

(b)    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;

(c)     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;

(d)    act in good faith at all times in relation to the Customer Confidential Information

22.2  The Customer must:

(a)    keep the Provider Confidential Information strictly confidential;

(b)    not disclose the Provider Confidential Information to any person without the Provider's prior written consent[, and then only under conditions of confidentiality [approved in writing by the Provider] OR [no less onerous than those contained in these Terms and Conditions]];

(c)     use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care;

(d)    act in good faith at all times in relation to the Provider Confidential Information;

22.3  Notwithstanding Clauses 22.1 and 22.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

22.4  No obligations are imposed by this Clause 22 with respect to a party's Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)    is or becomes publicly known through no act or default of the other party; or

(c)     is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

23.    Publicity

23.1  Neither party may make any public disclosures relating to the subject matter of the Agreement including disclosures in press releases, public announcements and marketing materials without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, and providing that the following public disclosures may be made without consent.

23.1  Either party may make public disclosures relating to the Agreement but not the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior consent of the Customer.

24.    Data protection

24.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

24.2  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 the Agreement.

24.3  The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement:

(a)    the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 6 (Data processing information; and

(b)    Personal Data of the types specified in Section 2 of Schedule 6 (Data processing information;

24.4  The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 6 (Data processing information).

24.6  The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:

(a)    [the Provider may transfer [the Customer Personal Data] internally to [its own employees, offices and facilities] in [jurisdiction(s)][, providing that such transfers must be protected by appropriate safeguards, namely [specify safeguards]]];

(b)    [the Provider may transfer [the Customer Personal Data] to its third party processors in the jurisdictions identified in Section 5 of Schedule 6 (Data processing information) and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein]; and

(c)     [the Provider may transfer [the Customer Personal Data] to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data].

24.13 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, [the third parties identified in] OR [third parties within the categories identified in] OR [the third parties, and third parties within the categories, identified in] Section 5 of Schedule 6 (Data processing information).

24.14 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.

24.15 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 24.15.]

25.    Warranties

25.1  The Provider warrants to the Customer that:

(a)    the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b)    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 these Terms and Conditions; and

(c)     the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

26.    Acknowledgements and warranty limitations

26.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

26.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

26.3  The Customer acknowledges that the Hosted Services are designed to be compatible only with specific software and systems; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

26.4  The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

Clauses 27 & 28 removed

29.    Force Majeure Event

29.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.

29.2  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 the Agreement, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

29.3  A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

30.    Termination

30.1  Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination, expiring at the monthly anniversary of the Effective Date of the Agreement.

30.2  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party commits any breach of the Agreement, and the breach is not remediable;

(b)    the other party commits a breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied with the exception of non payment by the Customer.

30.3  Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)     ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)    is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)     an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or

(d)    if that other party is an individual:

(i)     that other party dies;

(ii)     as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)    that other party is the subject of a bankruptcy petition or order.

30.4  The Provider may terminate the Agreement immediately by giving written notice to the Customer if:

(a)    any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date;

31.    Effects of termination

31.1  Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 5.11, 12.7, 13, 19.2, 19.3, 20, 21.2, 21.4, 22, 23, 24, 27, 28, 31, 32, 33.1, 33.2, 33.4, 33.8, 33.9, 34.1, 34.5, 35.1, 35.5, 38, 39, 40, 41, 42, 43, 44 and 45.

31.2  Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.

31.3  Within 30 days following the termination of the Agreement for any reason:

(a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b)    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 the Agreement,

         without prejudice to the parties' other legal rights.

32.    Non-solicitation of personnel

32.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 2 years following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of the Agreement.

32.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 2 years following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of the Agreement.

33.    Anti-corruption

33.1  Each party warrants and undertakes to the other that it has complied and will continue to comply with the Anti-Corruption Laws in relation to the Agreement.

33.2  Save to the extent that applicable law requires otherwise, each party must promptly notify the other if it becomes aware of any events or circumstances relating to the Agreement that will or may constitute a breach of the Anti-Corruption Laws (irrespective of the identity of the person in breach).

33.3  The Provider shall use all reasonable endeavours to ensure that all persons that:

(a)    provide services to the Provider (including employees, agents and subsidiaries of the Provider); and

(b)    are involved in the performance of the obligations of the Provider under the Agreement,

         will comply with the Anti-Corruption Laws.

33.4  Each party shall create and maintain proper books and records of all payments and other material benefits given by one party to the other, and each party shall promptly following receipt of a written request from the other party supply copies of the relevant parts of those books and records to the other party.

33.5  Each party shall provide reasonable co-operation to the other party in relation to any due diligence exercises, risk assessments, monitoring programmes and reviews conducted by the other party for the purpose of ensuring or promoting compliance with the Anti-Corruption Laws.

33.6  Nothing in these Terms and Conditions shall prevent either party from reporting a breach of the Anti-Corruption Laws to the relevant governmental authorities.

33.7  Any breach of this Clause 33 shall be deemed to constitute a material breach of the Agreement.

34.    Anti-slavery

34.1  Each party warrants and undertakes to the other that it has complied and will continue to comply with the Anti-Slavery Laws.

34.2  The Provider shall ensure that all persons that provide services or supply products to the Provider, where such services or products are used in the performance of the obligations of the Provider under the Agreement, will comply with the Anti-Slavery Laws.

34.3  The Provider warrants that it has in place its own policies and procedures designed to ensure the compliance of the Provider with the Anti-Slavery Laws; and the Provider undertakes to:

(a)    acting reasonably, maintain and enforce those policies and procedures during the Term; 

(b)    promptly following receipt of a written request for the same from the Customer, provide copies of the documentation embodying those policies and procedures to the Customer.

34.4  Any breach of this Clause 34 shall be deemed to constitute a material breach of the Agreement.

35.    Anti-tax evasion

35.1  Each party warrants and undertakes to the other that it has complied and will continue to comply with the Anti-Tax Evasion Laws.

35.2  The Provider shall ensure that all employees, agents and persons that provide services to the Provider, when acting in such capacity in connection with the Agreement, will comply with the Anti-Tax Evasion Laws.

35.3   The Provider warrants that it has in place its own policies and procedures designed to ensure the compliance of the Provider with the Anti-Tax Evasion Laws; and the Provider undertakes to:

(a)    acting reasonably, maintain and enforce those policies and procedures during the Term; 

(b)    promptly following receipt of a written request for the same from the Customer, provide copies of the documentation embodying those policies and procedures to the Customer.

35.4  Any breach of this Clause 35 shall be deemed to constitute a material breach of the Agreement.

36.    Notices

36.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as "written notice" in these Terms and Conditions.

36.2  Any notice given by one party to the other party under these Terms and Conditions must be:

(a)    sent by email;

(b)    sent by recorded signed-for post or courier;

         using the trading office or registered office contact details as relevant at the time of the notice.

36.3  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 3 Business Days following receipt of the notice.

36.4  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below: 

(a)    in the case of notices sent by post or courier, at the time of signed for delivery

(b)    in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party OR 3 business days following the sending of the notice by email if no receipt acknowledgement is provided.

37.    Subcontracting

37.1  Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement

37.2  The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations. 

37.3  Notwithstanding the provisions of this Clause 37 but subject to any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

38.    Assignment

38.1  The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under these Terms and Conditions. 

38.2  Save to the extent expressly permitted by applicable law, the Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

39.    No waivers

39.1  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

39.2  No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

40.    Severability

40.1  If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

40.2  If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect. 

41.    Third party rights

41.1  The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

41.2  The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

42.    Variation

42.1  The Agreement may not be varied except by means of a written document signed by or on behalf of each party.

43.    Entire agreement

43.1  The main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

43.2  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 the Agreement.

43.3  The provisions of this Clause 43 are subject to Clause 28.1.

44.    Law and jurisdiction

44.1  These Terms and Conditions shall be governed by and construed in accordance with English law.

44.2  Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.

45.    Interpretation

45.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to: 

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

45.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

45.3  References in these Terms and Conditions to "calendar months" are to the 12 named periods January, February and so on into which a year is divided.

45.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 

 

Schedule 1 (Acceptable Use Policy)

1.      Introduction

1.1    This acceptable use policy (the "Policy") sets out the rules governing:

(a)    the use of the website at or any successor website, and the services available on that website or any successor website] (the "Services"); and

(b)    the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").

1.2    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 Mapitapp Ltd and "we" and "our" should be construed accordingly.

1.3    By using the Services, you agree to the rules set out in this Policy.

1.4    We will ask for your agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.

2.      General usage rules

2.1    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.

2.2    You must not use the Services:

(a)    in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.

2.3    You must ensure that all Content complies with the provisions of this Policy.

3.      Unlawful Content

3.1    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).

3.2    Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a)    be libellous or maliciously false;

(b)    be obscene or indecent;

(c)     infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d)    infringe any right of confidence, right of privacy or right under data protection legislation;

(e)    constitute negligent advice or contain any negligent statement;

(f)     constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g)    be in contempt of any court, or in breach of any court order;

(h)    constitute a breach of racial or religious hatred or discrimination legislation;

(i)     be blasphemous;

(j)     constitute a breach of official secrets legislation; or

(k)    constitute a breach of any contractual obligation owed to any person.

3.3    You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4.      Graphic material

4.1    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.

4.2    Content must not depict violence.

4.3    Content must not be pornographic or sexually explicit.

5.      Factual accuracy

5.1    Content must not be untrue, false, inaccurate or misleading.

5.2    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

6.1    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.

6.2    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.

7.      Etiquette

7.1    Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.

7.2    Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.

7.3    Content must not be liable to cause annoyance, inconvenience or needless anxiety.

7.4    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.

7.5    You must not use the Services for the purpose of deliberately upsetting or offending others.

7.6    You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.

7.7    You must ensure that Content does not duplicate other content available through the Services.

7.8    You must ensure that Content is appropriately categorised.

7.9    You should use appropriate and informative titles for all Content.

7.10  You must at all times be courteous and polite to other users of the Services.

8.      Marketing and spam

8.1    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.

8.2    You must not send any spam to any person using any email address or other contact details made available through the Services or that you find using the Services.

8.3    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.

8.4    You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.

9.      Regulated businesses

9.1    You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

9.2    You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.

9.3    You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.

10.    Monitoring

10.1  You acknowledge that we may actively monitor the Content and the use of the Services.

11.    Data mining

11.1  You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

12.    Hyperlinks

12.1  You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

13.    Harmful software

13.1  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.

13.2  The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

 

 

Schedule 2 (Availability SLA)

1.      Introduction to availability SLA

1.1    This Schedule 2 sets out the Provider's availability commitments relating to the Hosted Services.

1.2    In this Schedule 2, "uptime" means [the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services].

2.      Availability

2.1    The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99% during each calendar month.

2.2    The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.

3.3     Where the uptime for the Hosted Services is deemed by the Customer to be unsatisfactory the Customer may serve notice to end the agreement in accordance with clause 30. 

Schedule 3 (Maintenance SLA)

1.      Introduction

1.1    This Schedule 3 sets out the service levels applicable to the Maintenance Services.

2.      Scheduled Maintenance Services

2.1    The Provider shall where practicable give to the Customer at least 5 Business Days' prior written notice by email of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 3.

2.2    The Provider shall provide all scheduled Maintenance Services outside Business Hours where possible.

3.      Updates

3.1    The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least 5 Business Days' prior written notice of the application of any non-security Update to the Platform.

3.2    The Provider shall apply Updates to the Platform as follows:

(a)    third party security Updates shall be applied to the Platform promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update;

(b)    the Provider's security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and

(c)     other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer or agreed by the parties from time to time.

4.      Upgrades

4.1    The Provider shall produce upgrades from time to time at the Providers discretion.

4.2    The Provider shall give to the Customer at least 5 Business Days' prior written notice of the application of an Upgrade to the Platform.

4.3    The Provider shall apply each Upgrade to the Platform within any period notified by the Provider to the Customer or agreed by the parties in writing.

 

 

Schedule 4 (Support SLA)

1.      Introduction

1.1    This Schedule 4 sets out the service levels applicable to the Support Services.

2.      Helpdesk

2.1    The Provider shall make available to the Customer a helpdesk.

2.2    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.

2.3    The Provider shall ensure that the helpdesk is accessible by email or web based ticketed system.

2.4    The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

2.5    The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

3.      Response and resolution

3.1    Issues raised through the Support Services shall be categorised as follows:

(a)    critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;

(b)    serious: a core function of the Hosted Services is significantly impaired;

(c)     moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and

(d)    minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.

3.2    The Provider shall determine, acting reasonably, into which severity category an issue falls.

3.3    The Provider shall use reasonable endeavours to respond to requests for Support Services within 3 Business Days.

3.4    The Provider shall ensure that its response to a request for Support Services shall include the following information to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

3.5    The Provider shall use all reasonable endeavours to resolve issues raised through the Support Services within 5 Business Days

4.      Provision of Support Services

4.1    The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

5.      Limitations on Support Services

5.1    If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed 2 hours then:

(a)    the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b)    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 to be agreed in writing.

5.2    The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

(a)    the improper use of the Hosted Services by the Customer; or

(b)    any alteration to the Hosted Services made without the prior consent of the Provider.

 

 

Schedule 5 (Form of CCN)

1.      Introduction

Title of Change: [insert title]

CCN number: [insert number]

Change proposed by: [insert individual name(s)]

Date of issue of CCN: [insert date]

Summary details of proposed Change: [insert details]

2.      Change details

[Insert full details of proposed Change]

3.      Impact of Change

Impact upon resources: [insert details]

Impact upon timetable: [insert details]

Impact upon Charges: [insert details]

Other effects of Change: [insert details]

4.      Agreement to Change

The parties have indicated their acceptance of the Change described in this CCN by signing below.

SIGNED BY [[individual name] on [……………], the Provider / [individual name] on [……………], duly authorised for and on behalf of the Provider]:………………..

SIGNED BY [[individual name] on [……………], the Customer / [individual name] on [……………], duly authorised for and on behalf of the Customer]:………………..

 

 

Schedule 6 (Data processing information)

1.      Categories of data subject

Customers, Employees, Suppliers, Consultants, Visitors, Prospects, Contractors

2.      Types of Personal Data

Our Customers are other businesses that provide business to business services or in some cases business services to domestic clients. In the course of processing quote/lead/services requests from these end users of the Service and on behalf of our Customer, some personal data enabling an individual to be identified will inevitably be provided to us and processed.

We do not produce hosted services that can process sensitive personal data as defined by the GDPR as data consisting of racial or ethnic origin, religious or philosophical beliefs, trade union membership, political opinions, biometric data, a natural person's sex life or sexual orientation or data concerning health.

Our products and services are not designed to appeal to or to be sold to persons under the age of 18. Therefore, we do not knowingly attempt to solicit or receive any information from children.

3.      Purposes of processing

End users of the Service (customers of the Customer) will provide the Customer with some personal data in the course of requesting services or a quote for services from the Customer through the hosted services. We will process this data as part of the “lead”, “quote” or “service request” that is collated and provided to the Customer. In this we act as a 3^rd party processor on behalf of our Customer. The customised Service hosted by Us the Provider will include a link to the Customers’ privacy policy in respect of the services that they offer and for which sole responsibility for their compliance with the relevant legislation with regard to data protection lies with the Customer.

4.      Security measures for Personal Data

The GDPR’s require that we follow strict security procedures in the storage and disclosure of information which you have provided via our hosted services, to prevent unauthorised access. All data is stored and secured in line with our Information Security Management System Policy.

5.      Sub-processors of Personal Data

Under the GDPR, a sub-processor is any business or contractor customer data may pass through as a side effect of using a Mapitapp Ltd service. This definition is very broad and includes things some might simply consider "hardware", like cloud infrastructure.

We use partners for some business processes that are not core to our expertise but are critical to our Customers end users having a quality experience. Here is our list of sub-processors:

Heroku          USA              Cloud Infrastructure for our apps and services

Stripe            USA              Payments processing for integrated payment services

Postmark       USA              Email serving and automation

Cloudflare      USA              Web performance and security