Master Subscription Terms

Master Subscription Terms

 

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on Match 30th, 2016. It is effective between You and Us as of the date of You accepting this Agreement.
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. Except to the extent expressly provided otherwise, in these Terms and Conditions:

      “Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;

      “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;

      “Business Day” means any weekday other than a bank or public holiday in England;

      “Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

      “Charges” means the following amounts:

      1. such amounts as may be agreed in writing by the parties from time to time

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

      “Customer” means the company or other legal entity for which you are accepting this agreement, and Affiliates of that company or entity;

      “Customer Confidential Information” means:

      1. any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement that at the time of disclosure:
        1. was marked as “confidential”; or
        2. should have been reasonably understood by the Provider to be confidential;
      2. the Customer Data;

      “Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

      “Customer Indemnity Event” has the meaning given to it in Clause 17.3;

      “Customer Personal Data” means Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;

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

      “Effective Date” means the date upon which the Customer sends to the Provider an order confirmation in the form of a signed Vantage Online proposal document;

      “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

      “Hosted Services” means Vantage Online, 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 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:

      1. any act or omission of the Customer;
      2. any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
      3. a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
      4. 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;

      “Hosted Services Specification” means the specification for the Platform and Hosted Services set out in the Vantage Online proposal supplied to you;

      “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, trademarks, 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 12 months beginning on the Effective Date;

      “Mobile App” means the mobile applications known as ‘Wireless’ that is made available by the Provider through the Google Play Store;

      “Permitted Purpose” means the use of Vantage Online by the customer for their own internal business administrations purposes;

      “Personal Data” has the meaning given to it in the Data Protection Act 1998;

      “Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

      “Provider” means Vantage Computing Ltd of Meadow Barn, Fairclough Hall Farm, Halls Green, Hertfordshire, UK, SG4 7DP, a company incorporated in England and Wales (registration number 2709295) having its registered office at 22/24 Kneesworth Street, Royston, Herts;

      “Provider Indemnity Event” has the meaning given to it in Clause 17.1;

      “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;

      “Vantage Online Proposal” means a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

      “Set Up Services” means the configuration, implementation and integration of the Hosted Services in accordance with Vantage Online proposal document;

      “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 Internet Explorer 11, Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;

      “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 Vantage Online Proposal, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

      “Update” means a hotfix, patch or minor version update to any Platform software; and

      “Upgrade” means a major version upgrade of any Platform software.

  2. Term
    1. The Agreement shall come into force upon the Effective Date.
    2. The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 20.
    3. Unless the parties expressly agree otherwise in writing, each Vantage Online proposal shall create a distinct contract under these Terms and Conditions.
  3. Set Up Services
    1. The Provider shall provide the Set Up Services to the Customer.
    2. The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided as outlined in the Vantage Online proposal and any Project Initiation Document that may subsequently be produced if the Customer has paid for our Scoping and Implementation service.
    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 18.1 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.
    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. Hosted Services
    1. The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the receipt of payment for the initial subscription period and any Scoping, Implementation and Training Services agreed within the Vantage Online proposal.
    2. The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
    3. The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
      1. the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
      2. the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Vantage Online proposal, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.
    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 4.2 is subject to the following prohibitions:
      1. the Customer must not sub-license its right to access and use the Hosted Services;
      2. the Customer must not permit any unauthorised person to access or use the Hosted Services;
      3. the Customer must not republish or redistribute any content or material from the Hosted Services; and
      4. the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
    5. The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
    6. The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.
    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 an administrator Account comply with Schedule 1 (Acceptable Use Policy).
    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.
    9. The Customer must not use the Hosted Services:
      1. in any way that is unlawful, illegal, fraudulent or harmful; or
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
      3. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
      4. The Provider may suspend the provision of the Hosted 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 7 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
  5. Maintenance Services
    1. The Provider shall provide the Maintenance Services to the Customer during the Term.
    2. The Provider shall provide the Maintenance Services with reasonable skill and care.
    3. The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).
    4. The Provider may suspend the provision of the Maintenance 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 7 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
  6. Support Services
    1. The Provider shall provide the Support Services to the Customer during the Term.
    2. The Provider shall provide the Support Services with reasonable skill and care.
    3. The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
    4. 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 (save for amounts subject to a good faith dispute) is overdue, and the Provider has given to the Customer at least 14 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
  7. Customer obligations
    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:
      1. co-operation, support and advice;
      2. information and documentation; and
      3. governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
      4. 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.
  8. Customer Data
    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, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement.
    2. The Customer warrants to the Provider that the Customer Data / the use of the Customer Data by the Provider in accordance with the Agreement will not:
      1. breach the provisions of any law, statute or regulation;
      2. infringe the Intellectual Property Rights or other legal rights of any person; or
      3. give rise to any cause of action against the Provider,
      4. in each case in any jurisdiction and under any applicable law.

      5. The Provider shall create a back-up copy of the Customer Data at least hourly, 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 1 day. Nightly backups can be used to restore the hosted services to the state they were in at the time the backup was taken for a minimum period of 14 days.
      6. 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 8.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
  9. Mobile App
    1. The parties acknowledge and agree that the use of the 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.
  10. No assignment of Intellectual Property Rights
    1. Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
  11. Charges
    1. The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
    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 11.2.
    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.
    4. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation, after the initial term (12 months unless agreed in writing otherwise).
  12. Payments
    1. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorise Us to charge such credit card for all Purchased Services listed in the Purchase Order or the signed proposal provided to you. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable proposal document. If the proposal document specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant proposal document. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
  13. Provider’s confidentiality obligations
    1. The Provider must:
    2. 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;

    3. Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
    4. This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
      1. is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
      2. is or becomes publicly known through no act or default of the Provider; or
      3. is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
      4. The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
      5. The provisions of this Clause 13 shall continue in force for a period of 5 years following the termination of the Agreement, at the end of which period they will cease to have effect.
  14. Data protection
    1. 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 these Terms and Conditions, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998)].
    2. The Provider warrants to the Customer that:
      1. it will act only on instructions from the Customer in relation to the processing of Customer Personal Data;
      2. it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Personal Data and against loss or corruption of Customer Personal Data;
      3. it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement;
      4. it will process the Customer Personal Data in compliance with all applicable laws; and
      5. it will not transfer or permit the transfer of Customer Personal Data to any place outside the EEA without the prior written consent of the Customer.
    3. The Provider shall notify the Customer as soon as practicable if:
      1. any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;
    4. the Provider receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or
    5. the Provider receives a request from a data subject for access to any of the Customer Personal Data.
    6. The Provider shall co-operate with the Customer in relation to:
      1. any request from the Customer to amend or delete any of the Customer Personal Data;
      2. any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and
      3. any request from a data subject for access to any of the Customer Personal Data, at the cost and expense of the Customer.
    7. The Provider shall ensure that access to the Customer Personal Data is limited to those Provider personnel who have a reasonable need to access the Customer Personal Data to enable the Provider to perform its duties under the Agreement; any access to the Customer Personal Data must be limited to such part or parts of the Customer Personal Data as are strictly necessary.
    8. The Provider shall take reasonable steps to ensure the reliability of any Provider personnel who have access to the Customer Personal Data. Without prejudice to this general obligation, the Provider shall ensure that all relevant Provider personnel are informed of the confidential nature of the Customer Personal Data, have undertaken training in the laws relating to handling Personal Data, and are aware of the Provider’s duties in respect of that Personal Data.
  15. Warranties
    1. The Provider warrants to the Customer that:
      1. the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
      2. 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
      3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
    2. The Provider warrants to the Customer that the Platform will incorporate security features reflecting the requirements of good industry practice.
    3. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.
    4. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
    5. If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
      1. modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
      2. procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.
      3. The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.
      4. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
  16. Acknowledgements and warranty limitations
    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.
    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.
    3. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
    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.
  17. Mutual Indemnity
    1. You shall indemnify and hold Vantage Computing Ltd, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
      1. a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party;
      2. a claim, which if true, would constitute a violation by you of your representations and warranties; or
      3. a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Vantage Computing Ltd
        1. gives written notice of the claim promptly to you;
        2. gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Vantage Computing Ltd of all liability and such settlement does not affect Vantage Computing Ltd’s business or Service);
        3. provides to you all available information and assistance; and
        4. has not compromised or settled such claim.
    2. Vantage Computing Ltd shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
      1. a claim alleging that the Service directly infringes a copyright, a U.K. patent issued as of the Effective Date, or a trademark of a third party;
      2. a claim, which if true, would constitute a violation by Vantage Computing Ltd of its representations or warranties; or
      3. a claim arising from breach of this Agreement by Vantage Computing Ltd; provided that you
        1. promptly give written notice of the claim to Vantage Computing Ltd;
        2. give Vantage Computing Ltd sole control of the defence and settlement of the claim (provided that Vantage Computing Ltd may not settle or defend any claim unless it unconditionally releases you of all liability);
        3. provide to Vantage Computing Ltd all available information and assistance; and
        4. have not compromised or settled such claim. Vantage Computing Ltd shall have no indemnification obligation, and you shall indemnify Vantage Computing Ltd pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
  18. Limitations and exclusions of liability
    1. Nothing in the Agreement will:
      1. limit or exclude any liability for death or personal injury resulting from negligence;
      2. limit or exclude any liability for fraud or fraudulent misrepresentation;
      3. limit any liabilities in any way that is not permitted under applicable law; or
      4. exclude any liabilities that may not be excluded under applicable law.
    2. The limitations and exclusions of liability set out in this Clause 18 and elsewhere in the Agreement:
      1. are subject to Clause 18.1; and
      2. govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
    3. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
    4. Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
    5. Neither party shall be liable to the other party in respect of any loss of revenue or income.
    6. Neither party shall be liable to the other party in respect of any loss of use or production.
    7. Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
    8. Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
    9. Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
    10. The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12-month period preceding the commencement of the event or events.
  19. Force Majeure Event
    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.
    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:
      1. promptly notify the other; and
      2. inform the other of the period for which it is estimated that such failure or delay will continue.
      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.
  20. Termination
    1. Either party may terminate the Agreement by giving to the other party not less than 30 days’ written notice of termination after the end of the Minimum Term.
    2. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
      1. the other party commits any material breach of the Agreement, and:
      2. the breach is not remediable; or
      3. 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; or
    3. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
      1. the other party:
      2. is dissolved;
      3. ceases to conduct all (or substantially all) of its business;
      4. is or becomes unable to pay its debts as they fall due;
      5. is or becomes insolvent or is declared insolvent; or
      6. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
      7. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
      8. 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);
      9. if that other party is an individual:
      10. that other party dies;
      11. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
      12. that other party is the subject of a bankruptcy petition or order.
    4. The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
      1. any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that the written notice of termination is given; and
      2. the Provider has given to the Customer at least 7 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.4.
  21. Effects of termination
    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, 4.10, 9, 12, 12.1, 13, 17, 18, 21, 24, 25, 26, 27, 28.1, 28.2, 29, 30 and 31.
    2. The termination of the Agreement shall not affect the accrued rights of either party.
    3. Within 30 days following the termination of the Agreement for any reason:
      1. the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
      2. 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.
  22. Notices
    1. Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
      1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
      2. sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
    2. The Provider’s contact details for notices under this Clause 22 are as follows: Vantage Computing Ltd, Meadow Barn, Fairclough Hall Farm, Halls Green, Weston, Hertfordshire UK SG4 7DP.
  23. Subcontracting
    1. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
    2. Notwithstanding 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.
  24. Assignment
    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 providing that the Provider may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.
    2. The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer’s contractual rights and obligations under these Terms and Conditions, 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.
  25. No waivers
    1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
    2. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
  26. Severability
    1. If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
    2. If any unlawful and/or unenforceable provision of the Agreement 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.
  27. Third party rights
    1. The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
    2. The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.
  28. Variation
    1. The Agreement may not be varied except in accordance with Clause 28.
    2. The Agreement may be varied by means of a written document signed by or on behalf of each party.
    3. The Provider may vary the Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 28.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider’s notice.
  29. Entire agreement
    1. The Vantage Online Proposal, 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.
    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.
    3. The provisions of this Clause 29 are subject to Clause 18.1.
  30. Law and jurisdiction
    1. The Agreement shall be governed by and construed in accordance with English law.
    2. Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
  31. Interpretation
    1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
      1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
      2. any subordinate legislation made under that statute or statutory provision.
    2. The Clause headings do not affect the interpretation of these Terms and Conditions.
    3. 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. This acceptable use policy (the “Policy”) sets out the rules governing:
      1. the use of the website at go.vantage.online , any successor website, and the services available on that website or any successor website (the “Services”); and
      2. the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content”).
    2. References in this Policy to “you” and “your” should be construed to mean you the customer using or proposing to use Vantage Online; and references in this Policy to “us” are to Vantage Computing Ltd (and “we” and “our” should be construed accordingly).
    3. By using the Services, you agree to the rules set out in this Policy.
    4. We will ask for your express agreement to the terms of this Policy before [you upload or submit any Content or otherwise use the Services].
    5. You must be at least 18 years of age to use the Services; and by using the Services or by agreeing to this Policy, you warrant and represent to us that you are at least 18 years of age.
  2. General usage rules
    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. You must not use the Services:
      1. in any way that is unlawful, illegal, fraudulent or harmful; or
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
    3. You must ensure that all Content complies with the provisions of this Policy.
  3. Unlawful Content
    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).
    2. Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
      1. be libellous or maliciously false;
      2. be obscene or indecent;
      3. infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
      4. infringe any right of confidence, right of privacy or right under data protection legislation;
      5. constitute negligent advice or contain any negligent statement;
      6. constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
      7. be in contempt of any court, or in breach of any court order;
      8. constitute a breach of racial or religious hatred or discrimination legislation;
      9. be blasphemous;
      10. constitute a breach of official secrets legislation; or
      11. constitute a breach of any contractual obligation owed to any person.
    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.

Schedule 2 (Availability SLA)

  1. Introduction to availability SLA
    1. This Schedule 2 sets out the Provider’s availability commitments relating to the Hosted Services.
    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
    1. The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.9% during each calendar month.
    2. The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.
  3. Exceptions
    1. Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1:
      1. a Force Majeure Event;
      2. a fault or failure of the internet or any public telecommunications network;
      3. a fault or failure of the Customer’s computer systems or networks;
      4. any breach by the Customer of the Agreement; or
      5. scheduled maintenance carried out in accordance with the Agreement.

Schedule 3 (Maintenance SLA)

  1. Introduction
    1. This Schedule 3 sets out the service levels applicable to the Maintenance Services.
  2. Scheduled Maintenance Services
    1. The Provider shall where practicable give to the Customer at least 5 Business Days’ prior written notice 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. The Provider shall provide all scheduled Maintenance Services outside Business Hours.
  3. Updates
    1. The Provider shall apply Updates to the Platform as follows:
      1. 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;
      2. 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
      3. 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.

Schedule 4 (Support SLA)

  1. Introduction
    1. This Schedule 4 sets out the service levels applicable to the Support Services.
  2. Helpdesk
    1. The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.
    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.
    3. The Provider shall ensure that the helpdesk is accessible by telephone, email and using the Provider’s web-based ticketing system.
    4. The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term
    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
    1. Issues raised through the Support Services shall be categorised as follows:
      1. critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;
      2. serious: a core function of the Hosted Services is significantly impaired;
      3. 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
      4. minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.
    2. The Provider shall determine, acting reasonably, into which severity category an issue falls.
    3. The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:
      1. critical: 1 Business Hour;
      2. serious: 2 Business Hours;
      3. moderate: 1 Business Day; and
      4. minor: 5 Business Days.
    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.
  4. Provision of Support Services
    1. The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
  5. Limitations on Support Services
    1. If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed 20 hours then:
      1. the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and
      2. 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.
    2. The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
      1. the improper use of the Hosted Services by the Customer; or
      2. any alteration to the Hosted Services made without the prior consent of the Provider.
      3. problems caused by 3rd party software providers or other software products not specifically stated as being supported by Vantage Online

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