THE ORGANISATION’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 11 (LIMITATION OF LIABILITY).
The following definitions and rules or interpretations apply in these conditions.
Authorised Users: those employees, students, parents, agents and independent contractors of the Organisation who are authorised by the Organisation to use the Software, the Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Organisation for the supply of the Services in accordance with clause 7 (Charges and payment).
Cloud Based Service: any cloud-based application and Cloud Environment made available by Groupcall to the Organisation on a subscription basis as described on an Order. The Cloud Based Service does not include an internet access service.
Cloud Environment: means the off-premise, non-location specific, hosting platform managed by a third party on which a Cloud Based Service resides.
Communication Messages: messages sent via the Cloud Based Service at the instigation of the Organisation including, but not limited to SMS, data, email, voice and push messages.
Communications Service: the service which enables certain Authorised Users to send Communication Messages.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.6.
Confidential Information: any information disclosed (whether in writing, orally or by any other means) by or on behalf of one party to the other including, without limitation, any information relating to the discloser’s products, inventions, data, operations, methodologies, systems, processes, source code, other computer software, plans or intentions, know-how, design rights, trade secrets, market opportunities, or corporate, business or financial affairs and any documents prepared which are derived from or in connection with such information or which contain or are based in whole or in part upon such information.
Contract: the contract between Groupcall and the Organisation for any supply of Services in accordance with these Conditions.
Data Protection Legislation: (i) the Data Protection Act 1998 while it is in force (ii) unless and until the GDPR is no longer directly applicable in the UK, the GDPR; (iii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverables: the deliverables (if any) set out in the Order produced by Groupcall for the Organisation.
Documentation: the written documents and videos made available to the Organisation by Groupcall explaining the use of the Software and Services.
GDPR: the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK.
Groupcall: Groupcall Limited, a company registered in England and Wales with company number 04343112.
Groupcall Materials: has the meaning set out in clause 6.1.7.
Groupcall Technology: all of Groupcall’s proprietary technology (including the software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the Organisation by Groupcall in providing the Services and whether forming part of the Software or Services or not and all of which shall be Groupcall’s Confidential Information.
Implementation Services: any installation, set up and training services to be provided by Groupcall as set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maintenance Release: a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered by Groupcall in the course of its normal business, being a version that contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Order: the Organisation's order for Services as set out in the Order produced by Groupcall and where relevant accompanied by a purchase order from the Organisation.
Organisation: the Organisation that purchases Services from Groupcall.
Services: the services including any Implementation Services, Subscription Services, any Cloud Based Service, any Support Services and any other services agreed by Groupcall from time to time to be provided to the Organisation, including the Deliverables, supplied by Groupcall to the Organisation as set out in the Specification.
Site: the premises from which the Organisation carries out its main teaching function as stated in the Order or as agreed with Groupcall in writing from time to time.
Quotation: a quotation for the supply of services provided to the Organisation from Groupcall (which may or may not be referred to on Order).
Organisation Data: all electronic data and/or information input by the Organisation to the Software including personal data.
Software: the software applications provided by Groupcall as part of the Services including any listed on the Order and any Maintenance Release or New Versions acquired by the Organisation with the consent of Groupcall during this Contract.
Subscription Commencement Date: in relation to each Subscription Service, the earlier of (i) the date specified for the service to commence in an Order, (ii) the date agreed to in writing by the parties and (iii) the date on which the relevant Subscription Services is first used by the Organisation in a live environment.
Subscription Service: a service supplied by Groupcall to the Organisation that is supplied and paid for on an annual (or other periodic) basis.
Subscription Fees: in relation to any particular Subscription Service, the fees payable by the Organisation for that Subscription Service.
Subscription Term: in relation to any particular Subscription Service, the period from the Subscription Commencement Date until termination of that Subscription Service in accordance with these Conditions.
Support Services: the support services to be provided by Groupcall in accordance with the Support Services Policy.
Support Services Policy: Groupcall's policy for providing support in relation to the Software and the Services as made available on Groupcall’s website from time to time.
Third-Party Additional Terms: the additional terms and conditions referred to on, or annexed to, an Order relating to Third-Party Software as may be varied from time to time by notice from Groupcall to the Organisation.
Third-Party Software: any third-party software referred to on an Order.
Third-Party Services: services that may be stated on the Order but which are not supplied by Groupcall (for example but not limited to where Groupcall is a reseller or distributor of those services).
Third-Party Vendor System: means computer software programs owned by third party providers which the Organisation or Authorised Users access via the Cloud-Based Service which is not a third party service.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes faxes.
1.5 Clause headings shall not affect the interpretation of this Contract.
1.6 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.7 Unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular.
1.8 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.1.9 References to clauses are to the clauses of these Conditions.
2.1 The Order constitutes an offer by the Organisation to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted on the earlier of:
2.1.1 when Groupcall receives the Order duly signed by the Organisation provided that the organisation does not seek to introduce any terms or conditions other than those on the Order and these Conditions; and
2.1.2 when Groupcall starts providing Services at which point and on which date the Contract shall come into existence.
2.2 The Contract comprises the Order and these Conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Organisation may purport to apply under any purchase order, sales offer or similar document or in correspondence. These Conditions apply to all supplies of services by Groupcall to the Organisation.
2.3 Any samples, drawings, descriptive matter or advertising issued by Groupcall, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Organisation seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any Quotation shall not constitute an offer, and is only valid for a period of 30 days from its date of issue. Quotations are not binding on Groupcall and are indicative only.
3.1 Groupcall shall supply the Services with reasonable care and skill. Groupcall shall provide the Implementation Services and where necessary shall install on the Organisation's equipment or hosted MIS service the Software that is required to be installed on the Organisation’s MIS service or hosted MIS provider as agreed with Groupcall from time to time. Software to be installed on other devices such as Android or iOS shall be installed by the Organisation’s personnel. As part of the installation Groupcall will install Xporter software on the Organisation’s equipment. The Xporter software is required in order for the other Software and Services to function correctly. The Organisation shall not modify any Software at any time. The Organisation shall be deemed to have accepted the Software and services if the Organisation commences operational use of the Software and/or Services.
3.2 Groupcall will, as part of the Services and at no additional cost to the Organisation, provide the Organisation with the Support Services during Normal Business Hours in accordance with Groupcall's Support Services Policy in effect at the time that the Services are provided. Groupcall may amend the Support Services Policy in its sole and absolute discretion from time to time. The Organisation may purchase enhanced support services separately by agreement with Groupcall at Groupcall's then current rates.
3.3 Groupcall shall use commercially reasonable efforts to make any Cloud-Based Service available to the Organisation twenty-four (24) hours a day, seven (7) days a week, except for:
3.3.1 planned outages; or
3.3.2 any unavailability caused by circumstances beyond Groupcall’s reasonable control, including without limitation, fire, flood, or other damage caused by an act of nature; acts of government; civil unrest or disobedience; acts of terror or of a public enemy; strikes, lockouts, or other similar labour troubles; or internet service provider failures or delays.
3.4 Groupcall shall implement and maintain industry standard security practices, including appropriate barriers between the cloud-based service and untrusted or unrelated networks, such as the internet, including installing, configuring and monitoring system configuration, firewall, and intrusion detection software protecting systems. Groupcall shall back up the cloud-based service and Organisation's Data contained in it on a daily basis and shall archive such back ups on a regular basis.
3.5 The Support Services and any other Services exclude any onsite attendance which may, at Groupcall’s discretion, be charged at its then current daily rate for each day or part day on which such services are supplied.
3.6 Groupcall shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.7 Groupcall reserves the right to amend any Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Groupcall shall notify the Organisation in any such event.
4.1 Subject to the Organisation paying the Charges in accordance with the terms of this Contract and complying with the other terms and conditions of this Contract, other than in relation to any cloud-based service, Groupcall hereby grants to the Organisation a non-exclusive, non-transferable licence to install the Software, other than any software comprised in any cloud-based service, on the Organisation’s server at the Site or the Organisation’s provider of hosted services and permit the Authorised Users to use the Software, other than any cloud-based service, during the Subscription Term solely for the Organisation’s own operations and not for any other purpose.
4.2 In relation to any cloud-based services, subject to the Organisation paying the relevant charges in accordance with this Contract and complying with the other terms and conditions of this Contract Groupcall shall make the cloud-based service available to the Organisation pursuant to this, for the Organisation's own operational purposes only during the Subscription Term for the cloud-based services. The Organisation agrees that its subscription for the cloud-based service is neither contingent upon the delivery of any future functionality or features nor dependent on any oral or written public comments made by Groupcall regarding future functionality or features.
4.3 To the extent that the Software or any cloud-based service includes an interface to a Third Party Vendor System, the Organisation acknowledges that transactions processed by such Third Party Vendor System may be subject to separate licensing requirements and the Organisation agrees that it has the sole obligation to obtain any and all such licenses.
4.4 For the purposes of clause 4.1 and clause 4.2, use of the Software shall be restricted for the purpose of processing the Organisation Data for the normal operational purposes of the Organisation (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an Authorised User).
4.5 The Organisation shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software or Services that:
4.5.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, breaches privacy rights or is racially or ethnically offensive;
4.5.2 facilitates illegal activity;
4.5.3 depicts sexually explicit images;
4.5.4 promotes unlawful violence;
4.5.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.5.6 in a manner that is otherwise illegal or causes damage or injury to any person or property; or
4.5.7 infringes the rights of any third party, and Groupcall reserves the right, without liability or prejudice to its other rights to the l, to disable the Organisation's access to any Software and/or Service that breaches the provisions of this clause.
4.6 The Organisation shall not:
4.6.1 except as expressly stated in this clause
4.6, (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Organisation, unless Groupcall is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Organisation shall request Groupcall to carry out such action or to provide such information (and shall meet Groupcall's reasonable costs in providing that information) before undertaking any such action;
4.6.2 access all or any part of the Software, the Services and Documentation in order to build a product or service which competes with the Software, the Services and/or the Documentation; or
4.6.3 use the Software, the Services and/or Documentation to provide services to third parties; or
4.6.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, the Services and/or Documentation available to any third party except the Authorised Users, or
4.6.5 attempt to obtain, or assist third parties in obtaining, access to the Software, the Services and/or Documentation, other than as provided under this clause 4, or
4.6.6 copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software or Services;
4.6.7 use the Cloud Based Service to store or transmit malicious code;
4.6.8 intentionally interfere with or disrupt the integrity or performance of the Cloud Based Service or third-party data contained in it; or
4.6.9 attempt to gain unauthorised access to the Cloud Based Service or their related systems or networks.
4.7 If relevant, the Third-Party Software shall be deemed to be incorporated within the Software for the purposes of this Contract (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms.
4.8 The Organisation shall indemnify and hold Groupcall harmless against any loss or damage which it may suffer or incur as a result of the Organisation's breach of any of this Contract and/or any Third-Party Additional Terms howsoever arising.
4.9 Groupcall may treat the Organisation's breach of any Third-Party Additional Terms as a material breach of this Contract.
4.10 The Organisation may not use any information provided by Groupcall or obtained by the Organisation from Groupcall to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
4.11 The Organisation shall not:
4.11.1 sub-license, assign or novate the benefit or burden of the Software, the Services or this Contract in whole or in part;
4.11.2 allow the Software to become the subject of any charge, lien or encumbrance; and
4.11.3 deal in any other manner with any or all of its rights and obligations under this Contract,
without the prior written consent of Groupcall.
4.12 The Organisation shall notify Groupcall as soon as it becomes aware of any unauthorised use of the Software by any person.
4.13 The Organisation shall permit Groupcall to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this Contract, for the purposes of ensuring that the Organisation is complying with the terms of this Contract, provided that Groupcall provides reasonable advance notice to the Organisation of such inspections, which shall take place at reasonable times. The Organisation shall pay for broadening the scope of the licences granted under this Contract to cover the unauthorised use, an amount equal to the Charges which Groupcall would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
5.1 Groupcall will provide the Organisation with all Maintenance Releases and New Versions generally made available to Organisations. If relevant, the Organisation shall install all Maintenance Releases and New Versions as soon as reasonably practicable after receipt.
6.1 The Organisation shall:
6.1.1 ensure that the terms of the Order are complete and accurate;
6.1.2 provide Groupcall, its employees, agents, consultants and subcontractors, with access to the Organisation's premises, office accommodation and other facilities as reasonably required by Groupcall;
6.1.3 provide Groupcall with such information and materials as Groupcall may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
6.1.4 prepare the Organisation's equipment for the supply of the Services;
6.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
6.1.6 comply with all applicable laws, including health and safety laws with respect to its activities under this Contract;
6.1.7 keep all materials, equipment, documents and other property of Groupcall (Groupcall Materials) at the Organisation's premises in safe custody at its own risk, maintain the Groupcall Materials in good condition until returned to Groupcall, and not dispose of or use Groupcall Materials other than in accordance with Groupcall’s written instructions or authorisation; andprovide Groupcall with:
18.104.22.168 all necessary co-operation in relation to this Contract; and
22.214.171.124 all necessary access to such information and equipment as may be required by Groupcall;
in order to provide the Software and the Services including but not limited to Organisation Data, security access information and configuration services;
6.1.8 carry out all other Organisation responsibilities set out in this Contract in a timely and efficient manner. In the event of any delays in the Organisation's provision of such assistance as agreed by the parties, Groupcall may adjust any agreed timetable or delivery schedule as reasonably necessary;
6.1.9 ensure that the Authorised Users use the Software, the Services and the Documentation in accordance with the terms and conditions of this Contract and shall be responsible for any Authorised User's breach of this Contract as if that person were a party to it;
6.1.10 obtain and shall maintain all necessary licences, consents, and permissions necessary for Groupcall, its contractors and agents to perform their obligations under this Contract while using equipment of software made available by the Organisation;
6.1.11 ensure that its network and systems comply with the relevant specifications provided by Groupcall from time to time; and
6.1.12 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Groupcall's servers, data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Organisation's network connections or telecommunications links or caused by the internet.
6.2 The Organisation, on behalf of itself and its Authorised Users, shall be responsible for maintaining the confidentiality of its passwords. If the Organisation becomes aware of any unauthorised access to the software, it shall notify Groupcall promptly in writing.
6.3 The Organisation shall contract separately with an internet service provider (ISP) for access to the Internet in order to access and use the Cloud Based Service. The Organisation acknowledges that performance of the Cloud Based Service may be affected by inadequate internet service. The Organisation shall ensure that its ISP provides the Organisation with adequate band-with to access and use the Cloud Based Service in accordance with Groupcall’s then-current technical requirements.
6.4 During the term of this Contract, the Organisation shall not directly or indirectly obtain services similar to the Services or licence software similar to the Software or the Cloud-Based Services from any person other than Groupcall.
7.1 The Charges for the Services shall be calculated on the following basis:
7.1.1 Subscription Fees are charged for 12-month periods starting on the Service Commencement Date for the relevant Subscription Services and until the relevant Subscription Service is terminated in accordance with these Conditions
7.1.2 Charges other than Subscription Fees are charged at the rate or amount set out on the Order or at Groupcall’s standard rate card in force from time to time;
7.2 If the Organisation asks Groupcall to perform services not on an Order and Groupcall performs them, then any such services shall form part of the Services and be subject to these Conditions. The Charges for those services shall be charged at the amount agreed in writing or as set out in clause 7.1.
7.3 Groupcall reserves the right to increase the Charges from time to time by reference to the Organisation's actual usage and its standard tariffs. Groupcall may also raise or reduce the Subscription Fees of any Subscription Service each year to take account of historic and anticipated usage by the Organisation of the relevant Subscription Service by reference to its then standard tariffs. Additional Charges may be invoiced when Groupcall considers appropriate.
7.4 Groupcall may invoice the Organisation for Subscription Fees annually in advance for the relevant Subscription Service. Groupcall shall invoice the Organisation for Charges other than Subscription Fees monthly in arrears.
7.5 The Organisation shall pay each invoice submitted by Groupcall:
7.5.1 within 7 days of the date of the invoice; and
7.5.2 in Sterling and in full and in cleared funds to a bank account nominated in writing by Groupcall, and
7.5.3 time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Organisation under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) which shall be paid in addition.
7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.8 For unlimited Communications Service tariffs, Groupcall reserves the right to increase Charges at any time if use of this service is disproportionately high in Groupcall’s reasonable opinion or used for purposes not connected with the ordinary use of the Services.
7.9 Where the Charges for any Services are calculated based on the amount of time spent by Groupcall the following applies:
7.9.1 a ‘day’ will mean a period of 7.5 hours. This will include the time spent in travelling to and from the place where the Services are performed.
7.9.2 where Groupcall’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
7.9.3 Groupcall is permitted to charge for all costs and expenses incurred in performing the Services, including but not limited to travelling, courier services and postage.
7.10 If Groupcall has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Groupcall:
7.10.1 Groupcall may, without liability to the Organisation, disable the Organisation's or any Authorised User’s password, account and access to all or part of the Software and the Services and Groupcall shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
7.10.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Groupcall’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.11 Organisation's payment obligations are non-cancellable and, except as expressly set forth in this Contract all amounts paid are non-refundable whether on termination of the Contract or any Subscription Term or otherwise.
8.1 The Organisation acknowledges that all Intellectual Property Rights in the Software, the Groupcall Technology, the Services and the Documentation belong and shall belong to Groupcall or the relevant third-party owners (as the case may be), and the Organisation shall have no rights in or to any of them other than the right to use it in accordance with the terms of this Contract.
8.2 Groupcall confirms that it has all the rights in relation to the Software, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Contract
8.3 All Organisation Intellectual Property Rights shall remain the property of the Organisation. The Organisation shall provide to Groupcall any Organisation Intellectual Property Rights that Groupcall reasonably needs in order to provide the Services in accordance with this Contract and grants to Groupcall a royalty free, non-exclusive licence to use such Organisation Intellectual Property Rights solely in connection with the performance of its obligations under the Contract.
8.4 Groupcall shall have a royalty-free, worldwide, irrevocable, transferable, perpetual, licence to use and incorporate into the Software, the Services and the Documentation, any suggestions, enhancement requests, recommendations or other feedback provided by the Organisation and the Authorised Users (“Ideas”) relating to the Software or the Services.
8.5 Groupcall undertakes at its own expense to defend the Organisation or, at its option, settle any claim or action brought against the Organisation alleging that the possession or use of the Software (or any part thereof) or the Documentation in accordance with the terms of this Contract infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Organisation as a result of or in connection with any such Claim.
8.6 If any third party makes a Claim, or notifies an intention to make a Claim against the Organisation, Groupcall’s obligations under clause 8.5 are conditional on the Organisation:
8.6.1 as soon as reasonably practicable, giving written notice of the Claim to Groupcall, specifying the nature of the Claim in reasonable detail;
8.6.2 not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Groupcall;
8.6.3 giving Groupcall and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Organisation, so as to enable Groupcall and its professional advisers to examine them and to take copies (at Groupcall’s expense) for the purpose of assessing the Claim; and
8.6.4 taking such action as Groupcall may reasonably request to avoid, dispute, compromise or defend the Claim (at Groupcall’s costs).
8.7 The obligation on Groupcall to indemnify the Organisation in clause 8.5 shall not apply to any infringement or alleged infringement of Intellectual Property Rights to the extent that they:
8.7.1 are caused by the use of the Software or the Services or the Documentation in a manner not contemplated or expected or permitted under this Contract;
8.7.2 are caused by:
126.96.36.199 a modification of the Software or the Services by anyone other than Groupcall or any person acting on behalf of or under the instruction of Groupcall unless authorised in writing by Groupcall; or
188.8.131.52 the Organisation or any Authorised User’s use of the Software or the Services or the Documentation in a manner contrary to the instructions given to the Organisation by or on behalf of Groupcall; or
184.108.40.206 the Organisation's or any Authorised User’s use of the Software or the Services or the Documentation after notice of the alleged or actual infringement from Groupcall or any competent authority;
220.127.116.11 the Organisation's use of the Software in combination with any hardware or software not specified by Groupcall if the infringement would have been avoided by the use of the Software not so combined, or by the use of a non-current release of the Software.
8.8 Nothing in this clause shall restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under clause 8.5.
8.9 If any Claim is made, or in Groupcall’s reasonable opinion is likely to be made, against the Organisation, Groupcall may at its sole option and expense:
8.9.1 procure for the Organisation the right to continue to use the Software (or any part thereof) in accordance with the terms of this Contract;
8.9.2 modify the Software so that it ceases to be infringing;
8.9.3 replace the Software with non-infringing software; or
8.9.4 terminate this Contract immediately by notice in writing to the Organisation and refund any of the Fee paid by the Organisation as at the date of termination (less a reasonable sum in respect of the Organisation's use of the Software to the date of termination) on return of the Software and all copies thereof.
8.10 Notwithstanding the terms of this clause 8, Groupcall reserves the right to include third party Intellectual Property Rights in the Services and the Organisation accepts that reasonable variations to the Contract may be required to incorporate such third party Intellectual Property Rights including but not limited to the inclusion of relevant copyright notices within the Software and the Services. Such revised terms shall apply on reasonable notice to the Organisation.
8.11 Notwithstanding any other provision in this Contract, clause 8.5 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software, Third-Party Services or through the breach of any Third-Party Additional Terms by the Organisation or an Authorised User.
8.12 The foregoing provisions of clause 8 state the Organisation's sole and exclusive rights and remedies, and Groupcall’s (including Groupcall’s employees, agents and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
9.1 The Organisation shall own all right, title and interest in and to all of the Organisation Data and shall have sole responsibility for the legality, reliability, integrity, accuracy backing up and quality of the Organisation Data.
9.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Organisation is the data controller and Groupcall is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The Schedule sets out the scope, nature and purpose of processing by Groupcall, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
9.4 Without prejudice to the generality of clause 9.2, the Organisation will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Groupcall for the duration and purposes of this Contract and has entered into appropriate data sharing agreements and the Organisation shall, whenever requested by Groupcall provide copies of all agreements and consents to Groupcall such that Groupcall can satisfy itself as to these consents (provided always that it shall be the Organisation's sole responsibility to ensure that it has all necessary consents);
9.5 The Organisation shall have sole responsibility for the legality, reliability, integrity, accuracy, backing up and quality of the Organisation Data
9.6 Without prejudice to the generality of clause 9.2, Groupcall shall, in relation to any Personal Data processed in connection with the performance by Groupcall of its obligations under this Contract:
9.6.1 process that Personal Data only on the written instructions of the Organisation and any Data Controller in relation to the Personal Data unless Groupcall is required by the laws of any member of the European Union or by the laws of the European Union applicable to Groupcall to process Personal Data (Applicable Laws). Where Groupcall is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Groupcall shall promptly notify the Organisation of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Groupcall from so notifying the Organisation;
9.6.2 ensure that it has in place appropriate technical and organisational measures, reviewed by Organisation (if the Organisation requests), to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
9.6.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
9.6.4 assist the Organisation and any Data Controller of the Personal Data, at the Organisation's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.6.5 at the written direction of the Organisation or the relevant Data Controller, delete or return Personal Data and copies thereof to the Organisation or the Data Controller on termination of the Agreement unless required by Applicable Laws to store the Personal Data;
9.5.6 notify the other party without undue delay on becoming aware of a Personal Data breach of security leading to the accidental or unlawful distribution, loss, deterioration, unauthorised disclosure of or access to personal data, processed by the other party;
9.6.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 9
9.6.8 assist the other party and the Data Controller in carrying out data protection impact assessments and consulting with relevant supervisory authorities where such assessments and/or consultations are required pursuant to the Data Protection Legislation, provided that the scope of such assistance shall be agreed by the parties in advance; and
9.6.9 not transfer any Personal Data outside of the European Economic Area unless either:
18.104.22.168 this is at the request of the Reseller (for example but not limited to a request for the delivery of Personal Data to a person or a server situated outside the European Economic Area);
22.214.171.124 the prior written consent of the Organisation has been obtained and the Organisation must ensure that prior to giving any such consent, it has ensured that the relevant Data Controller has obtained the written consent of the relevant Data Subjects as required by Applicable Laws; or
126.96.36.199 the transfer is permitted by Chapter V of the GDPR or other provisions of Applicable Laws.
9.7 The Organisation does not consent to Groupcall appointing any third party processor of Personal Data under this Contract.
9.8 The Organisation shall indemnify and hold Groupcall harmless from and against any and all Losses to the extent arising from or related to Organisation Data (except to the extent that any such claim, demand or action arose out of or is in connection with Groupcall’s intentional misuse of, infringement of, or gross negligence or wilful misconduct in relation to Licensee Data).
9.9 It is the Organisation's sole responsibility to encrypt the Organisation Data other than data stated in the Cloud Based Service.
9.10 The parties shall co-operate with each other to demonstrate compliance with this clause 9 and allow for and contribute to audits, including inspections conducted by or on behalf of the Organisation.
10.1 Any Third Party Services are supplied to the Organisation under the licence or other terms provided by the relevant third parties, copies of which shall be provided to the Organisation on request or which may be attached to these Conditions or the Order and the Organisation agrees to be bound by and comply with such licence terms. If it is a requirement of the third party that the Organisation enters into an agreement directly with the third party in order to use the Third Party Services, then the Organisation must enter into that agreement. Groupcall shall have no liability if any of the Services or Software cannot be provided or properly used by the Organisation because the Organisation has not entered into any such agreement.
10.2 The Organisation acknowledges Groupcall shall have no liability in relation to the supply of Third Party Services. The Organisation acknowledges that the only warranties and obligations in relation to such Third Party Services, or the supply of them, are those contained in the licence or other terms from the relevant third party supplier(s).
10.4 Where any third party software is contained in any Groupcall software, the only warranties and obligations in relation to such third party software are those contained in the licence or other terms from the relevant third party supplier(s) and that to the extent that any such warranties are given to Groupcall, so far as it is able to, Groupcall will pass on the benefit of such warranties to the Organisation.
THE ORGANISATION'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1 Groupcall warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Contract and that the use of the Software, the Services and the Documentation as permitted by this Contract will not infringe the Intellectual Property Rights of any third party.
11.2 The Services and the Software is provided on an ‘as is’ basis. Save as set out in this sub-clause, the Software and the Cloud Based Service is provided on an ‘as is’ basis.
11.3 The warranty at clause 11.1 shall not apply to the extent of any non-conformance which is caused by use of the Software or the Services contrary to Groupcall's instructions, or modification or alteration of the Software or the Services by any party other than Groupcall or Groupcall's duly authorised contractors or agents.
11.4 This Contract shall not prevent Groupcall from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, software and/or services which are similar to those provided under this Contract.
11.5 For avoidance of doubt, Groupcall makes no warranty or representation whatsoever with respect to any Third Party Vendor System or Third-Party Services to which Groupcall has provided an interface as part of the Software or the Services.
11.6 Except as expressly stated in this Contract:
11.6.1 Groupcall shall not in any circumstances have any liability for any losses or damages which may be suffered by the Organisation (or any person claiming under or through the Organisation), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence), breach of statutory duty or otherwise howsoever, which fall within any of the following categories:
188.8.131.52 special damage even if Groupcall was aware of the circumstances in which such special damage could arise;
184.108.40.206 loss of revenue;
220.127.116.11 loss of anticipated savings;
18.104.22.168 loss of opportunity;
22.214.171.124 loss of goodwill;
126.96.36.199 loss or corruption of data;
11.6.2 the total liability of Groupcall, whether in contract, tort (including negligence), breach of statutory duty or otherwise and whether in connection with this Contract or any collateral contract, shall in no circumstances exceed a sum equal to the Charges paid in the 12 months prior to the claim being made; and
11.6.3 the Organisation agrees that, in entering into this Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Contract or (if it did rely on any representations, whether written or oral, not expressly set out in this Contract) that it shall have no remedy in respect of such representations and (in either case) Groupcall shall have no liability in any circumstances otherwise than in accordance with the express terms of this Contract.
11.7 The Organisation accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software and/or Services has not been developed to meet the individual requirements of the Organisation. Groupcall specifically excludes any implied or express warranties (other than those expressly set out in this Contract), condition or representation that any Software or Services will:
11.7.1 operate in conjunction with any hardware items or software products other than those identified by Groupcall in writing as being compatible with the Software; or
11.7.2 operate uninterrupted or error-free.
11.8 Groupcall does not warrant or guarantee that it will rectify defects in the Software and Services nor that any defect which does not materially affect the Organisation's use of the Software or Services in the manner contemplated by this Contract will be corrected.
11.9 Groupcall shall not be obliged to rectify any particular defect if attempts to modify the application code or modify the database configuration have been made by the Organisation or an Authorised User or any third parties without the approval of Groupcall other than in the normal course of using the Software.
11.10 The parties acknowledge and agree that the limitations contained in this clause 11 are reasonable in the light of all the circumstances including the level of Charges payable. Any claims that a party is entitled to bring against any employees, sub-contractors and suppliers of the other party shall be subject to the limits and exclusions of liability set out in this clause 11.
11.11 Nothing in this Contract shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation or any other liability which may not be excluded or limited by contract or any other liability which cannot be excluded or limited by law.
11.12 Groupcall shall not in any circumstances have any liability (whether under the indemnity in clause 8.5 or otherwise) for any claim of infringement of Intellectual Property Rights relating to Intellectual Property Rights outside the United Kingdom.
11.13 Notwithstanding any other provision of this Contract, the Organisation acknowledges that it is solely responsible for determining the content of any Communications Messages, in any format (if any) that may be sent using the Services.
11.14 The Organisation acknowledges that certain aspects of the Services may be subject to certain limitations, delays, and other problems that are inherent in the use of the internet and electronic communications. Groupcall is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and the Organisation's network, and the Organisation acknowledges that the Software, the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.15 Except as expressly and specifically provided in this Contract, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by applicable law, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
11.16 This clause 11 shall survive termination of the Contract.
12.1 Each Subscription Service commences on the Service Commencement Date for that Subscription Service and continues for an initial period (which unless otherwise specified in the Order is 36 months) (Initial Term). Either party may terminate a particular Subscription Service on but not before the end of the Initial Term by giving not less than one months’ written notice to the other to expire at the end of the Initial Term. If no such notice is given, the Subscription Service shall automatically continue beyond the Initial Term until terminated by either party giving to the other party not less than three months’ written notice to terminate that Subscription Service, such notice not be given prior to the end of the Initial Term. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving not less than one month’s written notice to the other, but such notice can only be effective once all Subscription Services have been terminated as permitted by this clause 12.1 or clause 12.2.
12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
12.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
12.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, Groupcall may terminate the Contract with immediate effect by giving written notice to the Organisation if the Organisation fails to pay any amount due under the Contract on the due date for payment.
12.4 Groupcall, in its sole discretion, may suspend use of the Software and/or the provision of all or part of the Services (including but not limited to the Support Service) if the Organisation is in material breach of any of the terms or obligations of this Contract until such time as such breach or non-compliance is resolved. Suspension under this clause shall not relieve the Organisation of its on-going payment obligations for such period of suspension.
13.1 On termination of the Contract:
13.1.1 all licences granted under this Contract shall immediately terminate and cease and the Organisation shall immediately cease to use all of the Software, the Services and the Documentation and shall ensure that all Authorised Users shall immediately cease to use all of the Software, the Services and the Documentation. For the avoidance of doubt any licence to use any of them is automatically terminated;
13.1.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
13.1.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced; and
13.1.4 the Organisation shall immediately pay to Groupcall any sums due to Groupcall under this Contract;
13.1.5 all instances of any Software installed on any equipment used by the Organisation or its personnel such as but not limited to iOS and Android devices shall be deleted;
13.1.6 if so requested by Groupcall, Groupcall shall be entitled to have access to the Organisation's systems to remove the Software;
13.1.7 upon written request by the Organisation made within thirty (30) days following termination or expiration of this Contract, Groupcall shall promptly make available and deliver to the Organisation copies of all Organisation Data then available on the Cloud Based Service. Groupcall reserves the right to withhold delivery of Organisation Data until all amounts owed to Groupcall by the Organisation have been paid in full. Organisation Data shall be provided in comma separated data format. After 30 days from termination Groupcall may delete all Organisation Data on the Cloud Based Service.
13.1.8 Upon request by the Organisation, Groupcall shall, unless legally prohibited, delete all Organisation Data in its possession or available on the Cloud Based Service and shall provide Organisation with written confirmation of the same
13.2 Any termination of this Contract (howsoever occasioned) shall not affect the coming into force or the continuance in force of any provision in this Contract which is expressly or by implication intended to come into or continue in force on or after such termination. The provisions of clauses 4.8, 4.10, 4.11, 4.13, 7.11, 8, 9, 10, 11, 13 and 14.
14.1 Conflict: If there is an inconsistency between any of the provisions in the Order and these terms and conditions, the provisions in the main body of this Contract shall prevail.
14.2 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.3 Assignment and other dealings.
14.3.1 Groupcall may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
14.3.2 The Organisation shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Groupcall.
14.4.1 The Organisation acknowledges that details of the Software, the Documentation and the Services, and the results of any performance tests of the Software and the Services, constitute Groupcall's Confidential Information.
14.4.2 Groupcall acknowledges that the Organisation Data is the Confidential Information of the Organisation.
14.4.3 All Confidential Information including the terms and nature of this Contract given by or obtained from either party (or any other person on behalf of such party) (Giver to the other party or any other person on behalf of such party (Receiver) shall be kept secret and confidential by the Receiver during the subsistence of this Contract and thereafter without limit in time and shall not be used or disclosed save for the purposes of the proper performance of this Contract or with the prior written consent of the Giver. Disclosure by the Receiver may be made to any employee, supplier, sub-contractor or agent, provided that the Receiver ensures that any and all such employees, suppliers, sub-contractors and agents comply with the same obligations and restrictions as are set out in this clause and the Receiver shall be liable to the Giver in respect of any disclosure or use of such Confidential Information by such persons. The obligations of confidentiality in this clause shall not extend to any matter which the Receiver can show: (a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under the Contract; or (b) was in its written records prior to its receipt from the Giver; or (c) was independently disclosed to it by a third party entitled to disclose the same; or (d) is required to be disclosed under any applicable law, or by order of a court, tribunal or governmental body or authority of competent jurisdiction.
14.4.4 The Organisation shall not permit the Software or any Cloud Based Services to be demonstrated to any competitor or potential competitor of Groupcall.
14.4.5 The parties shall ensure that their respective personnel know about these confidentiality obligations and comply with them.
14.4.6 Each party shall notify the other party (Affected Party) if any of its personnel connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information of the Affected Party and shall afford reasonable assistance to the Affected Party in connection with any enforcement proceedings which the Affected Party may elect to bring against any person. The party at fault shall pay the reasonable cost of such assistance and if neither party is at fault the Affected Party shall pay such costs.
14.4.7 Neither party shall issue or make any public announcement or disclose any information regarding this Contract unless prior written consent has been obtained from the other party. Subject to successful implementation and acceptance of the Services, Groupcall may issue a press release to communicate the successful implementation of the Services subject always to the Organisation's discretion and approval in writing of any statement or press release.
14.5 Entire agreement.
14.5.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.5.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Written or oral representations including those made over the telephone are not binding unless confirmed in writing by a director of Groupcall. In particular but without limitation no agent, salesman or sales representative of Groupcall shall have power to vary these Conditions unless such variation is confirmed in writing by a director of Groupcall.
14.5.3 Nothing in this clause shall limit or exclude any liability for fraud.
14.6 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.7 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.9.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number.
14.9.2 Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax, at 9.00 am on the next Business Day after transmission.
14.10 Third party rights.
14.10.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.10.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
14.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
14.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.