GRIDFOX BY AUDACIA – TERMS AND CONDITIONS

These terms and conditions form the basis of a legal agreement between the Customer and Audacia (both as defined below).

By the Customer registering its details with Audacia by completing the sign up process, the Customer agrees to these terms and conditions which will bind the Customer and its employees. If the Customer does not accept these terms and conditions by following the process described above, Audacia will not make the Services (defined below) available to the Customer and no contract shall be formed between Audacia and the Customer in respect of the said Services.

  1. DEFINITIONS 
    1. The definitions in this clause apply in these terms and conditions.

Audacia: Audacia Consulting Limited incorporated and registered in England and Wales with company number 06055144 whose registered office is at 33 Park Place, Leeds, England, LS1 2RY.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer and Audacia to use the Services and the Documentation, as initially notified to Audacia upon purchasing the User Subscriptions.

Contract: the contract formed between the Customer and Audacia upon, and as described in, these terms and conditions, for the supply of the Services.

Customer: the customer who purchases the User Subscriptions. 

Customer Data: the data inputted by the Customer or Authorised Users for the purpose of using the Services.

Documentation: any document which may (at Audacia’s sole discretion) be made available by Audacia from time to time and which sets out a description of the Services and the user instructions for the Services. 

Effective Date: the date on which the Customer first pays Subscription Fees for User Subscriptions.

Initial Subscription Term: 12 months from the Effective Date.

Renewal Period: the period described in clause 12.1.

Services: the subscription services provided by Audacia under these terms and conditions via  www.gridfox.com for the purposes of accessing the functionality made available by the Software.

Software: Gridfox online development application (app.gridfox.com).

Subscription Fees: the subscription fees payable by the Customer to Audacia for the User Subscriptions, as described in clause 8.

Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.

User Subscriptions: the user subscriptions purchased by the Customer pursuant to these terms and conditions which entitle Authorised Users to access and use the Services and the Documentation.

  1. User subscriptions
    1. Subject to the Customer purchasing the User Subscriptions, and accepting these terms and conditions, Audacia grants to the Customer a non-exclusive, non-transferable right (without the right to grant sublicences) to permit the Authorised Users to use the Services and the Documentation during the Subscription Term, in accordance with these terms and conditions, solely for the Customer’s internal business operations.
    2. The Customer undertakes that, in relation to the Authorised Users:
      1. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
      2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
      3. each Authorised User shall keep a secure password for his use of the Services and shall keep his password confidential;
      4. it shall permit Audacia to audit compliance with these terms and conditions. Each such audit may be conducted no more than once per quarter, at Audacia's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business. If any such audit reveals that the Customer has underpaid Subscription Fees to Audacia, then without prejudice to Audacia's other rights, the Customer shall pay to Audacia an amount equal to such underpayment within 14 days of the date of the relevant audit.
    3. The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that is: unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property. Audacia reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
    4. The Customer shall not:
      1. (except as may be allowed by any applicable law which is incapable of exclusion by agreement) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means, or attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
      2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
      3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
      4. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
      5. introduce or permit the introduction of, any virus into Audacia's network and information systems.
    5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Audacia.
  2. Additional user subscriptions
    1. If the Customer, at any time during any Subscription Term, requests the purchase additional User Subscriptions, and Audacia approves the Customer's request (which it may or may not do in its discretion), the Customer shall, prior to activation of the additional User Subscriptions, pay to Audacia the relevant fees for such additional User Subscriptions as set out in clause 8 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Audacia for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable). Audacia shall not be obliged to activate the additional User Subscriptions until payment has been received by it in respect of them.
  3. Services
    1. Audacia shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for (i) planned maintenance between [9pm to 6 am UK time]; and (ii) unscheduled maintenance performed outside the hours of 9am to 5pm Monday to Friday.
    2. Audacia and Customer hereby agree that the Customer’s purchase of the Services and User Subscriptions shall not entitle the Customer to any support element in respect of the Services. 
    3. Audacia may in its absolute discretion (but shall not be obliged to) provide such initial set-up assistance for the Customer’s use of the Services as Audacia (in its absolute discretion) deems reasonable and appropriate.
  4. Customer data and data protection
    1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
    2. Controller, Processor, Data Subject, Personal Data, Personal Data breach, processing and appropriate technical and organisational measures:  as defined in the Data Protection Act 2018.
    3. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Audacia shall be for Audacia to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Audacia or on its behalf. 
    4. Audacia shall, in providing the Services, comply with its privacy policy available at  https://www.audacia.co.uk/privacy-and-cookies-policy/, which applies to personal data in respect of which Audacia is the Controller (for example personal data of Authorised Users).
    5. Both parties will comply with all applicable requirements of the applicable data protection legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights thereunder.
    6. if Audacia processes any Personal Data on the Customer's behalf when performing its obligations under these terms and conditions, for example in respect of the Customer Data that it is hosting, the Customer is the Controller and Audacia is the Processor for the purposes of the Data Protection Act 2018. Schedule 1 to these terms and conditions sets out the scope, nature and purpose of processing, the duration of the processing and the types of personal data and categories of data subject.  
    7. Without prejudice to the generality of clause 5.4, Audacia shall, in relation to any Personal Data processed in connection with the performance by Audacia in respect of which Audacia is a Processor:
      1. process that personal data only on the documented written instructions of the Customer unless Audacia is required by applicable law to process personal data. Where Audacia is relying on applicable law as the basis for processing personal data, Audacia shall promptly notify the Customer of this before performing the processing required by the applicable law unless the applicable law prohibits Audacia from so notifying the Customer;
      2. be permitted to transfer any personal data outside of the European Economic Area and the United Kingdom provided the transfer is effected by way of a legally enforceable mechanism for transferring personal data permitted under applicable law from time to time.  
      3. assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under applicable data protection legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      4. notify the Customer without undue delay on becoming aware of a Personal Data breach;
      5. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
      6. maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Customer if, in the opinion of Audacia, an instruction infringes applicable data protection legislation.
    8. Without prejudice to the generality of clause 5.5, the Customer must ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Audacia for the duration and purposes of these terms and conditions so that Audacia may lawfully use, process and transfer the Personal Data in accordance with these terms and conditions on the Customer's behalf.
    9. Each party shall ensure that it has in place appropriate technical and organisational measures 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.
    10. By accepting these terms and conditions, the Customer consents to Audacia appointing Microsoft Corporation (and any group company thereof) as a third-party Processor of Personal Data (including Customer Data) under these terms and conditions. Audacia confirms that it has entered or (as the case may be) will enter with the third-party Processor into a written agreement substantially on that third party's standard terms of business and in either case which Audacia confirms reflect and will continue to reflect the requirements of the Data Protection Act 2018.
  5. Audacia's obligations
    1. The Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    2. The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Audacia's instructions, or modification or alteration of the Services by any party other than Audacia. If the Services do not conform with the foregoing undertaking, Audacia will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
    3. Audacia does not warrant that the Customer's use of the Services will be uninterrupted or error-free, or that the Services, Documentation and/or the information and results obtained by the Customer through the Services will meet the Customer's requirements.

6.4         Audacia is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

  1. Customer's obligations
    1. The Customer shall:
      1. provide Audacia with all necessary co-operation as may be reasonably required;
      2. without affecting its other obligations under these terms and conditions, comply with all applicable laws and regulations with respect to its activities under these terms and conditions;
      3. ensure that the Authorised Users use the Services and the Documentation in accordance with these terms and conditions and shall be responsible for any Authorised User's breach of these terms and conditions;
      4. where applicable, ensure that its network and systems comply with the relevant specifications provided by Audacia from time to time.
  2. Charges and payment
    1. Unless Audacia (at its sole discretion) defers the Customer’s obligation to pay the Subscription Fees on the Effective Date for an introductory period by notice in writing, the Customer shall pay Audacia for each User Subscription 
    2. The Customer shall prior to the Effective Date provide to Audacia valid, up-to-date and complete credit or debit card details. The Customer hereby authorises Audacia to bill such credit or debit card:
      1. on the Effective Date (and prior to the Services being made available) for the Subscription Fees payable in respect of the Initial Subscription Term and (subject to clause 12.1), on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; or
      2. on the Effective Date, (and prior to the Services being made available) and the corresponding date of each calendar month thereafter, for one-twelfth of the Subscription Fees payable in respect of the Initial Subscription Term and (subject to clause 12.1), on each anniversary of the Effective Date and at the start of each month thereafter for one-twelfth for the Subscription Fees payable in respect of the next Renewal Period (and each Renewal Period thereafter); and in each case
      3. in accordance with either clauses 8.2.1 or 8.2.2 in respect of any additional User Subscriptions purchased after the Effective Date in accordance with clause 3 above.
    3. If Audacia has not received payment by the due date for any reason, and without prejudice to any other rights and remedies of Audacia may:
      1. without liability to the Customer, disable the Customer's password, account and access to all or part of the Services (and that of all of its Authorised Users) and Audacia shall be under no obligation to provide any or all of the Services while the Subscription Fees concerned (or any of them) remain unpaid; and
      2. charge costs and interest on such sums under the Late Payment of Commercial Debts (Interest) Act 1998 at the applicable rate from time to time in force. Interest shall accrue on a daily basis, from the due date until actual payment.
    4. All amounts and fees referred to in these terms and conditions shall be payable in pounds sterling, are non-cancellable and non-refundable, and are exclusive of value added tax, which shall be added to the Subscription Fees at the appropriate rate, and paid by the Customer.
    5. Audacia shall be entitled to increase the Subscription Fees, and any other fees, at the start of each Renewal Period upon not less than 90 days' prior notice to the Customer.
  3. Intellectual Property rights 
    1. The Customer acknowledges that Audacia and/or its licensors own all intellectual property rights in the Services, Software and the Documentation. Except as expressly stated herein, these terms and conditions do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software or the Documentation. Audacia do not sell the Software or Documentation to the Customer. Audacia remain the owners of the Software and Documentation at all times.
  4. Indemnity
    1. The Customer shall defend, indemnify and hold harmless Audacia against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Audacia’s hosting or Processing of the Customer Data or the Customer's use of the Services, Software and/or Documentation that is not in accordance with these terms and conditions. 
  5. Limitation of liability
    1. Except as expressly and specifically provided in these terms and conditions:
      1. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms and conditions; and
      2. the Services and the Documentation are provided to the Customer on an "as is" basis.
    2. Nothing in these terms and conditions excludes the liability of Audacia for anything which cannot be excluded under applicable law.
    3. Subject to clause 11.2, Audacia shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms and conditions.
    4. Subject to clause 11.2, Audacia's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms and conditions shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
  6. Term and termination
    1. The Contract shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
      1. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
      2. otherwise terminated in accordance with the provisions of this Contract,

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

  1. Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
    1. the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
    2. the other party commits a breach of any term of this Contract which is incapable of remedy or (if such breach is capable of remedy) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
    3. an order is made by a court of competent jurisdiction or a resolution is passed for the dissolution, winding-up or administration of the other party (other than due to a solvent restructuring); or
    4. if a trustee, receiver, administrator or other similar officer is appointed in respect of all or any part of the other party’s business; or
    5. the other party is or becomes unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986.
  2. On termination of the Contract for any reason:
    1. the Customer shall, and shall procure that all Authorised Users shall, immediately cease all use of the Services and/or the Documentation;
    2. Audacia may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.7, unless Audacia receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Audacia shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all expenses incurred by Audacia in returning or disposing of Customer Data.
  1. GENERAL

13.1       Entire agreementThese terms and conditions govern the Customer’s use of the Services, Software and Documentation and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between Audacia and the Customer, whether written or oral, relating to its subject matter. 

  1. Assignment. Audacia may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
  2. Third party rights. These terms and conditions do not confer any rights on any person or party who is not the Customer pursuant to the Contracts (Rights of Third Parties) Act 1999.

13.4       Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

13.5       Jurisdiction. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE 1 - Processing, Personal Data and Data Subjects

Types of Data Subject whose Personal Data is Processed

Any personal data provided by the Customer as Controller and hosted by Audacia as Processor pursuant to the Services

Types of Personal Data Processed

 

 

Any personal data provided by the Customer as Controller and hosted by Audacia as Processor pursuant to the Services

Special Category Personal Data Processed

 

 

Any special category personal data provided by the Customer as Controller and hosted by Audacia as Processor pursuant to the Services

The purpose, nature and subject matter of the Processing

The purpose, nature and subject matter of the Processing of Personal Data by Audacia, under this Contract, are those Processing operations which are necessary to provide the Services which are referred to in the Contract.

Duration of Processing

The Processing of the Personal Data referred to in this Schedule shall occur throughout the term of this Contract.