Terms and Conditions for the supply of the DataPro Tools App####This Agreement was entered into between:##Quality System Solutions Ltd.(QSS), Company Number 2674775, having its head office at Lansdowne Court, Bumpers Way, Chippenham, Wiltshire, United Kingdom ("QSS Ltd"), AND You as official representative of your organization ("the Customer").##TERMS##QSS Quality System Solutions Ltd##QSS Ltd Quality System Solutions Ltd##App DataPro Tools app for salesforce.com####For valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:## ##1. AGREEMENT##In the event of conflict between the provisions of this Agreement (the "Agreement") and its appendix the provisions of the Agreement shall prevail, subject to any written stipulations or changes to the contrary.## ##2. AUTHORISATION##If you are entering into this Agreement on behalf of an entity, you represent that you have the authority to bind such entity to this Agreement. You may not access the App unless, and by accessing the App you represent and warrant that, you ##(a) if an individual, are at least 18 years of age##(b) are not, in any manner affiliated with, a direct competitor of QSS##(c) will not access the Service to monitor their availability, functionality, or for any other benchmarking or competitive purposes, or any entity that you are affiliated with##(d) have not at any time breached a contract with QSS##(e) accept and agree to be bound by the provisions of this Agreement.####3. SERVICES##(a) QSS shall furnish to the Customer the services described on the terms and conditions set out in this Agreement. QSS may perform its obligations through its affiliates, agents or subcontractors (the "Third Party Providers"), provided that QSS shall not be relieved of its obligations under this Agreement by use of Third Party Providers.##(b) QSS shall supply the user instructions and all other related materials in eye-readable form supplied to the Customer by QSS for aiding the use and application of the App to the Customer on or prior to the date the Service commences.##(c) Support will be provided by email ticketing. All issues will be responded to within 8 working hours. All onsite support will be charged at the prevailing QSS reasonable rate plus travel but QSS shall not incur any charges without the express written consent of the Customer.##(d) QSS will provide support for the DataPro Tools App and data within the DataPro Tools database; all hardware and other software are not covered. ####4. LICENCE##(a) The maximum number of users able to use the App at any one time will be limited to the number of licences that the Customer has subscribed to.##(b) The licence is not a sale of the rights of ownership of the App, in particular QSS retains title and full rights of ownership in the original or any copy of this App. ##(c) The licence is not transferable except to companies wholly owned by the contracted Customer, or to the parent company of the contracted Customer or as the parties otherwise agree##(d) QSS grants the Customer a licence for the number of users to access the App as invoiced, on receipt of payment for the duration as stated on the invoice. ####5. COPYRIGHT##The entire copyright of this software is owned by QSS, and is protected by copyright law and international copyright treaty. The following are absolutely prohibited without the express prior written consent of QSS:##(a) Unauthorised copying of the App, or the written or supporting materials.##(b) Reverse engineering, disassembling, decompiling, or making any attempt to recover the source code of the App.##(c) Sub-licensing, renting, leasing or sale of any of the App unless by written agreement with QSS.##(d) Creation of a comparable system based on the way of working of the App. ####6. FEES##(a) The Customer undertakes, for the Initial Term and for any Renewal Term thereof, as the case may be, as these terms are defined herein, to pay all the agreed fees plus applicable taxes.##(b) The Customer undertakes to pay all agreed and undisputed fees and other charges at or by the time they are due. Any amount payable under this Agreement and unpaid on its due date shall be subject to a late charge of two percent (2%) per month calculated from the due date until said amount is paid in full.##(c) Additional licences will be added to the same 12 month contract. ##(d) Licence fees are due on or by the first day of the billing period and annually thereafter ##(e) The number of licences may be increased at any time, the charge at a rate commensurate with the time left in the current billing period. ##(f) The Customer may notify QSS of a reduction in the number of licences required at any time. This will take effect at the end of the Initial Term. ##(g) Refund policy. All transactions between QSS and the Customer are final. QSS does not issue refunds apart from the result of bulling errors.##(h) Billing errors. The Customer must notify QSS of any billing error in writing within 60 days of the error date. QSS reserves the right to disregard errors notified after 60 days.##(i) QSS reserves the right to amend the Fees for the next Renewal Term by providing the Customer with at least thirty (30) days prior written/email notice of the amendment before the end of the Initial Term and subject to QSS Ltd obtaining consent from the Customer.##(j) QSS reserves the right to restrict access to the system on non-payment of licence or other fees.####7. TERM##(a) The initial term (the "Initial Term") of this Agreement shall expire a minimum of twelve (12) months from the date stated in the appendix the first service invoice following the Acceptance Date and the applicable Fees commence, unless otherwise terminated as provided herein. ##(b) At the end of the Initial Term, this Agreement shall automatically renew and be binding for an additional twelve (12) month term (each a "Renewal Term") unless the Agreement is terminated in accordance with Section 15 hereof. ##(c) At the end of each Renewal Term, an additional Renewal Term will commence unless the Agreement is terminated in accordance with Section 15 hereof. ####8. CUSTOMER OBLIGATIONS##(a) The Customer shall solely be responsible for use of the App by any of its employees, officers, directors, agents as well as its end users and agrees to take all necessary measures to ensure that such persons use the App in accordance with the terms and conditions of this Agreement.##(b) The Customer shall be solely responsible for obtaining necessary licenses and/or authorizations for all software and equipment which are not provided by QSS. QSS shall not be responsible if any changes in the App caused by equipment or hardware not provided by QSS to become obsolete, require modification or attention, or otherwise affect performance of same.##(c) The Customer shall not, sub-licence, resell or remarket all or any portion of the App provided under this Agreement.##(d) QSS reserves the right to take any measures it deems necessary, acting reasonably, to ensure compliance with this Section 8 and notably the right to immediately suspend the App or terminate this Agreement. Provided however that whenever practicable QSS shall provide Customer with reasonable written notice of such proposed suspension or termination. In case of termination of this Agreement pursuant to this section, the Customer agrees and irrevocably undertakes to pay QSS reasonable Termination Charges stipulated in Section 15 hereof.####9. WARRANTY##QSS warrants that:##(a) QSS warrants that in fulfilling its obligations under this Agreement it will attain standards of care and skill commensurate with those currently prevailing in the software and/or software as a service and/or cloud based system industries and that all personnel will have qualifications and experience appropriate for the tasks to which they are allocated.##(b) QSS shall use its best endeavours to ensure that it and its servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the App.##(c) QSS undertakes to provide the Service agreed upon in this Agreement in a timely and workmanlike manner.##(d) The Customer acknowledges and agrees that QSS offers no warranty that the Services will be uninterrupted or without defect, and acknowledges moreover that QSS offers no warranty in respect of the scope, availability, accuracy or any other aspect of any information, including notably and without limiting the scope of the foregoing, any data or file, regardless of the format or presentation, to which the Customer or its end users shall have access or shall have at their disposal arising from the use of the App stipulated herein ##(e) QSS warrants that it has obtained all necessary licences, as the case may be, for software used in the delivery of the Service.##(f) QSS shall defend at its own expense any claim brought against the Customer alleging that the use of the App infringes the Intellectual Property Rights of a third party (“Intellectual Property Claim”) and QSS shall indemnify, hold harmless and pay all costs (including reasonable counsel fees), losses, liability and damages incurred, awarded or agreed to in settlement of an Intellectual Property Claim provided that the Customer:##(i) furnishes QSS with prompt written notice of the Intellectual Property Claim; ##(ii) provides QSS with reasonable assistance in respect of the Intellectual Property Claim; and##(iii) gives to QSS the sole authority to defend or settle the Intellectual Property Claim. ##(h) If, in QSS’ reasonable opinion, the use of the App is or may become the subject of an Intellectual Property Claim then QSS shall either:##(i) Obtain for the Customer the right to continue using the App which is the subject of the Intellectual Property Claim; or ##(ii) Replace or, with the written consent of the Customer, modify the App which is the subject of the Intellectual Property Claim so it becomes non-infringing.####10. REMEDIES##(a) SUBJECT TO SECTION 8, each party’s TOTAL CUMULATIVE LIABILITY to the other, IF ANY, FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROVISION OF THE SERVICE WILL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL IN AGGREGATE MONTHLY CHARGES PAID BY THE CUSTOMER DURING THE PERIOD SUCH DAMAGES WERE SUSTAINED.##(b) The PARTIES’ SOLE AND EXCLUSIVE REMEDIES AGAINST each other IN RESPECT OF THE APP AND THIS AGREEMENT SHALL BE AS STATED HEREIN.####11. LIMITATION OF LIABILITY##(a) UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS AGENTS, SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO EACH OTHER OR THIRD PARTY FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES, INCLUDING LOSS OF PROJECTED PROFITS OR REVENUES, LOSS OF DATA, LOSS OF USE OF ANY COMPUTER SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS AND ANY OTHER FINANCIAL OR ECONOMIC LOSS, LIABILITY, OR DAMAGE WHATSOEVER, EVEN IF EITHER PARTY WERE NOTIFIED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY. BOTH PARTIES AGREES, ACKNOWLEDGES AND CONFIRMS THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT BUT FOR EACH PARTIES AGREEMENT TO LIMIT ITS LIABILTY AND THE LIABILITY OF ITS AGENTS’, SUPPLIERS’ AND SUBCONTRACTORS’IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN. ##(b) QSS ASSUMES NO LIABILITY ARISING FROM (i) THE USE OF THE APP PROVIDED BY QSS IN CONJUNCTION WITH SERVICES, PRODUCTS OR EQUIPMENT NOT PROVIDED BY QSS, AND (ii) THE FAILURE BY THE CUSTOMER TO PERFORM ITS OBLIGATIONS.##(c) SECTIONS 10 AND 11 OF THIS AGREEMENT SHALL APPLY EVEN IN THE EVENT OF A BREACH OF CONDITION, A BREACH OF AN ESSENTIAL OR FUNDAMENTAL TERM, OR A FUNDAMENTAL BREACH OF THIS AGREEMENT.####12. CONTENT##(a) The Customer acknowledges that QSS neither owns nor controls the content, availability, accuracy or any other aspect of the information, data, files, images or content in any format or of any type (collectively referred to as the "Content") uploaded by the Customer or its end users through the App.## ##13. INDEMNITY##(a) The Customer shall indemnify, hold harmless and take up the defence of QSS, its representatives and assignees against any liability in respect of any loss, liability or any damage of any nature whatsoever, and notably any disbursement, including reasonable counsel fees, arising from any and all claims by any third party, including end users and distributors ("Third Parties"), in connection with the use of the App (and related equipment and software) or transmission of the Content by the Customer or any Third Party or the Customer's failure to comply with its obligations under this Agreement. This indemnity shall survive termination of this Agreement.####14. DISPUTE RESOLUTION##(a) In the event of any dispute, disagreement, claim or alleged breach of the provisions of this Agreement (each a "Dispute"), the Dispute shall be referred to the QSS Account Manager, as the case may be, and his or her counterpart at the Customer. If the Dispute is not resolved within fifteen (15) days of the date on which it was submitted for said purpose, it shall then be submitted to the superior of the QSS Account Manager and to the Customer's counterpart. Should the Dispute not be resolved by the office of QSS and the Customer within 30 days of its escalation, the Dispute shall be submitted to arbitration. The arbitration shall be conducted by either (a) an arbitrator selected by agreement of both parties or (b) if the parties are unable to agree on the choice of an arbitrator, by an arbitrator appointed by ACAS. The decision of the arbitrator shall be final and binding upon the parties and the expense of the arbitration shall be paid as the arbitrator determines.##(b) This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales and within the jurisdiction of the UK.####15. TERMINATION AND MIGRATION##(a) Either party may cause this Agreement to be terminated at the end of the Initial Term or at the end of any Renewal Term by notifying the other in writing of such intention no later than Thirty (30) days prior to the end of the Initial Term or the Renewal Term, as the case may be.##(b) The Customer may request the termination of a part or all of the App at the end of the subscription to the expiration of the Initial Term as well during Renewal Terms by providing QSS with a prior written notice, provided the Customer pays QSS, all amounts owed and unpaid under this Agreement; collectively referred to hereinafter as the "Termination Charges". ##(c) If the Customer migrates to a Comparable Service (as defined herein), the Termination Charges may be waived by QSS. A "Comparable Service" is one offered by QSS or one or more of its affiliates, having a duration at least as long as this Agreement, and to which the applicable monthly fees are no lower than those under this Agreement.##(d) Either party may, in its absolute discretion, in addition to all other rights and remedies under this Agreement and in law, immediately terminate this Agreement or suspend delivery of any or all Service by notice to the other prior to the end of the term: for breach by the other of any term of this Agreement, including the failure by the Customer to make full payment of an invoice within 30 days of the issue date of the invoice, provided that the party not in breach provides the other party with notice of the breach and provided that the breach is not remedied within 15 days after the delivery of such notice to such party. ##(e) Either party shall be entitled to terminate this Agreement immediately with notice in the event of the other party's insolvency, receivership or voluntary or involuntary bankruptcy or in the event that QSS ceases to offer the Service. In the event of default by the Customer, any and all payments required to be made to QSS, including but not limited to the Termination Charges, by the Customer shall be due and payable immediately.##(f) Termination of this Agreement shall not relieve the Customer from any liability, including amounts owing, accrued prior to the time that such termination becomes effective.##(g) The minimum number of active licences is the number assigned in this 12 month agreement.######16. CONFIDENTIAL INFORMATION##(a) "Confidential Information" means all information of whatever nature disclosed (whether in writing, orally, in disk form, electronically or by another means and whether directly or indirectly) by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) whether before, during or after the date of this Agreement including, without limitation (i) the Disclosing Party’s products, services, reports, technical knowledge, know-how, methodology, intellectual property rights, data, drawings and other material, operations, processes, plans or intentions or strategies, product information, future products currently in development or about to be launched, design rights, trade secrets, market opportunities and business affairs, product costs and pricing qualities, payment terms, client details and customer account information; and (ii) (in the case of the Customer) Customer’s software and system used to provide its products and services and functionality and capability thereof, and (iii) any of the information referred to in (i) or (ii) of and/or relating to any subsidiaries or member of any group of the Disclosing Party;##(b) Neither party shall use Confidential Information other than solely for the purposes of this Agreement and shall keep the Disclosing Party's Confidential Information confidential and restrict access thereto to such of the Receiving Party's employees, agents or associated companies as need to know it for the purpose of this Agreement and as have been placed under confidentiality obligations and restrictions equivalent to those set out in this Agreement.##(c) The Receiving Party shall (and shall procure that its representatives shall):##(i) Not use or exploit the Confidential Information in any way except for the purposes of this Agreement;##(ii) Not use any of the Confidential Information for any commercial gain or advantage and will not directly or indirectly commercially exploit it or any part of it;##(iii) Not disclose it or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;##(iv) Not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the purposes of this Agreement (and any such copies, reductions to writing or records shall be the property of the Disclosing Party); and##(v) Apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information, which the Receiving Party warrants as providing adequate protection from unauthorised disclosure, copying or use.##(vi) without prejudice to the generality of the foregoing, QSS must not use, onward sell or profit from any of the Customer’s data##(d) Both parties' rights and obligations under this Section survive any expiration or termination of this Agreement by either party for a period of two (2) years.####17. DATA PROTECTION##(a) QSS does not store any data, personal or otherwise, belonging to the customer which is not the actual customer details. ##(b) QSS does store basic information of the customer for order processing and customer records, to include: company name, address and telephone, contact name, email address, direct telephone number. ##(c) QSS will not pass customers’ details on to any third party.##(d) QSS will only use the data to manage the account and contract.##(e) In respect of data about the customer QSS shall be considered the Data Controller.####18. FORCE MAJEURE##(a) Save for the obligation to pay the Recurring Charges and Termination Charges, if the performance of this Agreement is interfered with, in whole or in part, by circumstances beyond the reasonable control of either party including, without limitation: fire, explosion, power failure, acts of God, war, terrorism, revolution, civil commotion, acts of public enemies, law, order, ordinance or requirement of any government or its representative or legal body having jurisdiction, or labour unrest such as strikes, slowdowns, picketing or boycotts, then the party affected shall be excused from such performance on a day by day basis to the extent that such party's obligations relate to the performance so interfered with; provided that the party so affected shall use commercially reasonable efforts to diligently remove such causes of non-performance. Both parties shall have the right to exercise their rights contained within section 15 of this Agreement if such interference continues for a period of 45 days.####19. GENERAL PROVISIONS##(a) Amendment: Except as otherwise provided, neither party may amend this Agreement other than by an instrument in writing executed by the authorised representatives of both parties hereto.##(b) Assignment: The Customer shall not assign or transfer this Agreement, in whole or in part without QSS’s prior written consent, which consent shall not be unreasonably withheld. Except as set forth herein, any attempt by the Customer to assign or transfer this Agreement, in whole or in part, without the prior written consent stipulated herein, shall be null and void. QSS is authorised, subject to prior written notice to the Customer or its authorization, to assign to any QSS affiliate, the rights or obligations incumbent upon it under this Agreement or its interests therein. Where QSS assigns to its assignee its rights, titles and interests as set out hereinabove, the Customer agrees to pay the assignee all the Recurring Charges, Termination Charges and other charges so assigned and owing under this Agreement, unconditionally, without reduction or compensation whatsoever, regardless of any real or alleged cause of action that the Customer has or claims to have against QSS or any other third party. If the Agreement is assigned, the assignee will take on all the rights and obligations of the party which originally signed the Agreement##(c) Entire Agreement: This Agreement constitutes the entire agreement between the Customer and QSS with respect to the subject matter, merging and superseding all prior agreements, understandings and representations on the subject matter. It is expressly agreed that if the Customer issues a purchase order or other document for the Service, such instrument will be deemed to be for the Customer's internal use only and any provisions contained therein shall not amend or be used in interpreting this Agreement.##(d) Enurement: This Agreement shall be binding upon and enure to the benefit of QSS and the Customer and their respective successors and permitted assigns.##(e) Governing Law: This Agreement shall be governed by and interpreted according to the laws in force in England. The parties agree to submit to the exclusive jurisdiction of the UK. ##(f) Interpretation: In this Agreement, the headings are for convenience of reference only and shall not affect its construction or interpretation.##(g) Non Waiver: No waiver of any term or provision or of any breach or default shall be valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any other terms or provision of any subsequent breach or default of the same or similar nature.##(h) Notice: The notices stipulated in this Agreement may be given in writing or transmitted (i) by hand or by certified or registered mail, to the addresses of the recipients set out hereinabove, (ii) by facsimile, or (iii) electronically. Notices sent by facsimile or electronically shall be deemed to have been received upon receipt by the recipient of a bona fide transmission confirmation.##(i) Severability: The invalidity, illegality or unenforceability of any one or more provisions of this Agreement shall not affect or impair any other provisions of this Agreement.##(j) Employment Solicitation: For the duration of this Agreement, and for a period of 1 year following termination of this Agreement, the parties agree not to solicit the employment of any employee of the other party.## ####APPENDIX 1##(i) Number of licences on annual contract: as invoiced##(ii) Licences charged at rate shown on invoice##(iii) Full payment for 12 months due by contract start date##(iv) Contract start date: as shown on invoice##(v) The DataPro Tools application gives the customer the ability to comply with GDPR rules as below.####GDPR requirement: Data can only be processed if you have a lawful basis for doing so##DataPro Tools solves by:##• Ability to store the relevant lawful basis against every contact name. ##• Requirement to set an expiry date to enable users to know when they can no longer rely on the stored lawful basis.##• Search/update function to easily find contacts which should have privacy details updated####Implied GDPR requirement: justification if an individual complains about unlawful processing ##DataPro Tools solves by:##The lawful basis information includes a field for Additional Information, this should contain all pertinent information to prove that the lawful basis was valid. Eg For consent this should include how the consent was gained, for Legitimate Interest it should contain why you think it is Legitimate Interest.####GDPR requirement: Withdrawn consent ##DataPro Tools solves by:##Withdrawn date field. Once set this means the contact will show with that lawful basis being not valid. If there is no other valid lawful basis then the record must be deleted (manually).####GDPR requirement: Deleted records ##DataPro Tools solves by: ##On deleting a contact name, the app takes an encrypted copy off-line to enable you to prove that a certain record was deleted. The encrypted data cannot be decrypted.##Prevention of accidentally importing a name on a new list that was previously deleted: Function to screen selected records against the deleted log and subsequent option to delete the newly imported record.
