Parties & Background
- LICENSOR: Safe4 Information Management Limited incorporated and registered in England and Wales with company number 07270144 whose registered office is at Unit 1, Kingsmill Park, Loudwater, Buckinghamshire, HP10 9UB (Company).
- LICENSEE: Party making application as a company, individual or other legal entity through Licensors ordering process for use of the Licensors Digital Inheritance Vault designed for members of the Society of Will Writers and Estate Planning Practitioners (SWW), which Party’s name and address is as submitted in the ordering process (Member)
Each a Party and together the Parties. Whereas
A. The Company is in the business of enabling delivery of electronic documents into a secure online vault accessible by authorised parties via the internet.
B. The Member is a fully paid up member of the SWW and wishes to implement a system of managing certain documents relating to its business with clients through the Digital Inheritance Vault approved by the SWW and licensed by the Company.
C. The terms and conditions set out below are agreed as a result of the Member submitting an order and direct debit authorisation through the Company’s ordering process and the Company accepting the order by applying for and receiving a payment under the direct debit authority.
1. Definitions and Interpretation
1.1 The following definitions apply in this licence.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Client: A customer of the Member
Confidential Information: Information that is proprietary or confidential and is either clearly labelled as such or which may reasonably be expected, by its nature, to be Confidential Information. For the avoidance of doubt, without limitation, a document or file uploaded to the Digital Inheritance Vault (or any Product provided under the Agreement) shall be regarded as confidential to the Member and/or any Client.
Control: the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract, agreement or otherwise.
Digital Inheritance Vault: A Product of the Company comprising a Vault with folder structure and other configuration approved by the SWW.
Effective Date: the date when Company receives first payment from the Member.
EULA: the End User Licence Agreement in the form described in Schedule 2.
Intellectual Property Rights: means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same and whenever arising, registered or applied to be registered including, without limitation, copyright, database rights, design rights, patents, trademarks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information.
Legislation: any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, Monday to Friday, excluding public holidays.
Member: The Licensee
Products: all or any part(s) of any products and support services of the type and specification listed in Schedule 1, Part 1 [and the associated documentation relating to each of them] together with any other products and support services [and related documentation] developed by the Company and which the Company may permit the Member, by express notice in writing, to use pursuant to this agreement.
Regulatory Body: those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of Member or otherwise, are entitled by any applicable law to supervise, regulate, investigate or influence the matters dealt with in this Agreement in relation to the Member).
Territory: Clients of the Member
Trade Marks: the trade mark registrations and applications identified in Schedule 4 together with any further trademarks which the Company may permit or procure permission for the Member by express notice in writing to use in respect of the Products.
User: a user of the Products authorised by the Member or its permitted Client including staff of the Member or Client
Vault: An area reserved on the Safe4 system to store electronic document files for Clients in a secure online methodology with a pre-defined folder structure.
Year: the period of 12 months from the Effective Date and each consecutive period of 12 months thereafter during the term of this agreement.
1.2 In interpreting this licence:
(a) References to clauses, paragraphs or schedules are to the clauses, paragraphs of and schedules to this licence.
(b) Headings are for convenience only and shall be ignored in interpreting this licence.
(c) Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders
2.1 The Company hereby licences the Member to use the Products and permit Clients in the Territory to use the Products on the terms of this agreement.
2.4 For the avoidance of doubt the Member is not an agent of the Company
2.5 The Member shall not without the Company’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Products which are inconsistent with those contained in the website and promotional material supplied by the Company (including, without limitation, the EULA) or otherwise incur any liability on behalf of the Company.
2.6 The Member shall not sell or licence any of the Products through a sales agent or to a sub-distributor or reseller outside the Territory without the express written permission of the Company.
2.7 Other than the licence referred to above, Company does not transfer any right, title or interest to any Products to the Member or its customers. Use of the terms “sell”, “license”, “purchase”, “licence fees” and “price” will be interpreted in accordance with this clause.
3. Supply of Products
3.1 The Company shall supply in the agreed form:
(a) From the Effective Date or another date by agreement, the latest version of the Products; and
(b) during the term of this licence, such updates or new releases to the Products as such updates or new releases become commercially available for the products listed in Schedule 1.
3.2 The Company is entitled upon giving 12 months’ written notice to the Member to vary schedule 1 to exclude from this agreement one or more of the Products as it thinks fit if for any reason the production of such Product has been permanently discontinued.
3.3 The Company is entitled to make changes to the Specification which do not adversely affect the Products and shall give notice of such changes to the Member as soon as reasonably practicable by email or website blog post.
3.4 Supply of Products by the Company is subject to special conditions and any reasonable use condition specified in Schedule 1.
4. Prices and Payment
4.1 The prices to be paid by the Member to the Company for the Products are to be the Company’s prices as shown in Schedule 1, and as amended by the Company from time to time. The Company shall give the Member 28 days’ notice of any rises in the prices of the Products.
4.2 The Company will invoice the Member annually in advance for each Digital Inheritance Vault at the Company’s prices as shown in Schedule 1, and as amended by the Company from time to time.
4.3 The Member shall pay the full amount invoiced to it by the Company [in pounds sterling] by direct debit at the request of the Company. If the direct debit request is refused or not paid in full, the Company shall have the right to represent the direct debit request and if payment is not received by the Company within 28 days, the Member shall be in material breach of this agreement and the provisions of paragraph 12.3(d) below shall apply.
4.4 If a Party believes a reasonable use condition may be breached, it will notify the other Party so that action may be taken to either:-
(a) Remedy the breach within 30 days; or
(b) Raise an invoice on the Member for additional charges as set out in Schedule 1.
4.5 The Member shall not be entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to the Company.
5. Advertising and Promotion
5.1 The Member shall:
(a) be permitted to advertise and promote the Products provided that the use by the Member of any advertising materials and promotional literature containing the Trade Marks or other references to the Products shall be in accordance with the policy of the Company as advised from time to time;
(b) observe all directions and instructions given to it by the Company in relation to the promotion and advertisement of the Products to the extent that such promotions or advertisements refer to the Products or otherwise use the Trade Marks, and shall not make any written statement as to the quality or manufacture of the Products without the prior written approval of the Company;
6. Intellectual Property Rights
6.1 All Intellectual Property Rights in and to the Products belong, and shall belong, to the Company and/or its licensors.
6.2 The Member shall, at the expense of the Company, take all such steps as the Company may reasonably require to assist the Company in maintaining the validity and enforceability of the Intellectual Property Rights of the Company during the term of this agreement.
6.3 The Member shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Company and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
6.4 The Company makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Products and the Trade Marks nor as to whether the same infringe on any Intellectual Property Rights of third parties.
6.5 The Company grants to the Member a non-exclusive, revocable, personal licence (subject to the terms and conditions of this licence and during its term and solely for the purposes of performing the Member’s obligations under this licence) to:
(a) use the Products for internal use at the Member’s premises and for the purposes of demonstrating, marketing and selling the Products to Clients; and
(b) use the Trade Marks on or in relation to the Products for the purpose of the promotion, advertisement and sale of the Products.
6.6 The Member shall not:
(a) copy the Products or any part of any of them except to the extent and for the purposes expressly permitted by this agreement;
(b) modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Products.
6.7 The Member shall ensure that each reference to, and use of, any of the Trade Marks by the Member is in a manner approved from time to time by the Company and accompanied by an acknowledgement in a form approved by the Company that the same is a trade mark (or registered trade mark) of the Company.
6.8 The Member shall not:
(a) use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Company therein;
(b) use in relation to the Products any trademarks other than the Trade Marks without obtaining the prior written consent of the Company; or
(c) use any trademarks or trade names so resembling any trade mark or trade names of the Company as to be likely to cause confusion or deception.
6.9 Other than the licences expressly granted under this agreement, Company does not grant any licence of, right in or make any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Member shall have no rights in respect of any trade names or trademarks used by the Company in relation to the Products or their associated goodwill, and the Member hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, the Company.
6.10 At the request of the Company, the Member shall do or procure to be done all such further acts and things (including the execution of documents) as the Company shall require to give the Company the full benefit of this agreement.
6.11 Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.
7. Confidential Information
7.1 Each Party may have access to Confidential Information of the other under this agreement. Confidential Information shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party’s lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.2 Each Party shall hold the other Party’s Confidential Information in confidence and, unless required by law, not make the Confidential Information available to any third party or use the Confidential Information for any purpose other than the implementation of this agreement.
7.3 Each Party agrees to take all reasonable steps to ensure that the Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
7.4 For the avoidance of doubt documents and files uploaded to folders not designated as a Clients private area of the Vault are Confidential Information of the Member and of the Client and will not be viewed, accessed or processed by the Company, its employees or agents without the express written permission of the Member. Files uploaded to folders designated as a Clients private area of the Vault are not regarded as Confidential Information of the Member.
7.5 For the avoidance of doubt documents and files uploaded to folders designated as a Clients private area of the Vault are Confidential Information of the Client and will not be viewed, accessed or processed by the Company ,the Member, their employees or agents without the express written permission of the Client or as determined in paragraph 14 below.
7.6 This clause 7 shall survive termination of this agreement for any reason.
8. Audit & Inspection
8.1 The Company shall allow the Member, any auditors or other advisors to the Member and/or any Regulatory Body, by its duly authorised representatives upon reasonable prior notice to the Company from time to time, and at the member’s cost, to access any of the Company’s premises, personnel and relevant records (including electronic records) as may reasonably be required in order to fulfill any request by any Regulatory Body, provided, where such access or audit is requested by a Regulatory Body: (a) the Company shall promptly notify the Member in writing, together with a copy of any such request; and (b) not permit or grant such access or audit to take place until the Company has afforded the Member a reasonable period of time to consider any such request (wherever practicable) and obtained the prior written consent of the Member before such access or audit takes place (other than where the Company is required by law to permit such access or audit to be granted in any event without such consent). To the extent permitted by law, the Company shall consult meaningfully with the Member in relation to any request for access or audit by a Regulatory Body and implement any reasonable limitations upon the conditions and scope of any such access or request requested by such Regulatory Body.
8.2 The Company shall provide its full co-operation and assistance in relation to any reasonable request by the Member and/or any Regulatory Body but only to the extent necessary to ensure and/or verify the Member is complying with applicable law and any codes of Member issued by a Regulatory Body.
9. Protection and Processing of Personal Data
9.1 Each Party to this Licence shall comply with its respective obligations under the provisions of the Data Protection Act 1998 (Act). The Member shall be regarded as the Data Controller and the Company as the Data Processor.
9.2 Where the Company processes personal data (as defined in the Act) on behalf of the Member, the Company shall:
(a) process such data solely in accordance with the Member’s instructions from time to time (consistent with its duties under the Act);
(b) implement, employ and maintain throughout the Term appropriate technical and operational measures for keeping data, both in terms of the technology used and how it is managed, secure, having regard to the state of technological development and the cost of implementing any measures, the measures must ensure a level of security appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage. In addition, the Company will provide the Member, at the Member’s reasonable cost, with any assurance in respect of the security of any personal data processed by the Company as may reasonably be required by the Member to comply with its obligations under the Act; and
(c) shall not transfer or process any personal data (as defined in the Act) outside the European Economic Area (EEA) without the parties’ prior written consent.
9.3 The Company shall cooperate with the Member and will on reasonable request by the Member, meet with the Member (or its nominated third party supplier) to discuss the appropriate technical and organisational measures by which personal data may be kept secure and up to date. The Company shall use its best endeavors to enable the Member to ascertain and monitor compliance by the Company with its obligations under this Clause including allowing the Member, the SWW and/or the Member’s auditors to have access to any processes, procedures, documentation, and/or any premises where processing of personal data is carried out.
9.5 The Company shall , on request , provide information regarding back-up of the Confidential Information and any business continuity arrangements and all such commercially prudent options that the Member may be able to take in order to mitigate the risk of any loss of such Confidential Information
9.6 The Company shall:
(a) ensure that only those employees of the Company and its permitted contractors, who are required by the Company to assist it in providing the Products under this Agreement, shall have access to personal data. In addition, the Company shall ensure that all employees used by it to provide the Products have undergone training (and receive on-going training as required) in data protection law and in the care of handling personal data; and
(b) not, without the prior written consent of the Member, divulge any personal data to any person, firm or company, or make use of it, unless disclosure or use is required to comply with a statutory obligation or order of court and only after the Company has (where reasonably practicable) notified the Member of the intended disclosure.
9.7 All data, including personal data, processed by the Company whilst providing the Products to the Member is, and shall remain, under the exclusive ownership of the Member and/or the Client, as appropriate.
9.8 The Company shall immediately notify the Member of any accidental, unauthorised or unlawful access, loss, destruction, theft, use, disclosure or alteration of any data, including personal data or other Confidential Information, or any other non-compliance with this Clause. The Company shall promptly provide the Member with a detailed written report setting out the reasons for the accidental, unauthorised or unlawful access, loss, destruction, theft, use, disclosure or alteration of personal data or other Confidential Information or other non-compliance with this Clause. Under no circumstances will the Company report any such occurrence to the Information Commissioner’s Office or to any other law enforcement body unless instructed to do so by the Member, unless it is required to do so by applicable Legislation.
9.9 The Company shall immediately pass to the Member any requests, notices or other communications from data subjects, the Information Commissioner’s Office or any other law enforcement body it receives, for the Member to respond. The Company shall, at the Member’s reasonable cost, provide the Member with such assistance as the Member may reasonably require, and within the timescales reasonably specified by the Member, to enable the Member to respond.
9.10 The Company shall not transfer or permit any transfer of personal data to any third party unless the Member provides its prior written consent.
10.1 Each party represents warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) it shall comply with all applicable Legislation in the performance of its obligations under this agreement.
10.2 The Company warrants to the Member that the Products supplied or licensed by it under this agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the applicable part(s) of specifications published by the Company.
11. Limitation of Liability
11.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Member in respect of:
(a) any breach of this agreement; and
(b) any representation, statement or tortious act or omission (including without limitation negligence) arising under or in connection with this agreement.
11.2 Except as expressly and specifically provided in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
11.3 Nothing in this agreement excludes the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 The Company shall not be liable for:
(a) loss of profits; or
(b) loss of business; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of goods; or
(f) loss of use; or
(g) loss or corruption of data or information not directly caused by a fault in the Products; or
(h) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.5 The Company shall during the term of this Agreement maintain cyber liability, privacy liability, system business interruption, professional indemnity and loss mitigation insurance cover in respect of its liabilities arising out of or connected with this Agreement, such professional indemnity and cyber liability cover to be to a minimum value of £2,000,000 and with a reputable insurance company. The Company shall on request supply copies of the relevant certificates of insurance to the Member as evidence that such policies remain in force. The Provider undertakes to use reasonable commercial efforts to pursue claims under such insurance policies
11.6 The Company’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount actually paid by the Member to the Company under this agreement in the 12 months preceding the date on which the claim arose.
11.7 In the event of any breach of the Company’s warranty in clause 10.2 (whether by reason of defective materials, production faults or otherwise) the Member’s sole remedy and the Company’s only obligation and liability to the Member shall be for the Company to:
(a) replace the Company Product in question; or
(b) at the Company’s option, repay any price paid for the Company Product.
12. Term and Termination
12.1 This agreement shall commence on the Effective Date and shall continue for a period of one year (the “Initial Term”), unless otherwise terminated as provided in this agreement. This agreement shall continue indefinitely after the Initial Term unless and until either party notifies the other in writing that it wishes to terminate the agreement, giving the other at least six months notice, such notice ending at any time after the end of the Initial Term.
12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(f) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt;
(g) the other party ceases, or threatens to cease, to trade.
12.3 Without prejudice to any other rights or remedies to which the Company may be entitled, the Company may terminate the agreement without liability to the Member if:
(a) there is a change of Control of the Member; or
(b) the Member challenges or disputes the validity of any of the Company’s Intellectual Property Rights; or
(c) the Member purports to assign any of its rights or obligations under this agreement without prior written consent of the Company.
(d) the Member fails to make payment in full within the appointed time to the Company for invoices due under Clause 4 and being advised in writing of such failure does not make payment in full within 28 days of being advised.
(e) the Member cancels a direct debit authority without replacing it with an alternative payment method within 28 days with the written agreement of the Company
13. Effects of Termination
13.1 Upon termination or expiry of this agreement for any reason:
(a) the Member shall stop using the Products and the licence granted at clause 2 will terminate immediately;
(b) Unless otherwise agreed in writing by the Parties, the Company shall continue to hold all documents and files stored in the Members Vaults for a period of three months from termination. At the end of such period, or earlier by agreement between the Parties, the Company shall provide the Member, on computer hard disk or a similar suitable computer readable medium at the Members cost, a copy of all such documents and files contained in folders not designated as a Clients private area of the Vault.
(c) As permitted by clause 15 below, the Company shall be entitled to offer, either directly or through a third party, continued access to all documents and files in the Vault to Clients. If such an offer is not taken up by or on behalf of any Client within a reasonable time, the Company shall then delete the documents and files from all storage locations within 28 days of the expiry or 28 days from the expiry of any period covered by a prepaid annual licence.
(d) the Member shall promptly return to the Company, or otherwise dispose of as the Company may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to or created by the Member and relating to the Company’s business (other than correspondence which has passed between the parties) which the Member may have in its possession or under its control; and
(e) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced;
(f) Subject to the foregoing provisions of this clause 13.1, all rights and licences of the Member under this agreement shall terminate.
13.2 The termination of this agreement shall not of itself give rise to any liability on the part of the Company to pay any compensation to the Member for loss of profits or goodwill, to reimburse the Member for any costs relating to or resulting from such termination, or for any other loss or damage.
13.3 In the event of termination following breach by the Company under clause 12.2, and in the event that the Company cannot procure a replacement provider at no additional charge for the Products, Company shall refund Member for the unexpired portion of any annual licenses already paid for by the company pro-rata for every full month remaining, offset by any other amounts due from the Member to the Company.
13.4 In the event of termination following breach by the Member under clause 12.2 or 12.3, the Member shall waive any and all entitlement to refund of the unexpired portion of any licenses.
14. Death or Incapacity of Client
14.1 In the event of the death or incapacity of a Client as evidenced by the production to the Company of a valid death certificate, power of attorney or other form of evidence as shall be deemed acceptable at the sole discretion of the Company:
(b) The Company shall notify the Member of the access given and the contact details of the nominated person.
14.2 Before complying with any request as described in 14.1, Company shall be entitled to collect any amounts due to it from the Member in respect of the Client’s Vault and a fee for service as approved by the SWW from time to time, failing which the Company shall be entitled to deny the request.
15, Change in circumstance of Member
15.1 If the Member should cease to be a fully paid up member of the SWW the Company shall be entitled upon 28 days’ notice to increase prices to the Member and to remove the SWW logo and other styling from the Members account.
15.2 In the event the Company terminates the licence under Paragraph 12.2 or clause 12.3 (b), (c) or (d), the Company shall be entitled to contact the Clients using confidential or personal information contained in the Vault and offer arrangements for continuation of the Digital Inheritance Vault service without liability or compensation to the Member.
15.3 In the event the Company terminates the licence under clause 12.3(a), the Company shall offer the Member or its successors a new licence at terms no less favourable to the Company than the terminated licence. If such a licence is not agreed within 28 days, then the Company shall be entitled to contact the Clients using confidential or personal information contained in the Vault and offer arrangements for continuation of the Digital Inheritance Vault service without liability or compensation to the Member or its successors.
15.4 If the member ceases to operate and none of clauses 15.1, 15.2 or 15.3 apply the Company shall be entitled to contact the Clients using confidential or personal information contained in the Vault and offer arrangements for continuation of the Digital Inheritance Vault service without liability or compensation to the Member or its successor.
16. Force Majeure
16.1 A party, provided that it has complied with the provisions of clause 13.2, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement (and, subject to clause 13.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event).
16.2 In the event of either party being so hindered or prevented, the party concerned shall give notice of suspension as soon as reasonably possible to the other party stating the date and extent of the suspension and its cause, and the omission to give such notice shall forfeit the rights of that party to claim suspension. Any party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the cause and shall so notify the other party.
16.3 If the Force Majeure Event prevails for a continuous period of more than six months, either party may terminate this agreement by giving 28 days’ written notice to the other party. On expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
17.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
18.1 If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19. Pre-Contractual Statements
19.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
19.2 Each party acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in this agreement.
Save as expressly provided in this agreement, no amendment or variation of this agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.
21.1 The Member shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement (except that the Company’s consent shall not be unreasonably withheld in respect of any assignment, transfer or subcontract to any related company of the Member).
21.2 The Company 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 this agreement.
22. No Agency or Partnership
Nothing in this agreement is intended to or shall operate to create an agency, partnership or joint venture relationship between the parties.
23. Third Party Rights
This agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Any notice under this agreement must be in writing and must be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in this agreement or such other address as may have been notified by that Party for such purposes, or sent by email to the other Party to an address as may have been notified by that Party for such purposes. A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
25. Governing Law and Jurisdiction
25.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England.
25.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).
Schedule 1: Products & Price
Product: Safe 4 Digital Inheritance Vault
Payment & Price
- Set up of Member’s Provider Account, including 10 Digital Inheritance Vaults, initial training and ongoing web based support:
- Plus VAT
- Payment in advance by Direct Debit
- Within each provider account set up for a SWW member:-
- Up to 1,000 Vaults: £14.00 per Vault per year
- 1,001 to 2,000 Vaults: £13.10 per Vault per year
- 2,001 to 3,000 Vaults: £11.80 per Vault per year
- 3,001 to 4,000 Vaults: £10.40 per Vault per year
- 4,001 to 5,000 Vaults: £9.30 per Vault per year
- 5,001 Vaults and above: £8.40 per Vault per year
- Plus VAT
- Invoiced monthly in advance by Direct Debit
- Safe 4 Provider and Client user licences
- Free of charge, subject to reasonable use condition below
- Company shall not increase prices to Member before the first annual anniversary of the Effective Date of this licence, when the Company shall have the right to increase the price of any Product by the proportionate change in the Consumer Price Index + 1%.
- Thereafter, the Company may, at 28 days notice, and not before the anniversary of the previous price increase, increase the price of any Product by the proportionate change in the Consumer Price Index + 1% per annum.
- Prices for services payable in advance and for which Company has received payment before notification of any price increase to Member shall not be subject to retrospective price variation.
Reasonable Use Condition
Prices are based on reasonable use of the Safe4 system which shall be determined by the Company after discussion with the SWW and shall follow these guidelines:-
· Up to 1 Gigabyte (Gb) of storage space per Vault
· No limit to the number of documents stored within a document Vault.
· Avoidance of usage patterns which degrade the performance of the Safe4 system for the Customer and Clients
Charges for unremedied excessive use of the system will be:-
· £1 per Gb per month for storage space in excess of 1Gb per Vault.
· Plus VAT
Schedule 2: Safe4 Terms & Conditions of Use
Safe4 may amend T&C and PP at any time without notice.
A summary of the main provisions is:-
Safe4 is a set of online document and file storage services which allows customers and their authorised users (Users) to store files online, access them remotely, share them with other authorised users and to download them. By using Safe4 website(s) A User agrees to be bound by the T&Cs. If User does not accept the T&Cs, User is not authorized to use Safe4 websites and should leave and discontinue use of Safe4.
Safe4 Ltd may modify T&Cs from time to time and such modification shall be effective upon posting by Safe4 Ltd on the Safe4 Ltd Websites.
User Licence (EULA): www.safe-4.com requires the User to access via a secure log-in facility based upon User Name, Password and other security features which may be in use from time to time. Safe4 Ltd licences the User to use Safe4 following each successful log in, subject to the following terms:-
- Prohibited Use: Use of Safe4 is not permitted where prohibited by law.
- User Warranty: By logging in or using Safe4, User represents and warrants that User is duly authorised and will act according to law, will keep access information secure and confidential and be solely responsible for his use.
- Restricted Usage: This includes criminal or other illegal activity, advertising to or solicitation of others, automated use of Safe4 without permission, impersonation or harassment of others or allowing unauthorised access to security details.
- Rights to Upload: User warrants that it has sufficient ownership rights or permissions to upload documents or files to Safe4, and accepts reasonable limitations on materials which can be uploaded covering obscenity and other unlawful purposes.
- Safe4 responsibility and rights: Safe4 has responsibility and rights to manage the Safe4 system and User grants such rights as applicable.
- Copyright Policy: User may not share, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. Safe4 reserves the right to terminate access privileges of any User who repeatedly infringes the copyright
- Resellers: Members as Resellers are bound by T&Cs, will ensure Clients are bound and will not authorise Clients to resell Safe4 services.
- Termination: Safe4 entitled to terminate supply to Client for reason including non payment by Member to Safe4
- Indemnity: Safe4 indemnified against breach.
- Limitation of Liability : Circumstances of Safe4 limitation of Liability
Other Schedules: Territory, Terms and Service Levels
Clients of the Member in the normal course of business.
Logos and representations of Safe4 Information Management Ltd:
Schedule 5: Service Levels
5.1 Safe4 Availability
- Safe4 targets a 100% uptime during the UK business day and a 99% uptime overall
- Uptime is defined as availability of Safe4 to internet access and proper operation of the Safe4 system. Broadband outage and other network issues cannot be the responsibility of the Company.
5.2 Safe4 Support
- Next business day email support and advice to all users via firstname.lastname@example.org
- Same day telephone support to designated Member Users by agreement
5.3 Software Issues
- Resolution of notified software defects according to the following table
|Category||Nature of Defect||Response|
|1||Prevents usage of system for entire or majority of user population and no workaround available||Best endeavours for resolution as soon as possible. Within the UK business day, target 2 hour response and maximum 4 hour response|
|2||Prevents usage of the system for entire or majority of user population and there is an acceptable workaround or a minor element of the population without an acceptable workaround||Reasonable endeavours for resolution as soon as possible. Within the UK business day, target 4 hour response and maximum 8 hour response|
|3||Prevents usage of the system for a minor element of the population and there is an acceptable workaround||Reasonable endeavours for resolution as soon as possible. Target for resolution to be agreed within one UK business day.|
|4||Does not prevent usage of system but would enhance system operation||Subject to separate definition and inclusion in periodic software upgrade at Safe4 option|
- Support calls to be initiated by emailing email@example.com , quoting “Cat1”, “Cat2”, “Cat3”, or “Cat4”, as defined in the table in 3.2 above with a description of the problem and contact details of the person requesting support.
- “Cat 1” calls also to be notified as soon as possible by telephone to 0845 094 8045 and by email to firstname.lastname@example.org or such other contact points as may be notified from time to time.
5.4 Data Centre location in UK and security
- Company will store documents and files in UK data centres under the jurisdiction of English or Scottish law and accredited to ISO 27001 2005 security standard.
- Company will provide details of location and jurisdiction of data centres to Member on a confidential basis on request.
- Company will provide timely information to Member in the event of any security breach including information on corrective action.
- Company will provide details of steps to improve data security to Member on a confidential basis on request.
- Company will carry out an annual security audit.