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Please read these Terms of Business (“Terms”, “Terms of Use") carefully before using https://www.spectre.uk.com/ (the “Service”).
These Terms explain how you may use the Service. The Terms apply to all visitors, users and others who access the Service.
By accessing or using the Service or otherwise indicating your consent, you agree to be bound by these Terms and the documents referred to in them.
If you do not agree with or accept any of these Terms, then you may not access the Service and you must stop using the Service immediately.
The definitions and rules of interpretation in this clause apply in these Terms:
"Account Set Up" such uploading of Customer Data and associated services and configuration as may be set out in the Subscription Agreement or agreed between us to prepare you for use of the Service;
"Applicable Laws" means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which we are subject.
"Applicable Data Protection Laws" means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which we are subject, which relates to the protection of personal data.
"Billing Period" the period commencing on the Effective Date or monthly anniversary of the Effective Date and ending on the day prior to the following monthly anniversary;
"Business Day" a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
"Commencement Date" the date your Subscription Agreement commences, as set out in the Subscription Agreement;
"Confidential Information" information that is:
(a) proprietary or confidential and is either clearly labelled as such; and/or
(b) identified as Confidential Information in clause 14.4.
"Customer Data" the data inputted by you or your employees, or by us on your behalf for the purpose of using the Service or facilitating your use of the Service and any data generated by, or derived from your use of the Service, whether hosted or stored within the Service or elsewhere.
"Customer Material" the content you incorporate in any Website, which may include your trading name(s) and logos.
"Customer Personal Data" any personal data which we process in connection with a Subscription Agreement, in the capacity of a processor on your behalf.
"Effective Date" the date on which your Subscription Term commences, as specified in the Subscription Agreement.
"EU GDPR" the General Data Protection Regulation ((EU) 2016/679).
"Force Majeure Event" acts, events, omissions or accidents beyond a party’s reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network or third party internet providers, Virus, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors;
"Initial Subscription Term" the minimum term of a User Subscription before you can terminate the User Subscription, as set out in your Subscription Agreement;
"Intellectual Property Rights" rights such as: copyright, trade-marks, domain names, design rights, database rights (including but not limited to market data obtained through your use of the Service), patents and all other intellectual property rights of any kind whether or not they are registered or unregistered (anywhere in the world).
"Normal Business Hours" 9:00 am to 5:30 pm local UK time, each Business Day;
"Renewal Period" the period described in clause 17.1;
"Subscription Agreement" the document between you and us that sets out the specific commercial terms of the Service to be provided to you through your User Subscription, including a description of the Service, the Initial Subscription Term and the fees payable in respect of the Service;
"Subscription Fees" the subscription fees payable by you to us for the User Subscription, as set out in the Subscription Agreement;
"Subscription Term" means the term of your User Subscription commencing on the Effective Date;
"Support Services" means our maintenance of the Service, as detailed in the Annex to these Terms of Use;
"UK GDPR" has the meaning given to it in the Data Protection Act 2018.
"User Subscription" the user subscription purchased by you pursuant to clause 4.1 which entitles you access and use of the Service in accordance with these Terms and your Subscription Agreement;
"Virus" any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
"we" means Agent Software Ltd company registration number 09751817 and the registered office of which is at 3rd Floor, North Square, 11-13 Spear Street, Manchester, M1 1JU, and "us" or "our" shall have the same meaning;
"Website" any website or websites that may be created as part of the Service;
"Website Software" any software that may be used to create, develop and operate the Website; and
"you" means the person accessing or using the Service, and "your" shall have the same meaning.
Clause headings do not affect the interpretation of these Terms.
In the event of any conflict in respect of the provisions of these Terms and your Subscription Agreement, the following order of priority will prevail (in descending order of priority):
2.3.1 the Subscription Agreement;
2.3.2 these Terms.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular include the plural and words in the plural include the singular.
A reference to a statute or statutory provision is a reference to it as it is in force from time to time.
A reference to a statute or statutory provision includes all subordinate legislation made as at the Effective Date under that statute or statutory provision.
A reference to writing or written includes e-mail but not faxes.
References to clauses are to the clauses of these Terms.
Subject to:
3.1.1 you purchasing a User Subscription in accordance with clause 4.1;
3.1.2 the restrictions set out in this clause 3; and
3.1.3 the other conditions in these Terms and your Subscription Agreement,
we hereby grant you a non-exclusive, non-transferable right to use the Service during the Subscription Term solely for your internal business operations.
You must not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Service that:
3.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.2.2 facilitates illegal activity;
3.2.3 depicts sexually explicit images;
3.2.4 promotes unlawful violence;
3.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.2.6 is otherwise illegal or causes damage or injury to any person or property,and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
You must not:
3.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between parties and except to the extent expressly permitted under these Terms:
3.3.2 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means; or
3.3.3 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service; or
3.3.4 access all or any part of the Service in order to build a product or service which competes with the Service; or
3.3.5 attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 3.
You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify us.
You will pay the Subscription Fees to us for your User Subscription in accordance with this clause 4 and your Subscription Agreement. You acknowledge and agree that while you will start making payments of the Subscription Fee from the Effective Date, payment of the Subscription Fee is not conditional on reaching the Effective Date (nor are you able to terminate this Subscription Agreement before the Effective Date) and the provision of clause 18.5 applies.
Prior to the Effective Date, and subject to clause 4.3, you must provide to us a valid and complete direct debit mandate, along with any other relevant, valid, up-to-date and complete contact and billing details.
If you provide a direct debit mandate to us, you hereby authorise us to:
4.3.1 charge the relevant account for the Subscription Fees on or after the Effective Date;
4.3.2 arrange a direct debit from that account to pay the invoice(s) relating to your Subscription Fee for each Billing Period.
4.3.3 charge the relevant account for any additional fees incurred whilst using the Service. This includes payment for product features that incur metered billing charges, as referenced in your Subscription Agreement.
In the event we do not receive any payment due under clause 4.3, we will issue you an electronic invoice requiring full payment for the corresponding outstanding invoice(s).
Without prejudice to any other rights and remedies we may have, if we have not received payment under clause 4.4 within the time frame specified on the electronic invoice:
4.5.1 we may, without liability to you, disable your password, account and access to all or part of the Service and we will be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid;
4.5.2 interest will accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of our bankers in the UK from time to time (excepting where the appropriate base lending rate is less than 0%, in which case interest will accrue at 4%), commencing on the due date and continuing until fully paid, whether before or after judgment;
4.5.3 recover from you our reasonable costs in respect of collecting the outstanding monies; and
4.5.4 as we and Street Systems Ltd are both party of the same “Street” group of companies, Street Systems Ltd. may seek to recover any such payment from you and (if relevant) your access to Street Systems Ltd.’s products and services may be suspended until such payments are received.
All amounts and fees stated or referred to in these Terms and the Subscription Agreement:
4.6.1 are payable in pounds sterling;
4.6.2 are, subject to clause 13.3.2, non-cancellable and non-refundable;
4.6.3 are exclusive of value added tax, which will be added to such amounts and fees at the appropriate rate.
Unless agreed otherwise in the Subscription Agreement, we shall be entitled to increase the Subscription Fees in line with the Retail Prices Index upon thirty (30) days' prior notice to you, but only once in any twelve (12) month period, and the Subscription Agreement shall be deemed to have been amended accordingly.
We will, during your Subscription Term, provide and make available the Service to you on and subject to these Terms and your Subscription Agreement.
We will use commercially reasonable endeavours to make the Service (including any Website) available 24 hours a day, seven days a week, except for planned and/or unscheduled maintenance; and we will use reasonable endeavours where possible to give you reasonable notice in advance of any such maintenance.
Clause 5.2 does not apply to the extent of:
5.3.1 any non-conformance which is caused by your improper use of the Service; or
5.3.2 any use of the Service by you that is contrary to our instructions or guidance issued by us.
Notwithstanding clause 5.2, we:
5.4.1 do not warrant that your use of the Service will be uninterrupted or error-free, or that the Service, and/or the information obtained by you through the Service, will meet your requirements; and
5.4.2 are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks (including but not limited to any API feed) and facilities, including the internet,
and you acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such online systems and services.
Where the Service has not been available in accordance with clause 5.2 (and clause 5.3 or clause 5.4 do not apply) for 99% of the time in any month of the Subscription Term, you will be credited in the immediately following month, five percent (5%) of the monthly Subscription Fees. The provision of this service credit is agreed between us to be an estimate of potential loss for you under the Subscription Agreement and shall be your sole and exclusive remedy for any failure of the Service under clause 5.2.
Following the Commencement Date, we will use commercially reasonable endeavours to provide Account Set Up. You acknowledge and agree that you will co-operate with us in all matters relating to Account Set Up, including but not limited ensuring that any Customer Data to be migrated to the Service is in such format and condition as can be migrated to the Service.
We shall use reasonable endeavours to meet any performance dates specified in the Subscription Agreement for the Account Set Up but these dates are estimates only and time is not of the essence for the performance of the Account Set Up.
We will provide you with our standard customer Support Services during Normal Business Hours as part of the Service as detailed in the Annex to these Terms of Use. At our sole discretion, we may offer additional customer support services on Saturdays, Sundays and Bank Holidays.
We hold and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under these Terms.
Where your use of the Service involves our email marketing function, the following provisions shall apply.
Where your Subscription Agreement sets out that your Subscription Fee is based on a number of unique contacts within the Service (our “Fair Usage Policy”), we reserve the right to monitor your contact volume and usage to ensure compliance with the Fair Usage Policy. If you are found to have exceeded the Fair Usage Policy, we reserve the right, acting reasonably, to increase your Subscription Fee in accordance with our email marketing pricing model.
If your use of the Service involves the direct mail function, you are not permitted to reduce the number of postcode sectors within your account during the term of the Subscription Agreement. All additional postcode sectors added during the Initial Subscription Term will be added for the remainder of the Initial Subscription Term on an annualised pro-rata basis and will renew subject to these Terms.
The Service allows you to create a Website, which you will design yourself.
You will create and update the Website with Customer Materials. You shall ensure that the Customer Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) ("Inappropriate Content").
You acknowledge that we have no control over any content placed on the Website by visitors and do not purport to monitor the content of the Website. We reserve the right to remove content from the Website where we reasonably suspects such content is Inappropriate Content. We shall notify you promptly if we become aware of any allegation that any content on the Website may be Inappropriate Content.
You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the Customer Materials constitute Inappropriate Content.
We may include a statement acknowledging that the Service has created the Website or that it has been designed using one of our products (e.g. "Designed by Street Group") on the home page of the Website in a form to be agreed.
You must:
9.1.1 without affecting your other obligations under these Terms, comply with all applicable laws and regulations with respect to your use of the Service and your activities under the Terms, including but not limited to all applicable laws in relation to marketing via email, including the Applicable Data Protection Laws and the Privacy and Electronic Communications Regulations (“PECR”);
9.1.2 carry out all your other responsibilities set out in these Terms in a timely and efficient manner;
9.1.3 ensure that its network and systems comply with the relevant specifications provided by us from time to time; and
9.1.4 be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for:
(a) procuring, maintaining and securing its network connections and telecommunications links from its systems to the Services; and
(b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
You 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.
To the extent that our performance of our obligations under the Subscription Agreement is prevented or delayed by any act or omission by you or any of your agents, consultants or other suppliers (including but not limited to providing Customer Data in a format or condition that prevents it being migrated to the Service), we shall not be in breach of the Subscription Agreement nor liable for any losses incurred by you as a result of our performance being prevented or delayed.
You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Service, including but not limited to any content owned by us, our licensors or both (as applicable).
You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in any Website (including in the content of the Websites and the Website Software), but excluding the Customer Materials, arising in connection with the Subscription Agreement, and we hereby grant you a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Websites.
We reserve all of our rights in any intellectual property in connection with these Terms.
Other than as necessary to enable you to access and use the Service and to display, in accordance with our brand guidance and our consent, our trademarks in advertising, we do not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service.
We acknowledge and agree that you own all Intellectual Property Rights in the Customer Materials and you hereby grant us a non-exclusive licence of such Intellectual Property Rights for the purpose of us providing the Services including the Websites.
Whenever we transfer your personal data out of the UK to countries which have laws that do not provide the same level of data protection as the UK law, we always ensure that a similar degree of protection is afforded to it by ensuring that safeguards are implemented.
We may transfer your personal data to service providers that carry out certain functions on our behalf. This may involve transferring personal data outside the UK to countries which have laws that do not provide the same level of data protection as the UK law.
Whenever we transfer your personal data out of the UK to service providers, we ensure a similar degree of protection is afforded to it by ensuring that the following safeguards are in place:
In order that we may provide you the Service (including enhanced email experiences for productivity purposes and the diarising of key dates), you agree to allow us access to information associated with your User Subscription through integration of our Service with your email systems. This includes providing us with access to your emails, contacts, calendars, distribution lists, subject lines, and URLs of tracked links from your email.
You are solely responsible for ensuring that any third party consents and permissions which you may need in order to integrate your email systems with the Service are obtained and kept up to date, and that you inform us promptly of any breach or compromise of your email systems which may have an impact on the security of the Service.
You acknowledge and agree that we also have access to and entitlement to use non-personal information collected through the Service and in any interactions for data analysis, monitoring market trends, facilitating the provision of other features and services throughout the site, along with potential provision to third parties and any other related purposes.
We will keep your personal information for as long as necessary for the purposes for which it was collected, to provide you with services and to conduct our legitimate business interests or where otherwise required by law.
We shall collect the personal data of users of the Service in accordance with our privacy policy here.
For the purposes of the remainder of this clause 11, the terms "controller", "processor", "Data Subject", "Personal Data", "Personal Data Breach" and "Processing" shall have the meaning given to them in the UK GDPR.
We will both comply with all applicable requirements of Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, our obligations or rights under Applicable Data Protection Laws.
We have determined that, for the purposes of Applicable Data Protection Laws we shall process personal data as a processor on your behalf in respect of the processing activities set out in the Subscription Agreement.
You are solely responsible for ensuring that any third party consents and permissions which you may need in order to integrate your email systems with the Service are obtained and kept up to date, and that you inform us promptly of any breach or compromise of your email systems which may have an impact on the security of the Service.
In addition to clause 11.6, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to us and lawful collection of the same by us for the duration and purposes of the Subscription Agreement.
In relation to the Customer Personal Data, the Subscription Agreement sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
In addition to clause 11.6 we shall, in relation to Customer Personal Data:
11.11.1 process that Customer Personal Data only on your documented instructions, which shall be to process the Customer Personal Data for the purposes set out in the Subscription Agreement (the "Purpose"), unless we are required by Applicable Laws to otherwise process that Customer Personal Data. Where we are relying on Applicable Laws as the basis for processing Customer Processor Data, we shall notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from notifying you on important grounds of public interest. We shall inform you if, in our opinion, your instructions infringe Applicable Data Protection Laws;
11.11.2 implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, having regard to the state of technological development and the cost of implementing any measures;
11.11.3 ensure that any personnel engaged and authorised by us to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
11.11.4 assist you insofar as this is possible (taking into account the nature of the processing and the information available to us), and at your cost and written request, in responding to any request from a data subject and in ensuring your compliance with your obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.11.5 notify you without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
11.11.6 at your written direction, delete or return Customer Personal Data and copies thereof to you on termination of the Subscription Agreement unless we are required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 11.10.6 Customer Personal Data shall be considered deleted where it is put beyond further use by us; and
11.11.7 maintain records to demonstrate our compliance with this clause 11 and allow for reasonable audits by you or your designated auditor, for this purpose, on reasonable written notice.
You hereby provide your prior, general authorisation for us to:
11.12.1 appoint processors to process the Customer Personal Data, provided that we:
(a) shall ensure that the terms on which we appoint such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on us in this clause 11;
(b) shall remain responsible for the acts and omission of any such processor as if they were our acts and omissions; and
(c) shall inform you of any intended changes concerning the addition or replacement of the processors, thereby giving you the opportunity to object to such changes provided that if you object to the changes and cannot demonstrate, to our reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, you shall indemnify us for any losses, damages, costs (including legal fees) and expenses suffered by us in accommodating the objection.
11.12.2 transfer Customer Personal Data outside of the UK as required for the Purpose, provided that we shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, you shall promptly comply with any reasonable request we make of you, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
Either of us may, at any time on not less than 30 days' notice, revise this clause 11 with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct ("Amended Terms"). Such Amended Terms shall apply when replaced by attachment to the Subscription Agreement, but only in respect of such matters which are within the scope of the Amended Terms.
You acknowledge that the Service may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.
We make no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of, failure of service from, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you , with any such third party. This includes where an integration exists between the Service and any such Third party providers.
Any contract entered into and any transaction completed via any third-party website, including when this is via an integration with the Service, is between you and the relevant third party, and not with us.
We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.
We do not endorse or approve any third-party website nor the content of any of the third-party websites made available via the Services.
Except as expressly provided in these Terms:
13.1.1 you assume sole responsibility for results obtained from your use of the Service, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information obtained by you through the Service, or any actions that are taken by us on your direction;
13.1.2 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
13.1.3 the Service is provided to you on an “as is” and “as available” basis.
Nothing in these Terms excludes our liability for any legal responsibility that we cannot exclude in law.
Subject to clause 13.1 and clause 13.2:
13.3.1 we are not 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
13.3.2 our 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 shall be limited to the total Subscription Fees paid for your User Subscription during the 2 (two) months immediately preceding the date on which the claim arose.
No variation of the Subscription Agreement (incorporating these Terms) shall be effective unless it is in writing and signed by both of us.
We have no liability to you under these if we are prevented from or delayed in:
15.1.1 performing our obligations under these Terms; or
15.1.2 carrying on our business,
by a Force Majeure Event, provided that you are promptly notified of such an event and its expected duration.
Each of us and you may be given access to Confidential Information from the other in order to perform their respective obligations under these Terms. A party’s Confidential Information does not include information that:
16.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
16.1.2 was in the other party’s lawful possession before the disclosure;
16.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
16.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 14.5, each party must:
16.2.1 hold the other’s Confidential Information in confidence;
16.2.2 not make the other’s Confidential Information available to any third party; and
16.2.3 not use the other’s Confidential Information for any purpose other than the implementation of these Terms and the Subscription Agreement.
You must take all reasonable steps to ensure that our Confidential Information to which you have access is not disclosed or distributed in violation of these Terms.
You acknowledge and agree that:
16.4.1 the Service;
16.4.2 details relating to the Service; and
16.4.3 these Terms and your Subscription Agreement, constitute our Confidential Information.
You and we may disclose Confidential Information to the extent such Confidential Information is required to be disclosed:
16.5.1 by law,
16.5.2 by any governmental or other regulatory authority; or
16.5.3 by a court or other authority of competent jurisdiction,
provided that (i) the party required to disclose the Confidential Information gives the other party as much notice of such disclosure as possible to the extent it is legally permitted to do so and, (ii) where notice of disclosure is not prohibited and is given in accordance with this clause 14.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
The above provisions of this clause 14 survive termination, however arising.
You agree to defend, indemnify and hold us harmless 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:
17.1.1 your use of and access to the Service;
17.1.2 any action or claim that the Customer Materials infringe the Intellectual Property Rights of a third party;
17.1.3 breach of these Terms; and
17.1.4 enforcement of these Terms, including the cost of using debt collection agencies to recover unpaid fees.
You must promptly provide us:
17.2.1 notice of any claim you receive that is or may be subject to the indemnity given under clause 17.1;
17.2.2 at your expense, reasonable co-operation in the defence and settlement of such a claim, including taking sole authority to defend or settle the claim where we instruct you to do so.
We agree to defend you, your officers, directors and employees against any claim that your use of the Service in accordance with the Subscription Agreement infringes any third party United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or other intellectual property right, and we agree to indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
17.3.1 we are given prompt notice of any such claim;
17.3.2 you do not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
17.3.3 we are given sole authority to defend or settle the claim.
17.3.4 In the defence or settlement of any claim, we may procure the right for you to continue using the Service, replace or modify the Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the Subscription Agreement on two (2) Business Days' notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
17.4.1 a modification of the Service by anyone other than us; or
17.4.2 your use of the Service in a manner contrary to the instructions given to you by us; or
17.4.3 your use of the Service after notice of the alleged or actual infringement from us or any appropriate authority; or
17.4.4 the Customer Data; or
17.4.5 your breach of the Subscription Agreement.
The foregoing state your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement or alleged infringement of any third party patent, copyright, trade mark or database right by us.
Unless otherwise set out in your Subscription Agreement, your Subscription Agreement commences on the Commencement Date and, unless otherwise terminated as provided in this clause 17, will continue for the Initial Subscription Term and thereafter, shall automatically renew for successive periods of the same length as the Initial Subscription Term (each a "Renewal Period") unless:
18.1.1 either party notifies the other party of terminate, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, in which case the Subscription Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal period; or
18.1.2 otherwise terminated in accordance with the provisions of the Subscription Agreement or these Terms.
Where the decision to terminate comes from you and is in accordance with this clause 18.1, termination of your User Subscription will occur at midnight on the final day of your then-current Subscription Term, as will expiry of access to your account(s).
Without affecting any other right or remedy available to it, either party may terminate the Subscription Agreement with immediate effect by giving written notice to the other party if:
18.3.1 the other party fails to pay any amount due under the Subscription Agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;
18.3.2 the other party commits a material breach of any other term of the Subscription Agreement and (if such breach is remediable) fails to remedy that breach within a period of seven (7) days after being notified to do so;
18.3.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
18.3.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.3.5 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
18.3.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
18.3.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
18.3.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
18.3.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within fourteen (14) days;
18.3.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.3.3 to clause 17.3.9 (inclusive); or
18.3.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
Without affecting any other right or remedy available to us, we may terminate your Subscription Agreement with immediate effect by giving written notice to you if:
18.4.1 your financial position deteriorates so far as to reasonably justify the opinion that your ability to give effect to the terms of the Subscription Agreement and these Terms is in jeopardy; or
18.4.2 you have a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
In the event that your Subscription Agreement is terminated other than in accordance with clause 18.1, you will be liable to pay us upon demand the Subscription Fees for the remainder of the Initial Subscription Term (even if we have not reached the Effective Date) or then current Renewal Period as relevant.
Without affecting any other right or remedy available to us, we may terminate or suspend your User Subscription without prior notice or liability, for any reason whatsoever, including but not limited to where you breach these Terms. We will end the suspension once we are satisfied you have complied with these Terms and will continue to do so. Where we terminate your User Subscription due to you breaching these Terms, you shall remain liable for the Subscription Fees for the remainder of the Initial Subscription Term or the relevant Extended Subscription Term as applicable.
On our termination of your User Subscription all licences granted under these Terms and the Subscription Agreement will immediately terminate and your access to the Service will immediately cease.
On termination of your User Subscription for any reason any rights, remedies, obligations or liabilities of you or us that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms that existed at or before the date of termination will not be affected or prejudiced.
No failure or delay by us to exercise any right or remedy provided under these Terms or by law constitutes a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
No single or partial exercise of any right or remedy by us under these Terms will prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in these Terms, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of these Terms is or becomes invalid or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Terms.
These Terms, along with your Subscription Agreement, constitute the entire agreement between us and you, and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us and you relating to its subject matter.
You acknowledge and agree that in using the Service, you do not rely on, and have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.
You agree that you will have no claim for innocent or negligent misrepresentation based on any statement in these Terms.
Nothing in this clause limits or excludes any liability for fraud.
You cannot assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these Terms and the Subscription Agreement without our prior written consent.
We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms and the Subscription Agreement.
Nothing in these Terms is intended to or will operate to create a partnership between you and us, or authorise either of you or us to act as agent for the other.
Subject to clauses 4.5.4 and 23.2, these Terms do not confer any rights on any third pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under these Terms must be in writing.
Any notice required to be given under these Terms must be delivered:
26.2.1 if by hand, or sent by pre-paid first-class post or recorded delivery post, to the other party at its address cited in these Terms under definition; “We”, or such other address as may have been notified by that party for such purposes; or
26.2.2 if sent by email, to the appropriate email address notified to the party giving notice by the other party from time to time.
A notice delivered by hand is deemed to have been received when delivered (or if delivery is not in 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 is 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 is deemed to have been received at the time of transmission (as shown by the time noted on the email once sent).
You agree that we may reference and display your business name, logo and or trademarks for internal and external marketing purposes.
The laws of England govern these Terms.
You agree that the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of these Terms.
Please read these Terms of Business (“Terms”, “Terms of Use") carefully before using https://www.spectre.uk.com/ (the “Service”).
the same degree of priority and diligence with which we meet the support needs of our other similar customers.
any of the following causes:
(a) any improper use, misuse or unauthorised alteration of the Service by you; or
(b) any use of the Service by you in a manner inconsistent with the description of the Service
any Operational Fault or Vulnerability.
any Vulnerability that has either:
(a) been assigned a Common Vulnerabilities and Exposures (CVE) number;
(b) been disclosed on the National Vulnerability Database available at the website operated by the US National Institute of Standards and Technology (NIST) from to time to time; or
(c) been disclosed on the internet, or any open public database, such that it would be revealed by reasonable searches conducted in accordance with good industry practice.
any instances of typical classes of Vulnerability. For example, buffer overflows, cross-site scripting (XSS) and Structure Query Language (SQL) injection.
the taking of such reasonable steps that would be taken by a prudent supplier in accordance with good industry practice to mitigate against the Vulnerability in question, which may include patching or coding changes, and the terms Mitigated and Mitigation shall be construed accordingly.
failure of the Service to operate in all material respects in accordance with its description, including any operational failure or error referred to in the Service Levels.
any services provided by us in connection with any apparent problem regarding the Service reasonably determined by us not to have been caused by a Fault, but rather by a Customer Cause or a cause outside our control (including any investigational work resulting in such a determination).
the service level responses and response times referred to in the Service Level Table set out at the end of this document.
either of the following outcomes:
(a) correction of an Operational Fault or;
(b) a workaround in relation to an Operational Fault (including a reversal of any changes to the Service if we deem it appropriate) that is reasonably acceptable to you; or
(c) Mitigation of a Vulnerability that is reasonably acceptable to you.
five days a week, Monday to Friday, 9:00am to 5:30pm excluding Bank Holidays.
request made by you in accordance with this section for support in relation to the Service, including correction of an Operational Fault.
maintenance of the Service, but excluding any Out-of-scope Services.
a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be construed accordingly.
During the Subscription Term, we shall perform the Support Services during the Support Hours in accordance with the Service Levels.
As part of the Support Services, we shall:
2.2.1 provide support by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Service.by means of live chat on the Service or telephone;
2.2.2 use Commercially Reasonable Efforts to:
(a) correct all Operational Faults notified under paragraph 3.3.1; and
(b) Mitigate against all Vulnerabilities notified under paragraph 3.3.1 or detected under paragraph 2.2.4.
2.2.3 provide technical support for the Service in accordance with the Service Levels.
2.2.4 monitor the Service on a continuous basis during the Support Hours for Known Vulnerabilities or Latent Vulnerabilities.
We may reasonably determine that any services are Out-of-scope Services. If we make any such determination, we shall promptly notify you of that determination.
You acknowledge that we are not obliged to provide Out-of-scope Services.
You may request Support Services by way of a Support Request.
Each Support Request shall include a description of the Operational Fault or Vulnerability and, where relevant, the start time of the incident.
You shall provide us with:
3.3.1 prompt notice of any Faults which you become aware of; and
3.3.2 such output and other data, documents, information, and assistance as are reasonably necessary to assist us to reproduce operating conditions similar to those present when you detected the relevant Operational Fault and to respond to the relevant Support Request.
We shall prioritise:
4.1.1 all Support Requests based on its reasonable assessment of the severity level of the Fault reported;
4.1.2 Mitigation of each Vulnerability based on its reasonable assessment of the risk posed by such Vulnerability; and
respond to all Support Requests, and address all Vulnerabilities in accordance with the responses and response times specified in the table set out below:
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