FILE PROTECT LIMITED
SUBSCRIBER AND CUSTOMER AGREEMENT
TERMS AND CONDITIONS OF USAGE
Binding nature of Agreement
This is a legally binding agreement (“the Agreement”) which sets out the terms and conditions for the use of File Protect. Throughout the body of this Agreement, the contracting parties to this Agreement are referred to as “File Protect”, and “you” or “the Customer”.
By clicking “I accept” you accept, for yourself or, where there is a company or other legal entity’s details on the order confirmation, for and on behalf of such company or legal entity (the person or entity whose details on the order confirmation being hereinafter referred to as the “customer” “you” or “your”) and all users of this software who utilise this service through your subscription the following terms and conditions from File Protect Limited, Finch House, 28/30 Wolverhampton Street, Dudley, West Midlands, DY1 1DB.
If you are not the customer, you hereby confirm that you are authorised to enter into this agreement on behalf of the customer.
The customer agrees to be bound by all the terms and conditions of this agreement and agrees that it is enforceable as if it were a written negotiated agreement signed by the customer.
Non acceptance of the Agreement
If the customer does not agree to the terms of this agreement or if you are not authorised to enter into legally binding contracts on behalf of the customer, do not click “I accept” and notify File Protect at the address set out above.
You should promptly return your login details to File Protect and permanently delete any record of these details (electronic or otherwise).
Terms and conditions
The terms and conditions of this Agreement will vary depending on whether your use of the Services is subject to the payment of Subscription Charges (“Paying Subscriber”)
“Account Activation” means that File Protect has activated the Customer’s account to permit use of the Services in accordance with the Order Confirmation and the terms of this Agreement;
“Application Software” means one or more software components provided by File Protect, for installation on systems owned and/or operated by or on behalf of the Customer to access the Services;
“Cancellation”, means a written cancellation or termination of the agreement which is delivered to File Protect Limited at the above address (or by email) at least one month prior to the date on which the Initial Term or any Renewal Term expires;
“Confidential Information” means all data and information relating to the Customer's or File Protect’s business provided to or acquired by it, its employees, agents or sub-contractors pursuant to this Agreement, including, in respect of Customer’s Confidential Information, all Customer Data and Personal Data;
“Customer” means any user of the Application Software;
“Customer Data” means all Customer data and files which are provided to the Switch Service for encryption;
“Data Protection Legislation” means the Data Protection Act 1998 (as amended from time to time);
“FileProtect” means File Protect Limited whose registered office is at Finch House, 28/30 Wolverhampton Street, Dudley, London, DY1 1DB, United Kingdom
FileProtect “Application Software” means software to facilitate client access to FileProtect, including its encryption and decryption facility
“Encrypted Data” means a package of encrypted data;
“Encryption Key” means a unique randomised string of letters, numbers and characters that may be used to decrypt and access the Encrypted Data, through the use of the Application Software;
“End User” means either the individual user, where the package has been purchased by an individual user or in all other circumstances, those individual employees and/or agents and/or guest users of the Customer who are allocated an End User Account by the Customer;
“End User Account” means, subject to FileProtect prior consent, the username and password allocated by the Customer to an End User in order to access and use the Switch Services;
“Fault” means that the Application Software is not performing in according with the intended purpose for a substantial period of time as a result of a defect in the software or programming. Fault shall not include any failure in the Application Software caused by the User;
“Initial Term” means the Initial Term of this Agreement as set out on the Order Confirmation, or in the absence of an Initial Term in the Order Confirmation, means a period of 12 months commencing from the date of first usage. The initial term is renewable for a further 12 months if it not cancelled in accordance with this agreement (hereinafter referred to as ‘the Renewal Term’), and will continue to do so on each anniversary of the signing of the agreement until cancellation;
“Maintenance Services” means any maintenance activities shall be provided by FileProtect as determined by them in their sole discretion to be necessary from time to time;
“Order Confirmation” means either: (i) the quote for the Services issued by File Protect or a Reseller and accepted without amendment by the Customer by (a) email; or (b) the issuing of a purchase order for such Services; or (c) completion of an online registration/application for the Services on the FileProtect website; or (ii) in the absence of a quote issued by FileProtect or a Reseller, means the completion by the Customer of the online registration form on the FileProtect website;
“Personal Data” shall have the same meaning as set out in the Data Protection Legislation as in force in England and Wales, from time to time;
“Recipient” means a person to whom Encrypted Data is sent;
“Renewal Term” means the additional 12 month period, or periods thereafter, where the agreement is not cancelled in accordance with this agreement.
“Reseller” means the authorised reseller identified in a quote for the Services acting as agent for the purpose of invoicing and receiving the Subscription Charges;
“Services” means the provision of File Protect for which the Subscription Charges are paid by the Customer
“Subscription Charges” means the Subscription Charges payable by the Customers, as set out in the Order Confirmation;
“Application Services” means current system and any other future updated versions that may be offered by FileProtect for use by the Customer under this Agreement;
“FileProtect’ is a proprietary software platform which facilitates indexed storage and encryption of data for transmission to a Recipient and the decryption by a Recipient
“File Protect Infrastructure” means the hardware and software infrastructure to which access is provided to the Customer to facilitate their secure storage and transfer of data
“Term” means the Initial Term and thereafter the period for which FileProtect receives Subscription Charges from the Customer.
2.1 Customer consents to FileProtect and/or the Reseller conducting verification and security procedures in respect of the information provided in the Order Confirmation. FileProtect reserves the right at its sole discretion to accept or reject the Customer’s application.
2.2 The Customer hereby warrants that the information provided to FileProtect is true, accurate and correct. The Customer further warrants that it shall promptly notify FileProtect in the event of any changes to such information. Such warranties will be treated by FileProtect as fundamental conditions of this agreement and will entitle FileProtect to treat any breaches (at their election) of such warranties as repudiatory breaches of this agreement.
2.3 Upon Account Activation, the Customer will select a login and password to facilitate its use of the Services, together with additional logins and passwords for each End User Account permitted by FileProtect to be allocated. The Customer shall keep the login(s) and password(s) confidential and secure. Without prejudice to FileProtect other rights and remedies, FileProtect reserves the right to promptly disable the Customer’s login and suspend the Customer’s and any End User’s access to the Services if FileProtect reasonably believes that the Customer has breached this clause 2.3.
3. TERM AND TERMINATION
3.1. This Agreement shall commence on the date of Account Activation and, subject to the remainder of this clause 3, shall continue for the Initial Term and, if not cancelled in accordance with this agreement, it shall be automatically renewed for a further period of 12 months thereafter on each anniversary of the agreement
3.2 The Customer may only cancel this agreement by serving a written cancellation or termination of the agreement that is delivered to File Protect Limited at the above address (or by email) at least one month prior to the date on which the Initial Term or any Renewal Term expires. The said cancellation shall thereafter take effect at the end of the Initial Term or the Renewal Term
3.3 Either party may terminate this Agreement with immediate effect by written notice to the other party in the event that the other party:
3.3.1 commits any material breach of its obligations under this Agreement and fails to remedy the same within five (5) working days of written notice to do so;
3.3.2 has a receiver or administrator appointed over the whole or any substantial part of its business or assets and an order is made or a resolution is passed for its winding up (other than for the purpose of a bona fide amalgamation or reconstruction of a solvent company).
3.4 Upon termination of this Agreement for any reason FileProtect shall cease provision of the Services to the Customer and the Customer shall immediately cease all use of the Services provided that the Service being provided by FileProtect is Fully Hosted Infrastructure with local encryption, then in the event that this Agreement is terminated by Customer pursuant to clauses 3.1 and 3.2, FileProtect shall provide the Customer with an exported file containing the Encryption Keys necessary to enable the Customer to decrypt the Encrypted Data.
3.4 Clauses 1, 5 (to the extent of any unpaid Subscription Charges), 6, 9 and 10 shall survive the termination of this Agreement however arising.
3.5 The Customer has the right to cancel this agreement in accordance with the terms of the Consumer Contracts (Information Cancellation and Additional Charges) Regulations 2013, where such Regulations are applicable to this agreement.
4. SERVICES AND SUPPORT
4.1 In consideration for payment of the Subscription Charges to FileProtect or the Reseller, as applicable, FileProtect shall provide the Services to the Customer for the Term if this agreement.
4.2 Where the Customer fails to correctly install or use the Application Software provided by FileProtect in accordance this agreement or a Recipient fails to access the FileProtect software properly, the Services will not operate either in part or at all and a Recipient shall be unable to decrypt the Encrypted Data. The responsibility for the correct installation and/or use of the Application Software is solely that of the Customer and User. FileProtect cannot be held responsible for this.
4.3 FileProtect hereby grants to the Customer a non-exclusive, non-transferable, non-sub-licensable licence to use the FileProtect strictly for the purpose of receiving the benefit of the Services hereunder for the Term.
4.4 (a) Under the terms of this licence the Customer and any user authorised by the Customer must not:
4.4.1 access and utilise the Program in connection with a single personal computer including a lap-top or, where you have purchased a network version, on a single network which is under your control. If you wish to access and utilise the system on more than one computer or network, you must obtain a separate licence;
4.4.2 By themselves or cause or permit others to;
(i) copy, duplicate or replicate the Program or seek to sub-license or assign the licence or your rights under it;
(ii) use, copy or transfer the software or other component parts of the Program except as allowed for by this Agreement;
(iii) distribute, rent, loan, lease, sub-license or otherwise deal in the software and or any other component elements of the Program;
(iv) alter, adapt, merge, modify or translate the software or other component elements of the Program in any way, or for any purpose, other than with the prior written consent of FileProtect;
(v) reverse engineer, disassemble or de-compile the software otherwise than with the prior written consent of FileProtect;
(vi) remove, change or obscure any identification marks or notices of proprietary rights and restrictions on or in the software and any other component elements of the Program.
4.5 FileProtect has the sole and exclusive ownership of or licence to all right, title, and interest in and to the Services including all copyright and any other intellectual property rights therein. All rights in and to the Services are reserved by FileProtect and the relevant third party licensors and the Customer shall not infringe any of the Intellectual Property Rights owned by and/or licensed to FileProtect.
4.6 FileProtect shall make any organisational, procedural, or target adjustments or changes to the Services which it deems necessary or advisable provided that such adjustments or changes shall not have any material detrimental effect on the provision of the same to the Customer.
4.7 The maximum data usage that is allocated to the Customer, is set out in the Licence Agreement. If the Customer exceeds the maximum data usage stipulated therein, then the an additional fee, being an additional data usage fee, will be levied by the Supplier to the Customer on a monthly basis.
5. SUBSCRIPTION CHARGES
5.1 In consideration for the provision of the Services the Customer shall pay to the Reseller identified in the Order Confirmation (or, if none, to FileProtect) the Subscription Charges which shall be invoiced on the date of Account Activation unless set out to the contrary in the Order Confirmation. All Subscription Charges are exclusive of VAT (or any equivalent sales tax), which will be applied to the Subscription Charges and payable by the Customer, if applicable, at the standard rate.
5.2 In the event that the Subscription Charges are not paid in accordance with the provisions herein, FileProtect shall cease to provide the Services contract for herein, but the Subscription Charges payable during the Initial Term or any Renewable Term will remain due and owing.
5.3 Upon any non payment of Subscription Charges which remains due and owing to FileProtect for a period of more than 28 days from the date due, all sums due under the remainder of the term of this contract (whether it be the Initial Term or the Renewable Term) shall immediately become due and owing to FileProtect..
5.3 FileProtect or the Reseller may increase the Subscription Charges upon thirty (30) days prior notice to the Customer, provided always that such increase in the Subscription Charges shall only be applicable to the Customer upon the completion of the Initial or Renewable Period. Such increases in charges may be notified to the Customer in writing or on the FileProtect website.
6.1 As the owner of the Licence copyright, FileProtect warrants to you only that:-
6.1.1 the software, when used properly, will provide the functions and facilities and will perform substantially as described in the User Manual supplied with the software;
6.1.2 FileProtect will provide technical advice, assistance and support by telephone during normal business hours.
6.1.3 In the event of any errors in the Program, File may, at its sole discretion, correct the same by 'patching' or by replacing the Program with a new version.
6.1.4 Should FileProtect be unable to rectify any defect in the Program within a reasonable period of time, it will terminate this Licence by refunding your purchase price, together with the cost of postage, after having received the login details and any copy thereof from you in accordance with the preamble to this Agreement or the letter referred to in above.
6.1.5 FileProtect does not warrant or guarantee that you will have uninterrupted or error free service from the Program.
7. FILE PROTECT WARRANTIES, EXCLUSIONS AND LIMITATIONS OF LIABILITY
7.1. FileProtect's entire liability and your exclusive remedy under the warranties given in this agreement will be, at FileProtect’s option either,
(i) to repair or replace the software or encryption medium which does not conform with the warranty or,
(ii) to refund the price paid for the software and terminate the Licence.
(iii) This guarantee excludes defects caused by accidents, abuse, poor storage or handling, or any act referred to abov
7.2 Save as expressly set out herein and to the maximum extent permitted by law, FileProtect expressly excludes all representations, warranties, obligations and liabilities in connection with the Services, including but not limited to the warranties of merchantability, non-infringement of intellectual property, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.
7.3 In no event shall FileProtect be liable for:
7.3.1 any special, indirect, incidental or consequential damages, loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products or services by the Customer even if advised of the possibility of such damages;
7.3.2 any delay or failure to provide the Services and that is due to third parties (other than third parties under FileProtect’s direct control), including without limitation, internet service providers, data centres, server hosting companies and telecommunications companies;
7.3.3 any loss, damage or liability that arises as a result of the Customer making an Encryption Key available to a third party;
7.4 FileProtect shall not be liable to the Customer if the Services are unavailable due to conditions or circumstances that are beyond FileProtect’s control, including without limitation third party service providers, geographic or atmospheric conditions, local physical obstructions, software and hardware features or functionalities of personal operating systems and the number of other users.
7.5 The public electronic communications network is not controlled by FileProtect and may from time to time be upgraded, modified, subject to maintenance work or otherwise amended by the owner or operator thereof. Such circumstances may result in the Services being made temporarily unavailable. FileProtect shall take reasonable action to minimise the disruption caused by such circumstances but some such interruptions may not be avoidable.
7.6 FileProtect will not be liable to indemnify the Customer in respect of any claim by a third party that Customer’s use of the Services infringes any third party intellectual property rights
8. CUSTOMER OBLIGATIONS AND WARRANTIES
8.1 The Customer hereby grant FileProtect a non-exclusive, worldwide, royalty-free licence to use, copy, cache, store and display and reproduce the Customer Data (including all intellectual property rights therein) for the purposes of fulfilling its obligations under this Agreement.
8.2 The Customer hereby represents, undertakes and warrants that:
8.2.1 he Customer owns all rights in the Customer Data necessary to grant FileProtect the right to carry out its obligations pursuant to this Agreement; and
8.2.2 the Customer Data does not and shall not contravene or breach any applicable law, regulation, code of practice or directive including, without limitation, investment or financial services legislation or consumer or trade regulation or data protection legislation or regulation and that the use of the Customer Data will not contravene any applicable law, regulation or industry standard; and
8.2.3 the Customer Data does not and shall not infringe any intellectual property rights or other rights of any person, nor are they obscene, defamatory, libellous or slanderous, nor will it cause injury to, invade the privacy of or otherwise violate other rights of any person; and
8.2.4 it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Services, and (ii) use the Services only for lawful purposes and in accordance with the terms of this Agreement;
8.3 The Customer shall comply with the Service Dependencies and all other obligations or dependencies set out in this Agreement, its Annexes, or otherwise notified by FileProtect to the Customer during the Term of this Agreement.
8.4 If the Customer has a Private Cloud Service, Customer shall (if required by FileProtect):
8.4.1 provide FileProtect with a monthly report identifying the number of active users of the Service; and
8.4.2 permit and provide the necessary technical access for FileProtect to remotely access the Customer’s systems to interrogate the Client Software for the sole purpose of generating a report identifying the number of active users of the Service.
8.5 In relation to the End Users, the Customer warrants and represents that:
8.5.1 the maximum number of Users that it authorises to access and use the Services shall not exceed the number of User Accounts allocated to the Customer (if a maximum number has been stipulated by FileProtect);
8.5.2 it will not allow any User Account to be used by any individual User other than the individual User to which it was assigned; and
8.5.3 each User shall keep a secure password for his/her use of the Services and each User must keep his/her password confidential.
9. CONFIDENTIALITY AND DATA PROTECTION
9.1 Each party undertakes to the other that (unless prior written consent of the other party shall first have been obtained) it shall, and shall procure that its officers, employees, advisers, sub-contractors and agents shall keep confidential and not disclose to any person, or use or exploit commercially for its or their own purposes, any of the confidential information of the other party.
9.2 For the purposes of this Clause, "confidential information" shall include information concerning the business, finances, assets, liabilities, dealings, transactions, know-how, employees, customers, suppliers, processes or affairs of the other party and any information which is expressly indicated to be confidential or is imparted by one party to the other in circumstances importing an obligation of confidence.
9.3 The consent referred to in Clause 9.1 above shall not be required for disclosure by a party of any confidential information:
9.3.1 to its officers, employees, sub-contractors and agents, in each case, to the extent required to enable such party to carry out its obligations under this Agreement and who shall in each case be made aware by such party of its obligations under this Agreement and shall be required by such party to observe the same restrictions on the use of relevant information as are contained in this clause 9;
9.3.2 to its professional advisers who are bound by such party by a duty of confidence which applies to any information disclosed;
9.3.3 to the extent required by applicable law or regulatory or supervisory authority to which such party is subject or pursuant to any order of court or other competent authority.
9.4 If a party becomes required, in circumstances contemplated by clause 9.3.3 to disclose any information such party shall give to the other party such notice as is practical in the circumstances of such disclosure and shall co-operate with the other party, having due regard to the other party's views, and take such steps as the other party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure.
9.5 The terms of the Privacy Statement available at https://www.fileprotects.com/privacy-policy on the date of this Agreement shall apply to this Agreement subject to the following provisos:
9.5.1 FileProtect shall act as the data processor for the Customer;
9.5.2 FileProtect must not disclose or transfer personal data to a country or territory outside the European Economic Area;
9.5.3 FileProtect must notify the Customer in writing of any variations to the privacy statement and must seek the Customer's written consent prior to any variations coming into effect; and
9.5.4 FileProtect shall remain solely responsible and fully liable for any breach, performance, non-performance, part-performance or delay in performance by a sub-processor of personal data to the same extent as if such breach, performance, non-performance, part-performance, or delay in performance had been carried out by FileProtect.
9.6 For the purposes of this clause, terms and expressions not defined in this Agreement but having a meaning assigned to them in the Data Protection Act 1998 shall have the same meaning as that assigned to them by the Data Protection Act 1998.
9.7 in the event of a conflict between this Agreement and the Privacy Statement, the terms of this Agreement shall take precedence.
9.8 Except to the extent set out in this Clause or where disclosure is expressly permitted elsewhere in this Agreement, each Party shall:
9.8.1 treat the other Party’s Confidential Information as confidential and safeguard it accordingly; and
9.8.2 not disclose any Confidential Information belonging to the other Party to any other person without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of this Agreement;
9.8.3 not use the other parties Confidential Information other than for the purposes of this Agreement.
9.9 The provisions of Clause 9.1 shall not apply to the extent that:
9.9.1 such disclosure is required by law or a court of competent jurisdiction;
9.9.2 such information was in the possession of the Party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner;
9.9.3 such information was obtained from a third party without obligation of confidentiality;
9.9.4 such information was already in the public domain at the time of disclosure otherwise than by a breach of this Agreement; or
9.9.5 it is independently developed without access to the other Party's Confidential Information.
9.10 FileProtect will immediately notify the Customer of any breach of security in relation to Customer Confidential Information. FileProtect will co-operate with the Customer in any investigation that the Customer considers necessary to undertake as a result of any breach of security in relation to Customer Confidential Information.
9.11 FileProtect shall not store, copy, disclose, or use the Customer Data except as necessary for the performance by FileProtect of its obligations under this Agreement or as otherwise expressly approved by the Customer.
9.12 To the extent that Customer Data is held and/or processed by FileProtect, FileProtect shall use all reasonable endeavours to preserve the integrity of Customer Data and preventing the corruption or loss of Customer Data and FileProtect shall ensure that any system on which FileProtect holds any Customer Data, including back-up data, is a secure system that complies with FileProtect’s own security policy.
9.13 If at any time FileProtect suspects or has reason to believe that the Customer Data has or may become corrupted, lost or degraded in any way for any reason, then FileProtect shall notify the Customer immediately and inform the Customer of the remedial action FileProtect proposes to take.
10.1 The Customer may not assign this Agreement, in whole or in part, without the written consent of FileProtect.
10.2 The Customer consents to the use by FileProtect of such the Customer’s name in Customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the services being provided by FileProtect to the Customer.
10.3 Notices to be served on FileProtect under this Agreement may be served at File Protect Limited, Finch House, 28/30 Wolverhampton Street, Dudley, DY1 1DB. Notices may be served on the Customer at the address given in the Order Confirmation.
10.4 This Agreement shall be governed by and interpreted in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising in relation to this Agreement.
10.5 The Customer agrees that because of the unique nature of the Services and FileProtect’s proprietary rights therein, a demonstrated breach of this Agreement by the Customer would irreparably harm FileProtect and monetary damages would be inadequate compensation. Therefore, the Customer agrees that FileProtect shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Agreement.
10.6 If any provision of this Agreement is declared void, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
10.7 Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement shall not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.
10.8 Neither party shall be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
10.9 This Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes (a) all prior agreements, oral and written, made with respect to the subject matter hereof; and (b) all “click thru” terms and conditions which the Customer may be required to click-accept in order to access or use the Services.
10.10 The parties agree that the terms of this agreement may be altered from time to time by FileProtect upon giving the Customer written notice of the changes to the said agreement.
10.11 No purchase order and/or standard terms of purchase provided by the Customer shall supersede this Agreement.
10.12 Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against FileProtect and such third parties shall not be entitled to enforce any term of this Agreement against FileProtect.
Dated November 2016