Welcome to www.securedesk.com, a website provided to you by SecureDesk Limited, SecureDesk is a registered trademark of:
Suite 12, Midshires House
Midshires Business Park
CUSTOMER AGREEMENT - TERMS & CONDITIONS - VER 1.2
SecureDesk Limited of Suite 12, Midshires House, Midshires Business Park, Smeaton Close, Aylesbury, Bucks, HP19 8HL has agreed to supply the Services to the customer specified on the order form (“Customer”) located at the address listed on the same form, on the following terms and conditions ("Terms and Conditions").
These Terms and Conditions exclude and/or supersede any previous statements or agreements between the parties (whether written or oral) relating to the provision of the Services. In the event of any conflict between this Agreement and any other document referred to as containing terms that relate to the Services, this Agreement shall prevail.
1.1. In this document the following words or expressions have the following meanings:
(a) “we”, “our” and “us” refer to SecureDesk Limited;
(b) “this Agreement” means these Terms and Conditions including the Appendices;
(c) "you" and “your” means the customer named in these Terms and Conditions;
(d) the "Services" means the Internet Hosted “Software as a Service” (SaaS) services and consulting as provided by us;
(e) “Staff” means an individual customer's employee;
(f) “Site” means any location for which you have ordered Services;
(g) “Order Form” means the order form or renewal form executed by you and provided to us for the provision of the Services to you by us;
(h) “Provisioning Notification” means an email we shall send to you (after receipt by us of the Order Form) explaining to you the login details for the service and any necessary technical changes you may need to make to use the Services;
(i) “Billing Start Date” means one day after the receipt by you of our Provisioning Notification regardless of whether you have commenced using the Service;
(j) “Service Renewal Date” means the anniversary of the 12th month from the Billing Start Date;
(k) References to clauses and schedules are to the clauses of and schedules to this Agreement;
(l) Headings are for convenience only and shall be ignored in interpreting this Agreement.
2.1. This Agreement shall commence on the Billing Start Date the Services are first provided to you and shall continue in full force and effect through the term stated in clause 5.0 ‘Charges and Billing’.
3.0 SERVICE ACTIVATION, SUPPLY AND USAGE
3.1. We agree to supply the Services to you subject to these Terms and Conditions.
3.2. You shall supply us with all technical data and all other information we may reasonably request from time to time to allow us to supply the Services to you. The Services shall not include your access connection to the Internet or any equipment necessary for you to make such connection, which shall be your sole responsibility.
3.3. You are solely responsible for its activities in using the Services including the activities of your employees and contractors and all parties that you allow to have access to the Services.
3.4. You represent and warrant that:
(a) you possess the legal right and ability to enter into this Agreement, and
(b) the performance of your obligations and your use of the Services will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties.
3.5. We reserve the right to modify and update the features and functionality of the Services, at no additional cost to you, with the objective of providing you with equal or enhanced Services. These updates shall include any subsequent release or version of the Services containing functional enhancements, extensions, error corrections or fixes that is generally made available free of charge to our customers who have contracted for the appropriate level of Services. Updates shall not include any release, option or future product which we license separately or which is not included under the applicable level of support.
3.6. We shall notify you of any material modification or update in advance in writing or by email and shall seek to ensure that any modifications or updates do not materially degrade the performance of the Services or your use of the Services, or require you to incur any additional cost to continue your use of the Services. We shall use reasonable efforts to implement all such modifications or updates in a manner that minimizes the impact on your use of the Services.
4.0 OUR OBLIGATIONS
4.1. We agree to provide support for the Services in accordance with Appendix 1.
4.2. We represent that:
(a) we have and shall maintain all rights, licenses, consents and permits necessary or required for us to provide, and for you to use, the Services;
(b) the Services do not infringe upon the intellectual property rights of any third party;
4.3. The Services shall be performed in accordance with the standard of care to be reasonably expected of competent, efficient, experienced, and independent information security service providers and managers.
4.4. Where, as part of the Services, we are holding information about you, we undertake to use all reasonable endeavours to ensure that our systems are GDPR compliant and secure from unauthorised access.
5.0 CHARGES AND BILLING
5.1. You shall pay for the applicable setup, software and service fee as detailed in the Order Form, either monthly or annually in advance.
5.2. Services are automatically renewed annually unless 30 days’ written notice is given prior to the next renewal date. Unless otherwise stated on the order form fees are payable annually in advance, with payment due on the date of the invoice. Any service that is not paid for on time is liable to service suspension until the payment is received.
5.3. In the event that you order additional Services during the Renewal Term, then, you will be invoiced for these services from the start date of the additional service. If an upgrade is required to an existing service during the Renewal Term, then a new invoice will be generated and the 12 months Renewal Term will restart from the implementation date of the upgraded service.
5.4. The fees for providing the Services shall be calculated by reference to the current SecureDesk retail price list at the time of purchase and renewal.
5.5. Our retail prices are subject to change at our sole discretion.
5.6. In the months prior to the Service Renewal Date, a review of your actual service requirements and the number of Staff your organisation has at that time and during the previous 12 months service period will be carried out. In the event any such review indicates that you have more Staff than previously reported to us and been billed to you, we retain the right to invoice you for the additional Staff for the applicable period where the additional Staff takes you into a different price bracket from the previously reported amount.
5.7. Depending on the service provided, the payment will be either a single annual payment or if paid monthly may require an upfront payment of the first quarter, depending on the vendor and the fee agreed.
5.8. All amounts payable by you to us are exclusive of any sales, use, excise, property or any other similar taxes or fees. You are responsible for payment of any and all such taxes or fees.
6.0 WARRANTIES, INDEMNITIES AND LIABILITIES
6.1. SecureDesk warrants that Saas Services shall perform substantially in accordance with the specifications set out in the Documentation during the period of this Agreement.
6.2. Customer hereby acknowledges and agrees that SecureDesk (including officers, associates, agents and directors of SecureDesk) has not made or granted any express warranties concerning SaaS Services except for the warranty in section 6.1 above. Customer is not authorised to (and shall not) create any warranty obligations on behalf of SecureDesk with its Partners or Partner Users.
6.3. Except with respect to SecureDesk’s express obligations under this Agreement to confidentiality, to the maximum extent permitted by applicable law, SecureDesk shall have no liability whatsoever to anyone for any claim, loss or damage of any kind whatsoever in relation to any Customer Data or any use to which it is put.
6.4. Excepting the warranty set forth in section 6.2, SecureDesk hereby disclaims and Customer hereby waives all warranties, express or implied, including but not limited to all implied warranties of fitness for a particular purpose (even where disclosed by the Customer), all implied warranties of merchantability and all implied warranties arising by usage of trade, course of dealing or course of performance. Any SaaS Policies, Documentation or data provided by SecureDesk is provided “AS IS” without warranty of any kind. SecureDesk does not guarantee or warrant the accuracy, completeness or usefulness of the data, nor the merchantability or fitness for any particular purpose. SecureDesk does not make any warranty and Customer hereby waives any and all warranties as to the results obtained from SaaS Services or as to the accuracy or reliability of the data. SecureDesk shall not be liable under any circumstances for harm or damages resulting from or arising out of Customer’s inability to use Saas services or to access SaaS Services.
6.5. Customer hereby acknowledges and agrees that access to SaaS Services may be affected by local network telecommunications activity; government networks, electronic mail failure, capacity and compatibility with third party communication equipment, communication software, web browsers and internet (or intranet) enabled software. SecureDesk hereby disclaims and Customer hereby waives any and all SecureDesk responsibility for any failures in connection with local market network telecommunication activity, government networks, electronic mail failure, capacity and compatibility with third party communication equipment, communication software, web browsers and internet (or intranet) enabled software.
6.6. SecureDesk shall not be liable for any failure to perform its obligations under this Agreement because of circumstances beyond its control which such circumstances shall include (without limitation) natural disaster, terrorism, labour disputes, war, declarations of governments, transportation delays, telecommunications failure and misuse of Saas Services or Documentation by Customer.
6.7. Customer agrees to hold harmless and indemnify SecureDesk, and its subsidiaries, affiliates, officers, agents, and employees and other SaaS Service licensees from and against any third-party claim arising from or in any way related to Customer’s use of SaaS Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, SecureDesk will provide Customer with written notice of such claim, suit or action.
6.8. Nothing in this Agreement limits either party’s liability in the case of death or personal injury caused by the other party’s negligence.
6.9. Except as set forth above, in the event that SecureDesk fails to provide support and maintenance services set out in the schedule, SecureDesk’s only liability and Customer’s sole remedy for such failure shall be either (a) for SecureDesk to use commercially reasonable efforts to correct such failure through further services up to the value of the outstanding fees paid under this Agreement, or (b) at its discretion refund any prepaid but unutilised fees paid by the Customer.
7.1. Either party may terminate this Agreement by providing the other party with 30 days’ written notice prior to the next annual renewal date.
7.2. We reserve the right to suspend or terminate the Services immediately without notice:
(a) if so directed by a court or competent authority;
(b) in the event of an attack on the Services or our network;
(c) should you use the Services other than in accordance with the Acceptable Use Policy either set out in Appendix 2 or as defined by the SaaS Service licensor.
7.3. Upon the termination of the Services or of this Agreement for any reason whatsoever, we shall reverse all configuration changes made to provide this service and it shall be your responsibility to undertake all other necessary configuration changes on your site.
7.4. Termination of this Agreement shall be without prejudice to any rights of either party arising on or before termination, which includes without limitation the indemnities set out in Clause 6.
8.1. You undertake to keep confidential and not reveal or disclose to any third party without our prior permission any username or password information provided to you by us. If for any reason we believe that there has been security breach, we may take whatever action is deemed appropriate including deactivating your password and provide a new one to you.
8.2. We shall take commercially reasonable security measures to protect the confidentiality of your Web traffic and not to access, read or copy such traffic other than by electronic methods for the purpose of implementing and supporting the Services.
8.3. Each party shall treat the terms of this Agreement as confidential, except for information that becomes part of the public domain through no fault or action of such party.
9.1. You acknowledge and accept that, as between the parties, all right, title and interest in and to the Services and all intellectual property rights associated with and in the Services shall at all times remain vested in us and our licensors, and you shall acquire no rights, express or implied, in the Services, other than the right to use granted in this Agreement. You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from us and/or our suppliers.
9.2. You agree that we may refer to you being a customer in marketing and promotional materials. You also agree not to unreasonably withhold consent to any request for you to act as a reference with respect to the Services for a potential customer, provided that this does not become unduly time consuming or otherwise burdensome.
9.3. Any waiver by us of any breach by you of this Agreement or delay or forbearance in exercising our rights under this Agreement shall not prevent us from taking action against you if the breach continues or if you are in breach of contract again at a later date.
9.4. If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provision in question shall be unaffected.
9.5. Catalogues, brochures, leaflets or correspondence are not binding and unless specifically provided to the contrary in writing, all specifications, descriptions, photographs, measurements or capacities are approximate only and shall not form part of this Agreement or be treated as constituting any warranty, representation or condition in relation to the Services.
9.6. This Agreement excludes and/or supersedes any previous statements or agreements between us whether written or parties with respect to the subject matter hereof and may only be changed by oral relating to the provision of the Services. This is the entire agreement between the parties with respect to the subject matter hereof and may only be changed by a written agreement signed by both parties. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
9.7. This Agreement is personal to the parties and you shall not without our prior written consent assign, transfer, mortgage, charge or deal in any other manner with this Agreement or any of its rights and obligations under or arising out of it. You shall not sub-contract or delegate in any manner any or all of its obligations under this agreement to any third party or agent.
9.8. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and each party hereby irrevocably submits to the exclusive jurisdiction of the Courts of England and Wales.
APPENDIX 1 – THE SERVICES
1. Ingotmanage – GDPR & ISO 27001 SaaS Platform - Service Description
1.1. “ingotmanage” is a powerful cloud hosted SaaS platform for storing “Security Management Information” about GDPR & ISO 27001 services(‘the Services’).
1.2. Access to the Services is by Secure HTTPS Login and provides the option of Two Factor Authentication.
1.3. The Services are managed on a 24 hours/day by 7 days/week basis, and monitored for hardware availability, service capacity and network resource utilization. Through monitoring of service levels, regular adjustments are made to ensure optimum efficiency is maintained.
1.4. Wherever possible, planned maintenance is carried out between 8 p.m. and 8 a.m. (Customer local time). We may need to carry out emergency maintenance at other times in the event of an emergency(without prejudice to our SLA obligations). We shall give at least 14 days’ notice of planned maintenance.
1.5. The supply of our ISMS software solution and our GDPR consulting services, are provided primarily for informational and support purposes and do not provide legal advice or guarantee compliance with applicable laws or regulations.
APPENDIX 2 – ACCEPTABLE USE POLICY
Some of our SaaS Services have their own acceptable use policies that users will be required to accept during login and may have specific terms and conditions given the nature of the service provided. These are accepted by users during first login and thereafter (generally) accessible in the footer of the service provided. You are responsible for ensuring that all users of the Services are aware of that and ensuring that they are complied with at all times, and shall indemnify us against liability, whether civil or criminal, for any violation by such users as you permit to use the Services.
Users must not under any circumstances whatsoever commit, or attempt to commit, nor aid or abet any action that may threaten the Services, whether deliberate, negligently or innocently – this shall include but is not limited to:
any attempt to crash a Services host or network;
“denial of service” attacks, or “flooding” attacks against a Services host or network;
any attempt to circumvent the user authentication or security of a Services host or network;
any profligate use of the Services;
the creation, transmission, storage, or publication of any kind of virus or corrupting program or corrupted data;
any other action that may adversely affect the Services or their operation.
Subject to the terms of this Agreement, Customer accepts, a non-exclusive, non-transferable,revocable, license, without the right to grant sublicenses, except to Partner Organisations subject to the order form scope, to use the Purpose.
Customer shall display and retain the copyright, trademarks, proprietary, or confidentiality statement or legends and other notices in the system however it is used.
Customer acknowledges that all rights, title and interest in and to the original, and any copies, of the software solutions, Software Policies and the Documentation,and ownership of all patent, copyright, trade secret, trademarks and other intellectual property rights (whether registered or not) pertaining thereto,shall be and remain the sole property of the software developer
Notwithstanding that Customer may contribute to the cost of or participate in the making of derivative works, translations, customised versions, updates, error corrections, enhancements, modifications, or other versions of software sold by SecureDesk, Customer shall not be an owner of any copies or translations or versions of, nor have any interest in, the software, Policies or its Documentation, but rather, is licensed, pursuant to and subject to the limitations in this Agreement, to use such copies for the purpose stated in this Agreement.
Without limiting the generality of the foregoing, Customer receives no rights and agrees that it will not itself, or through any parent, subsidiary, affiliate,agent or other third party (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, processes or algorithms of the software, Policies or any portion thereof, or otherwise derive its source code; (ii)modify, port, translate, localise or create derivative works of software product; (iii) sell, lease, license, sublicense, copy, market or distribute Online, other than to Partners as set out in this Agreement; (iv) encumber or suffer to exist any lien or security interest in the software; (v) disclose the results of any performance tests or qualitative analysis on the software to any third party without the prior written consent of the software developer; and (vi) use a total number of Registered Users in excess of those agreed by their type in the Order Form.
Each Registered User accepts the User Registration Terms.
Each Partner Organisation accepts the ‘click through’ Partner Registration Agreement unless they already have a Customer Account.
The Customer retains all right, title and interest to all Customer Organisation Data.
Customer must not knowingly transmit any worms or viruses or any code of a destructive nature.
Customer shall notify SecureDesk immediately of any unauthorised use of its Registered Users accesses, or any other breach of security. SecureDesk will not be liable for any loss or damage arising from Customer’s failure to comply with these requirements.
We shall have the right to suspend or terminate the Services, and to take such defensive action as may at our sole discretion be deemed necessary in the event of any attack upon the Services or network. Furthermore, we may instigate civil and/or criminal proceedings as appropriate against the perpetrators of such prohibited action.