Terms and Conditions ("Terms")
1.1. Words with capital letters will have the meanings given to them in clause 18 of these Terms.
1.2. In these Terms references to “includes” or “including” shall be deemed to have the words “without limitation” inserted after them.
1.3. Unless otherwise stated, references to “days” means calendar days.
2. CONTRACT PROCESS
2.1. Following any request from the Subscriber for Services from Hindsight, Hindsight may issue the Subscriber with an Order Form.
2.2. If the Subscriber wishes to proceed with the provision of Services in accordance with the Order Form, the Subscriber must notify Hindsight in writing from an authorised party on the Subscriber’s behalf prior to the commencement of the Services, as confirmation that the Order Form accurately sets out the Subscriber’s requirements.
2.3. No order for Services shall be deemed to be accepted by Hindsight until the earlier of Hindsight (a) accepting such offer in writing or (b) providing the Services at which point a “Contract” for the provision of Services under these Terms will come into effect.
2.4. Each Order Form agreed by the Subscriber, or request for Hindsight’s Services from the Subscriber, shall be deemed to be an offer by the Subscriber to purchase the Services subject to these Terms:
2.4.1. to the exclusion of all other terms and conditions (including any terms and conditions which the Subscriber purports to apply under any purchase order, confirmation of order, specification or other document); and
2.4.2. constitutes a separate Contract.
2.5. If there is any conflict or inconsistency between the following documents, to the extent of any conflict or inconsistency only, the following order of priority shall apply:
2.5.1. the Order Form (including any Additional Terms); and
2.5.2. these Terms.
2.6. Hindsight may, at any time, and in its sole discretion, modify these Terms. Any such modification will be effective immediately on notification to the Subscriber. The Subscriber’s continued use of the Services following any such modification constitutes the Subscriber’s acceptance of the modified Terms.
3.1. Hindsight shall, during the Term provide the Services and access to the Platform and make available the Documentation to the Subscriber on and subject to the terms of the Contract.
3.2. Subject to the Subscriber paying the Subscription Fees in accordance with clause 9.1, the restrictions set out in clause 5 and the other terms and conditions of the Contract, Hindsight hereby grants to the Subscriber a non-exclusive, non-transferable right during the Term to permit the Authorised Users to use the Platform to provide services to End Clients, including the provision of Reports to End Clients, provided that the End Client shall not be granted access to the Platform.
3.3. In relation to each End Client:
3.3.1. the Subscriber shall provide Hindsight with any authorisation required to access Task Data including as specified in clause 4;
3.3.2. the Subscriber shall set the Subscription Level which shall give the Subscriber access to those Services under that Subscription Level;
3.3.3. the Subscriber can change the Subscription Level at any time;
3.3.4. Hindsight shall have no relationship with the End Client or have any obligations or liability to the End Client; and
3.3.5. the Subscriber shall complete any information, parameters or variables required to tailor the End Client’s instance within the Platform, including alerts.
3.4. The Subscriber acknowledges that the Platform and the Services have a number of defaults set which may not be appropriate for the Subscriber and/or any End Client and it is the Subscriber’s responsibility to check and amend these settings in accordance with clause 3.3.5.
3.5. Notwithstanding any other provision in the Contract, the Subscriber acknowledges and agrees that it is responsible for:
3.5.1. technical support of all Subscriber Systems.
3.5.2. ensuring that the Subscriber Systems meet any specification set out in the Documentation to receive the Services.
3.6. The Subscriber shall ensure that no Subscriber Systems are connected to a third-party ASP system or other service, communications system or network in such a way that the Service may be accessed by unauthorised third parties.
3.7. Where any Update to existing functionality is produced by Hindsight, Hindsight may roll out the Update to the Subscriber provided the Subscriber has paid all Subscription Fees due and owing under the Contract as at the date of the roll out of the Update.
4. THIRD PARTY PROVIDERS
4.1. The Subscriber acknowledges and agrees that:
4.1.1. the Services rely on integration or access to third party APIs and/or software (“Third Party Software”);
4.1.2. Hindsight has no control over the Third Party Software and has no relationship with the provider of the Third Party Software (“Third Party Provider”);
4.1.3. the Subscriber is responsible for obtaining any necessary consent and/or access from the Third Party Provider and/or the End Client for Hindsight to integrate the Platform with the Third Party Software, access Task Data within the Third Party Software or such other access to the Third Party Software as requested by Hindsight in connection with the Services;
4.1.4. Hindsight shall have no liability to the Subscriber for any failure or delay to provide the Services, or any part of them, due to:
(i) the Subscriber’s failure or delay in obtaining any necessary consent or access to the Third Party Software;
(ii) the Third Party Provider or the End Client revoking access or consent; or
(iii) the Third Party Provider making any changes to the Third Party Software.
5. AUTHORISED USERS
5.1. In relation to the Authorised Users, the Subscriber undertakes that:
5.1.1. each Authorised User shall keep a secure password for their use of the Platform, and that each Authorised User shall keep their password confidential;
5.1.2. it shall disable any Authorised User’s access to the Services and the Documentation promptly upon termination or suspension of such Authorised User’s employment or services contract with the Subscriber;
5.1.3. it shall maintain a written, up-to-date list of current Authorised Users and provide such list to Hindsight within five Business Days of Hindsight’s written request at any time or times.
5.2. The Subscriber shall comply with the Acceptable Use Policy in relation to the Platform.
5.3. If the Subscriber becomes aware that any Authorised User’s use of the Platform breaches the Acceptable Use Policy, the Subscriber shall suspend the relevant Authorised User’s access to the Platform without liability or prejudice to its other rights and without prior notice to the Subscriber.
5.4. Whenever Hindsight reasonably suspects that there has been a breach of the Acceptable Use Policy, the Subscriber shall permit Hindsight to audit the Platform to ensure compliance with the Acceptable Use Policy by the Subscriber and the Authorised Users. Such right to audit shall be exercised at Hindsight’s expense, with reasonable prior notice and in such a manner as not to substantially interfere with the Subscriber’s normal conduct of business. For clarity, the parties acknowledge that Hindsight is not obliged to carry out any such audit.
5.5. Notwithstanding any other provision in the Contract, if there is a Security Event, Hindsight may, without liability or prejudice to its other rights and without prior notice to the Subscriber or any Authorised User, disable the Subscriber’s and/or Authorised User’s access until the relevant Security Event has been resolved. Hindsight shall give the Subscriber written notice as soon as is reasonably practicable of the nature of the relevant Security Event.
5.6. The Subscriber shall not:
5.6.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) except to the extent expressly permitted under the Contract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
5.6.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
5.6.3. except as specified in clause 3.2:
(i) use the Services and/or Documentation to provide services to third parties;
(ii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users;
5.6.4. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5; or
5.6.5. introduce, or permit the introduction of, any Virus or Vulnerability into the Platform or the Services.
5.7. The Subscriber shall:
5.7.1. use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Hindsight; and
5.7.2. comply with any further obligations set out in the Documentation that govern use of the Services or development of the Platform.
5.8. The rights provided under this clause 5 are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.
5.9. Any Open-Source Software provided by Hindsight may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in clause 16.2.2. Such terms and conditions shall govern such use to the extent that they expressly supersede the Contract.
6. HINDSIGHT’S OBLIGATIONS
6.1. Hindsight warrants that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2. The warranty at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Hindsight’s instructions, or modification or alteration of the Services by any party other than Hindsight or Hindsight’s duly authorised contractors or agents. If the Services do not conform with the foregoing warranty, Hindsight will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Subscriber with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Subscriber’s sole and exclusive remedy for any breach of the warranty set out in clause 6.1. Notwithstanding the foregoing, Hindsight:
6.2.1. does not warrant that:
(i) the Subscriber’s use of the Services will be uninterrupted or error-free;
(ii) the Services, Documentation and/or the information obtained by the Subscriber through the Services will meet the Subscriber’s or any End Client’s requirements; or
(iii) the Platform or the Services will be free from Vulnerabilities; and
6.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Subscriber acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3. The Contract shall not prevent Hindsight from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
6.4. Hindsight warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
7. CUSTOMER’S OBLIGATIONS
7.1. The Subscriber shall:
7.1.1. provide Hindsight with:
(i) all necessary co-operation in relation to the Contract; and
(ii) all necessary access to such information as may be required by Hindsight,
in order to provide the Services, including Task Data;
7.1.2. without affecting its other obligations under the Contract, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under the Contract;
7.1.3. carry out all other Subscriber responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Subscriber’s provision of such assistance as agreed by the parties, Hindsight may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.1.4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Contract and shall be responsible for breach of the Contract caused or contributed to by any acts or omissions on the part of any Authorised User;
7.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Hindsight, its contractors and agents to perform their obligations under the Contract, including provision of the Services;
7.1.6. ensure that its network and systems comply with the relevant specifications provided by Hindsight from time to time;
7.1.7. be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Hindsight’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Subscriber’s network connections or telecommunications links or caused by the internet;
7.1.8. as between the parties, be responsible for responding to all third party requests concerning the use of the Services by the Subscriber.
8. TASK DATA
8.1. The Subscriber and/or the applicable End Client shall own all right, title and interest in and to all of the Task Data and the Subscriber shall have sole responsibility for:
8.1.1. the legality, reliability, integrity, accuracy and quality of the Task Data; and
8.1.2. any losses of data, programs, breaches of security, Viruses, Vulnerabilities and disabling or harmful devices that the Authorised User may download or otherwise experience introduced by the Subscriber.
8.2. Hindsight may modify or adapt Task Data in order to transmit, display or distribute it over computer networks and in various media and/or make changes to the Task Data as are necessary to perform the Services, including for reasons such as, to conform and adapt it to any requirements or limitations of any networks, devices, services or media.
8.3. The parties acknowledge and agree that:
8.3.1. Services, including any Reports, will be based on Task Data and Hindsight holds no responsibility for the outcomes of the Services or Reports based on the Task Data;
8.3.2. Hindsight is not responsible or liable for the deletion of or failure to store any of the Task Data, and other communications maintained or transmitted through use of the Services; and
8.3.3. the Subscriber is solely responsible for securing and backing up all Task Data.
9. CHARGES AND PAYMENT
9.1. The Subscriber shall pay the Subscription Fees to Hindsight in accordance with this clause 9 and the Order Form.
9.2. The Subscription Fees shall be:
9.2.1. calculated on a monthly basis in accordance with clause 9.3;
9.2.2. invoiced monthly in arrears;
9.2.3. automatically taken using the payment method authorised by the Subscriber at the start of Term.
9.3. Hindsight shall calculate the Subscription Fees based on:
9.3.1. the then current fee for the Subscription Level as indicated on Hindsight’s website (“Subscription Level Fee”);
9.3.2. for each End Client the applicable Subscription Level Fee shall be based on the highest Subscription Level for that End Client during the applicable period (including if by the close of the applicable period the Subscriber has removed the End Client from the Platform) (“End Client Fee”);
9.3.3. total of all End Client Fees for the applicable period (“Subscription Fee”).
9.4. If Hindsight has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Hindsight:
9.4.1. Hindsight may, without liability to the Subscriber, disable the Subscriber’s access, and all Authorised User’s access, to all or part of the Services and Hindsight shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.4.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5. All amounts and fees stated or referred to in the Contract:
9.5.1. shall be payable in pounds sterling;
9.5.2. are non-cancellable and non-refundable;
9.5.3. are exclusive of value added tax, which shall be added to Hindsight’s invoice(s) at the appropriate rate.
9.6. Hindsight shall be entitled to increase the Subscription Level Fees at any time on 30 days’ prior notice to the Subscriber.
10. PROPRIETARY RIGHTS
10.1. The Subscriber acknowledges and agrees that Hindsight and/or its licensors own all IPR in the Services (whether integrated into a Subscriber System or not), the Documentation, the Platform and Reports. Except as expressly stated in the Contract, the Contract does not grant the Subscriber any rights to, or in, any IPR or any other rights or licences in respect of the Services, the Documentation or the Platform.
10.2. Hindsight confirms that it has all the rights in relation to the Services, the Documentation, the Platform and Reports that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
10.3. Nothing in this clause 10 shall restrict the right of the Subscriber to ownership, copying and use of the Task Data in any way.
11. SUBSCRIBER CONTENT
11.1. The Subscriber (or its licensors) shall own all IPR in and to all of the Subscriber Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Content.
11.2. The Subscriber hereby grants to Hindsight a non-exclusive, non-transferable right during the Term to carry out any acts that would otherwise be restricted by any of the IPR in the Subscriber Content for the sole purpose of enabling Hindsight to provide the Services to the Subscriber in accordance with the Contract.
11.3. The Subscriber warrants that any Subscriber Content the Subscriber provides Hindsight with under this Contract do not infringe the IPR of any third party.
11.4. The Subscriber shall indemnify Hindsight and keep Hindsight indemnified and hold Hindsight harmless in respect of all costs, or losses sustained or incurred by Hindsight (including any legal costs, any direct, indirect or consequential losses, loss of profit and loss of reputation), that arise directly or indirectly from a breach of the warranty in clause 11.3.
12. DATA PROTECTION
12.1. In this clause 12 the followings words shall have the following meanings:
12.1.1. “Data Protection Legislation” shall mean all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party;
12.1.2. “process”, “personal data”, “data processor”, “data controller”, “data subject” shall have the terms given to them in the Data Protection Legislation.
12.2. If and to the extent that Hindsight processes any personal data in connection with the Services, the parties acknowledge that for the purposes of the Data Protection Legislation, Hindsight is a data processor.
12.3. If an End Client is the data controller in respect of any personal data processed by Hindsight in connection with the Services, the Subscriber shall act as a conduit between Hindsight and the End Client and shall promptly provide any information required in connection with this clause 12 to the End Client and/or Hindsight, as applicable.
12.4. Both parties will comply with all applicable requirements of the Data Protection Legislation.
12.5. The Data Processing Appendix sets out the scope, nature and purpose of processing by Hindsight, the duration of the processing and the types of personal data and categories of data subject in relation to the Services.
12.6. Without prejudice to the generality of clause 12.4, the Subscriber will:
12.6.1. provide complete, accurate and lawful written instructions to Hindsight to govern the processing of personal data as initially set out in the Data Processing Appendix;
12.6.2. ensure that the Subscriber has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Hindsight for the duration and purposes of the Services; and
12.6.3. notify Hindsight without undue delay on becoming aware of a personal data breach which has or may have an impact on the processing carried out by Hindsight or the written instructions for processing.
12.7. Without prejudice to the generality of clause 12.4, Hindsight shall, in relation to any personal data processed in connection with the performance by Hindsight of its obligations under the Contract:
12.7.1. process that personal data only on the written instructions of the Subscriber as set out in the Data Processing Appendix unless Hindsight is required by the laws of the United Kingdom applicable to Hindsight to process personal data (“Applicable Laws”). Where Hindsight is relying on Applicable Laws as the basis for processing personal data, Hindsight shall promptly notify the Subscriber of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Hindsight from so notifying the Subscriber;
12.7.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Subscriber, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
12.7.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
12.7.4. not transfer any personal data outside of the United Kingdom for the purposes of the Contract unless the prior written consent of the Subscriber has been obtained and the following conditions are fulfilled:
(i) there is an appropriate safeguard in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Hindsight complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) at the Subscriber’s cost, Hindsight complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the personal data;
12.7.5. assist the Subscriber, at the Subscriber’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.7.6. notify the Subscriber without undue delay on becoming aware of a personal data breach;
12.7.7. at the written direction of the Subscriber, delete or return personal data and copies thereof to the Subscriber on termination of the Contract unless required by Applicable Law to store the personal data; and
12.7.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 12.
12.8. The Subscriber consents to Hindsight appointing third-party processors of personal data under the Contract and Hindsight shall provide the Subscriber with a list of current sub-processors on request. Hindsight confirms that it has with the third-party processor entered into a written agreement substantially on that third party’s standard terms of business. Prior to appointing any other sub-processors, Hindsight shall give the Subscriber 30 days’ prior notice after which time the Subscriber shall have 90 days’ to terminate the Contract if the Subscriber does not agree to the appointment. As between the Subscriber and Hindsight, Hindsight shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 12.8.
12.9. The Subscriber shall defend, indemnify and hold harmless Hindsight against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Subscriber’s failure to comply with this clause 12.
13.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
13.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
13.1.2. was in the other party’s lawful possession before the disclosure;
13.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
13.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
13.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
13.2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.
13.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of the terms of the Contract.
13.4. Hindsight shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
13.5. The parties acknowledge that:
13.5.1. Hindsight’s Confidential Information includes details of the Services, and the results of any performance tests of the Services; and
13.5.2. the Subscriber’s Confidential Information includes the Task Data.
13.6. The Subscriber acknowledges and agrees that:
13.6.1. Hindsight may include the Subscriber’s name or logo in a list of Hindsight’s subscribers in any medium; and
13.6.2. Hindsight may refer to the Subscriber, orally or in writing, as a subscriber of the Services for promotional, marketing and financial reporting purposes.
13.7. The provisions of this clause 13 shall survive termination of the Contract, however arising.
13.8. No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
14. TERM AND TERMINATION
14.1. The Contract shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, the Contract shall be automatically renewed after each Renewal Period (or the Initial Term), unless:
14.1.1. either party notifies the other party of termination, in writing, at least 30 Business Days before the end of the Initial Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the Initial Term or Renewal Period; or
14.1.2. otherwise terminated in accordance with the provisions of the Contract.
The Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.
14.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.2.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.2.2. the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.2.3. the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
14.2.4. 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;
14.2.5. 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;
14.2.6. 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;
14.2.7. 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;
14.2.8. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.2.9. 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;
14.2.10. 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 14 days;
14.2.11. 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 clauses 14.2.4 to 14.2.10 (inclusive);
14.2.12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3. On termination of the Contract for any reason:
14.3.1. all licences granted under the Contract shall immediately terminate;
14.3.2. each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
14.3.3. without limiting the effect of clause 14.3.2, Hindsight may require the Subscriber immediately to return all copies of the Platform, the Documentation, Hindsight’s Confidential Information and any other materials or to erase the same from the Subscriber’s computer and communications systems and devices used by the Subscriber, including such systems and data storage services provided by third parties (to the extent technically and legally practicable). The Subscriber may, at Hindsight’s request, be required to confirm in writing that all such copies have been returned or so erased;
14.3.4. Hindsight may destroy or otherwise dispose of any of the Task Data in its possession unless Hindsight receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Subscriber of the then most recent back-up of the Task Data. Hindsight shall use reasonable commercial endeavours to deliver the back-up to the Subscriber within 30 days of its receipt of such a written request, provided that the Subscriber has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Subscriber shall pay all reasonable expenses incurred by Hindsight in returning or disposing of Task Data;
14.3.5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced;
14.3.6. any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract, including clauses 1, 9, 10, 11 12, 13, 14, 15, 16, 17 and 18, shall remain in full force and effect; and
14.3.7. any outstanding balance becomes immediately due and payable.
15.1. The Subscriber shall defend, indemnify and hold harmless Hindsight against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:
15.1.1. the Task Data;
15.1.2. the Subscriber’s IPR; or
15.1.3. the Subscriber’s use of the Services and/or Documentation.
15.2. Hindsight shall defend the Subscriber, its officers, directors and employees against any claim that the use of any of the Services or the Documentation by the Subscriber in accordance with the Contract infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that this indemnity does not apply to the extent that any such claim is based on the use of any Open-Source Platform.
15.3. The obligations of the Subscriber and Hindsight under clauses 15.1 and 15.2 respectively are conditional on:
15.3.1. the indemnifying party being given prompt notice of any relevant claim;
15.3.2. the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and
15.3.3. the indemnifying party being given sole authority to defend or settle such claim.
15.4. Except as specifically provided in the Contract, the enforcement and protection of a party’s IPR shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.
15.5. In the defence or settlement of any claim, Hindsight may procure the right for the Subscriber to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on two Business Days’ notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.
15.6. In no event shall Hindsight, its employees, agents and subcontractors be liable to the Subscriber to the extent that the alleged infringement is based on:
15.6.1. a modification of the Services or Documentation by anyone other than Hindsight;
15.6.2. the use of the Services or Documentation by the Subscriber or any Authorised User in a manner contrary to the instructions given to the Subscriber by Hindsight; or
15.6.3. the use of the Services or Documentation by the Subscriber or any Authorised User after notice to the Subscriber of the alleged or actual infringement from Hindsight or any appropriate authority.
15.7. The foregoing and clause 16.4 states the Subscriber’s sole and exclusive rights and remedies, and Hindsight’s (including Hindsight’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
16. LIMITATION OF LIABILITY
16.1. This clause 16 sets out the entire financial liability of Hindsight (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Subscriber:
16.1.1. arising under or in connection with the Contract;
16.1.2. in respect of any use made by the Subscriber or its Authorised Users of the Services and Documentation or any part of them; and
16.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
16.2. Except as expressly and specifically provided in the Contract:
16.2.1. the Subscriber assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Subscriber or any End Client, and for conclusions drawn from such use. Hindsight shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Hindsight by the Subscriber or any End Client in connection with the Services, or any actions taken by Hindsight at the Subscriber’s direction;
16.2.2. 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 the Contract;
16.2.3. the Services and the Documentation are provided to the Subscriber on an “as is” basis.
16.3. Nothing in the Contract excludes the liability of Hindsight:
16.3.1. for death or personal injury caused by Hindsight’s negligence; or
16.3.2. for fraud or fraudulent misrepresentation.
16.4. Subject to clauses 16.2 and 16.3:
16.4.1. Hindsight shall not be 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 the Contract; and
16.4.2. Hindsight’s total aggregate liability in contract (including in respect of the indemnity at clause 15.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
17.1. Hindsight shall not be liable for any failure or delay in performing its obligations as a result of a Force Majeure Event. If a Force Majeure Event continues for more than 14 days, Hindsight shall be entitled to terminate the Contract by giving 7 days’ notice in writing.
17.2. The Subscriber shall not partially or wholly assign or sub-contract any of its obligations under the Contract.
17.3. Hindsight may perform any or all of its obligations under the Contract through sub-contractors, agents or other third parties, without the Subscriber’s written consent.
17.4. The Contract represents the entire agreement between the parties and supersedes all earlier warranties, representations, statements or agreements (whether written or oral). The Subscriber acknowledges that in entering into the Contract, the Subscriber has not relied on any, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in the Contract as a warranty.
17.5. Any notice under the Contract or required by statute, law or regulation shall be delivered in person, sent by registered mail, properly posted and fully pre-paid in a envelope to the respective parties at their respective registered or principal offices.
17.6. The parties intend that any person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any term of the Contract, but this does not affect any right or remedy of a third party which exists, or is available, apart from the Act.
17.7. If any provision is found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity shall not affect the rest of the Contract, which shall remain in full force and effect.
17.8. Failure by Hindsight to exercise or enforce any of its rights or remedies under the Contract shall not constitute a waiver of any such right or remedy, nor shall it prevent the exercise or enforcement of the right or remedy at any time.
17.9. If the Subscriber is unhappy with any aspect of the Services, please contact Hindsight on the contact details set out on its website.
17.10. Unless otherwise expressly stated, nothing in these Terms shall create a partnership or agency between the parties.
17.11. If a dispute arises between the parties in relation to the Contract in any way, the parties shall first try in good faith to amicably resolve the dispute within 28 days of the dispute arising.
17.12. Subject to clause 17.11, the Contract and any dispute arising out of or in connection with its subject matter or formation shall be governed by and construed in accordance with English law and the parties submit to the courts of England & Wales having exclusive jurisdiction in relation to such.
18.1. The definitions in this clause apply in the Terms.
“Acceptable Use Policy” the acceptable use policy set out at www.hindsightapp.com/acceptable-use-policy or such other website address as may be notified to the Subscriber from time to time.
“Additional Terms” as may be detailed in the Order Form from time to time.
“Authorised Users” those employees, agents and independent contractors of the Subscriber who are authorised by the Subscriber to use the Services and the Documentation, as further described in clause 4.
“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information including as set out in clause 13.5.
“Contract” as defined in clause 2.3.
“Documentation” the document made available to the Subscriber by Hindsight online via www.hindsightapp.com/knowledgebase or such other web address notified by Hindsight to the Subscriber from time to time which sets out a description of the Services and the user instructions for the Services.
“Effective Date” the date of the Contract.
“End Client” a client of the Subscriber in respect of which the Subscriber uses the Services.
“Force Majeure Event” a Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
- strikes lock-outs or other industrial action;
- civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
- fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
- impossibility of the use of public or private telecommunications networks;
- the acts, decrees, legislation, regulations or restrictions of any government; and
- acts of third parties.
“Hindsight” Hindsight App Ltd (08924180) whose registered office is at 133 Howeth Road, Bournemouth, BH10 5NU.
“Initial Term” 30 days commencing on the Effective Date.
“IPR” intellectual property rights being all patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Open-Source Software” any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Services or the Platform, or with which the Services or the Platform is compiled or to which it is linked.
“Order Form” the order form for the Services issued by Hindsight to the Subscriber which is accepted by Hindsight pursuant to clause 2.3.
“Platform” the software and tools provided by Hindsight from time to time as part of the Services, including any updates Hindsight may make to such software and tools from time to time.
“Privacy and Security Policy” the privacy and security policy set out at www.hindsightapp.com/privacy-policy or such other website address as may be notified to the Subscriber from time to time.
“Renewal Period” a successive period of 30 days commencing on the day following expiry of the Initial Term.
“Reports” reports generated by the Platform.
- any unauthorised third party access to the Services or the Platform; or
- any use of the Service by the Subscriber or any Authorised User that is in breach of the Acceptable Use Policy and has the potential to materially impact the Platform, the Services or use of the Services by any other subscriber of Hindsight or any of that Subscriber’s users; or
- any Vulnerability or Virus introduced into the Platform or the Services by (or facilitated through) the Subscriber or any Authorised User.
- the subscription services provided by Hindsight to the Subscriber under the Contract, as more particularly described in the Documentation, including the provision of the Platform and Reports;
- such other services as Hindsight may decide, at its discretion, to integrate into the Platform from time to time.
“Subscriber” the Subscriber as detailed in the Order Form.
“Subscriber Content” all text, information, data, software, executable code, images, audio or video material, in whatever medium or form, inputted by the Subscriber and/or Authorised Users for the purpose of using the Services or facilitating the Subscriber’s use of the Services.
“Subscriber System” the Subscriber’s system on which the Platform is to be installed by Hindsight or the system that the Platform otherwise integrates with.
“Subscription Fees” the subscription fees payable by the Subscriber to Hindsight, calculated in accordance with clause 9.3.
“Subscription Level” the level of subscription for each End Client, as more particularly described on Hindsight’s website.
“Task Data” the data inputted by the Subscriber, Authorised Users or End Clients whether input into the Platform or Third Party Software.
“Term” has the meaning given in clause 14.1 (being the Initial Term together with any subsequent Renewal Periods).
“Update/Updated” any improvements, modifications or corrections to the functionality of the Services that are generally made available at no additional cost to Hindsight’s Subscribers who purchase the Services.
“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.
“Vulnerability” 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.
Data Processing Appendix
1. Processing by Hindsight App Ltd
While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you (“Personal Data”).
We may use your Personal Data to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send or by contacting us.
We may also collect information on how the Service is accessed and used (“Usage Data”). This Usage Data may include information such as your computer’s Internet Protocol address (e.g. IP address), browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages, unique device identifiers and other diagnostic data.
1.2 Purpose of processing
Hindsight App Ltd uses the collected data for various purposes:
- To provide and maintain our Service
- To notify you about changes to our Service
- To allow you to participate in interactive features of our Service when you choose to do so
- To provide customer support
- To gather analysis or valuable information so that we can improve our Service
- To monitor the usage of our Service
- To detect, prevent and address technical issues
- To provide you with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or enquired about unless you have opted not to receive such information.
1.3 Duration of the processing
Hindsight App Ltd will also retain Usage Data for internal analysis purposes. Usage Data is generally retained for a shorter period of time, except when this data is used to strengthen the security or to improve the functionality of our Service, or we are legally obligated to retain this data for longer periods.
2. Categories of data subject and types of personal data
- Email address
- First name and last name
- Phone number
- Address, State, Province, ZIP/Postal code, City
- Cookies and Usage Data