HighGround Terms and Conditions
These Terms and Conditions govern our HighGround service. Please read them carefully. We will ask you to agree to these Terms and Conditions before you use the service.
1. Definitions
1.1 In these Terms and Conditions:
In these Terms and Conditions:
“Access Credentials” means the usernames, passwords and other credentials enabling access to the Platform Services, including access credentials for use with the Web App, the Mobile App and any API;
“Agreement” means a contract made between M3N and the Customer for the provision of Services set out in these Terms and Conditions;
“API” means any application programming interface for the Platform Services defined by M3N and made available by M3N to the Customer;
“Charges” means the amounts listed in Clause 8.1;
“Customer” means the person or entity identified as such in the Order Form;
“Customer Data” means all data, works and materials:
(a) uploaded to the Platform by the Customer;
(b) sent to the Platform by an Integrated Service or collected by the Platform from an Integrated Service; or
(c) generated by the Platform using data referred to in (a) or (b) above,
excluding Customer Partner Data and providing that the Customer Data shall not include analytics data relating to the use of the Platform, server log files or aggregated datasets created in accordance with Clause 6.1;
“Customer Partner” means:
(a) a supplier to the Customer that has a HighGround account and provides (or may provide) data to the Customer by means of the Platform Services; or
(b) a customer of the Customer that has a HighGround account, to whom the Customer provides (or may provide) data by means of the Platform Services;
“Customer Partner Data” means any data shared by a Customer Partner with the Customer by means of the Platform Services;
“Customer Personal Data” means any Personal Data that is processed by M3N on behalf of the Customer in relation to the Agreement;
“Customer Systems” means the computer systems of the Customer that are monitored by the Customer using the Platform Services;
“Customisation” means a customisation of the Platform Services software, including customisations consisting of the further development of the software, the addition of new features or modules to the software, and/or the addition of new Integrated Services;
“Data Protection Laws” means the EU GDPR and the UK GDPR;
“Data Sharing Functionality” means any functionality enabling the Customer to share Customer Data with a Customer Partner by means of the Platform Services, or enabling a Customer Partner to share Customer Partner Data with the Customer by means of the Platform Services;
“Documentation” means any documentation for the Platform Services produced by M3N and published by M3N in the Support Portal or otherwise made available by M3N to the Customer;
“Effective Date” means, following the Customer first completing and submitting the relevant order form for the Platform Services published by M3N, the date upon which M3N sends to the Customer an order confirmation by email or otherwise;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Free Period” means a period during which Services are provided by M3N on a free-of-charge basis;
“Integrated Service” means a software-based service that:
(a) is provided to the Customer by a third party; and
(b) has been integrated with the Platform by M3N, where such integration has been activated by the Customer enabling the transfer of Customer System-related data to the Platform Services;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);
“M3N” means M3 Networks Limited, a company incorporated in Scotland (registration number SC364161) having its registered office at Inveralmond Business Centre, Auld Bond Road, Perth, PH1 3FX;
“Mobile App” means the mobile application known as HighGround that is made available by M3N through the Google Play Store and the Apple App Store, enabling access to the Platform Services;
“Order Form” means all the following forms insofar as published by M3N, completed and submitted by the Customer and accepted by M3N (either by M3N sending a written acceptance to the Customer or by M3N providing the relevant Services):
(a) the online order form used by the Customer when first ordering the Platform Services, whether for a Free Period or a Subscription Period; and
(b) any upgrade form or other online order form used by the Customer to order Services after the first order for the Platform Services;
“Personal Data” means personal data under any of the Data Protection Laws;
“Platform” means the platform managed by M3N and used by M3N to provide the Platform Services, including the application and database software for the Platform Services, the system and server software used to provide the Platform Services, and the computer hardware on which that application, database, system and server software is installed;
“Platform Services” means the HighGround cloud service, which will be made available by M3N to the Customer as a service via the internet in accordance with these Terms and Conditions;
“Services” means:
(a) the Platform Services; and
(b) any Support Services,
that M3N provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
“Subscription Period” means a period of paid Services that is 12 months in length (or such other length as may be specified in the Order Form) beginning:
(a) at the end of a Free Period (or if there is no Free Period, on the Effective Date); or
(b) at the end of a preceding Subscription Period;
“Subscription Specification” means the specification of the Customer’s rights to use the Platform Services set out or referenced in the Order Form (as it may be upgraded, supplemented by the purchase of integration packs or in accordance with Clause 7, or otherwise varied from time to time in accordance with these Terms and Conditions);
“Support Portal” means the support portal providing know-how materials relating to the use of the Platform Services published and maintained by M3N;
“Support Services” means:
(a) the provision of the Support Portal; and
(b) individual support for Users in relation to the identification and resolution of errors in the Platform Services, including individual support provided by human agents and automated systems but excluding training and assistance in relation to the use of the Platform Services;
“Supported Web Browser” means those web browsers supported by the Platform Services, as specified in the Support Portal from time to time;
“Template Documents” means any template or precedent policies, procedures, checklists, compliance documents or other documents that are made available by M3N to the Customer via the Platform Services from time to time;
“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions, the Schedules, the Order Form and the Subscription Specification, including any amendments to that documentation from time to time;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“User” means an individual end user of the Services; and
“Web App” means the web application published by M3N enabling access to the Platform Services by means of a Supported Web Browser.
2. Term
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 15 or any other provision of these Terms and Conditions.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 15 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Order Form shall create a distinct contract under these Terms and Conditions.
2.4 If the Customer purchases professional services or managed services from M3N, the purchase and provision of those services shall be subject to separate terms and conditions.
3. Platform Services
3.1 M3N hereby grants to the Customer a non-exclusive licence to use the Platform Services during the Term and in accordance with the Documentation and Subscription Specification by means of:
(a) the Web App with a Supported Web Browser;
(b) the Mobile App; and/or
(c) any API,
for the business purposes of the Customer, including monitoring the security of the Customer Systems and facilitating the compliance of the Customer Systems with applicable standards and regulations.
3.2 The licence granted by M3N to the Customer under Clause 3.1 is subject to the following limitations:
(a) the Platform Services may only be connected to the number of Integrated Services permitted by the Subscription Specification, and shall be subject to the other limitations in the Subscription Specification;
(b) the Web App may only be used by a User through a Supported Web Browser, and the Platform Services may only be used by a User through the Web App or the Mobile App;
(c) the only permitted Users of the Platform Services are those identified in the User records stored by the Platform Services, providing that the Customer may change, add or remove a designated named User in accordance with the procedure set out in the Support Portal;
(d) the API may only be used by an application or applications meeting the requirements set out in the Support Portal; and
(e) the API may only be used by an application or applications controlled by the Customer.
3.3 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by M3N to the Customer under Clause 3.1 is subject to the following prohibitions:
(a) unless expressly permitted to do so by the Subscription Specification, the Customer must not sub-license its right to access and use the Platform Services, resell the Platform Services, or use the Platform Services to provide services to third parties;
(b) the Customer must not permit any unauthorised person or application to access or use the Platform Services;
(c) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(d) the Customer must not conduct or request that any other person conduct any load testing, vulnerability assessing, vulnerability scanning, footprinting, penetration testing or automated information gathering on the Platform or Platform Services without the prior written consent of M3N.
3.4 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Platform Services by means of the Access Credentials.
3.5 M3N shall use reasonable endeavours to maintain the availability of the Platform Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Platform Services but does not guarantee 100% availability.
3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy) in relation to the use of the Platform Services and must ensure that all Users comply with Schedule 1 (Acceptable Use Policy) in relation to such use.
3.7 Save to the extent that the parties expressly agree otherwise in writing, this Clause 3.7 shall apply with respect to any Customisation that M3N creates at the request of, or with the agreement of, the Customer, whether or not the Customer pays for the whole or part of the creation of the Customisation.
(a) All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of M3N.
(b) From the time and date when a Customisation is first delivered or made available by M3N to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer’s rights to use the Customisation shall be governed by the preceding provisions of this Clause 3.
(c) The Customer acknowledges that M3N may make any Customisation available to any of its other customers or any other third party.
3.8 The Customer acknowledges that the Platform and Platform Services are developed on an ongoing basis and subject to the express restrictions in these Terms and Conditions M3N may add, alter, remove or replace any features of the Platform Services at any time in its sole discretion.
3.9 M3N may from time to time make Template Documents available to the Customer by means of the Platform Services. M3N hereby grants to the Customer a non-exclusive and non-transferable licence to copy, adapt and use such Template Documents strictly in the course of, and for the purposes of, the Customer's business, and providing that the Customer must not:
(a) remove any proprietary notices from any Template Document or any derivative thereof;
(b) publish or redistribute any Template Document or derivative thereof, except a derivative that has been fully adapted for the Customer’s business and is being properly used with respect to the Customer’s business; and
(c) sell or resell any Template Document or derivative thereof.
4. Mobile App
4.1 Although the use of the Platform Services through the Mobile App is subject to these Terms and Conditions, the parties acknowledge and agree that the use of the Mobile App software code, the parties' respective rights and obligations in relation to the Mobile App software code and any liabilities of either party arising out of the use of the Mobile App software code shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.
4.2 For the avoidance of doubt, the Customer shall be responsible for:
(a) the installation of the Mobile App on user devices;
(b) the connection of such devices to the Platform Services by means of the Mobile App;
(c) the security, management and disconnection of any such devices; and
(d) the confidentiality of any information accessed or accessible through such devices,
and, subject to Clause 13.1, M3N shall have no liability to the Customer with respect to any loss or damage arising out of any failure of the Customer to fulfil its responsibilities referred to in this Clause 4.2.
5. Support Services
5.1 M3N shall provide the Support Services to the Customer during the Term, providing that M3N shall have no obligation to provide Support Services during any Free Period.
5.2 M3N shall publish support contact details through the Support Portal, which the Customer may use for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use those contact details for any other purpose.
5.3 The Customer must:
(a) use reasonable endeavours to resolve issues relating to the Platform Services using the Support Portal before contacting M3N;
(b) provide to M3N all such information as is reasonably requested by M3N in relation to the provision of the Support Services; and
(c) follow all reasonable instructions of M3N in relation to issues with the Platform Services identified through the Support Services.
5.4 M3N shall use reasonable endeavours to respond to requests for Support Services within 2 working days following receipt of a request, subject to Clause 5.1.
5.5 The Support Services shall be subject to those limits specified in the Support Portal from time to time.
5.6 The Customer acknowledges that issues relating to the Platform Services may take time to resolve, and that specific issues may not be resolved until a scheduled major Platform Services update or at all.
5.7 The Customer must comply with Schedule 1 (Acceptable Use Policy) in relation to the Customer's use of the Support Portal and must ensure that all Users comply with Schedule 1 (Acceptable Use Policy) in relation to such use.
6. Customer obligations
6.1 The Customer hereby grants to M3N:
(a) a non-exclusive licence during the Term and for so long as M3N has a right to retain the Customer Data in accordance with these Terms and Conditions to copy, reproduce, store, distribute, publish, export, adapt, edit, translate and otherwise use the Customer Data to the extent reasonably required for the provision of the Services, and for the performance of M3N’s other obligations under the Agreement and the exercise of M3N’s rights under the Agreement;
(b) a non-exclusive licence during the Term and thereafter to display and communicate any Customer Data that is shared by the Customer using the Data Sharing Functionality to the Customer Partner with which that Customer Data has been shared; and
(c) a non-exclusive licence during the period specified in (a) above to create aggregated datasets containing the Customer Data, and a non-exclusive perpetual irrevocable licence to use those datasets for the purposes of research, benchmarking and marketing, providing that: (i) such aggregated datasets must not contain any Customer Personal Data; and (ii) to the extent that such aggregated datasets allow for identification of the Customer, M3N must not publish them or provide them to any third party (excluding third parties providing services to M3N and subject to confidentiality obligations with respect to the aggregated dataset).
6.2 The Customer also grants to M3N the right to sub-license the rights specified in Clause 6.1 to its services providers (including its administration, customer service, account management, support, security, hosting, data processing, connectivity and telecommunications service providers) for M3N's own purposes specified in Clause 6.1, subject to the express restrictions elsewhere in the Agreement.
6.3 The Customer warrants to M3N that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.
6.4 For the avoidance of doubt, the Customer shall be responsible for the configuration of the Platform Services and the integration of the Integrated Services with the Platform Services using the processes defined by the Platform Services and/or the Support Portal.
7. Reward programmes
7.1 M3N may from time to time during the Term operate a referral programme and/or another reward programme, through which the Customer may earn benefits and/or credits relating to the Platform Services (which may include rights to connect additional Integrated Services).
7.2 The rules, requirements, conditions, benefits and/or credits associated with each reward programme are set out by M3N in the Support Portal or communicated via the Platform Services.
7.3 M3N may in its sole discretion refuse to provide a benefit or credit to the Customer or withdraw a benefit or credit previously provided to the Customer, and in particular will do so where M3N believes that:
(a) the Customer has breached the Agreement or has breached any rules, requirements or conditions relating to any reward programme and set out in the Support Portal; or
(b) the Customer has acted in bad faith in relation to the earning of the benefits or credits or otherwise in relation to any reward programme.
7.4 If, in accordance with Clause 7.3, M3N withdraws a benefit or credit previously provided to the Customer, the Customer must pay to M3N the amount of any discount previously received by the Customer as a result of that benefit or credit.
7.5 M3N may modify, withdraw, suspend or cancel any reward programme at any time without notifying the Customer.
8. Charges
8.1 The Customer must pay the following Charges to M3N in accordance with this Clause 8 and Clause 9:
(a) the Charges for the Services specified on the Support Portal from time to time; and
(b) any other Charges specified in these Terms and Conditions.
8.2 All Charges and other amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to M3N.
8.3 M3N may elect to vary any element of the Charges by updating the Support Portal, providing that any such variation will not affect Charges previously paid by the Customer.
9. Payments
9.1 The Customer must pay the Charges to M3N in advance of the period to which they relate and in advance of the provision of the Services to which they relate.
9.2 If the Customer does not pay any amount properly due to M3N under these Terms and Conditions, M3N may charge the Customer interest on the overdue amount at the rate of 15% per annum above the Bank of England base rate from time to time, which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month.
9.3 M3N may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to M3N under the Agreement is overdue.
9.4 The Customer shall have no right of set-off in relation to the Charges.
9.5 If the Customer is entitled to access the Platform Services for a time-limited Free Period, then if the Customer does not before the end of that time-limited Free Period pay the Charges for the next following Subscription Period, M3N may downgrade, suspend and/or cancel the Customer's access to the Platform Services at its sole discretion, and with or without notice to the Customer.
10. Data protection
10.1 M3N shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data, subject to the Customer's compliance with Clause 10.2.
10.2 The Customer warrants to M3N that it has the legal right to disclose all Personal Data that it does in fact disclose to M3N under or in connection with the Agreement.
10.3 The Customer shall only supply to M3N, and M3N shall only process, in each case under or in relation to the Agreement, the Personal Data of users of the Customer Systems and Users of the following types: names, contact information and other information contained in the Customer Data; and M3N shall only process the Customer Personal Data for the following purposes: providing the Services, fulfilling its obligations under these Terms and Conditions, and exercising its rights under these Terms and Conditions.
10.4 M3N shall only process the Customer Personal Data during the Term and for not more than 90 days following the end of the Term, subject to the other provisions of this Clause 10.
10.5 M3N shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
10.6 The Customer hereby authorises M3N to make the following transfers of Customer Personal Data:
(a) M3N may transfer the Customer Personal Data to its third party processors in the jurisdictions identified on the website at https://highground.io/ and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein;
(b) M3N may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data;
(c) M3N may transfer the Customer Personal Data from the UK to the EEA, and may permit its third party processors to do so, in any period during which EEA states are not treated as third countries under the UK GDPR or during which EEA states benefit from adequacy regulations under the UK GDPR; and
(d) M3N may transfer the Customer Personal Data from the EEA to the UK, and may permit its third party processors to do so, in any period during which the UK is not treated as a third country under the EU GDPR or during which the UK benefits from an adequacy decision under the EU GDPR, without prejudice to the allocation of responsibilities in Clause 12.8.
10.7 M3N shall promptly inform the Customer if, in the opinion of M3N, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
10.8 Notwithstanding any other provision of the Agreement, M3N may process the Customer Personal Data if and to the extent that M3N is required to do so by applicable law. In such a case, M3N shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
10.9 M3N shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.10 M3N shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
10.11 M3N must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, M3N shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days' written notice to M3N, providing that such notice must be given within the period of 7 days following the date that M3N informed the Customer of the intended changes. M3N shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on M3N by this Clause 10.
10.12 M3N is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties and third parties within the categories specified on the website at https://highground.io/.
10.13 M3N shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
10.14 M3N shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. M3N may charge the Customer at its standard time-based charging rates for any work performed by M3N at the request of the Customer pursuant to this Clause 10.14.
10.15 M3N must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 36 hours after M3N becomes aware of the breach.
10.16 M3N shall make available to the Customer all information necessary to demonstrate the compliance of M3N with its obligations under this Clause 10. M3N may charge the Customer at its standard time-based charging rates for any work performed by M3N at the request of the Customer pursuant to this Clause 10.16.
10.17 M3N shall, at the choice of the Customer, delete or return to the Customer all the Customer Personal Data after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
10.18 M3N shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of M3N's processing of Customer Personal Data with the Data Protection Laws and this Clause 10. M3N may charge the Customer at its standard time-based charging rates for any work performed by M3N at the request of the Customer pursuant to this Clause 10.18.
11. Warranties and indemnity
11.1 The Customer warrants to M3N that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
11.2 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
11.3 The Customer shall indemnify and shall keep indemnified M3N against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by M3N and arising directly or indirectly as a result of:
(a) any breach by the Customer of the Agreement;
(b) any claim that the Customer Data infringes any Intellectual Property Rights;
(c) any claim by any third party relating to the reliance of that third party on, or use by that third party of, any information generated by the Platform Services, where the Customer has directly or indirectly supplied, disclosed or provided that information to that third party;
(d) the transfer to any Customer Partner of Customer Data by means of the Data Sharing Functionality, and the use or misuse by any Customer Partner of such Customer Data; and
(e) the transfer to the Customer of any Customer Partner Data by means of the Data Sharing Functionality, the use or misuse by the Customer of such Customer Partner Data.
12. Acknowledgements and warranty limitations
12.1 The Customer acknowledges that KPIs, scores, metrics, summaries and levels generated by the Platform Services (including those relating to threats, compliance and investment) are probabilistic simplifications or summaries based upon the Customer Data, and accordingly:
(a) if the Customer Data is inaccurate, incomplete, outdated or otherwise defective then those KPIs, scores, metrics, summaries and levels may similarly be defective;
(b) the KPIs, scores, summaries and levels are not definitive predictions, so for example a score indicating a low risk does not mean that the relevant risk will not materialise, and similarly a score indicating a high risk does not mean that the relevant risk will materialise.
12.2 The Customer acknowledges that notifications sent by the Platform Services may not be received for a wide range of reasons, including reasons beyond the control of M3N.
12.3 The Customer acknowledges that if the Platform Services (or an element thereof) are suspended in accordance with Clause 9.3, any or all of the information reported by the Platform Services will be or may be inaccurate.
12.4 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, M3N gives no warranty or representation that the Platform Services will be wholly free from defects, errors and bugs.
12.5 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, M3N gives no warranty or representation that the Platform Services will be entirely secure, or that the Platform Services will ensure that the Customer Systems are secure.
12.6 The Customer acknowledges that the Platform Services are designed to be compatible only with that software and those systems specified as compatible in the Support Portal; and M3N does not warrant or represent that the Platform Services will be compatible with any other software or systems.
12.7 The Customer acknowledges that any Template Documents made available by means of the Platform Services will need to be adapted for the Customer's business and circumstances, may not be suitable for the Customer's legal and other compliance purposes, and must not be relied on as legal advice. M3N will not provide any legal or compliance advice to the Customer; and M3N does not warrant or represent that the Platform Services or Template Documents, or the use of the Platform Services or Template Documents by the Customer, will not give rise to any legal liability on the part of the Customer or any other person.
12.8 If the Customer has access to Data Sharing Functionality:
(a) the Customer and/or the relevant Customer Partner shall be responsible for the use of that Data Sharing Functionality, including establishing appropriate levels of access; and
(a) without prejudice to the generality of the foregoing the Customer and/or the relevant Customer Partner shall be responsible for: (i) establishing the legal basis upon which the recipient may use shared Customer Data and/or Customer Partner Data, including appropriate licensing and/or confidentiality requirements; and (ii) ensuring that the sharing of the Customer Data and/or Customer Partner Data complies with applicable laws (including the general provisions of, and the international transfer requirements under, the Data Protection Laws).
12.9 The Customer acknowledges that:
(a) M3N does not confirm the identity of Customer Partners on behalf of the Customer, check their credit worthiness or bona fides, or otherwise vet them;
(b) M3N does not check, audit or monitor the information contained in Customer Partner Data;
(c) M3N is not party to any contract or arrangement between the Customer and any Customer Partner for the use of Customer Data or Customer Partner Data; and
(d) M3N is not responsible for resolving disputes or mediating between the Customer and any Customer Partner, whether in relation to the use of Customer Data or the use of Customer Partner Data or otherwise.
13. Limitations and exclusions of liability
13.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms and Conditions are subject to Clause 13.1 and govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
13.3 The Customer will have no right to recover any loss or damage from M3N under or in relation to the Agreement with respect to use of the Platform Services during any Free Period.
13.4 M3N shall not be liable to the Customer in respect of any:
(a) loss or damage arising out of a Force Majeure Event;
(b) loss of profits or anticipated savings;
(c) loss of revenue or income;
(d) loss of use or production;
(e) loss of business, contracts or opportunities;
(f) damage to goodwill or reputation; or
(g) special, indirect or consequential loss or damage.
13.5 M3N will not be liable to the Customer in respect of any loss or corruption of any data, database or software, providing that this Clause 13.5 will not apply with respect to any liability of M3N arising out of a breach by M3N of Clause 10.
13.6 M3N will not be liable to the Customer in respect of any loss or damage arising out of:
(a) any inaccurate, incomplete, outdated or otherwise defective Customer Data or Customer Partner Data;
(b) the Customer relying upon KPIs, scores, metrics, summaries and levels generated by the Platform Services as if they were definitive predictions;
(c) any failure of the Customer to receive a notification generated by the Platform Services;
(d) any use of any Template Document;
(e) any use or failure of any Integrated Service, or any failure of any data synchronisation or data transfer operation between the Platform Services and any Integrated Service; or
(f) the use or misuse by any Customer Partner of Customer Data shared by the Customer using the Data Sharing Functionality.
13.7 The liability of M3N to the Customer under the Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) GBP 5,000.00; and
(b) the total amount paid and payable by the Customer to M3N under the Agreement in the 12-month period preceding the commencement of the event or events.
13.8 The aggregate liability of M3N to the Customer under the Agreement shall not exceed the greater of:
(a) GBP 25,000.00; and
(b) the total amount paid and payable by the Customer to M3N under the Agreement.
14. Force Majeure Event
14.1 If a Force Majeure Event gives rise to a failure or delay in M3N performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15. Termination
15.1 Either party may terminate the Agreement:
(a) at any time during any Free Period, by giving written notice of termination to the other party; and
(b) at the end of a Subscription Period, by giving to the other party at least 30 days’ prior written notice of termination.
15.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of the Agreement.
15.3 Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or
(d) if that other party is an individual: (i) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or (ii) that other party is the subject of a bankruptcy petition or order; and for the avoidance of doubt, the Agreement shall automatically terminate if the other party dies.
16. Effects of termination
16.1 Upon the termination of the Agreement, all the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.2, 6.1, 6.2, 7.4, 9.2, 9.4, 10, 11.3, 12, 13, 16, 19 and 20.
16.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.
16.3 Following the issue of a notice of termination, the Customer must comply with M3N's offboarding policy in force from time to time, and in particular must on the date of effective termination of the Agreement or promptly thereafter configure any Integrated Services that are sending data to the Platform Services to cease sending such data.
16.4 The Customer acknowledges that the Charges are non-refundable, and M3N will not refund the Charges or any element of the Charges upon, or as a consequence of, termination of the Agreement.
17. Notices
17.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) sent by email to the relevant email address specified through the Platform Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient’s email server; or
(b) sent using the contractual notice mechanism incorporated into the Platform Services, in which case the notice shall be deemed to be received upon dispatch,
providing that, if the stated time of deemed receipt is not within working hours in the place of receipt, then the time of deemed receipt shall be when such working hours next begin after the stated time.
18. Subcontracting
18.1 Subject to any express restrictions elsewhere in these Terms and Conditions, M3N may subcontract any of its obligations under the Agreement.
19. General
19.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from M3N to the Customer, or from the Customer to M3N.
19.2 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
19.3 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
19.4 M3N may vary the Subscription Specification and any other term of the Agreement:
(a) to the extent reasonably necessary to enable M3N or the Customer to comply with applicable law, by M3N giving to the Customer written notice of the variation;
(b) during any Free Period, by M3N giving to the Customer at least 5 days’ written notice of the variation; or
(c) during any Subscription Period, by M3N giving to the Customer 35 days’ written notice of the variation, providing that such variation will only be effective from the start of the Subscription Period following the end of that 35-day notice period.
Subject to this, the Agreement may only be varied by a written document signed by or on behalf of each of the parties. The Customer acknowledges that in the event it does not agree to a variation made in accordance with sub-clause (a), (b) or (c) this Clause 19.4, the Customer must terminate the Agreement in accordance with Clause 15.1.
19.5 The Customer hereby agrees that M3N may assign M3N's contractual rights and obligations under the Agreement to any third party. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of M3N assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
19.6 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
19.7 Subject to Clause 13.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of the Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
19.8 The Agreement shall be governed by and construed in accordance with English law.
19.9 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
20. Interpretation
20.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
20.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
20.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Schedule 1 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of our HighGround hosted services, including any application programming interface for those services (the “Services“); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to M3 Networks Limited (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 You acknowledge that KPIs, scores, metrics, summaries and levels generated by the Services (including those relating to threats, compliance and investment) are probabilistic simplifications or summaries based upon the data provided by our customer, and accordingly:
(a) if the customer data is inaccurate, incomplete, outdated or otherwise defective then those KPIs, scores, metrics, summaries and levels may similarly be defective;
(b) the KPIs, scores, metrics, summaries and levels are not definitive predictions, so for example a score indicating a low risk does not mean that the relevant risk will not materialise, and similarly a score indicating a high risk does not mean that the relevant risk will materialise.
2. General usage rules
2.1 You may only use the Services in accordance with the licence we have granted to our customer, and for the business purposes of our customer, subject to the prohibitions and restrictions set out in this Policy.
2.2 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.3 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.4 You must not use the Services in any way that uses excessive resources and as a result is liable to cause a material degradation in the services provided by M3N to its other customers and users using the Services; and you acknowledge that M3N may use reasonable technical and other measures to limit the use of Services resources for the purpose of assuring services to its customers and users generally.
2.5 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(f) be in contempt of any court, or in breach of any court order;
(g) constitute a breach of racial or religious hatred or discrimination legislation; or
(h) constitute a breach of official secrets legislation.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
4.4 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour in the work environment.
4.5 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
4.6 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
4.7 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
4.8 You must not use the Services for the purpose of deliberately upsetting or offending others.
4.9 You must at all times be courteous and polite to other users of the Services.
5. Data mining
5.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
6. Harmful software
6.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
6.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Schedule 2 (Managed Services Providers)
This Schedule 2 applies (and only applies) where the Customer is a managed services provider and the Subscription Specification expressly allows the Customer (referred to in the remainder of this Schedule 2 as the “MSP“) to provide services using the Platform Services and to resell the Platform Services to the MSP’s own customers (“End Customers“).
1. The MSP shall only be entitled to:
(a) provide services to End Customers using the Platform Services; and
(b) grant access to the Platform Services to End Customer users,
(“MSP Services“) for so long as the MSP complies with the other provisions of this Schedule 2.
2. The MSP shall be exclusively responsible for:
(a) marketing and selling the MSP Services;
(b) determining the prices of the MSP Services;
(c) negotiating contracts and contracting with End Customers;
(d) managing End Customer relationships and communicating with End Customers; and
(e) training End Customer personnel and providing support in relation to the End Customers’ use and enjoyment of the MSP Services.
3. M3N may from time to time during the Term grant to the MSP a right to use its trade marks. Such trade marks (the "M3N Trade Marks") shall be expressly identified by M3N in writing. M3N grants to the MSP a non-exclusive licence to use the M3N Trade Marks during the Term only for the purposes (and only for the purposes) of marketing the MSP Services, providing that M3N has given its prior written consent in relation to the type of use in question. The MSP must ensure that all uses of M3N Trade Marks will be in accordance with any style guide provided or made available by M3N to the MSP. Notwithstanding any other provision of the Agreement, the MSP must not use M3N Trade Marks in any way that will or may:
(a) invalidate or lead to the revocation of or otherwise jeopardise any registered trade mark protection benefiting M3N Trade Marks;
(b) assist with any application to cancel or invalidate any registered M3N Trade Mark or any opposition to any application by M3N to register any M3N Trade Mark;
(c) cause harm to the goodwill attaching to any of M3N Trade Marks;
(d) prejudice the right or title of M3N to M3N Trade Marks; or
(e) bring M3N or any M3N Trade Mark into disrepute.
All goodwill arising as a result of, or in relation to, the use of M3N Trade Marks will accrue exclusively to M3N. Following receipt of a written request from M3N to do so, the MSP shall promptly execute any document that is reasonably required to enable M3N to register, record or protect its rights in M3N Trade Marks, and shall provide reasonable assistance to M3N in relation to any application to register a M3N Trade Mark, or in relation to the maintenance of any M3N Trade Mark registration. If M3N considers that any use of M3N Trade Marks by the MSP breaches the provisions of this Clause or is otherwise undesirable, M3N may issue a notice to the MSP requesting that such usage cease, and the MSP must ensure that such usage will cease within 7 days following receipt of such a notice. The MSP shall promptly comply with all reasonable written requests made by M3N concerning the use of M3N Trade Marks. Within 14 days following the termination of the Agreement, the MSP must cease to use M3N Trade Marks and must remove or permanently obscure M3N Trade Marks that appear on any works and materials in the possession or control of the MSP or, to the extent that neither removal nor permanent obscuring is practicable, deliver to M3N or destroy (as M3N shall determine) all those works and materials in the possession or control of the MSP on which M3N Trade Marks appear.
