The following terms shall govern the use of the Software and the Service (as defined below). 1. Definitions and Interpretation
1.1 Capitalised terms not defined herein, shall have the following meanings:
“API” means any application programming interface(s) operated by the Supplier and through which the Service is delivered. “App” means any authentication application software operated by the Supplier and through which the Service is delivered."
"Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Service.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Confidential Information” means all confidential information (however recorded or preserved) disclosed by one Party or its employees, officers, representatives or advisers (together “Representatives”) to the other Party and the other Party’s Representatives, including the terms of the Service Agreement; the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, the operations, processes, product information, know-how, technical information or trade secrets of the disclosing Party. For the avoidance of doubt, any Customer Content uploaded by the Customer or the Authorised Users to the Service and made publicly available shall not constitute Confidential Information.
“Controller, Processor, Data Subject, Personal Data, personal data breach, Processing and appropriate technical and organisational measures” shall have the meaning as defined in the Data Protection Legislation.
“Customer” means the party identified as such on the Service Order Form.
“Customer Content” means any and all Customer materials, content and data, including text, imagery, videos and/or other files entered, uploaded or submitted to the Service directly or indirectly via any third party application, excluding any Derived Data.
“Customer Personal Data” means Personal Data contained in the Customer Content.
“Data Protection Addendum” means the data processing addendum applicable to the Parties and the provision of the Services and Software, as amended from time to time by the Supplier and available here[ES1] .
“Data Protection Legislation” means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or the Supplier is subject, which relates to the protection of Personal Data.
“Data Subject Request” means a Data Subject request to access, correct, amend, transfer or delete that person’s Personal Data consistent with that person’s rights under the Data Protection Legislation.
“Derived Data” means any data which is derived from the Customer’s use or Authorised Users’ use of the Services or the Processing of Customer Content, which shall include: (a) any data which is processed and stored as mathematical constructs; (b) statistical or aggregated data (including anonymised Personal Data); and (c) any other analytical and marketing data such as number and duration of user sessions and page visits, and technical reports on Software performance. Derived Data shall not include Personal Data.
“Documentation” means the documents made available to the Customer by the Supplier from time to time which sets out a description of the Services and the user instructions for the Services.
“Effective Date” means the effective date as stated on the Service Order Form.
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Force Majeure Event” has the meaning set out in clause 15.4.
“Initial Term” means the period identified as such on the Service Order Form, which period shall commence on the Effective Date.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related 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, 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.
“Party” means a party to the Service Agreement, being either Supplier or Customer, and “Parties” means both of them.
“Project” means the project feed created on the Software in relation to the specific construction project set out in the Service Order Form, through which relevant users collaborate and share content, as further set out in the Documentation.
“Renewal Term” means the period defined as such in clause 11.1.
“Service” means access to the Software whether delivered via an App, API, Website and/or any other means notified to the Customer by the Supplier from time to time.
“Service Agreement” means the legally binding agreement between the Supplier and the Customer comprising of the Service Order Form and these Terms of Service.
“SLA” means the service level agreement attached hereto as Schedule 1.
“Software” means the software applications known as ‘Shape’, including the App and related Shape Apps and APIs but excluding the User Generated Content.
“Sub-processor” means any natural or legal person, public authority, agency or other body which possesses Personal Data on behalf of a data controller or a data processor.
“Subscription Fees” means the subscription fees identified as such on the Service Order Form payable by the Customer to the Supplier hereunder for use of the Service.
“Subscription Term” has the meaning set forth in clause 11.1.
“Supplier” means Laminar Group Ltd, trading as Shape Construction, with its registered office at 20-22 Wenlock Road, London, England, N1 7GU.
“User Generated Content” has the meaning set forth in clause 4.4.
“User Subscriptions” the user subscriptions purchased by the Customer pursuant to clause 7.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Service Agreement.
“UK GDPR” meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“Virus” means 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” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
“Website” means any website operated by Supplier through which the Service is delivered to Customer.
1.2 In these Terms of Service: (a) clause, schedule and paragraph headings shall not affect the interpretation of these Terms of Service; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) a reference to writing or written includes e-mail, but excludes fax; (d) references to clauses and schedules are to the clauses and schedules of these Terms of Service; references to paragraphs are to paragraphs of the relevant schedule to these Terms of Service; (e) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.Access to Services
2.1 Subject to the Customer paying the Subscription Fees in accordance with the Service Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, non-sub licensable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely in respect of the Project. 2.2 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.User Subscriptions and Authorised Users
3.1 The Subscription Fees payable by the Customer are linked to the number of Authorised Users using the Service.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions that it has purchased from time to time;
3.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation; and
3.2.3 each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised User shall keep their password confidential.
3.3 The Supplier may monitor the Customer’s and its Authorised Users’ access to and use of the Software in order to ensure the Customer and its Authorised Users are complying with any usage restrictions (including without limitation the number of User Subscriptions granted and paid for to access the Software). If such monitoring reveals that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Service Order Form (calculated as a proportion of the stated Subscription Fees, by attributing an amount per User Subscription and multiplying the same by the number of additional users given access). 3.4 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Service Order Form. The Customer shall notify the Supplier in writing of such request and the Supplier shall confirm the fee for such additional User Subscriptions. Once agreed between the parties, the Supplier shall invoice the Customer for the fee and such amount shall be paid within 30 days’ of the date of invoice. If such additional User Subscriptions are purchased by the Customer part way through the Initial Term or any Renewal Term (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Term or then current Renewal Term (as applicable).
4.Customer Content and Derived Data
4.1 The Customer shall own all rights, title and interest in and to all of the Customer Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content.
4.2 The Supplier may use the Customer Content to improve the performance and functionality of the Software or develop improvements, updates, upgrades, modifications and derivative works thereof. The Supplier shall own all rights, title and interest in and to all of the Derived Data.
4.3 The Supplier may track and analyse the Customer’s and any Authorised User’s use of the Software for the purposes of security and to help the Supplier improve the Service and the Software.
4.4 All users of the Software will be permitted to upload their own data, text, images, video, messages, files and any other materials to the Software (“User Generated Content”). All User Generated Content shall be owned by the relevant user (or its licensors) and viewable by all applicable users in respect of the Project. The Supplier does not own, monitor or control the User Generated Content posted by any user and takes no responsibility for such User Generated Content, including the accuracy, integrity or quality of such User Generated Content. Notwithstanding the forgoing, the Supplier reserves the right to remove content from the Software where it reasonably suspects such content is in breach of the Service Agreement or for reasonable cause.
4.5 The Customer acknowledges that:
4.5.1 it is solely responsible for setting appropriate privacy restrictions on its Customer Content; and
4.5.2 unless additional privacy restrictions are put in place by the Customer, all Customer Content and User Generated Content uploaded or submitted to the Software by Customer or its Authorised Users for the Project shall be accessible by all users authorised to participate in the Project.
4.6 The Customer shall have sole responsibility for Customer Content displayed on or uploaded to the Software and shall ensure it has all rights necessary to display such data or content via the Software. The Customer shall indemnify and hold harmless Supplier from and against all losses, damages, liabilities and claims, arising from or in relation to any third party claims that the processing and use of the Customer Content in accordance with the Service Agreement infringes or misappropriates any third party rights or breaches Data Protection Legislation.
5.Supplier’s Obligations
5.1 The Supplier shall provide the Service to the Customer in all material respects in accordance with the Documentation and with reasonable skill and care and shall use commercially reasonable endeavours to make the Services available in accordance with the terms of the SLA.
5.2 The Supplier shall not be liable for any breach of its obligation in clause 5.1 to the extent any non-conformance is caused by use of the Software or the Service contrary to the Supplier’s instructions, or modification or alteration of the Software or the Service by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Service does not conform with the terms of clause 5.1, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any non-conformance.
5.3 The Supplier does not warrant that:
5.3.1 subject to the terms of the SLA, the Supplier does not warrant that the Customer's use of the Service will be uninterrupted or error-free; or
5.3.2 that the Service and/or the information obtained by the Customer through the Service will meet the Customer's requirements; or
5.3.3 the Software or the Service will be free from Vulnerabilities or Viruses.
5.4 Subject to the terms of the SLA, the Supplier 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 Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.5 The Service Agreement shall not prevent Supplier 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 Service Agreement.
5.6 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Service Agreement.
6.Customer’s Obligations
6.1 The Customer shall provide Supplier with all necessary co-operation in relation to the Services and all necessary access to information as may be required by the Supplier to fulfil its obligations under the Service Agreement, including granting the Supplier full and unrestricted access to the Customer’s account in order to provide support or fix any errors. The Customer shall be responsible for setting the access rights for each of its Authorised Users, and shall carry out all of its responsibilities in the Service Agreement in a timely and efficient manner. Authorised Users, who wish to implement additional privacy restrictions in respect of User Generated Content for the Project in accordance with clause 4.5, shall be solely responsible for setting such privacy restrictions for the relevant users participating in the Project.
6.2 The Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Service that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause 6.2.
6.3 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under the Service Agreement, the Customer shall not, and shall procure that its Authorised Users shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
6.4 The Customer shall not, and shall procure that its Authorised Users shall not attempt to: (a) access all or any part of the Service in order to build a product or service which competes with the Service; (b) subject to clause 13.1, make the Service available to any third party except to Authorised Users; or (c) attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided permitted under the Service Agreement.
6.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and the Service and, in the event of any such unauthorised access or use, promptly notify Supplier.
6.6 The Supplier may monitor the Customer’s and its Authorised Users’ access to and use of the Software in order to ensure the Customer and its Authorised Users are complying with the terms of the Service Agreement.
6.7 The Customer shall ensure that all Authorised Users' use the Service strictly in accordance with the terms and conditions of the Service Agreement and shall be responsible for any Authorised User's breach of the Service Agreement.
6.8 The Customer shall ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time necessary for the operation of the Service, and shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to Supplier’s data centres. The Supplier shall have no responsibility for any third party applications or systems.
7.Fees and Payment
7.1 The Customer shall pay the fees set out in the Service Order Form in accordance with the payment terms set out in the Service Order Form. In the event that the Service Order Form does not state payment terms, the Customer shall pay all fees within 30 days of the date of invoice.
7.2 If the Supplier has not received payment by the due date, and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability, disable the Customer's and all Authorised Users’ passwords, accounts and access to all or part of the Services until the invoice(s) concerned are paid in full. Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.3 All fees are: (a) payable in the currency detailed in the Service Order Form; (b) non-cancellable and non-refundable; and (c) exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
7.4 The Supplier shall be entitled to increase its fees at the start of each Renewal Term upon thirty (30) days' prior written notice to the Customer.
8.Compliance with Laws and Regulations
8.1 Each Party shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to the Service Agreement.
9.Data Protection 9.1 Both Parties shall comply with its respective obligations under the Data Processing Addendum. The Data Processing Addendum is in addition to, and does not relieve, remove or replace, each of the Parties obligations or rights under the Data Protection Legislation.
10.Intellectual Property Rights
10.1 As between the Parties, all Intellectual Property Rights in and to the Software and the Derived Data, of the Service shall belong to, and remain vested in, the Supplier at all times. Notwithstanding the forgoing, the Supplier shall provide the Customer with standardised custom metrics reporting and analytics, which may contain Derived Data. To the extent any Derived Data is contained within any analytics and reporting or within any additional data feeds agreed between the Parties, the Supplier hereby grants the Customer the right to use such Derived Data (in anonymised and aggregated or statistical form only) on a non-exclusive, worldwide, royalty free, perpetual basis for its own internal business purposes. The Customer acknowledges that the Supplier may share the performance metrics of the Derived Data in aggregated or statistical form with external third parties.
10.2 Without prejudice to the generality of the foregoing or to the provisions of clause 6.4 above, to the extent that the Customer’s or any Authorised User’s use of the Service results in any modifications, adaptations, developments, or any derivative works of or to the Software or the operation of the Software (“Improvements”), then notwithstanding any rights or remedies of the Supplier under clause 6.4 above, any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by the Supplier.
10.3 The Supplier makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software.
10.4 All Intellectual Property Rights in and to the Customer Content shall belong to, and remain vested, in the Customer at all times. By uploading any Customer Content to the Software or displaying any content through the Services, the Customer grants the Supplier a non-exclusive, worldwide, royalty free, sub-licensable license to reproduce, modify, adapt, copy and publish such content, solely for the purpose of fulfilling its obligations contained within the Service Agreement and/or to the extent required for proper function and use of the Software by all relevant users in accordance with the Documentation.
10.5 The Supplier shall defend the Customer against any third party claims that the use of the Software in accordance with the Service Agreement infringes any third party Intellectual Property Right and shall indemnify the Customer for and against any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) the Supplier is given prompt notice of such claim; (b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; (c) the Supplier is given sole authority to defend or settle the claim; and (d) the Customer makes no admission of liability or fault itself or on behalf of the Supplier.
10.6 In the defence or settlement of any claim pursuant to clause 10.5 above, the Supplier may at its sole option and expense either:
10.6.1 procure for the Customer the right to continue using the Software or the Service in the manner contemplated by the Service Agreement,
10.6.2 replace or modify the Software or Service as applicable so that it becomes non-infringing, or
10.6.3 terminate the Service Agreement forthwith by notice in writing and without liability to the Customer.
10.7 The Supplier shall not in any circumstances have any liability (including in respect of the indemnity provided under clause 10.5) if the alleged infringement is based on: (a) modification of the Software by anyone other than the Supplier; or (b) the Customer’s or any Authorised User’s use of the Software otherwise than in accordance with the Service Agreement or in a manner contrary to the instructions given to the Customer by the Supplier in connection therewith; or (c) the Customer’s or any Authorised User’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or (d) use or combination of the Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred.
10.8 The Customer shall defend the Supplier against all or any costs, claims, damages or expenses incurred by the Supplier in respect of any third party claims relating to the Customer’s or any Authorised User’s use of the Software or the Service otherwise than in accordance with the Service Agreement, provided that: (a) the Customer is given prompt notice of such claim; (b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (c) the Customer is given sole authority to defend or settle the claim; and (d) the Supplier makes no admission of liability or fault itself or on behalf of Customer.
11.Term and Termination
11.1 The Service Agreement shall commence as of the Effective Date and, unless terminated sooner as provided herein, shall continue for the Initial Term. Upon expiration of the Initial Term, the Service Agreement shall automatically renew for successive periods of time equal to the Initial Term (each a "Renewal Term"), unless: (a) unless either Party provides written notice to the other Party of its intent not to renew at least thirty (30) days prior to expiration of the then-current subscription period; or (b) the Service Agreement is otherwise terminated as provided herein. The Initial Term and all Renewal Terms are referred to collectively as the “Subscription Term.”
11.2 Without affecting any other right or remedy available to it, either Party may terminate the Service Agreement with immediate effect by giving written notice to the other Party if: (a) the other Party fails to pay any amount due under the Service Agreement on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment; or (b) if the other Party commits a material breach of any terms of the Service Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within thirty (30) Business Days after being notified in writing to do so; or (c) the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or it ceases or threatens to cease to carry on business.
11.3 Without prejudice to any other rights or remedies hereunder to which the Supplier may be entitled, if the Supplier knows or has reasonable grounds to suspect that the Customer is acting in breach of its obligations under the Service Agreement (including failure to pay Subscription Fees or any other fees payable to the Supplier in accordance with the Service Order Form), the Supplier may notify the Customer in writing accordingly and may suspend the Customer’s and all Authorised Users’ access to the Service until such breach can be remedied or until the Supplier is satisfied, acting reasonably, that its suspicions are unfounded.
11.4 On termination of the Service Agreement for any reason: (a) all licences granted under the Service Agreement shall immediately terminate; each Party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other Party; and (b) 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 Service Agreement which existed at or before the date of termination shall not be affected or prejudiced. The Supplier will retain all applicable Customer Content as of the expiry or termination of the Service Agreement for a set period as notified by the Supplier the Customer, after which Supplier shall be entitled to delete all such Customer Content from its systems and backups. If Customer requires assistance with exporting any Customer Content, all applicable services shall be chargeable. All Software data (including Customer Content) shall be backed up at the discretion of the Supplier. The Customer agrees not to hold the Supplier liable and the Supplier accepts no responsibility in respect of the loss or corruption of any Customer Content. The Customer is therefore strongly advised to regularly export and backup copies of its Customer Content.
12.Limitation of Liability
12.1 This clause 12 sets out the entire financial liability of the Supplier to the Customer arising under or in connection with the Service Agreement, in respect of any use made by the Customer or its Authorised Users of the Service; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Service Agreement.
12.2 Except as expressly and specifically provided in the Service Agreement, the Customer assumes sole responsibility for results obtained by Authorised Users from the use of the Service, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, or any actions taken by the Supplier at the Customer's direction. No other party is entitled to rely on the Supplier’s reports for any purpose whatsoever, and the Supplier disclaims any responsibility to any such third party who has had communicated to him or her the information or advice provided by or on behalf of the Supplier to the Customer.
12.3 Except as expressly and specifically provided in the Service Agreement, 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 Service Agreement; and the Software, the Service and any information provided by or on behalf of the Supplier are provided to the Customer on an "as is" basis.
12.4 Nothing in the Service Agreement excludes either party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
12.5 Subject to clause 12.4, the Supplier shall not be liable for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, loss of profit, loss of business, loss of goodwill, loss of or corruption of data, loss caused or contributed to by any employee, agent, contractor or representative of the Customer, loss caused as a result of the Services being unavailable as a result of planned downtime for the Services as notified to the Customer, loss arising from any failure of the Customer’s infrastructure and/or utilities, loss caused as a result of the Services being unavailable caused by a Force Majeure Event, loss caused by the failure or delay of any third party application or service or network, however arising under the Service Agreement. The Supplier’s entire, aggregate liability arising out of or relating to the Service Agreement shall be limited to the total Subscription Fees paid during the twelve (12) months immediately preceding the date on which the claim arose.
13.Assignment
13.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Service Agreement.13.2 The Supplier may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Service Agreement. The Supplier shall provide written notice to the Customer where its rights or obligations under the Service Agreement have been transferred or assigned to a third party.
14.Confidential Information
14.1 Each Party may have access to Confidential Information of the other Party under the Service Agreement. A Party's Confidential Information shall not include information that:14.1.1 is or becomes publicly known through no act or omission of the receiving Party; or
14.1.2 was in the other Party's lawful possession prior to the disclosure; or
14.1.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
14.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence.
14.2 Subject to clause 14.4, 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 (other than its Representatives on a need to know basis) or use the other's Confidential Information for any purpose other than the implementation of the Service Agreement.
14.3 Each Party agrees to 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 violation of the terms of the Service Agreement.
14.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 14.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.14.5 This clause 14 shall survive termination of the Service Agreement for any reason.
15.General
15.1 Amendments to these Terms of Service. The Supplier may make changes to these Terms of Service from time to time. Amendments may be made to reflect technical or legislative changes or to reflect changes in the Software. The Supplier shall notify the Customer at least 14 days’ prior to the effective date of such changes. If the Customer does not agree with such changes, the Customer may object to the changes in writing within 7 days of receiving the change notice. If the Customer objects, then the Service Agreement shall terminate (and the Customer’s access to the Services shall cease) from the effective date of the changes. If Customer does not object to the changes, the Customer shall be deemed to have accepted the changes to these Terms of Service.
15.2 Variation. Subject to clause 15.1, no variation of the Service Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.3 Entire agreement. The Service Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.4 Force Majeure. Neither Party is responsible for failure to fulfil its obligations herein, except for any payment obligations, due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance herein, including without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including imposing any export/import or travel/quarantine restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; and (g) any labour or trade dispute, strikes, industrial action or lockouts; (h) interruption or failure of utility service; or (i) hosting provider failure or delay. (“Force Majeure Event”). Dates or times by which each Party is required to render performance under the Service Agreement shall be postponed automatically to the extent that the Party is delayed or prevented from meeting them by such causes. If the Force Majeure Event prevents, hinders or delays the affected party’s performance of its obligations for a continuous period of more than thirty (30) days, either Party may terminate the Service Agreement by giving thirty (30) days’ written notice to the other Party.
15.5 Notices. All communications relating to the Service Agreement shall be in writing and delivered by recorded delivery or by email to: (a) the Customer, at the relevant postal or email address on the Service Order Form (or such other address as may be notified from time to time in accordance with this clause); and (b) the Supplier, to its registered office address or support@shape.construction, [ES2] (or such other address as may be notified from time to time in accordance with this clause). Any such communication shall take effect at 9.00 am on the second Business Day after posting or if by email, at the time of transmission (unless a delivery failure notice or bounce back was received).
15.6 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Service Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.7 Severance. If any provision or part-provision of the Service Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Service Agreement.
15.8 Relationship. The relationship between the Parties is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties hereto nor authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
15.9 Marketing and publicity.15.9.1 Use of Name and Logo. The Customer grants the Supplier a non-exclusive, worldwide, royalty-free license to use the Customer’s name, logo, and trademarks to identify the Customer as a user of the Software or the Service in marketing and promotional materials, including but not limited to the Supplier's website, social media, advertising, and event materials.15.9.2 Marketing Collaboration. The Customer agrees to collaborate with the Supplier on marketing and promotional activities, such as case studies, testimonials, and other content showcasing the Customer’s experience and the value derived from using the Software or the Service. Once approved in writing, the Supplier may use, modify, and repurpose the content in any format or medium, including but not limited to websites, presentations, advertisements, and sales materials, without requiring additional approval. Additional terms regarding specific marketing activities may be agreed upon in the Service Order Form or by other written agreement between the parties.
15.10 Third party rights. A person who is not a Party to the Service Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Service Agreement.
15.11 Counterparts. The Service Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
15.12 Governing Law. The Service Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with, the law of England and Wales.
15.13 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Service Agreement or its subject matter or formation.
SCHEDULE 1 Service Level Agreement
The Supplier will use reasonable endeavours to ensure that the Service is available and the Software performs substantially in accordance with the terms of the Service Agreement or any relevant specification throughout the Subscription Term, but the Supplier cannot guarantee that the Service will be available at all times.
This Schedule sets out the Supplier’s obligations and liability with respect to availability of the Service.
Service Levels: The Supplier will use reasonable commercial efforts to ensure that the Service is available for at least the Uptime Percentage set out in the Service Order Form, excluding: (a) Planned Downtime; (b) unscheduled downtime due to Emergency Maintenance or (c) the Service Exclusions (all as defined below). In the event that the Service falls below the Uptime Percentage in any given month, the Customer shall be entitled to service credits on a pro-rated basis relative to the duration and/or severity of unplanned downtime as agreed between the Parties.
“Service Exclusions” means unscheduled downtime caused by: (a) a Force Majeure Event; (b) circumstances entitling the Supplier to suspend access to the Services under the Service Agreement; (c) the Customer’s failure to adhere to required configurations, use supported platforms, or follow acceptable use polices; (d) the Customer’s failure to use the Services in accordance with the Documentation; (e) issues related to Third Party Applications (“Third Party Application(s)” shall mean either on-premise or hosted third party software applications, excluding the Services); (f) issues related to denial of service attacks; (g) use of beta or trial versions of the Services, features or software; (h) the Customer’s unauthorised action or lack of action when required; or (i) the Customer’s failure to follow appropriate security practices.
“Planned Downtime” means the period during which the Supplier periodically performs routine maintenance of the Services, in which case downtime is during non-business hours (i.e. outside of 9am-5pm on a Business Day). The Customer will receive email notifications of Planned Downtime with reasonable advance notice.
“Emergency Maintenance” means the period when the Supplier must perform immediate maintenance to the Services at any time, with or without notification. The Supplier will make reasonable efforts to provide prior notification to Customer administrative Users to the extent practicable under the circumstances.
Sandbox, Development, Testing and Similar Environments. The Service levels do not apply to the Customer’s usage of the Services for sandbox, development, proof-of-concepts, testing, trial usage or like environments. Previews, Proof of Concepts and Trials. Previews, proof-of-concepts and trials are provided “as-is,” “with all faults,” and “as available”.
