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Rugged Data SaaS Terms & Conditions (“Terms”)

1.INTERPRETATION

1.1. Words with capital letters will have the meanings given to them in clause 22 of these Terms.

1.2. In these Terms references to “includes” or “including” shall be deemed to have the words “without limitation” inserted after them.

1.3. Unless otherwise stated, references to “days” means calendar days.

2.CONTRACT PROCESS

2.1. Following any request from the Client for Services from Rugged Data, Rugged Data may send the Client a Service Schedule.

2.2. If the Client wishes to proceed with the provision of Services in accordance with the Service Schedule the Client must notify Rugged Data in writing from an authorised party on behalf of the Client prior to the commencement of work by Rugged Data, as confirmation that the Service Schedule accurately sets out the Client’s requirements.

2.3. No order for Services shall be deemed to be accepted by Rugged Data until the earlier of Rugged Data (a) accepting such offer in writing or (b) providing the Services at which point a “Contract” for the provision of Services under these Terms will come into effect.

2.4. Each Service Schedule agreed by the Client, or request for Rugged Data’s Services from the Client, shall be deemed to be an offer by the Client to purchase the Services subject to these Terms:

2.4.1. to the exclusion of all other terms and conditions (including any terms and conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document); and

2.4.2. constitutes a separate Contract.

2.5. If there is any conflict or inconsistency between the following documents, to the extent of any conflict or inconsistency only, the following order of priority shall apply:

2.5.1. the Service Schedule (including any Additional Terms); and

2.5.2. these Terms.

2.6. Rugged Data may, at any time, and in its sole discretion, modify these Terms. Any such modification will be effective immediately on notification to the Client. The Client’s continued use of the Services following any such modification constitutes the Client’s acceptance of the modified Terms.

3. INITIAL CONFIGURATION AND ACCEPTANCE

3.1. The Client shall provide Rugged Data with details of any Configuration Requirements as is required by Rugged Data to provide the Configuration Services.

3.2. Rugged Data shall perform the Configuration Services in accordance with any timetable set out in the Service Schedule. Rugged Data shall use reasonable endeavours to meet any performance dates set out in Service Schedule, but any such dates shall be estimated only.

3.3. When Rugged Data considers that the Configuration Services are ready for activation it shall notify the Client. Within five days of such notification the Client shall review the operation of the Configuration Services to confirm that they function in material conformance with the Configuration Requirements. If the Configuration Services fail in any material respect to conform with the Configuration Requirements, the Client shall give Rugged Data a detailed description of any such non-conformance (“Defect”) in writing, within the five-day review period.

3.4. Rugged Data shall use reasonable endeavours to correct any Defect within a reasonable time and, on completion, re-submit the Configuration Services to the Client. If Rugged Data is unable to correct the Defect within a period of three months from the start of the acceptance tests, either party may terminate the Contract without further liability to the other by giving written notice to the other.

3.5. If the Client does not provide any written comments in the notification period described in clause 3.3, or if the Configuration Services are found to conform with the Configuration Requirements, then the Configuration Services shall be deemed accepted as from the date of the notification (“Acceptance”).

4. SERVICES, HOSTING, MAINTENANCE AND SUPPORT

4.1. Subject to the Client purchasing the User Subscriptions in accordance with clause 6.2 and paying the Fees in accordance with clause 13.1, the restrictions set out in this clause 4 and the other terms and conditions of the Contract, Rugged Data hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Client’s internal business operations.

4.2. Rugged Data agrees, during the Term, to provide the Services via the Platform, as more particularly described in the Documentation on and subject to the terms of the Contract.

4.3. Rugged Data shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance carried out by Rugged Data.

4.4. Rugged Data will, as part of the Services and at no additional cost to the Client, provide the Client with Rugged Data’s standard Client support services during Business Hours in accordance with Rugged Data’s Support Services Policy in effect at the time that the Services are provided. Rugged Data may amend the Support Services Policy in its sole and absolute discretion from time to time. The Client may purchase enhanced support services separately at Rugged Data’s then current rates.

4.5. Where any Update to existing functionality is produced by Rugged Data, Rugged Data may roll out the Update to the Client provided the Client has paid all Fees due and owing under the Contract as at the date of the roll out of the Update.

4.6. Any Enhancements will be offered to the Client but may be subject to additional payment and/or payment of an additional/increased fee as agreed between the parties.

5. USER SUBSCRIPTIONS

5.1. In relation to the Authorised Users, the Client undertakes that:

5.1.1. 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 purchased at any time;

5.1.2. 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;

5.1.3. each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed on a regular basis and that each Authorised User shall keep their password confidential;

5.1.4. it shall permit Rugged Data to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Rugged Data’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;

5.1.5. if any of the audits referred to in clause 5.1.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Rugged Data’s other rights, the Client shall promptly disable such passwords and Rugged Data shall not issue any new passwords to any such individual; and

5.1.6. if any of the audits referred to in clause 5.1.4 reveal that the Client has underpaid Fees to the Rugged Data, then without prejudice to Rugged Data’s other rights, the Client shall pay to Rugged Data an amount equal to such underpayment as calculated in accordance with the Fees set out in the Service Schedule within 10 Business Days of the date of the relevant audit.

5.2. The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

5.2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

5.2.2. facilitates illegal activity;

5.2.3. depicts sexually explicit images;

5.2.4. promotes unlawful violence;

5.2.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

5.2.6. in a manner that is otherwise illegal or causes damage or injury to any person or property; and Rugged Data reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

5.3. The Client shall not:

5.3.1. except to the extent expressly permitted under the Contract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or

5.3.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or

5.3.3. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

5.3.4. use the Services and/or Documentation to provide services to third parties; or

5.3.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

5.3.6. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5.

5.4. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Rugged Data.

5.5. The rights provided under this clause 5 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

6. ADDITIONAL USER SUBSCRIPTIONS

6.1. Subject to clause 6.2, the Client may, from time to time during any Term, purchase additional User Subscriptions in excess of the number in place at the time of purchase and Rugged Data shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Contract.

6.2. If the Client wishes to purchase additional User Subscriptions, the Client shall notify Rugged Data in writing. Rugged Data shall evaluate such requests for additional User Subscriptions and respond to the Client with approval or rejection of the request.

6.3. If Rugged Data approves the Client’s request to purchase additional User Subscriptions, the Client shall, within 30 days of the date of Rugged Data’s invoice, pay to Rugged Data the relevant fees for such additional User Subscriptions as set out in the Service Schedule and, if such additional User Subscriptions are purchased by the Client:

6.3.1. part way through the Initial Term, such fees shall be prorated for the remainder of the Initial Term and apply in full during any Subsequent Term; or

6.3.2. during the Subsequent Term, such fees shall apply for the remainder of the Term.

7. THIRD PARTY PROVIDERS

7.1. The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties including via third-party websites, APIs, defined file formats transferred over SFTP and that it does so solely at its own risk.

7.2. Unless expressly stated otherwise:

7.2.1. Rugged Data makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party application, or any transactions completed, and any contract entered into by the Client, with any such third-party. Any contract entered into and any transaction completed via any third party means including a website, API or SFTP is between the Client the relevant third-party, and not Rugged Data and all costs in relation to such shall be borne by the Client;

7.2.2. Rugged Data does not endorse or approve any third-party application or supplier nor the content of any of the third-party applications made available via the Services.

8. RUGGED DATA’S OBLIGATIONS

8.1. Rugged Data warrants that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

8.2. The warranty at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Rugged Data’s instructions, or modification or alteration of the Services by any party other than Rugged Data or Rugged Data’s duly authorised contractors or agents.

8.3. If the Services do not conform with clause 8.1, Rugged Data will use all reasonable commercial endeavours to correct any such non-conformance or provide the Client with an alternative means of accomplishing the desired performance provided that always that the non-compliance has not been caused by the Client. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the warranty set out in clause 8.1.

8.4. Notwithstanding the foregoing, Rugged Data:

8.4.1. does not warrant that the Client’s use of the Services will be uninterrupted or error-free or that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements; and

8.4.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.5. The Contract shall not prevent Rugged Data from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

8.6. Rugged Data warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.

9. WORK CARRIED OUT OUTSIDE THE AGREED SCOPE OF SERVICES / CHANGES TO SPECIFICATIONS ETC

9.1. Where the Client requests additional work, Rugged Data may ask the Client to agree to a new Contract for Additional Services in which case clause 9.3 shall apply or such request may be treated as a variation to the Contract, in which case clause 9.2 shall apply.

9.2. If during the Contract the Client asks for any changes to the Services or the Contract; requirement change or specification including:

9.2.1. changes to the Service Schedule;

9.2.2. changes to the Services;

9.2.3. changes to the Configuration Requirements;

9.2.4. an Enhancement; and/or

9.2.5. changes to the Client’s requirements; which in Rugged Data’s reasonable opinion gives rise to:

9.2.6. a service which Rugged Data has not already agreed to provide to the Client; or

9.2.7. a change to the Services or specifications that Rugged Data has already agreed to provide to the Client, then:

9.2.8. Rugged Data will endeavour to notify the Client as soon as possible of any impact on Services Rugged Data is currently carrying out for the Client in relation to estimated timescales and prices;

9.2.9. where it is reasonably possible Rugged Data will endeavour to notify the Client of any additional costs before Rugged Data commences any work; and

9.3. Requesting Additional Services

9.3.1. The Client from time to time may request Rugged Data to supply additional services which are not included in the Service Schedule (i.e.“Additional Services”). Rugged Data shall endeavour to comply with the Client’s request and where Rugged Data agrees to provide any such Additional Services:

(i) the details of those Additional Services shall be as agreed between Rugged Data and the Client from time to time; and

(ii) unless otherwise agreed by Rugged Data in writing these Terms shall apply to the provision of such Additional Services.

10. CLIENT’S OBLIGATIONS

10.1. The Client shall and shall procure that the Client’s personnel comply with the Client’s obligations under the Contract including those as detailed in this clause 10, or as may be agreed from time to time (“Client Responsibilities”).

10.2. The Client acknowledges that Rugged Data’s ability to provide the Services are dependent upon the full and timely co-operation of the Client as well as the accuracy and completeness of any information and data the Client provides to Rugged Data. Accordingly, the Client shall:

10.2.1. provide Rugged Data with access to and use of all Client Materials, information, data documentation, personnel and such systems and software of the Client reasonably required by Rugged Data for its performance of its obligations under the Contract;

10.2.2. provide all necessary co-operation in relation to the Contract.

10.3. The Client shall:

10.3.1. comply with all applicable laws and regulations with respect to its activities under the Contract. The Client’s use of the Services may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of the Contract and it shall be the Client’s exclusive responsibility to ensure that their use of the Service is in compliance with any such laws and regulations;

10.3.2. carry out all other Client Responsibilities in a timely and efficient manner;

10.3.3. ensure that the Authorised Users use the Services and the Documentation in accordance with the Contract and shall be responsible for any Authorised User’s breach of the Contract;

10.3.4. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Rugged Data, its contractors and agents to perform their obligations under the Contract, including without limitation the Services;

10.3.5. ensure that its network and systems comply with the relevant specifications provided by Rugged Data from time to time; and

10.3.6. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Rugged Data’s data centres, and all problems, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

10.4. The Client shall not, nor anyone on their behalf:

10.4.1. use or redistribute the Services for the purpose of conducting the business of an Application Service Provider;

10.4.2. not redistribute or reproduce the Services through any network;

10.4.3. allow any unauthorised third party to access the Services;

10.4.4. make changes of any kind to the Services; or

10.4.5. attempt to correct any fault or perceived fault in the Services.

10.5. In the event of any delays in the Client’s provision of such assistance as agreed by the parties under the Contract, without prejudice to any other rights or remedies of Rugged Data, Rugged Data:

10.5.1. shall not be liable for any failure or delays in carrying out its obligations under the Contract resulting from the Client’s failure or delay to fulfil any of the Client Responsibilities; and/or

10.5.2. may adjust any agreed timetable or delivery schedule as reasonably necessary.

10.6. The Client shall continue to pay the Fees to Rugged Data in accordance with the Contract notwithstanding any failure by the Client to comply with this clause 10.

10.7. The Client shall remain liable to Rugged Data for any acts of omissions of any Client personnel (whether tortious, contractual; or otherwise) as if such acts or omissions had been committed or omitted by the Client itself.

11. CLIENT SYSTEMS

11.1. The Client is responsible for ensuring that the Client Systems meet any specification set out in the Documentation to receive the Services.

11.2. Rugged Data may need at times during the Term to access the Client Systems remotely for the purposes of inspecting, testing and supporting the Services.

11.3. Where, in Rugged Data’s opinion, Client Systems are likely to cause disruption to the Services, Rugged Data may request that the Client disconnects from the Services until advised that reconnection is possible. Rugged Data may require changes such as upgrades or equipment replacement to be made to the Client Systems prior to reconnection.

11.4. The Client shall ensure that no Client Systems are connected to a third-party ASP system or other service, communications system or network in such a way that the Service may be accessed by unauthorised third parties.

12. TASK DATA

12.1. The Client shall own all right, title and interest in and to all of the Task Data and shall have sole responsibility for:

12.1.1. the legality, reliability, integrity, accuracy and quality of the Task Data; and

12.1.2. any losses of data, programs, breaches of security, viruses and disabling or harmful devices that the Authorised User may download or otherwise experience introduced by the Client.

12.2. Rugged Data may modify or adapt Task Data in order to transmit, display or distribute it over computer networks and in various media and/or make changes to the Task Data as are necessary to perform the Services, including for reasons such as, to conform and adapt it to any requirements or limitations of any networks, devices, services or media.

12.3. In the event of any loss or damage to Task Data, the Client’s sole and exclusive remedy shall be for Rugged Data to use reasonable commercial endeavours to restore the lost or damaged Task Data from the latest back-up of such Task Data maintained by Rugged Data. Rugged Data shall not be responsible for any loss, destruction, alteration or disclosure of Task Data caused by any third party (except those third parties subcontracted by Rugged Data to perform services related to Task Data maintenance and back-up).

13. FEES AND PAYMENT

13.1. The Client shall pay the Fees to Rugged Data for the Services in accordance with this clause 13 and the Service Schedule.

13.2. The Client shall on the Effective Date provide to Rugged Data valid, up-to-date and complete credit card details or approved purchase order information acceptable to Rugged Data and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides its credit card details to Rugged Data, the Client hereby authorises Rugged Data to bill such credit card:

13.2.1. on the Effective Date for 50% of the Configuration Fee;

13.2.2. on Acceptance for the balance of the Configuration Fee and the Subscription Fees payable in respect of the Initial Term; and

13.2.3. subject to clause 17.1, on expiry of the Initial Term for the Subscription Fees payable in respect of the next month and thereafter the Subscriptions Fees shall be billed monthly.

13.3. If Rugged Data has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of the Rugged Data:

13.3.1. Rugged Data may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and Rugged Data shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

13.3.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

13.4. All amounts and fees stated or referred to in the Contract:

13.4.1. shall be payable in pounds sterling;

13.4.2. are non-cancellable and non-refundable;

13.4.3. are exclusive of value added tax, which shall be added to Rugged Data’s invoice(s) at the appropriate rate.

13.5. Rugged Data shall be entitled to increase the Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 6.2 on expiry of the Initial Term or at any time thereafter upon 30 days’ prior notice to the Client.

14. PROPRIETARY RIGHTS

14.1. The Client acknowledges and agrees that Rugged Data and/or its licensors own all Intellectual Property Rights in the Platform, Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Client any rights to, or in, Intellectual Property Rights in respect of the Platform, Services or the Documentation.

14.2. Rugged Data confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the Contract.

14.3. Nothing in this clause 14 shall restrict the right of the Client to ownership, copying and use of the Task Data or Client Materials in any way.

14.4. Client Materials

14.4.1. All Intellectual Property Rights in Client Materials shall remain vested in the Client at all times and the Client grants Rugged Data a non-exclusive, transferable licence to use the Intellectual Property Rights in Client Materials during the Term for the purpose of providing the Services under this Contract.

14.4.2. Rugged Data may licence any third party that it has engaged to provide any part of the Services to use the Intellectual Property Rights in Client Materials for the purpose of providing the Services.

14.4.3. The Client warrants that any Client Materials the Client provides Rugged Data with under this Contract do not infringe the Intellectual Property Rights of any third party.

14.4.4. The Client shall indemnify Rugged Data and keep Rugged Data indemnified and hold Rugged Data harmless in respect of all costs, or losses sustained or incurred by Rugged Data (including any legal costs, any direct, indirect or consequential losses, loss of profit and loss of reputation), that arise directly or indirectly from a breach of the warranty in clause 14.4.3.

14.5. Any feedback, comments, or suggestions the Client may provide regarding Rugged Data, or the Services is entirely voluntary and Rugged Data will be free to use such feedback, comments or suggestions as it sees fit and without any obligation to the Client. Rugged Data shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Client, including Authorised Users, relating to the operation of the Services.

CONFIDENTIALITY

15.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract.

15.2. A party’s Confidential Information shall not be deemed to include information that:

15.2.1. is or becomes publicly known other than through any act or omission of the receiving party;

15.2.2. was in the other party’s lawful possession before the disclosure;

15.2.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

15.2.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or

15.2.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

15.3. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.

15.4. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.

15.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

15.6. The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Rugged Data’s Confidential Information.

15.7. This clause 15 shall survive termination of the Contract, however arising.

15.8. No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

16. DATA PROTECTION

16.1. In this clause 16 the followings words shall have the following meanings:

16.1.1. “Data Protection Legislation” shall mean any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the processing of their personal data to which a party is subject, including the DPA, any other European Union legislation which apply to a party and any code of practice or guidance published by the Information Commissioner’s Office from time to time;

16.1.2. “DPA” shall mean the Data Protection Act 2018;

16.1.3. “process”, “personal data”, “data processor”, “data controller”, “data subject” shall have the terms given to them in the Data Protection Legislation.

16.2. If and to the extent that Rugged Data processes any personal data on behalf of the Client in connection with the Services, the parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Rugged Data is the data processor.

16.3. Both parties will comply with all applicable requirements of the Data Protection Legislation.

16.4. The Data Processing Appendix sets out the scope, nature and purpose of processing by Rugged Data, the duration of the processing and the types of personal data and categories of data subject in relation to the Services.

16.5. Without prejudice to the generality of clause 16.3, the Client will:

16.5.1. provide complete, accurate and lawful written instructions to Rugged Data to govern the processing of personal data as initially set out in the Data Processing Appendix;

16.5.2. ensure that the Client has all necessary consents and notices in place to enable lawful transfer of the personal data to Rugged Data for the duration and purposes of the Services; and

16.5.3. notify Rugged Data without undue delay on becoming aware of a personal data breach which has or may have an impact on the processing carried out by Rugged Data or the written instructions for processing.

16.6. Without prejudice to the generality of clause 16.3, Rugged Data shall, in relation to any personal data processed in connection with the performance by Rugged Data of its obligations under the Contract:

16.6.1. process that personal data only on the written instructions of the Client as set out in the Data Processing Appendix unless Rugged Data is required by the laws of England or by the laws of the European Union (for so long as and to the extent that they apply to Rugged Data) to process personal data (“Applicable Laws”). Where Rugged Data is relying on Applicable Laws as the basis for processing personal data, Rugged Data shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Rugged Data from so notifying the Client;

16.6.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

16.6.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

16.6.4. not transfer any personal data outside of the European Economic Area (which includes the United Kingdom for the purposes of this Agreement) unless the following conditions are fulfilled:

(i) the Client or Rugged Data has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) Rugged Data complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv) at the Client’s cost, Rugged Data complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;

16.6.5. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

16.6.6. notify the Client without undue delay on becoming aware of a personal data breach;

16.6.7. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Contract unless required by Applicable Law to store the personal data; and

16.6.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 16.

16.7. The Client consents to Rugged Data appointing third-party processors of personal data under the Contract and Rugged Data shall provide the Client with a list of current sub-processors on request. Rugged Data confirms that it has with the third party processor entered into a written agreement substantially on that third party’s standard terms of business. Prior to appointing any other subprocessors, Rugged Data shall give the Client 30 days’ prior notice after which time the Client shall have 90 days’ to terminate the Contract if the Client does not agree to the appointment. As between the Client and Rugged Data, Rugged Data shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 16.7.

16.8. Any changes made or additions to the requirements of the Client in respect of its data processing requirements shall be dealt with via clause 9.

17. TERM AND TERMINATION

17.1. The Contract shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Term and, thereafter, the Contract shall automatically continue (“Subsequent Term”), unless:

17.1.1. either party notifies the other party of termination, in writing, at least 30 days:

(i) before the end of the Initial Term in which case the Contract shall terminate upon the expiry of the Initial Term; or

(ii) at any time during the Subsequent Term, in which case the Contract shall terminate upon the expiry of the notice period; or

17.1.2. otherwise terminated in accordance with the provisions of the Contract; and the Initial Term together with any Subsequent Term shall constitute the Term.

17.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

17.2.1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment;

17.2.2. the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so.

17.3. On termination of the Contract for any reason:

17.3.1. all licences granted under the Contract shall immediately terminate;

17.3.2. the Client is responsible for downloading a copy of the Task Data within 28 days of the termination date and Rugged Data shall have no obligation to retain or store Task Data after this date;

17.3.3. the Client shall uninstall or otherwise remove any means of access to the Services;

17.3.4. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

17.3.5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.

18. WARRANTIES

18.1. Each party warrants that it has all necessary power and authority to enter into the Contract.

19. INDEMNITY

19.1. The Client shall defend, indemnify and hold harmless Rugged Data against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that:

19.1.1. the Client is given prompt notice of any such claim;

19.1.2. Rugged Data provides reasonable cooperation to the Client in the defence and settlement of such claim, at the Client’s expense; and

19.1.3. the Client is given sole authority to defend or settle the claim.

20. LIMITATION OF LIABILITY

20.1. This clause 20 sets out the entire financial liability of Rugged Data (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Client:

20.1.1. arising under or in connection with the Contract;

20.1.2. in respect of any use made by the Client of the Services and Documentation or any part of them; and

20.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

20.2. Except as expressly and specifically provided in the Contract:

20.2.1. the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. Rugged Data shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Rugged Data by the Client in connection with the Services, or any actions taken by Rugged Data at the Client’s direction;

20.2.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and

20.2.3. the Services and the Documentation are provided to the Client on an “as is” basis.

20.3. Nothing in the Contract excludes the liability of the Rugged Data:

20.3.1. for death or personal injury caused by Rugged Data’s negligence; or

20.3.2. for fraud or fraudulent misrepresentation.

20.4. Subject to clause 20.2 and clause 20.3:

20.4.1. Rugged Data shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

20.4.2. Rugged Data’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim arose.

21. GENERAL

21.1. Rugged Data shall not be liable for any failure or delay in performing its obligations as a result of a Force Majeure Event. If a Force Majeure Event continues for more than 14 days, Rugged Data shall be entitled to terminate the Contract by giving 7 days’ notice in writing.

21.2. The Client shall not partially or wholly assign or subcontract any of its obligations under the Contract.

21.3. Rugged Data may perform any or all of its obligations under the Contract through subcontractors, agents or other third parties, without the Client’s written consent.

21.4. The Contract represents the entire agreement between the parties and supersedes all earlier warranties, representations, statements or agreements (whether written or oral). The Client acknowledges that in entering into the Contract, the Client has not relied on any, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in the Contract as a warranty.

21.5. Any notice under the Contract or required by statute, law or regulation shall be delivered in person, sent by registered mail, properly posted and fully prepaid in an envelope to the respective parties at their respective registered or principal offices.

21.6. The parties intend that any person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any term of the Contract, but this does not affect any right or remedy of a third party which exists, or is available, apart from the Act.

21.7. If any provision is found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity shall not affect the rest of the Contract, which shall remain in full force and effect.

21.8. Failure by Rugged Data to exercise or enforce any of its rights or remedies under the Contract shall not constitute a waiver of any such right or remedy, nor shall it prevent the exercise or enforcement of the right or remedy at any time.

21.9. If the Client is unhappy with any aspect of the Services, please contact Rugged Data on the contact details set out on its website.

21.10. Unless otherwise expressly stated, nothing in these Terms shall create a partnership or agency between the parties.

21.11. If a dispute arises between the parties in relation to the Contract in any way, the parties shall first try in good faith to amicably resolve the dispute within 28 days of the dispute arising.

21.12. Subject to clause 21.11, the Contract and any dispute arising out of or in connection with its subject matter or formation shall be governed by and construed in accordance with English law and the parties submit to the courts of England & Wales having exclusive jurisdiction in relation to such.

22. DEFINITIONS

22.1. The definitions in this clause apply in the Terms.

Acceptance: as defined in clause 3.5.

Additional Terms: as may be detailed in the Service Schedule from time to time.

App: the Rugged Data mobile application available for the Client’s Authorised Users to download on Google Play Store.

Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Client Materials: any text, data, calculations, code, literature, photographs, documentation, designs, layouts, artwork, storyboards, scripts, graphics, presentations, drawings, documents, charts, video, audio or other materials or creative content the Client provides to Rugged Data.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 15.6.

Configuration Fee: the fee payable by the Client to Rugged Data for the Configuration Services, as set out the Service Schedule.

Configuration Requirements: the Client’s requirements for the Platform as notified to Rugged Data prior to commencement of the Services as detailed in the Service Schedule.

Configuration Services: configuration of the Platform to the Configuration Requirements.

Client: as set out in the Service Schedule.

Client System: the Client’s hardware, firmware, software and communications infrastructure through and on which the Services are to be used.

Documentation: the document made available to the Client by Rugged Data online via the Website or such other web address notified by Rugged Data to the Client from time to time which sets out a description of the Services and the online user guide for the Services.

Effective Date: the date of the Contract.

Enhancement: a modification to the Platform other than an Update which:

(i) contains significant new features;

(ii) may be priced and offered separately as an optional addition to the Services; and

(iii) is not made routinely available to Clients that purchase the Services.

Fees: the Configuration Fee and Subscription Fees.

Force Majeure Event: a Force Majeure Event includes any act, event, non-happening, omission or accident beyond Rugged Data’s reasonable control and includes in particular the following:

(i) strikes lock-outs or other industrial action;

(ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;

(iv) impossibility of the use of public or private telecommunications networks; and

(v) the acts, decrees, legislation, regulations or restrictions of any government;

(vi) acts of third parties.

Initial Term: the initial term of the Contract commencing on Acceptance as set out in the Service Schedule.

Intellectual Property Rights: intellectual property rights being, all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Platform: the mobile data platform provided by Rugged Data, provided by the App, Website and other properties, as part of the Services. Rugged Data: Rugged Data Limited (08942119) whose registered office is at 42 (First Floor) High Street, Poole, England, BH15 1BT.

Service Schedule: the service schedule for the Services agreed by or on behalf of the Client which is accepted by Rugged Data pursuant to clause 2.3.

Services: the subscription services provided by Rugged Data to the Client under the Contract via the Platform, as more particularly described in the Documentation, excluding any parts not included in the Subscription.

Subscription: the subscription level of the Platform made available to the Client as part of the Services, initially as set out in the Service Schedule.

Subscription Fees: the subscription fees payable by the Client to Rugged Data for the User Subscriptions and the Subscription, as set out the Service Schedule.

Subsequent Term: the period described in clause 17.1.

Support Services Policy: Rugged Data’s policy for providing support in relation to the Services as made available to the Client from time to time.

Task Data: the data inputted by the Client, Authorised Users, or Rugged Data on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services, including but not limited to data, information, images, pdfs, employee data, and data or reports generated by the Platform.

Term: has the meaning given in clause 17.1 (being the Initial Term together with any Subsequent Term).

Update/Updated: any improvements, modifications or corrections to the functionality of the Services that are generally made available at no additional cost to Rugged Data’s Clients who purchase the Services.

User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 13.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Contract.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, 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.

Website: Ruggeddata.co.uk

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