Ancoris Applications as a Service Cloud Services Agreement

 

1. PARTIES AND CONTRACT

1.1. “Ancoris”: Ancoris Limited, a company incorporated in England and Wales (Company Number 06922114) having its registered office 5a Frascati Way, Maidenhead, Berkshire, UK SL6 4UY and trading address at Lily Hill House, Lily Hill Road, Bracknell, Berkshire RG12 2SJ.
1.2. “Customer”: the person, organisation or company who executes the Contract for the Services.
1.3. This “Ancoris Applications as a Service Cloud Services Agreement” as listed at http://www.ancoris.com/terms/appsservice/apps-as-service-terms (the “URL Terms”) together with the Statement of Work or Services Agreement (the “SoW”) and any associated Services Schedule together and the Ancoris Terms and Conditions ( http://www.ancoris.com/terms ) are referred to as the “Contract”. The parties acknowledge and agree that no other existing agreements or correspondence between the parties or their affiliates or parent companies govern this Contract.
1.4. “Services” means the Software and Application Services provided as a fully managed service including hosting, application maintenance and support for the Customer as described specifically in the SoW.
1.5. Unless otherwise agreed by the Ancoris, the pricing and terms in any SoW are valid only if the SoW is signed by the Customer and received by Ancoris within 30 (thirty) days of the SoW date. The pricing and terms of any SoW may be withdrawn by Ancoris at any time prior to Ancoris receipt of the SoW signed by the Customer. If not defined in the SoW, the price payable is as listed in the associated Services Schedule.
1.6. Ancoris agrees to provide the Services to the Customer as set out in the Contract.

2. CUSTOMER USE OF SOFTWARE AND SERVICES

2.1. Customer will not:
2.1.1. share User Login details with any third party, share User Login access with multiple Authorised Users or provide access to the Services for the benefit of third parties;
2.1.2. alter any part of the Services, remove any notice of proprietary rights from the Services or reverse engineer the Services;
2.1.3. contest Ancoris’s Intellectual Property Rights in the Services.
2.2. Customer will not use the Services:
2.2.1. to post or transmit any material that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may be detrimental to Ancoris’s reputation or to the reputation of any third party;
2.2.2. to post or transmit unsolicited, unauthorised, promotional material, ‘junk mail’, ‘spam’, ‘chain letters’;
2.2.3. to post or transmit any material for which Customer has not obtained all necessary consents, licences and/or approvals or which would infringe the trademarks, copyright or Intellectual Property Rights of third parties;
2.2.4. in any way which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in the UK or in any other country in the world;
2.2.5. in breach of the Google Acceptable Use Policy to the extent required by Google; and/or
2.2.6. in anyway which is technically harmful (including without limitation, using the Services to transmit or post computer viruses, logic bombs, trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
2.3. Customer is solely responsible for the security of User Logins and Admin Console access and Customer shall immediately notify Ancoris if Customer becomes aware of any breach of security including breach of username and password or related Google Account associated with User Logins.
2.4. Customer is responsible for configuring its own information technology, device platforms and security software (including anti-virus software) in order to access or use the Services.
2.5. Ancoris may at any time move, modify and/or remove any Content, or take legal action as a result of breaches or suspected breaches of this clause, any applicable laws or regulations and/or where Ancoris’s rights are threatened or infringed.
2.6. Ancoris may at its sole discretion, immediately suspend access to the Services either for all Authorised Users or for individual Authorised Users if Customer breaches any of the terms and conditions of the Contract.

3. CHANGE OF SCOPE

3.1. If during the performance of the Contract a desired change in the Services is identified, Customer and Ancoris will document the scope of the change and its impact on the Services, the project approach, timing, Fees, resources, and the scope and quality of project results. Any change in scope and the applicable terms must be agreed to in writing by the Ancoris with the issue of a revised SoW which will require the signature of both Ancoris and Customer.

4. WARRANTIES

4.1. Ancoris warrants that the Development and Deployment Services will be performed with reasonable care and skill. Customer must give notice of any breach of this warranty within 30 days from the date that the Development and Deployment Services are completed. In such event, at Ancoris’s option, Ancoris shall either (a) use commercially reasonable efforts to re-perform the Development and Deployment Services in a manner that conforms with the warranty, or (b) refund to Customer the applicable fees paid for the nonconforming Development and Deployment Services. The foregoing shall constitute the exclusive remedy of Customer.
4.2. The warranty at clause 4.1 above shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Ancoris’s instructions, or modificationor alteration of the Services by any party other than Ancoris.
4.3. Ancoris does not warrant that Customer’s use of the Services will be uninterrupted or error-free, or that the Services will meet the Customer’s requirements. Ancoris shall not be 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.4. Ancoris warrants that it has all necessary licences, consents and permissions necessary for the performance of its obligations under the Contract.
4.5. Customer shall provide Ancoris with all necessary co-operation in relation to the Contract and provide all necessary access to such information as Ancoris may require in order to provide the Services.
4.6. Customer shall comply with all applicable laws and regulations, with respect to its activities pursuant to the Contract and carry out all its responsibilities under the Contract in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the parties, Ancoris may adjust any agreed timetable for the performance of Ancoris’s obligations as reasonably necessary.
4.7. Customer shall obtain and maintain all necessary licences, consents and permissions necessary for Ancoris to perform its obligations under the Contract, including provision of the Services.
4.8. Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Ancoris and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.

5. SERVICE LEVELS AND SUPPORT

5.1. Ancoris will use its reasonable endeavours to ensure that the Services are available in accordance with the Ancoris Applications as a Service – Service Level Agreement at http://www.ancoris.com/terms/appsservice/apps-sla.
5.2. Access to the Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair, failures in the underlying Google Cloud Services or for reasons beyond Ancoris’s control.
5.3. Customer will at its own expense, respond to questions and complaints from Authorised Users or third parties relating to Customer’s or Authorised Users use of the Services. Customer will use its reasonable endeavours to resolve support issues before escalating them to Ancoris.
5.4. Ancoris will respond to support requests from Customer Administrators in accordance with the Ancoris Applications as a Service Support Plan ( http://www.ancoris.com/terms/appsservice/apps-support-plan.html ).

6. MODIFICATION OF SERVICES AND TERMS

6.1. Modifications to the Services. Ancoris may make commercially reasonable changes, enhancements or modifications to part or all of the Services from time to time. This may include discontinuing a Service or any aspect or feature thereof. If Ancoris makes a material change to the Services, Ancoris will inform Customer by such method as Ancoris may elect.
6.2. Changes to Reference Platform.
6.2.1. Minor updates: Ancoris will ensure the Services work on the agreed Reference Platform at delivery date and will provide updates to cater for release changes to core Reference Platform elements by Ancoris’s suppliers and sub-processors and for other Ancoris mandated changes to maintain security or availability.
6.2.2. Significant changes or discontinuation: In the event that one of Ancoris’s suppliers discontinues a core Reference Platform element or functionality such that it materially affects the operation or security of the Services, the Customer may choose either to contract with Ancoris for development via a change request to cater for a replacement element at Ancoris’s current or previously agreed rates or to terminate the Contract with a refund of unused Subscription Period pro-rata from the point that the Service availability or security is affected by the Reference Platform change. Service change of Reference Platform shall not be considered a breach of the Services SLA nor of the Contract.
6.3. Modifications to Contract. Ancoris may make commercially reasonable changes to the URL Terms from time to time. If Ancoris makes a material change to the URL Terms or Contract, Ancoris will inform Customer by sending an email to the Administrator email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Ancoris via Ancoris Support within thirty days after receiving notice of the change. If Customer notifies Ancoris as required then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription Period for the affected Services. If the affected Services are renewed in accordance with the Contract, they will be renewed under Ancoris’s then current terms.

7. FEES, PAYMENT AND TERM

7.1. In consideration for the provision of the Services, Customer will pay to Ancoris the Subscription Fees for the Subscription Period and the Development and Deployment Charges and any Licence Fees, (individually and collectively, as applicable, “the Fees”).
7.2. Unless stated otherwise in the SoW, the Fees will be invoiced in full, up-front upon execution of the Contract and payment will be due within 30 days of invoice. Subject to Clause 6.2 above the Services are non-cancellable and non-refundable.
7.3. Any travel and accommodation expenses incurred in deployment of the Services will be invoiced separately at cost at 42 pence per mile and/or 2nd class rail and/or economy airfare, Customer may specify a suitable local business hotel.
7.4. The Fees are exclusive of VAT or local taxes which shall be paid by Customer in addition.
7.5. If Customer does not pay any Fee when due Ancoris reserves the right (without prejudice to any other remedies Ancoris may have) to suspend and/or terminate Customer’s access to the Services.
7.6. Customer will pay all Fees due to Ancoris under this Contract without any set-off, deduction, counterclaim and/or other withholding of monies.
7.7. Payment of Fees shall not be deemed to be made until Ancoris has received cleared funds in respect of the full amount outstanding.

8. TERMINATION

8.1. The Contract will terminate on expiry of the Subscription Period if not renewed;
8.2. The Contract will terminate if Customer is in material breach of any of its conditions and if the breach is not remedied within a period of 14 days after Ancoris has given Customer written notice of it.
8.3. In the event Customer terminates the Subscription before the end of the Subscription Period Ancoris will not provide any refund of the Subscription Fee.
8.4. On termination of the Contract:
8.4.1. Customer will cease, and ensure that its Authorised Users cease, accessing the Services and will take reasonable steps to delete the Software and any Content from Customer electronic Media, including Customer intranet and electronic storage devices.
8.4.2. Customer shall, at its own expense, export or take copies of any Customer Data required before the date of termination. If export functionality is not part of Services then Customer may request, within 14 days of the end of the Subscription Period, that Ancoris quote to provide an export based on Ancoris’ reasonable costs. If Customer accepts the quotation then Ancoris will provide the export of the data within 60 days.
8.4.3. In the event that Customer wishes Customer Data to be deleted immediately after termination, it may raise a case with Ancoris Support to request data to be deleted. Ancoris will action this request within 5 working days subject to validation of the request authorisation.
8.4.4. Ancoris will otherwise retain Customer Data for 60 days after termination after which all Customer Data may be deleted by Ancoris.

9. CONFIDENTIALITY

9.1. Customer acknowledges that all the Content contained within the Services is Ancoris’s Confidential Information which Customer will hold in confidence. This obligation shall remain in full force and effect after termination of the Contract for any reason.

10. INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA

10.1. All Intellectual Property Rights in the Deliverables, Content, Software, Application Services and the Services belong to Ancoris. Ancoris grants a non-exclusive licence during the Subscription Period to Customer and Authorised Users to access the Application Services and use the Software for internal business purposes only and as described in the Statement of Work.
10.2. Customer is prohibited and shall procure that Authorised Users are prohibited from copying, amending, and/or modifying any part or all of the Deliverables and/or Software without Ancoris’s express written consent.
10.3. All Intellectual Property Rights in Customer Data belongs to Customer. Customer will ensure that Customer Data complies with applicable laws and regulations. Customer retains ownership, possession, and control of Customer Data at all times except to the extent that Customer specifically authorizes Ancoris to exercise certain controls or modifications, as selected by Customer within the Services, over Customer Data.
10.4. Ancoris may use anonymized statistical and summary information derived from such Customer Data and aggregate it with statistical information from other customers (“Non-Identifiable Summary Data”) for Ancoris business purposes, including without limitation for analyzing customer needs and improving its services, and Ancoris shall own all right, title and interest in any such Non-Identifiable Summary Data.

11. DATA PROCESSING AGREEMENT

11.1. Where the Services include processing of Customer Personal Data then the provisions of Clause 14 (Data Processing Agreement) of the Terms & Conditions shall apply.

12. PUBLICITY

12.1. Ancoris may use Customer’s name and/or logo (the “Marks”) on its website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to the Contract. All such use shall be in accordance with Customer’s usage policies and guidelines if provided in writing to Ancoris . If Customer objects to any such use or wishes to revoke its permission to use its Marks under the Contract, Ancoris shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party.

13. LIMITATION OF LIABILITY

13.1. Customer agrees that Ancoris’s sole liability to Customer for a breach of the Contract is limited to damages of an equal amount to the Subscription Fee.
13.2. Ancoris shall have no liability to Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise for any loss of profits; loss of data; loss of business; loss of anticipated savings, special damages; economic and/or other similar losses; loss of contracts and/or opportunity; damage to goodwill and/or reputation; in each case whether direct, indirect or consequential (howsoever caused) which arise out of or in connection with the Contract.

14. FORCE MAJEURE

14.1. Ancoris reserve the right to cancel or suspend Customer’s Subscription or to cancel the Contract (without liability to Customer) if Ancoris is prevented from or delayed in carrying on its business due to circumstances beyond Ancoris’s reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or internet failure, power failure, or failure, disruptions or significant changes in Google Cloud Services or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

15. GENERAL

15.1. Severability. If any of the provisions of the Contract is adjudged to be illegal or unenforceable, the remainder of them will continue in full force and effect.
15.2. Waiver. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
15.3. Rights of Third Parties. The parties to the Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
15.4. Assignment. Customer shall not assign its rights and/or obligations under this Contract without Ancoris’s prior written consent. Ancoris shall be permitted to subcontract part or all of the Services and/or assign its rights and/or obligations under the Contract.
15.5. Notices. Any notice given under the Contract by either party to the other must be in writing and may be delivered by raising a case with Ancoris Support, personally or by first-class post, and in the case of post will be deemed to have been given two working days after the date of posting. Notices will be delivered or sent to the postal or email addresses of the parties on the order, online registration or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of the Contract.
15.6. Governing Law and Jurisdiction. The Contract is governed by and construed according to English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

16. DEFINITIONS

16.1. “Admin Console” means any online administration console provided by Ancoris with the Services to configure functionality, reporting, User Logins and other administration functions;
16.2. “Ancoris Privacy Policy” means the policy found at http://www.ancoris.com/company/website/privacy.html;
16.3. “Ancoris Support” means the support service for Customer Administrators as described in the Ancoris Applications as a Service Support Plan at http://www.ancoris.com/terms/appsservice/apps-support-plan.html;
16.4. “Application Services” means any hosted web applications developed and supplied by Ancoris as a fully managed service including hosting, application maintenance and support as part of the Services;
16.5. “Authorised Users” means any individuals the Customer permits to use the Services;
16.6. “Content” means all content accessible in the Services;
16.7. “Contract” means this Cloud Services Agreement, the Statement of Work and any Services Schedule and the Terms & Conditions;
16.8. “Customer Administrators” means Authorised Users who are also designated “Administrators” for the client domain(s) in the Customer’s Google Apps Administrative Console or in the administration sections of Ancoris’s Services;
16.9. “Customer Data” means data provided, generated, transmitted or displayed via the Services by Customer or End Users as specifically identified in the Statement of Work;
16.10. “Customer Personal Data” means the personal data processed by or on behalf of Ancoris pursuant to the Contract; ‘ personal data’ has the meaning stated in the Data Protection Laws;
16.11. “Data Protection Laws” means the GDPR and DPA Act and all applicable laws as more particularly defined at Clause 1.10 of the Terms & Conditions;
16.12. “Deliverables” means any software, computer programs, patents, designs, documentation, reports, data and other information generated by Ancoris as part of the Services;
16.13. “Development and Deployment Charges” means the fees and charges as set out in Ancoris’s quotation, Services Schedule, Statement of Work or pricelist for one-off development and deployment services;
16.14. “Development and Deployment Services” means the one-off services to develop and deploy the Deliverables, Software and Applications Services as described in the Statement of Work;
16.15. “DPA Act” means the UK Data Protection Act 2018;
16.16. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, which supersedes EU Directive 95/46/EC;
16.17. “Google Acceptable Use Policy” means the Google Cloud Platform acceptable use policy listed at “https://developers.google.com/cloud/terms/aup”;
16.18. “Google Cloud Services” means Google’s hosted or managed services including Google App Engine, Google Cloud SQL, Google Cloud Storage, Google Compute Engine, Google Big Query, Google Apps and Google Maps as described at http://www.google.com/cloud;
16.19. “Licence Fee” means the charges as detailed in the SoW or Services Schedule for the right to use Software for the duration of the Subscription Period or, if specified in the Services Agreement only, a perpetual licence;
16.20. “Intellectual Property Rights” means any copyright, database right, know how, confidential information or other industrial or intellectual property right subsisting anywhere in the world and in any application for any of the above;
16.21. “Reference Platform” means the underlying hosting or development platforms which are used to build and operate the Application Services, together with the access platforms (e.g. devices, device OS’s, browsers etc.) used to access the Services or Software, which may include core Google Cloud services, browsers and mobile operating systems and may be defined more precisely in the SoW;
16.22. “Software” means any software or applications supplied by Ancoris which are installed by Customer as part of the Services;
16.23. “Subscription Fee” means the subscription fee as set out in Ancoris’s quotation, Services Schedule, Statement of Work or pricelist for the supply of the Application Services and any other specific services based on agreed quantities or metrics for the Subscription Period as detailed in the SoW;
16.24. “Subscription Period” means the period in respect of which a Subscription Fee is payable (or one year from date of Contract signature if not otherwise specified);
16.25. “Subscription” means subscription to the Services in writing or purchase order form placed on Ancoris by Customer;
16.26. “Terms & Conditions” means the Ancoris Terms & Conditions as referred to in Clause 1.3 above;
16.27. “URL Terms” means these “Ancoris Applications as a Service Cloud Services Agreement” as listed at http://www.ancoris.com/terms/appsservice/apps-as-service-terms.html;
16.28. “User Login” means any Authorised User’s personal subscription login details configured to access the Services including either a username and password, PIN or other authentication method specific to the Services or authorisation for authentication with a Google Apps account login.

Ancoris Applications as a Service Cloud Services Agreement – Terms and Conditions v4.0 – July 2018

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