Terms and Conditions
Parties
This is an agreement between you (The Customer) and Nexudus Limited, a company incorporated in England having its registered address at "1 College Yard, 56 Winchester Avenue, London, NW6 7UA" (The Provider).
Background
The Provider operates Nexudus Spaces (the “Platform”) and provides the Support Services, and the Customer wishes to be granted access to the Platform and to receive the Support Services, on the terms of this Agreement.
1. Agreement
1.1 In this Agreement:
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity.
“Agreement” means this software as a service agreement (including the Schedules) and any amendments to it from time to time.
“Business Day” means any week day, other than a bank or public holiday in UK.
“Business Hours” means between 09:00 and 17:30 GMT on a Business Day.
“Charges” means the amounts payable by the Customer to the Provider under or in relation to this Agreement (as set out in Schedule [3]).
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly).
“Customer Confidential Information” means:
(a) Means any information disclosed (whether disclosed in writing, orally or otherwise) by the CUSTOMER to the PROVIDER during the Term that is marked as “confidential”, described as “confidential”, should have been understood by the PROVIDER at the time of disclosure to be confidential. This includes, but is not limited to, all personal data, and personal account information, whether or not such is marked as confidential or not.
“Customer Data” means:
(a) The data inputted by the CUSTOMER or the PROVIDER on the CUSTOMER's behalf for the purpose of using THE PLATFORM or facilitating the CUSTOMER's use of THE PLATFORM.
"Customer Materials" all works and materials:
Uploaded to, stored on, processed using or transmitted via THE PLATFORM by or on behalf of the CUSTOMER or by any person or application or automated system using the CUSTOMER's account.
“Defect” means a defect, error or bug having an adverse effect on operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
(a) An act or omission of the CUSTOMER, or an act or omission of one of the CUSTOMER's employees, space members, officers, agents, PROVIDERS.
(b) An incompatibility between the PLATFORM and any other system, application, program or software not specified as compatible specifically by PROVIDER.
"Documentation" means the documentation produced by the PROVIDER and made available to the CUSTOMER by the PROVIDER online via coworking.nexudus.com, https://learn.nexudus.com/platform/ , https://learn.nexudus.com/members-portal/,
https://learn.nexudus.com/api/or such other web address notified by the PROVIDER to the CUSTOMER from time to time which sets out a description of THE PLATFORM and the user instructions for THE PLATFORM.
“Effective Date” means the date of execution of this Agreement;
“Free Trial”: means the period charges specified at http://coworking.nexudus.com in which the use of the PLATFORM has no charges for the CUSTOMER. This period time starts when the Customer account on the Platform is created.
“Active Members”: Active members are those paying for a regular product or service, signed up to a price plan or regular payment contract and who have been invoiced or made a booking in the last 30 days. Anyone else will be regarded as a drop-by person and won't be billed for.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
“Minimum Term” means the period specified as such in Schedule [1].
“Maximum Term” means the period specified as such in Schedule [1].
"Permitted Purpose" define the purpose(s) for which the Platform may be used.
Platform: means the services and software as service (SaaS) PLATFORM known as NEXUDUS SPACES or any binary libraries or executable files provided via the sites under nexudus.com or any of its subdomains, that is owned and operated by the PROVIDER, and that will be made available to the CUSTOMER. The PROVIDER has the intellectual property rights on the PLATFORM and works derivates.
“Services” means all the services, including the Platform, provided or to be provided by the Provider to the Customer under this Agreement, including the Support Services.
“Subscription fees”: the subscription fees payable by the CUSTOMER to the PROVIDER as amended from time to time. They are properly published at coworking.nexudus.com and any changes will be updated there or notified to the CUSTOMER by e-mail.
"Support Services" means support and maintenance services provided or to be provided by the PROVIDER to the CUSTOMER.
“Term”: means the term of this Agreement.
“Upgrades” means new versions of, and updates to, the PLATFORM, whether for the purpose of fixing an error, bug or other issue in the PLATFORM or enhancing the functionality of the PLATFORM. They are usually notified to the CUSTOMER by e-mail and also will be published at PROVIDER social networks and blog.
“Virus”: anything or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program 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.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
That statute or statutory provision as modified, consolidated and/or re-enacted from time to time; AND
Any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement
Term
This Agreement will come into force on the Effective Date and will continue indefinitely thereafter, unless terminated in accordance with Clause [14].
3. The Platform
3.1 The Provider:
Will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account following the Effective Date. OR
The PLATFORM will automatically generate an account for the CUSTOMER promptly following the Effective Date, enabling the CUSTOMER to access the PLATFORM. OR
The CUSTOMER will open an account on the PLATFORM by entering the correct and required registration details on https://platform.nexudus.com/login/register.
3.2 Subject to:
The limitations set out in Clause [3.3] and the prohibitions set out in Clause [3.4], the Provider hereby grants to the Customer a non-exclusive licence to use the Services and the Documentation of the PLATFORM for the Permitted Purpose via any standard web browser in accordance with the DOCUMENTATION during the Subscription Term solely for proper use of the PLATFORM according to its features.
3.3 The licence granted by the Provider to the Customer under Clause [3.2] is subject to the following limitations:
a) The PLATFORM may only be used by registered CUSTOMERS and undertakes that the CUSTOMER shall keep a secure password for the use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that the CUSTOMER shall keep his password secret and confidential.
b) the Customer must comply at all times with the terms of the acceptable use policy supplied with the Platform and set out in Schedule 4, and must ensure that all users of the Platform agree and comply with the terms of that acceptable use policy.
3.4 Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by the Provider to the Customer under this Clause [3] is subject to the following prohibitions:
The Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform.
The Customer must not frame or otherwise re-publish or re-distribute the Platform unless specifically allowed by the PROVIDER.
The Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation.
3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform:
Either during or after the Term. Although the Customer can access and modify what is called the "space website" (see Nexudus Spaces features at coworking.nexudus.com) and its files, throughout the theme editor built in the Admin Panel of Nexudus Spaces Account.
3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9. The Customer must not use the Platform:
a) In any way that is unlawful, illegal, fraudulent or harmful; OR
b) In connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4 Support Services and Upgrades
The details of the Support Services are specified in Schedule 2 (Service Level Agreement)
4.1 Although the PROVIDER is determined to use all reasonable resources to make the service available 24/7, there are some exceptions to take into account:
4.2 Unscheduled maintenance will be usually performed outside normal Business Hours.
4.3 The PROVIDER shall provide the availability of the PLATFORM and the DOCUMENTATION according to the terms of this agreement to the CUSTOMER during the Subscription Term.
4.4 The PROVIDER will provide a technical support regarding issues that may come within the use of the PLATFORM by the CUSTOMER. This services is provide using e-mail with 48H of response’s time.
4.5 Features Updates: The PROVIDER encourages CUSTOMERS to send feedback about their new features wish list in the PLATFORM. The PROVIDER will consider all of them and eventually will develop those ones which may be technically viable and positive for the entire community of CUSTOMERS.
5 Customer Materials
5.1 The CUSTOMER grants to the PROVIDER during the Term a non-exclusive licence to store, copy and otherwise use the CUSTOMER Materials on the PLATFORM for the purposes of operating the PLATFORM, providing THE SERVICE, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement. The PLATFORM may allow end users of the service to edit, remove or share their own data with other customers of PLATFORM. 5.2 Subject to Clause [5.1], all Intellectual Property Rights in the CUSTOMER Materials will remain, as between the parties, the property of the CUSTOMER. 5.3 The Customer warrants to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:
(a) Breach any laws, statutes, regulations or legally-binding codes.
(b) Infringe any person's Intellectual Property Rights or other legal rights;
OR
(c) Give rise to any cause of action against the Provider or the Customer or any third party.
5.4 Where the Provider reasonably suspects that there has been a material breach by the Customer of the provisions of this Clause [5], the Provider will advise the CUSTOMER of such a breach and, if not remedied within 2 working days, may:
(a) Delete or amend the relevant Customer Materials; AND/OR
(b) Suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
5.5 Any breach incapable of remedy by the Customer of this Clause [5] will be deemed to be a material breach of this Agreement for the purposes of Clause [13]. 5.6 The PROVIDER shall ensure that the CUSTOMER Materials stored and processed by the PLATFORM are stored separately from, and are not co-mingled with, the materials of other CUSTOMERs of the PROVIDER. End users may decide to voluntarily provide their own data stored in the PLATFORM to other CUSTOMERs using the PLATFORM.5.7 The CUSTOMER shall ensure than any third-party libraries, modules or plug-ins used in the PLATFORM have the appropriate licenses to be used based on the CUSTOMER configuration of the account. As of the date for the revision of this document, the following modules may need a license:
Google Maps
Google Recaptcha
AddEvent
FullCalendar.io
6 Trial Period
The first 30 days, since the Customer account in the platform is created, shall be a trial period in all versions of the PLATFORM, during which all of the provisions of this Agreement shall apply, save as follows:
(a) The Customer shall have no obligation to pay the Charges in respect of the trial period.
(c) Either party may terminate the Agreement immediately by giving notice to the other party at any time before the end of the trial period (in which case no liability to pay any Charges in respect of PLATFORM's access will arise).
(c) The PLATFORM has a free version, with up to 5 Active Members, which has no charges and the same service support as others.
7 Charges
7.1 The PROVIDER will issue invoices for the Charges to the CUSTOMER in accordance with the subscriptions fees properly published and updated at http://coworking.nexudus.com. These charges may include not only the charges to use the SERVICE but also any other charges for customization work, technical support and training or any other charges previously agreed by the CUSTOMER and the PROVIDER.
7.2 The CUSTOMER will pay the Charges to the PROVIDER within 5 days of the date of receipt of an invoice issued in accordance with Clause [7.1].
7.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the CUSTOMER to the PROVIDER in addition to the principal amounts.
7.4 Charges must be paid choosing one of the payment methods available on the PLATFORM.
7.5 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:
(b) Claim statutory interest and compensation from the CUSTOMER pursuant to the late payment of Commercial Debts.
7.6 The Provider may vary the Charges on the 1st month every year. These changes will be properly published at http://coworking.nexudus.com or notified the CUSTOMER via email. The increase of monthly subscription fee will never exceed a 5% over the previous year monthly subscription fee.
7.7 The PROVIDER may suspend access to the Platform and the provision of THE SERVICE if any amounts due to be paid by the CUSTOMER to the PROVIDER under this Agreement are overdue by more than 10 days.
8 Warranties
8.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.
8.2 The Provider warrants to the Customer:
(a) That it has the legal right and authority to enter into and perform its obligations under this Agreement.
(b) The PROVIDER will use reasonable endeavours to keep the PLATFORM free from viruses and other malicious software programs.
8.3 The Customer acknowledges that:
(a) Software is never wholly free from defects, errors and bugs, and the PROVIDER gives no warranty or representation that the PLATFORM will be wholly free from such defects, errors and bugs.
(b) The PROVIDER does not warrant that the PLATFORM will be compatible with any application, or software not specifically identified as compatible by the PROVIDER’s team.
(c) The PROVIDER will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the PLATFORM and (except to the extent expressly provided otherwise) the PROVIDER does not warrant that the PLATFORM will not give rise to any civil or criminal legal liability on the part of the CUSTOMER or any other person.
8.4 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
9 Indemnities
9.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer.
10 Limitations and exclusions of liability
10.1 Nothing in the Agreement will:
(a) Limit or exclude the liability of a party for death or personal injury resulting from negligence.
(b) Limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party.
(d) Limit or exclude the liability of a party for breaches of obligations of confidentiality or indemnification.
(e) Limit any liability of a party in any way that is not permitted under applicable law; OR
(f) Exclude any liability of a party that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause [10]:
(a) Are subject to Clause [10.1].
(b) Govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; AND
(c) Will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
10.3 The parties will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
10.4 The parties will not be liable for any loss of business, contracts or commercial opportunities.
10.5 The parties will not be liable for any loss of or damage to goodwill or reputation.
10.6 The parties will not be liable in respect of any loss or corruption of any data, database or software.
10.7 The parties will not be liable in respect of any special, indirect or consequential loss or damage.
10.8 The parties will not be liable for any losses arising out of a Force Majeure Event.
11 Data Protection
11.1 The CUSTOMER warrants that it has all rights, title and interest in and to all of the CUSTOMER Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the CUSTOMER Data disclose to the PROVIDER under or in connection with this Agreement.
11.2 The Provider warrants that:
(a) It will act only on instructions from the CUSTOMER in relation to the processing of any Personal Data performed by the PROVIDER on behalf of the CUSTOMER; AND
(b) The CUSTOMER data, CUSTOMER confidential information and the customer materials remain the property of the CUSTOMER at all times.
(c) It shall comply with the provisions set forth on Attachment 11.2 hereto.
12 Confidentiality and privacy policies
12.1 The Provider will:
(a) Keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause [12].
(b) Only collect limited account information and store and maintain CUSTOMER account and text contents on our secure servers. PROVIDER doesn't store credit card information on PROVIDER servers. These are only stored on third PROVIDER payment PROVIDERs' servers. PROVIDER will never rent, sell or share confidential or not public information of the CUSTOMER for marketing purposes without CUSTOMER permission. CUSTOMER can update account information and preferences at any time.
(c) Protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2 CUSTOMER Confidential Information may be disclosed by the PROVIDER to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the CUSTOMER Confidential Information disclosed.
12.3 The obligations set out in this Clause [12] shall not apply to:
(a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence).
(b) CUSTOMER Confidential Information that is in possession of the PROVIDER prior to disclosure by the CUSTOMER.
(c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; OR
(d) CUSTOMER Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.
13 Termination
13.1 Either party may terminate this agreement by giving [one] month's notice.
13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) Commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable;
OR
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so.
13.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) The other party:
(i) is dissolved.
(ii) ceases to conduct all (or substantially all) of its business.
(iii) is or becomes unable to pay its debts as they fall due.
(iv) is or becomes insolvent or is declared insolvent; OR
(b) An administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party.
(c) An order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
(d) Where that other party is an individual that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate this Agreement by giving at least 30 days' written notice of termination to the Customer.
14 Effects of termination
14.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.5, 8.2 (e)(iii), 9, 10, 11.2, 12, 14 and 17].
14.2 Termination of this Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
14.3 Within 30 days following the termination of the Agreement, the PROVIDER shall:
(a) Return to the CUSTOMER all CUSTOMER confidential information, data and materials.
(b) Irrevocably delete from the Platform all CUSTOMER Confidential Information according to UK laws on privacy policy.
14.4 The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of this Agreement if:
(a) The Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider;
OR
(b) The document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.
14.5 Account inactivity: After a period of inactivity in freemium accounts of the PLATFORM, whereby the CUSTOMER fails to log in to an account for a period of six months, the PROVIDER reserves the right to disable or terminate the account.
15 Notices
15.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be sent by email, for the attention of the relevant person, and to the relevant email address given by the Customer to the Provider.
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) Where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16 Force Majeure Event
16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
(a) Forthwith notify the other; AND
(b) Will inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
17 General
17.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
17.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.
17.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
17.6 Subject to Clause [10.1]:
(a) This Agreement and the acceptable use policy referred to in herein constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; AND
(b) Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
17.7 This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
Schedule 1
Miscellaneous
Minimum Term
The Minimum Term shall be the period of 30 days following the end of the trial period referred to in Clause [6].
Platform specification
The main features of the PLATFORM are published and updated at coworking.nexudus.com.
Schedule 2
Service Level Agreement
1 Introduction
1.1 In this Schedule:
"New Functionality" means new functionality that is introduced to the Platform by an Upgrade.
1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
2 Helpdesk
2.1 The provider will make available during Business Hours a help desk support facility, which in the first instance is provided by way of email support for the purposes of:
(a) Assisting the Customer with the initial setup configuration of the Platform (charges may be applicable in some cases depending on the complexity of the Customer's data)
(b) Assisting the Customer with the proper use of the Platform; AND/OR
(c) Determining the causes of errors and fixing errors in the Platform.
3 Response and resolution times
3.1 The Provider will:
(a) Use reasonable endeavours to respond to requests for Support Services made through the helpdesk (support@nexudus.com);
AND
(b) Use reasonable endeavours to resolve issues raised by the Customer promptly / in accordance with the following response time matrix:
Severity | Examples | Response time | Resolution time |
Serious | Software not functioning or exhibiting a problem that is severely affecting the Customer’s business. | 4 business hours / acknowledgement of the issue within 2 business hours | 24 hours(if technically possible) |
Moderate | Software is exhibiting a problem but it is not adversely affecting the Customer’s business. | 8 business hours / acknowledgement of the issue within 4 business hours | 24 hours(if technically possible) |
Minor | Query regarding software operation. | 72 hours | 72 hours(if technically possible) |
3.2 The Provider will determine, acting reasonably, in to which severity category an issue raised through the Support Services falls.
3.3 All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.
4 Limits on Support Services
4.1 Where the total person-hours spent by the Provider performing the Support Services under Paragraphs 2 and 3 during any 30 days exceed 5 hours.
(a) The Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider's standard hourly rate from time to time.
4.2 Training. The provider will offer 2 (two) free remote (video-conference) training sessions when supporting the set-up of new accounts. Additional training may be charged at an hourly rate listed in the additional charges section of this document.
4.3 The Provider shall have no obligation under this Agreement to provide Support Services in respect of any fault or error caused by:
(a) The improper use of the Platform; OR
(b) The use of the Platform otherwise than in accordance with the Documentation.
5 Upgrades
5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may result in changes the appearance and/or functionality of the Platform.
5.4 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:
(a) The Upgrade introduces New Functionality to the Platform.
(b) That New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade.
(c) Access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; AND
(d) Any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.
6 Uptime commitment
6.1 The Provider shall use all reasonable endeavours to ensure that the Platform is available 99% of the time during each calendar month.
7 Back-up and restoration
7.1 The Provider will:
(a) Make back-ups of the Customer Materials stored on the Platform on a daily basis.
(b) At least once every 3 days, the Provider will arrange for the off-site storage of a current back-up of the Customer Materials stored on the Platform (which will be over-written on the following off-site back-up date).
7.2 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph [2], the Provider shall if so directed by the Customer use reasonable endeavours promptly to restore the Customer Materials from the most recent available back-up copy.
8 Scheduled maintenance
8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, and such suspension to be for not more than 12 hours in each calendar month.
8.2 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph [8] shall not be counted as downtime for the purposes of Paragraph [6].
Attachment 11.2
Provisions governing personal information
U.S.
1. This Attachment is incorporated into, supplements and, in the event of any conflict with respect to the confidentiality or protection of Personal Information, supersedes, the terms of the Agreement with respect to matters within its scope.
2. “Personal Information” means all information about individuals, including but not limited to names, signatures, addresses, telephone numbers, account numbers, social security numbers, credit reports, demographic information, financial and other personal data, health information, transaction information, and lists of customers, employees, or investors, received from or created or received on behalf of Customer by PROVIDER, or to which PROVIDER has access in the course of performing the Services.
3. PROVIDER agrees that all Personal Information is, and shall be considered, confidential and proprietary to Customer. PROVIDER shall not disclose Personal Information to any third party nor permit any third party to have access to any Personal Information, for any purpose. PROVIDER shall not use Personal Information, nor shall PROVIDER duplicate Personal Information or retain records thereof, except as necessary to perform the Services. PROVIDER shall comply with all applicable laws, rules, and regulations relating to the Personal Information.
4. PROVIDER shall notify Customer immediately of any known or suspected unauthorized use, disclosure, acquisition, modification, or destruction of Personal Information, unauthorized access to Personal Information, or loss of Personal Information (each, a “Security Breach”). PROVIDER shall investigate each Security Breach, provide Customer with a detailed written statement describing the circumstances surrounding each Security Breach, and provide and promptly implement a remediation plan, acceptable to Customer, to address the Security Breach and prevent any further incidents. PROVIDER will at its expense take all necessary or customary measures to mitigate any harmful effect of any such Security Breach, including without limitation notifications to affected individuals, if request by Customer. PROVIDER shall also promptly notify Customer of any known or suspected attempts to commit a Security Breach.
5. If there is a reasonable likelihood that, in the course of performing the Services, PROVIDER may become aware of activities, patterns of activity, or practices that indicate the possible existence of identity theft (as defined by regulations of the Federal Trade Commission), PROVIDER will implement appropriate measures, including the establishment and maintenance of policies and procedures, to detect such activities, patterns or practices, notify Customer upon such detection, and respond to such activities, patterns or practices. In addition, if PROVIDER does become aware of activities, patterns of activity, or practices indicating the possible existence of identity theft, PROVIDER will promptly notify Customer, and will take reasonable measures to assist Customer in implementing an appropriate response.
6. Unless prohibited by law, PROVIDER shall (i) immediately notify Customer of any subpoena, court order, or other similar process for the purpose of obtaining Personal Information, (ii) provide Customer with documentation thereof, and (iii) permit Customer adequate time to exercise its legal options to prohibit or limit disclosure.
7. In the event that Customer determines that there has been a material breach by PROVIDER of any of PROVIDER’s obligations with regard to Personal Information under this Attachment, Customer may terminate any or all of the Agreement immediately. PROVIDER’s obligations with regard to Personal Information shall survive the termination of the Agreement or this Attachment with respect to any Personal Information so long as it remains in the possession of PROVIDER.
8. PROVIDER shall return to Customer or, with Customer’s permission, destroy all Personal Information in any form in PROVIDER’s possession or in the possession of PROVIDER’s agents or subcontractors at the time of termination of the Agreement under which PROVIDER received or created the Personal Information, or at any time upon Customer’s request, and retain no copies thereof; provided that if PROVIDER is required by law to retain such Personal Information or copies thereof, PROVIDER will retain the Personal Information only for the time required, and disclose it only as required by law, after which it shall return it to Customer or destroy it at the option of Customer. PROVIDER will certify in writing any destruction of Personal Information.
9. PROVIDER shall not disclose or otherwise provide Personal Information to any agent or subcontractor without Customer’s prior written consent. Neither Customer nor any of its agents is making any representation or warranty as to the accuracy or completeness of any Personal Information provided by them. PROVIDER agrees that neither Customer nor its agents shall have any liability resulting from the use of such information supplied by Customer or its agents, except to the extent specified by any separate agreement between PROVIDER and Customer.
UK/EU
IN THE CASE OF ANY CONTRACT WHERE THE PROVISIONS OF THE DATA PROTECTION ACT APPLY TO DATA PROCESSED IN RELATION TO THE PERFORMANCE OF THE CONTRACT, THE FOLLOWING CONDITIONS OF CONTRACT SUPPLEMENT THE CONDITIONS OF THIS AGREEMENT.
1. The PROVIDER’s attention is hereby drawn to the Data Protection Act of 1998 and its applicable regulations (the “Data Protection Requirements”). Customer and PROVIDER shall observe their obligations under the Data Protection Requirements. Capitalized terms used herein and not otherwise defined have the meaning ascribed to them in the Data Protection Requirements.
2. Where the PROVIDER, pursuant to its obligations under this contract, processes Personal Data (as defined in the Data Protection Requirements) on behalf of Customer, it shall:
3. Process Personal Data only in accordance with instructions from Customer (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by Customer to the PROVIDER during the Term).
4. Process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the Services or as is required by law or any regulatory body.
5. Implement appropriate technological measures to protect against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected.
6. Take reasonable steps to ensure the reliability of any PROVIDER personnel who have access to the Personal Data.
7. Obtain prior written consent from Customer in order to transfer the Personal Data to any subcontractors for the provision of the Services.
8. Ensure that any PROVIDER personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this Attachment 11.2.
9. Ensure that none of the PROVIDER personnel publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by Customer.
10. Notify Customer (within five working days) if it receives:
a) A request from a Data Subject (as defined in the Data Protection Requirements) to have access to that person’s Personal Data; OR
b) A complaint or request relating to Customer’s obligations under the Data Protection Requirements.
11. Provide Customer with full co-operation and assistance in relation to any complaint or request made, including by:
a) Providing Customer with full details of the complaint or request.
b) Complying with a data access request within the relevant timescales set out in the Data. Protection Requirements and in accordance with Customer’s instructions.
c) Providing Customer with any Personal Data it holds in relation to a Data Subject (within the timescales required by Customer); AND
d) Providing Customer with any information requested by Customer.
12. Permit Customer or its representatives (subject to reasonable and appropriate confidentiality undertakings), to inspect and audit the PROVIDER’s data processing activities (and/or those of its agents, subsidiaries and subcontractors) and comply with all reasonable requests or directions by Customer to enable Customer to verify and/or procure that the PROVIDER is in full compliance with its obligations under this Agreement. 13. Provide a written description of the technical and organizational methods employed by the PROVIDER for processing Personal Data (within the timescales required by Customer); 14. Not process Personal Data outside the European Economic Area without the prior written consent of Customer and, where Customer consents to transfer, to comply with:
a) The obligations of the Data Controller under the Eight Data Protection Principle set out in Schedule 1 of the data Protection Act 1998 by providing an adequate level of protection to any Personal Data that is transferred; and
b) Any reasonable instructions notified to it by Customer.
15. The PROVIDER shall comply at all times with the Data Protection Requirements and shall not perform its obligations under this Agreement in such a way as to cause Customer to breach any of its applicable obligations under the Data Protection Requirements. 16. Customer may from time to time serve on the PROVIDER an information notice requiring the PROVIDER within such time and in such form as is specified in the information notice, to furnish to Customer such information as Customer may reasonably require relating to:
a) Compliance by the PROVIDER with the PROVIDER’s obligations under this Agreement in connection with the processing of Personal Data; AND/OR
b) The rights of the data subjects, including but not limited to subject access rights.
17. The PROVIDER will allow its data processing facilities, procedures and documentation to be submitted for scrutiny by Customer or its auditors in order to ascertain compliance with the relevant applicable laws and the terms of this Agreement. 18. With respect to the parties’ rights and obligations under this Agreement, the parties acknowledge that, except where otherwise agreed, Customer is the Data Controller and the PROVIDER is the Data Processor. Where the PROVIDER wishes to appoint, in accordance with the provisions of the Contract, a Sub-Contractor to assist it in providing the Services and such assistance includes the processing of Personal Data on behalf of Customer, then, subject always to compliance by the PROVIDER with the provisions of these conditions relating to the appointment of Sub-Contractors, Customer hereby grants to the PROVIDER a delegated authority to appoint on Customer’s behalf such Sub-Contractor to process Personal Data provided that the PROVIDER shall notify Customer in writing of such appointment and the identity and location of such Sub-Contractor. The PROVIDER warrants that such appointment shall be on substantially the same terms with respect to Data Protection Requirements as set out in this Agreement. Any Sub-Contractor appointed under the provision of this Clause shall, for the purposes of the performance of the Agreement be regarded as a principal Sub-Contractor. 19. Save as set out in these Conditions, any unauthorized processing, use or disclosure of personal data by the PROVIDER is strictly prohibited.
Schedule 3
Charges
1 Introduction
1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
1.2 The Charges under the Agreement will consist of the following elements:
(a) Access Charges, in respect of access to and use of the Platform.
(b) Support Charges, in respect of the Support Services; AND
(c) Other Charges.
2 Access Charges
2.1 The Charges in respect of access to and use of the Platform shall be made up of a variable Charge. This variable Charge depends on the number of active members registered on the Customer account. Pricing will be published and updated on this document or notified to the Customer via email. This charge will be invoiced at any time following the commencement of the calendar month in respect of which the licence Charges are incurred.
3 Support Charges
The Provider shall invoice the Customer in respect of Support Services provided or to be provided out of the free Support Services [4.1] and will be calculated by a reference to an hourly or daily rate: £175/per hour or £1750/per day - 4.1 where is it [sch 2 point].
4 Other Charges
4.1 In addition to the Charges detailed in Paragraphs [2] and [3] above, the Provider will invoice in respect of, and the Customer shall pay to the Provider:
(a) All other Charges that are agreed between the parties in writing from time to time.
Schedule 4
Acceptable Use Policy
(1) This Policy This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services available via coworking.nexudus.com/spaces.nexudus.com (the “Service”) and any content that you may submit to the Service (“Content”).
By using the Service, you agree to the rules set out in this Policy.
(2) General restrictions
You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.
You must not use the Service:
(a) In any way that is unlawful, illegal, fraudulent or harmful; OR
(b) In connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
(3) Unlawful and illegal material
You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).
Content (and its publication on the Service) must not:
(a) Be libellous or maliciously false.
(b) Be obscene or indecent.
(c) Infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights.
(d) Infringe any rights of confidence, rights of privacy, or rights under data protection legislation.
(e) Constitute negligent advice or contain any negligent statement.
(f) Constitute an incitement to commit a crime.
(g) Be in contempt of any court, or in breach of any court order.
(h) Be in breach of racial or religious hatred or discrimination legislation.
(i) Be blasphemous.
(j) Be in breach of official secrets legislation;
OR
(k) Be in breach of any contractual obligation owed to any person.
You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
(4) Graphic material
Content must not depict violence in an explicit, graphic or gratuitous manner.
Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.
(5) Harmful software
You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.
(6) Gambling
You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
(7) Netiquette
Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.
Content must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.
Content should not cause annoyance, inconvenience or needless anxiety.
Do not flame or conduct flame wars on the Service (“flaming” is the sending hostile messages intended to insult, in particular where the message is directed at a particular person or group of people).
Do not troll on the Service (“trolling” is the practice of deliberately upsetting or offending other users).
You must not flood the Service with Content focusing upon one particular subject or subject area, whether alone or in coordination with other users.
You must at all times be courteous and polite to other Service users.
(8) Hyperlinks
You must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy above.
(9) Breaches of this Policy
We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.
Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:
(a) Delete or edit any of your Content.
(b) Send you one or more formal warnings.
(c) Temporarily suspend your access to a part or all of the Service; AND/OR
(d) Permanently prohibit you from using a part or all of the Service.
(i) The Provider reserves the right to report any illegal activities to the Police.
(10) Banned users
Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).
(11) Monitoring
Notwithstanding the provisions of this Policy, we do not actively monitor Content.
(12) Report abuse
If you become aware of any material on the Service that contravenes this Policy, please notify us by email.
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