We are committed to respecting and protecting your privacy.
The Customer & SMP shall not access, store, distribute and will use all reasonable endeavours not to transmit any viruses or other harmful code, or any material during the course of its use of the Software that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property;
and SMP reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
The Customer shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- and except to the extent expressly permitted, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Software and Documentation in order to build a product or service which competes with the Software and/or the Documentation; or
- use the Software and/or Documentation to provide services to third parties; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party, or
- attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation, other than as provided under this clause.
The Customer and SMP shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or the Documentation and, in the event of any such unauthorised access or use, notify the other as soon as reasonably practicable after discovery of such unauthorized access or use.
The rights provided under this clause are granted to the Customer only, and shall not unless otherwise agreed in writing by SMP be considered exercised by or for the benefit of any subsidiary or holding company of the Customer.
The Customer shall own all right, 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.
SMP shall follow its standard backup policy for Customer Data, as such policy may be amended by SMP in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for SMP to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SMP in accordance with such policy. SMP shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
If SMP processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and SMP shall be a data processor and in any such case:
- the Customer acknowledges and agrees that the personal data may not be transferred or stored outside the EEA in a country where the Customer is located in order to carry out the Software and SMP’s other obligations under this agreement;
- the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to SMP so that SMP may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
- the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
- SMP shall process the personal data only in accordance with any lawful instructions reasonably given by the Customer from time to time; and
- each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
SMP undertakes that the Software performs substantially in accordance with the Documentation.
SMP undertakes that the Services will be performed substantially in accordance with the Documentation and the Service Level Agreement and with reasonable skill and care.
SMP’s undertakings will not apply to any non-conformance which is caused by use of the Software contrary to SMP’s instructions, or modification or alteration of the Software by any party other than SMP or SMP’s duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, SMP will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking. Notwithstanding the foregoing, SMP:
- does not warrant that the Customer’s use of the Software will be uninterrupted or error-free; or that the Software, Documentation and/or the information obtained by the Customer through the Software will meet the Customer’s requirements; and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software, the Services and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
SMP warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
The Customer shall provide SMP with:
- all reasonably necessary co-operation; and
- all reasonably necessary access to such information as may be required by SMP;
in order to provide the Software and the Services, including but not limited to Customer Data, security access information and configuration services;
- comply with all applicable laws and regulations with respect to its activities;
- carry out all other Customer responsibilities in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, SMP may adjust any agreed timetable or delivery schedule as reasonably necessary;
- use the Software and the Documentation in accordance with the terms and conditions;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for SMP, its contractors and agents to perform their obligations, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by SMP from time to time; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to SMP’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
The Customer acknowledges and agrees that SMP and/or its licensors own all intellectual property rights in the Software and the Documentation. Except as expressly stated to the contrary, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software or the Documentation.
SMP confirms that it has all the rights in relation to the Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
Each party shall keep secret and treat as confidential all information obtained from the other which is either stated to be confidential or could reasonably be regarded as confidential (including the terms of this agreement) and shall not disclose such information to any person other than its employees, agents or sub-contractors where such disclosure is required for the performance of the party’s obligations under this agreement. This clause shall not extend to information which was already in the lawful possession of a party prior to this agreement or which is already public knowledge or becomes so subsequently (other than as a result of a breach of this clause) or which is trivial or obvious. The obligations of confidentiality shall survive the expiry or any termination for a period of five years.
The Customer shall defend, indemnify and hold harmless SMP 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 Customer’s use of the Software and/or Documentation, provided that:
- the Customer is given prompt notice of any such claim;
- SMP provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
- the Customer is given sole authority to defend or settle the claim.
Governing law and jurisdiction
Any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
Data Protection Act 1998
We are registered under the Data Protection Act 1998 and have given all appropriate notifications to the Data Protection Commissioner.
For further information please see our Terms and Conditions.