VAULT CUSTOMER TERMS OF SERVICE
Last Modified: 26th April 2017
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
These Terms of Service (which include the ‘General Terms’ and ‘Product Terms’) are between you (the Subscriber or you) and us (Vault, us or we) and govern your initial purchase of the Services, any related add-ons or any support, onboarding services which we agree to provide to you, as well as any future purchases made by reference to these Terms of Service or your Order.
We periodically update these terms and conditions and the version number can be checked at the bottom of this page.
You should be aware that we have different products, and that there are some provisions that apply only to those products. The Terms of Service below set out the terms and conditions that apply to all of our service offerings. Your Order will set out any specific terms and conditions that apply to the Services you have subscribed to. Please ensure that you read the terms set out in your Order carefully and in conjunction with the Terms of Service, as the terms in your Order will prevail to the extent that there is any conflict between those terms and the Terms of Service below.
“Additional Services” means one-off services which you request us to provide in relation to the Services beyond the scope of the default services set out in clause 2.2(b) and (c).
“Add-on” means any product, service, feature and functionality which we have designed to be used in conjunction with the Services but which are not automatically included in the Services.
“Applicable Currency” means the currency specified in your Order.
“Applicable Jurisdiction” means: (a) if you are located in any part of the world other than New Zealand, Victoria, Australia; and (b) if you are located in New Zealand, New Zealand.
“Application” means any smartphone or tablet application specified in your Order, including the Apps.
“Apps” has the meaning given to that term in the ‘Product Terms’ section of this document.
“App Renewal Date” means the last day of the App Term or App Renewal Term (as the case may be).
“App Renewal Term” has the meaning given in paragraph e of the ‘Product Terms’ section of this document.
“App Term” means the duration of your subscription to use the Apps, as specified in your Order and any extension or renewal of that term in accordance with the Product Terms, unless such subscription is terminated before that time, in which case the App Term ends on the date of termination.
“App User” means any person you have authorised to use the Apps.
“Approved Uses” means managing and analysing the software components of governance, risk, compliance, assets and people, in the manner approved by the operating instructions and in support of the legitimate businesses purposes of the Subscriber.
“Billing Period” means the period for which you have pre-paid any Fees.
“Business Day” means a day which is not a Saturday, Sunday or public holiday in the Applicable Jurisdiction.
“Confidential Information” means information which, by its nature, is confidential, including without limitation, all information regarding the past, current and future business interests, methodology or affairs of either party and includes however stored or recorded: (a) business plans, trade secrets, research, development and survey information; (b) contracts or arrangements, whether verbal or written; (c) tender, contractor and employee information; (d) design and engineering information, programs, systems, techniques, maps and processes; (e) financial and pricing information; (f) all Data; and (g) any other information designated as confidential by a party from time to time.
“Data” means all data created or stored by you using the Services or otherwise under the Agreement, and any data which is otherwise provided by or to us in connection with the Agreement, including Confidential Information, Personal Information and Sensitive Information.
“Device” means any mobile device, tablet, computer or other device with which you or any of your Users accesses the Services and/or applications connected with the Services.
“Documentation” means any user manuals (including those in electronic form), handbooks, education materials and other publications containing specifications that we have agreed to supply to you in order to assist the use, operation or support of the Services.
“Enrichment Data” means the data we make available to you as part of the Services.
“Fees” means the fees specified in the Order, or any other fees that are payable in connection with the Agreement from time to time.
“Force Majeure Event” has the meaning given in clause 15(j).
“FTE” means the number of full time employees, as specified in your Order.
“GST”: (a) where the Applicable Jurisdiction is Victoria, Australia, has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (or if that Act does not exist for any reason, any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act); or (b) where the Applicable Jurisdiction is New Zealand, has the meaning given in the New Zealand Goods and Services Tax Act 1985 (NZ).
“Intellectual Property Rights” includes all right, title and interest wherever subsisting (now or in the future) throughout the world and whether registered or not, in and to: (a) copyright, neighbouring rights, Moral Rights and the protection of databases, circuit layouts, topographies and designs; (b) methods, inventions, patents, utility models, trade secrets, confidential information, technical and product information; and (c) trade marks, business and company domain names and get ups,
and includes the right to apply for the registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other right generally falling within this term.
“IP Claim” has the meaning given in clause 10.2.
“Law” means any law or legal requirement, including at common law, in equity, under any statute, regulation or by-law and any authorisation, decision, directive, guidance or guideline of a government agency.
“Loss” means any loss (including, but not limited to direct, indirect, special, consequential or exemplary damages, loss of profit or revenue, loss of expected profit or revenue, and loss as a result of business interruption or corruption of data), claim, action, liability, damage, cost, charge, expense, outgoing, payment, diminution in value or deficiency of any kind or character which a party pays, suffers or incurs or is liable for, including: (a) interest and other amounts payable to third parties; and (b) legal (on a full indemnity basis) and other expenses incurred in connection with investigating or defending any claim or action, whether or not resulting in any liability, and all amounts paid in settlement of any claim or action.
“Moral Right” has the meaning given in the Copyright Act 1968 (Cth of Australia).
“Order” means the specific terms that are applicable to the agreement between you and us for the provision of Vault Enterprise and services associated with Vault Enterprise.
“Payment Method” means the method by which you are to pay for the Services, as approved by Vault from time to time.
“Personal Information” has the meaning given in the Privacy Act 1988 (Cth of Australia).
“Related Body Corporate” has the meaning given in the Corporations Act 2001 (Cth of Australia).
“Related Party” means a Related Body Corporate, director, officer, employee, agent, contractor, subcontractor or representative.
“Renewal Date” means the last day of the Term or Renewal Term (as the case may be).
“Renewal Term” has the meaning given in clause 7.1(b).
“Reseller” means a person authorised by us to sell Services.
“Security Breach” means any act or omission that compromises the security, confidentiality or integrity of the Subscriber’s Confidential Information or Data.
“Sensitive Information” has the meaning given in the Privacy Act 1988 (Cth of Australia).
“Services” means the services to which you have subscribed for as specified in your Order.
“Standard Support” means an online help system, online articles and FAQs and self-help ticketing system (including visibility and tracking).
“Subscription” means your right to obtain the Services from us and the limited, non-transferable, non-exclusive right to use the Vault Enterprise system for the purposes of accessing and using those Services, each on the terms set out in the Agreement.
“Tax” means any taxes or assessments of tax of any nature imposed by a government agency, together with any interest, fine or penalty on such tax, including GST.
“Term” means the duration of the Agreement as specified in your Order and any extension or renewal of that term in accordance with clause 7.1, unless this Agreement is terminated before that time, in which case the Term ends on the date of termination.
“Updates” means new versions of the Services as they are released to you that include patches and may include features and enhancements.
“User” means any person whom you have authorised to use the Subscription, Services and/or Documentation, who must be one of your Related Parties.
“Vault” means the company that you are contracting with to provide the Services as specified in your Order, being either Vault IQ AU Pty Ltd or Vault IQ NZ Ltd or such other related body corporate as specified in your Order.
“Vault Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Services, including Enrichment Data.
“Vault Enterprise” means the integrated environmental, health and safety compliance software platform developed and licenced by us, through which the Service are to be accessed.
“Vault Partner Program” means our Partner Program as described in the Vault Partner Program Agreement, available through our website or on request.
2. Your Order.
2.1 Order Specifications.
a. Your Order will specify: (i) the Services which you have subscribed for and the annual/monthly subscription fees payable by you in respect to an agreed number of FTEs; (ii) if applicable, any ongoing monthly or yearly subscription fees that will be payable in relation to subsequent months or years; (iii) the fees payable by you in relation to the onboarding of the Services to which you have subscribed for; (iv) the Term of your subscription; and (v) any other terms applicable to your particular subscription.
b. These Terms of Service apply whether you purchase the Services directly from us, or from any Reseller or Partner. If you purchase through a Reseller, the Services which we provide are those stated in the Order placed by the Reseller with us on your behalf, and the Reseller is responsible to you for the accuracy of any such Order. Resellers are not authorised to make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as specified in the Agreement comprising these Terms of Service and the Order placed for you by the Reseller.
2.2 Scope of services
a. Your Order will specify the various Services provided by Vault which you have agreed to subscribe for.
b. In connection with the Services the subject of your Order, we will also supply to you: (i) initial database(s) capacity of up to 10 gigabytes, with the option to purchase additional database capacity in 10 gigabytes blocks; and (ii) Standard Support.
c. The following are the default implementation and onboarding services that we will supply to you: (i) we will create individual [usernames and passwords] for the individuals whom you nominate to be Users during the onboarding phase (up to the number of FTEs specified in your Order); (ii) we will configure the Services based on the organisation structure and risk matrix that you provide to us; and (iii) we will pre-load any employee records that you provide to us;
d. We reserve the right to charge you for our travel costs and other disbursements incurred by us in connection with the onboarding of the Services to you. These costs are in addition to any amounts stated in your Order.
e. Any Add-ons or additional onboarding or other implementation, training or support services other than stated above are specified in your Order. If you wish to subscribe for Additional Services outside the scope of this Agreement, you are able to do this by contacting Vault. This may incur additional costs.
3. Your Subscription.
a. In consideration for you paying the Fees as and when they become due, we will provide the Services to you and we will grant you a non-exclusive, non-transferable subscription to use the Services for the Approved Uses for the Term.
b. The limits that apply to your Subscription will be specified in your Order.
c. You will be charged Fees based on the number of FTEs and you acknowledge that additional fees may apply if you exceed the number of FTEs stated in your Order.
d. Your Subscription to the Services is subject always to the following conditions: (i) you must not on sell your right to use and access the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access), or otherwise transfer, assign, novate, lease, lend or gift your rights under the Agreement; (ii) you must not permit any person who is not one of your Related Parties to use or access the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access); and (iii) you must not use the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access) to provide those same services or similar or competing services to third parties.
3.2 Your obligations.
a. You must not, and you must ensure that any person who uses or accesses the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access) with your authority (including Users) does not, use those Services: (i) in any way that infringes any applicable Law or the Intellectual Property Rights or other legal rights of any person; (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; (iii) in any way that causes, or may cause, damage to the Services or the Vault Enterprise system or any Application, or impairs the availability or accessibility of the Services, the Vault Enterprise system or any Application; or (iv) in any way that breaches this Agreement.
b. You are responsible for: (i) ensuring that any person who uses or accesses the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access) under your Subscription complies with the terms of the Agreement; (ii) the acts and omissions of any person who uses or accesses the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access) under your Subscription and any breaches of the Agreement caused by such persons; (iii) the accuracy and completeness of all user-defined information contained within the database; (iv) all performance criteria that are deemed to be in your control including Devices, hardware, internet connection and local network access; and (v) obtaining any necessary consents in relation to the disclosure of Personal Information or Sensitive Information to us.
c. You agree not to, or to procure anyone else to: (i) duplicate, copy, transmit, distribute, licence, sublicense, sell, rent, lease, transfer, provide, assign, reproduce alter or otherwise commercially exploit the Services, the Documentation or any aspect of Vault Enterprise or any Application; (ii) adapt or modify the whole or any part of the Services, the Documentation, Vault Enterprise or any Application in any way whatsoever; (iii) interfere with any subscription key mechanism in relation to the Services, Vault Enterprise or any Application; (iv) reverse engineer, disassemble, decompile or translate the Services, Vault Enterprise or any Application, or otherwise seek to obtain or derive the source code, algorithms, underlying ideas, file formats or non-public APIs to the Services, Vault Enterprise or any Application; (v) remove or obscure any proprietary or other notices contained in the Services, Vault Enterprise or any Applications, or the Documentation; (vi) develop a shell, wrapper or similar environment around the Services or any of Vault Enterprise or any Application’s code libraries; (vii) on-sell any software developed using the Services, Vault Enterprise or any Application (including any software using, based on or incorporating any aspect of the Services, Vault Enterprise or any Application); (viii) supply any part of the Services, Vault Enterprise or any Application, including any code library, to any third party; (ix) create, use, or on-sell any end-user applications (including any software using, based on or incorporating any aspect of the Services, Vault Enterprise or any Application) that allows such software to run on remote or multiple real or virtual machines or CPUs; (x) combine or incorporate the whole or any part of the Services, Vault Enterprise or any Application in any other program, product, system or service; and (xi) use the Services, Documentation, Vault Enterprise or any Application in any unlawful, illegal or fraudulent manner or in any way that could harm us, the Services, Vault Enterprise or any Application or impair or affect anyone else’s use of the Services, Vault Enterprise or any Application.
d. You must use reasonable endeavours, including implementing reasonable security measures relating to any account by which you access the Services, Vault Enterprise or any Application, to ensure that no unauthorised person gains access to the Services, Vault or any Application.
3.3 Services and Documentation.
a. We will provide you access to the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access under this Agreement) and the Documentation in electronic form via the internet. We may provide some or all elements of the Services through third party service providers.
b. You agree that the Services (including any aspect of the Vault Enterprise system or any Application that you have a right to use and access under this Agreement) and the Documentation will only be used by you and your Related Parties whom you have authorised to use the Subscription, and then only for the Approved Uses and in conducting your legitimate business activities. Without limiting this clause 3.3(b), you must not permit your clients, customers or any other third party to use the Services, Documentation or any aspect of the Vault Enterprise system or any Application.
a. We modify the Services from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will use all reasonable endeavours to seek to ensure that changes to the Services do not materially reduce the functionality of the Services provided to you during the Term. We might provide some or all elements of the Services through third party service providers.
b. We reserve the right, in our sole discretion, to modify these Terms of Service, and any Fees applicable to the Services, at any time. If we modify these Terms of Service, or the Fees which we charge for the Services you have subscribed to, we will provide you with notice of the modification and any such modification will only take effect on the earlier of the day on which you modify or change the Services (for example, by purchasing an Application or additional training services) and the calendar day immediately following the last day of the then Billing Period in which the modification occurs. By continuing to access or use the Services after such time, you will be deemed to have agreed to be bound by the revised Terms of Service or any modified Fees notified to you prior to the applicable date. If the modified Terms of Service or Fees are not acceptable to you, your only recourse is to terminate the Agreement in accordance with clause 7.
4. Subscriber Data and Intellectual Property Rights.
4.1 Subscriber Data.
You grant to us a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit, translate and to otherwise do all things necessary to the Data to the extent reasonably required for us to provide the Services, together with the right to sublicense these rights to our service providers.
4.2 Intellectual Property Rights.
a. Except as expressly set out in the Agreement, nothing in the Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party. For the avoidance of doubt, all Intellectual Property Rights in the Services, Vault Enterprise and the Vault Enterprise system, the Applications and the Documentation, whether in the original or modified form, are owned by us.
b. Any Intellectual Property Rights arising out of, or connected with, any modification or alteration of the Services, the Documentation, Vault Enterprise and the Vault Enterprise system or any Application, whether authorised or not, shall vest in us and the Agreement shall apply to the Services, the Documentation, Vault Enterprise and the Vault Enterprise system and the Applications as modified or altered. You agree to do all things necessary, including sign any further documentation, to protect our ownership of any such product as modified.
c. You agree to notify us immediately if you become aware of: (i) any unauthorised use or infringement of our Intellectual Property Rights; or (ii) any potential claim to be brought against us alleging that the Services infringe the Intellectual Property Rights of a third party, and agree to fully cooperate with us in relation to such matters.
5.1 Limits on Vault.
5.2 Aggregate Data.
We may monitor use of the Services by all of our customers and use the data gathered in an aggregated, de-identified and anonymous manner. You agree that we may use and publish such information, provided that such information does not identify any particular individual or company.
b. You acknowledge and agree that: (i) subject to clause 5.3(b)(ii), your Order will specify the server location applicable to the Services that you have subscribed for and that your Data will be processed and stored in that location; (ii) if your Order specifies that your Data will be stored outside of New Zealand, certain information, including Data, may (unless your Order specifies otherwise) be held on a temporary basis in New Zealand during the initial onboarding process associated with setting up the Services for you; and (iii) complex software is never entirely free from security vulnerabilities and we give no warranty or representation that the Services or any aspect of Vault Enterprise, the Vault Enterprise system or Applications will be entirely secure. You acknowledge and agree that Vault will not be liable for any loss of Data or your Confidential Information, or for any access by third parties or other disclosure, modification or deletion of such information, regardless of how it is caused.
6.1. You must pay to us all Fees in accordance with the terms of your Order.
6.2. We will invoice you prior to the due date of any Fees (or an instalment thereof) for the amount of those Fees (or an instalment thereof), and you must pay the amount of the invoice in accordance with your Order.
6.3. If we determine that you have exceeded the stated number of FTEs during a Billing Period, we reserve the right to increase the Fees for each subsequent Billing Period (if any) to reflect this increase in accordance with the rate set out in your Order or such other rate as we may notify you in respect of additional FTEs from time to time.
6.4. If payment of the whole or a part of a Fee is not made within 14 calendar days of the due date, you will be liable to pay us interest at a rate of 3% per annum above the then current cash rate published by the Reserve Bank of Australia on the overdue amount, calculated on a daily basis. Additionally, we reserve the right to suspend or terminate your access to the Services in accordance with clause 7.
6.5. If your Order specifies a Payment Method, the applicable Fees (or portion thereof) will be billed, and you authorise us to charge the relevant amount to you, in accordance with that Payment Method. In this regard, you authorise us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. In some instances, the timing of billing may change if, for example, the Payment Method has not successfully settled. We may in our absolute discretion refuse any requests to change your Payment Method.
6.6. We reserve the right to charge you for all reasonable travel and related expenses incurred by us in connection with any services, including any onboarding services, which we provide to you, or any other services which we render to you in relation to the supply of the Services or any Additional Services agreed in relation to your Order. You must pay any such expenses within 14 days of receipt of the relevant invoice.
6.7. You acknowledge and agree that if you subscribe for new features or Add-ons, or request a modification of the Services, we may charge additional fees.
6.8. Unless otherwise specified, any amount payable by reference to the Agreement: (i) is non-refundable; (ii) must be paid in the Applicable Currency; and (iii) does not include any Tax or duties, which we will charge you as applicable. In the unlikely event of a dispute regarding the amount of Fees payable under this Agreement, you must pay the undisputed amount on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by clause 14. If it is subsequently resolved that a further amount is payable, you must pay that amount together with any interest calculated in accordance with this clause 6.
6.9. You agree to pay to us the amount of any Taxes or duties (including GST or any applicable value added taxes) payable in connection with the Services in addition to any Fees payable under the Agreement. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
7. Subscription Term, Termination, Suspension and Expiration.
7.1 Term and Renewal
a. Unless otherwise agreed in writing, you may terminate this Agreement with effect from the Renewal Date by providing written notice to us to that effect not less than 30 days before the Renewal Date. For clarity, you cannot cancel the Services before the Renewal Date unless clause 7.2 applies.
b. If you do not give notice to us in accordance with clause 7.1, the Agreement will continuously rollover on the Renewal Date for a further period equal to the shorter of the duration of the initial Term and 12 months (Renewal Term). In these circumstances, you will be liable to us for the Fees applicable to the Renewal Term. Subject to any modifications required by this Agreement to the Fees payable by you in respect of any Renewal Term, the rights and obligations of the parties will otherwise be the same for any Renewal Term as they were for the initial Term.
c. You acknowledge and agree that the Fees for the Renewal Term will increase if the number of FTEs registered in your Vault Enterprise database at any time prior to the Renewal Date is more than the number of FTEs specified in your Order. If the number of FTEs registered in your Vault Enterprise database as at the Renewal Date is less than the number of FTEs specified in your Order, you can request a reduction in the Fees for the Renewal Term to reflect this by contacting as at firstname.lastname@example.org no later than 30 days before the Renewal Date.
7.2 Termination for Cause
Either party may terminate this Agreement: (i) upon thirty (30) calendar days’ notice to the other party (Defaulting Party) if the Defaulting Party commits a material breach of this Agreement and if such breach remains un-remedied at the expiration of such period, or (ii) immediately, if the Defaulting Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors or is otherwise unable to pay its debts as and when they fall due, or (iii) immediately, if we reasonably suspect that you have infringed or are infringing our or a third party’s Intellectual Property Rights. This Agreement may not otherwise be terminated prior to the end of the Term.
7.3 Material Breach
For the purposes of clause 7.2, a material breach includes: (a) you failing to pay any applicable Fees by the relevant due date in accordance with this Agreement; and (b) any warranty provided by you under this Agreement being incorrect or otherwise having been breached.
7.4 Suspension for Prohibited Acts.
We may suspend access to the Services where we consider that the Services have been used in a manner that may violate applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement. If the Services are suspended in such circumstances, we may charge a re-activation fee to reinstate the Services.
7.5 Suspension for Non-Payment.
We will provide you with notice of non-payment of any amount unpaid as at the due date. Unless the full amount has been paid by the due date or such later date as specified in the notice of non-payment, we may suspend your access to the Services without further notice. We will not suspend the Services where we consider that you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Services are suspended for non-payment, we may charge a re-activation fee to reinstate the Services.
7.6 Effects of Termination or Expiration.
Upon termination or expiration of this Agreement, you will stop all use of the affected Services and Vault Content, and if we request, you will provide us written confirmation that you have discontinued all use of Services, Vault Content and Enrichment Data (unless, of course, you have a source other than the Services for such Enrichment Data.) If you terminate this Agreement in accordance with clause 7.2, we will promptly refund any prepaid but unused Fees covering use of the Services after termination. If we terminate this Agreement in accordance with clause 7.2, you will promptly pay all unpaid Fees due through the end of the Term. Fees (including any prepaid Fees) are otherwise non-refundable.
7.7 Retrieval of Customer Data.
As long as you have paid all Fees owed to us, if you make a written request within thirty (30) days after termination or expiration of this Agreement, then, if permitted by law, we will provide you with temporary access to the Services to retrieve, or we will provide you with copies of, all Data then in our possession or control. If we provide you with temporary access to the Services, we may charge a re-activation fee. We may withhold access to Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of this Agreement, we will have no obligation to maintain or provide you the Data and may, unless legally prohibited, delete all Data in our systems or otherwise in our control.
7.8 Survival of Provisions.
The following provisions survive termination of the Agreement: clause 4.2 (Intellectual Property), this clause 7 (Termination, Suspension and Expiration) clause 10 (Indemnity), clause 12 (Limitation of liability) and clause 13 (Confidentiality).
8. Standard Support.
8.1. In consideration for the timely payment of the Fees, we will supply you with the Standard Support in relation to the Services during the Term.
8.2. All requests for support must be submitted through our support portal. The Standard Support hours are Business Days, 6:30am to 7:00pm (AEST).
8.3. We accept support questions through our support portal email 24 hours a day, 7 days a week. Support responses are provided during Standard Support hours only however we do not guarantee any specific response time to a request for support.
8.4. Support is not a replacement for training services. If further assistance is required, we offer Additional Services for a fee in order to supplement Standard Support services. The Additional Services include industry consulting, technical support and additional training.
8.5. If you require support services that exceeds the support included in the Standard Support, we will need to agree with you separately the terms of that support and any additional Fees which will be required to be paid by you in order for us to provide you with that level of support.
a. Each party warrants that it has the legal power and authority to enter into the Agreement and that the Agreement will be legally binding and enforceable against it.
b. Save as expressly provided in this clause 9, all warranties and guarantees provided for by statute or implied which may lawfully be excluded, are hereby excluded.
9.2 Our Warranties to You.
a. We warrant that we have the right to grant a subscription for the Services supplied to you.
b. However, we do not warrant that the Services will meet your requirements or that it will be suitable for any particular purpose. All implied conditions or warranties are excluded to the extent permitted by law, including (without limitation) warranties of merchantability and fitness for purpose.
c. We also do not warrant that the use of the Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Services, including public telephone services, computer networks or the internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Vault is in no way responsible for any such interference or prevention of your access or use of the Services. We will however use reasonable endeavours to correct any defect in the Services, Updates or Documentation which are within our control, provided always that: (i) we are notified of the defect via the normal support channels and where all Fees have been paid; and (ii) you have complied with all of our written recommendations and instructions concerning the installation and use of the Services or relevant Updates.
d. The warranty in this clause 9.2 is void if the failure of the Services or the relevant Updates (as the case may be) arises out of or in connection with your negligence or abuse or misuse of the Services or Update.
9.3 What You Warrant to Us.
a. You warrant to us that you will not, and you will ensure that any person who accesses the Services or Vault Enterprise with your authority (including Users) will not: (i) use the Subscription, Services, the Documentation, the Vault Enterprise system and any Application for anything other than the Approved Uses; or (ii) infringe our rights or the rights of any other person or entity, including without limitation, their Intellectual Property Rights, privacy, publicity or contractual rights.
b. You warrant to us that your Data: (i) does not infringe, misappropriate or violate a third party's Intellectual Property Rights, or rights of publicity or privacy; (ii) does not infringe, violate, or encourage any conduct that would infringe or violate, any Law or would give rise to criminal or civil liability; (iii) is not fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (iv) is not defamatory, obscene, pornographic, vulgar or offensive; (v) does not promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is not violent or threatening or will promote violence or actions that are threatening to any other person; or (vii) does not promote illegal or harmful activities or substances.
c. You warrant to us that the use of your Data by us in accordance with the Agreement will not: (i) breach the provisions of any Law; (ii) infringe the Intellectual Property Rights or other legal rights of any person; or (iii) give rise to any cause of action against Vault, in each case in any jurisdiction and under any applicable Law.
d. You warrant to us that you: (i) will comply with all applicable privacy Laws in connection with the disclosure of Data to us, regardless of how that disclosure occurs; and (ii) have obtained any consents necessary prior to the disclosure of Personal Information and Sensitive Information to us.
e. You warrant to us that each warranty contained in this clause 9.3 is correct and not misleading on each date between (and including) the date of our Agreement with you (being the date that we accept your Order) and the earlier to occur of the expiry of the Term or Renewal Term (as applicable) and termination of the Agreement (as if made on each such day).
a. Each indemnity in the Agreement is a continuing obligation, separate and independent from the party's’ other obligations and survives the termination of the Agreement.
b. It is not necessary for a party to incur expense or make a payment before enforcing any indemnity conferred by the Agreement.
10.2 Your Indemnities.
You will indemnify us and hold us and our Related Parties harmless against:
a. any and all Loss arising directly or indirectly: (i) from you or any of your Related Parties using or accessing the Services, Vault Enterprise or the Vault Enterprise system or any Application; (ii) from a third party’s use or reliance on any Data provided in connection with the Agreement; (iii) from any breach by you of the Agreement; (iv) from you breaching any Law or rights of a third party; (v) from a breach by you of a warranty given under this Agreement; and (vi) from a Security Breach; and
b. any and all Loss arising out of or in connection with any claim: (i) made against us or one of our Related Parties by a third party alleging that any Data (or the collection of that Data by us) infringes a Law or the Intellectual Property Rights of a third party; and (ii) brought against us or one of our Related Parties by any third party relating to your use of the Services, the Vault Enterprise system or any Application.
a. You acknowledge that complex software is never wholly free from defects, errors and bugs and that we give no warranty or representation that the Services or any aspect of the Vault Enterprise system or applicable Applications will be free from any defects, errors and bugs.
b. It is your sole responsibility to determine that the Services meet your needs and are suitable for the purposes for which they are used. You acknowledge that you have made your own evaluation of the Services and the Vault Enterprise system and Applications generally, determined that the Services are fit for purpose and have entered into the Agreement on the basis of that evaluation and not on the basis of any representations or warranties provided by us.
c. We can, at any time and without prior notice, remove or disable your access to any Data and/or your access to the Services, Documentation, any aspect of the Vault Enterprise system or any Application where we, in our sole discretion, consider any Data to be objectionable for any reason, in violation of the terms contained in the Agreement, or otherwise harmful to us.
12. Limitation of Liability.
a. To the maximum extent permitted by law, we will not be liable to you or any third party in contract, tort (including negligence) or otherwise, in respect of any Loss or for any loss or corruption of any Data, database, software or other material resulting directly or indirectly from: (i) using the Services or Vault Enterprise; (ii) using, relying on, or action taken as a result of, any information or material available on, in or through the Services or Vault Enterprise; (iii) any interruption, suspension or termination of the Services or Vault in whole or in part for any reason whatsoever, including failure or suspension of public or private telecommunication networks; (iv) the unavailability, unsuitability and non-connectivity of third party sites; (v) any loss, damage, corruption or degradation of any data or other material as a result of the use of the Services or Vault Enterprise and/or viruses or other technologically harmful material that may infect your Device(s) due to your use of the Services or Vault Enterprise; or (vi) a Security Breach.
b. In no circumstances will we be liable to you for any special, indirect or consequential damages howsoever caused, which damages will be deemed to include loss or revenue, loss of profit or loss of opportunities.
c. Our aggregate liability to you under this Agreement will in no circumstances exceed the total Fees actually paid by you under this Agreement in the 12 months preceding the date of the event giving rise to the claim. This is the case regardless of whether you advise us that you may incur losses in excess of that amount.
d. You undertake not to bring any claim or action against us or any of our Related Parties in respect of the matters the subject of this Agreement more than 2 years after you become aware, or ought reasonably to have become aware, of the circumstances giving rise to that claim or action.
e. Where legislation implies in the Agreement any guarantee, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying application of or exercise or liability under such guarantee, condition or warranty, the guarantee, condition or warranty will be deemed to be included in the Agreement. However, our liability for any breach of such guarantee, condition or warranty will be limited, at our option, to one or more of the following: (i) if the breach relates to goods: (i.i) the replacement of the goods or the supply of equivalent goods; (i.ii) the repair of such goods; (i.iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (i.iv) the payment of the cost of having the goods repaired; and (ii) if the breach relates to services: (i.i) the supplying of the services again; or (i.ii) the payment of the cost of having the services supplied again.
a. Subject to clause 13(b), all information exchanged between us (whether under the Agreement or during negotiations relating to the Services contemplated by the Agreement) is to be kept confidential and must not be disclosed by a party to any other person except: (i) as required by law or the rules of any applicable securities exchange; (ii) to its Related Parties and advisers to the extent that they need to know the information for purposes related to the Agreement and on the condition that they agree to be bound by the terms of this clause; (iii) with the prior written consent of the party who supplied the information.
b. Clause 13(a) does not apply if: (i) the relevant information is in the public domain at our Agreement with you, or comes into the public domain after that date without a breach of the Agreement or other breach of confidence; (ii) the recipient party already knew or had, on a non-confidential basis, the information before receiving the relevant information; or (iii) the recipient party independently developed or acquired the information, without a breach of the Agreement or other breach of confidence.
c. Notwithstanding anything in this clause 13, you grant us the right to add your name and company logo to our customer list and website.
14. Dispute resolution
a. Prior to the commencement of any legal proceedings, any dispute arising in connection with the Agreement must: (i) first be referred to a director or senior executive of each party to seek a satisfactory resolution to the dispute in good faith; and (ii) if the dispute cannot be resolved by agreement, referred to mediation in accordance with this clause 14.
b. If such persons described in clause 14(a) are unable to resolve the dispute within 20 Business Days of the dispute being referred to them, the dispute must be submitted to mediation in accordance with, and subject to, the then current mediation rules published by the Institute of Arbitrators and Mediators.
c. The parties shall continue to perform their obligations under the Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
d. The costs of mediation shall be shared equally by the parties. Each party must pay its own costs in connection with the dispute.
e. Nothing in this clause 14 shall preclude either party from taking immediate steps to seek an urgent injunction or interlocutory relief in relation to any purported breach of confidentiality, privacy or infringement of Intellectual Property Rights.
a. Communication. Any communication or notice given pursuant to the Agreement shall be sufficiently given if it is in writing and delivered, or sent by prepaid post, facsimile or email to the other party, in accordance with the contact details provided by that party.
b. Waiver. No right under the Agreement shall be deemed to be waived except by notice in writing signed by both parties.
c. Modifications. Any modification to or variation of the Agreement must be in writing and signed by each party.
d. Assignment. You will not assign or transfer this Agreement, including any assignment, novation or transfer or by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent. We may assign this Agreement in our sole discretion and this Agreement may be assigned in any way, including by way of merger, reorganization, the sale of all or substantially all of our assets, a change of control of Vault or by operation of law.
e. Survival. The provisions of the Agreement which are capable of having effect after termination of the Agreement shall remain in full force and effect following the termination of the Agreement.
f. Entire Understanding. The parties acknowledge that the Agreement contains the whole of the contract and understanding between them. There are no conditions, warranties or other understandings affecting the arrangements between the parties other than those set out herein and the Agreement replaces all prior agreements and understandings with respect to the subject matter of the Agreement.
g. Applicable Jurisdiction. The Agreement is governed by and is to be construed in accordance with the laws applicable in the Applicable Jurisdiction. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in the Applicable Jurisdiction and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
h. Delay. No forbearance, delay or indulgence by a party in enforcing the provisions of the Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
i. Severability. Should any part of the Agreement be or become invalid, that part will be severed from the Agreement. Such invalidity will not affect the validity of the remaining provisions of the Agreement.
j. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party (Force Majeure Event). If a Force Majeure Event continues for more than 30 calendar days, either party may terminate this Agreement immediately. The party affected by a Force Majeure Event must promptly notify the other party of such an event and each party must use reasonable efforts to mitigate its effect.
k. Unless expressed to the contrary, in the Agreement: (i) words in the singular include the plural and vice versa; (ii) if a word or phrase is defined its other grammatical forms have corresponding meanings; (iii) ‘includes’ means includes without limitation; (iv) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; and (v) a reference to: (i.i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority; (i.ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation; and (i.iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced. (vi) any schedules, and the provisions and conditions contained in such schedules, shall have the same effect as if set out in the body of the Agreement. In the event of any conflict between the schedules and the body of the Agreement, the provisions and conditions of the body of the Agreement shall prevail.
Vault Audit & Vault Check
a. Applicability. If you use our mobile applications known as Vault Audit and Vault Check (Apps), the following terms apply in addition to the provisions in the ‘General Terms’ section above. In the event of an inconsistency between the terms set forth in the ‘General Terms’ section above and the terms set forth in this ‘Product Terms’ section, the terms in this ‘Product Terms’ section will prevail to the extent of any inconsistency.
b. Limits. Notwithstanding clauses 3.1b and 3.4b, we may choose to apply certain limits of certain features of the Apps. We may change these limits at any time in our sole discretion without notice to you.
c. Support. Notwithstanding clause 8, support for the Apps is offered via web form only. We accept web form support questions 24 hours per day, 7 Days per week at https://support.vaultgrc.com/hc/en-us/requests/new.
d. Billing. We may charge you a fee for the use of the Apps. Any such fee shall be specified in your Order and is payable in accordance with the Order and the General Terms.
e. Renewal Subscription Term. Your subscription to use the Apps will automatically renew at the end of each month.
f. Cancellation. If you wish to cancel the account that you use to access the Apps, you may do so at any time.
g. Data. Notwithstanding clause 7.7, except as required by law, we will not provide any access to the Apps after the termination or expiration of this Agreement, and we will not provide you with copies of any Data from the Apps in our possession.
h. Survival. The following provisions in this ‘Product Terms’ section shall survive the expiration or termination of this Agreement: Data and Survival.
Version One: 22nd December 2016
Version Two: 26 April 2017