Terms and ConditionsPlease read these Terms and Conditions carefully.
Words and phrases that have special meanings in these Terms and Conditions are indicated with initial capital letters. See Clause 28 for a list of these words and phrases.
1. Introduction1.1 All contracts that MBL may enter into from time to time for the provision of the Platform Services and related services shall be governed by these Terms and Conditions.
1.2 MBL will ask for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.
2. Term2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 18 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
3. Platform Services and Customer Application3.1 MBL shall create an Admin Account for the Customer and shall provide to the Customer login details for that Admin Account on or promptly following the Effective Date. â€Œ
3.2 The Customer may create additional Admin Accounts using the Platform Services.
3.3 MBL hereby grants to the Customer a worldwide, non-exclusive licence to use the Platform Services by means of an Admin Account for the purposes of publishing, administering and monitoring the Customer Application(s) during the period of each Campaign, along with the right to grant to others the right to use the Customer Application(s) during that period in accordance with Schedule 1 (Acceptable Use Policy).
3.4 The Admin Accounts may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer.
3.5 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by MBL to the Customer under Clause 3.3 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use any Admin Account;
(b) the Customer must not permit any unauthorised person to access or use any Admin Account; and
(c) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform, Platform Services or Customer Application without the prior written consent of MBL.
3.6 The Customer shall use reasonable endeavours, including reasonable security measures relating to Admin Account access details, to ensure that no unauthorised person may gain access to the Platform Services using an Admin Account.
3.7 The Customer must comply with Schedule 1 (Acceptable Use Policy) and must ensure that all persons using the Platform Services with the authority of the Customer or by means of an Admin Account comply with Schedule 1.
3.8 The Customer acknowledges that each Customer Application shall cease to be published or available to the Customer at the end of the relevant Campaign.
3.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.10 The Customer may discontinue a Campaign at any time by giving to MBL at least 30 days' prior written notice.
4. Customisations4.1 MBL and the Customer may agree that MBL shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in the Services Order Form or in writing by the parties.
4.2 All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of MBL.
4.3 From the time and date when a Customisation is first delivered or made available by MBL to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customisation shall be governed by Clause 3.
4.4 The Customer acknowledges that MBL may make any Customisation available to any of its other customers or any other third party.
5. Support Services5.1 MBL shall provide the Support Services to the Customer during the Term with reasonable skill and care and in accordance with Schedule 2 (Support SLA).
6. Customer obligations6.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to MBL, or procure for MBL, such:
(a) co-operation, support and advice; and
(b) information and documentation,
as are reasonably necessary to enable MBL to perform its obligations under the Agreement.
7. Customer Data7.1 The Customer hereby grants to MBL a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of MBL's obligations and the exercise of MBL's rights under the Agreement. The Customer also grants to MBL the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
7.2 The Customer warrants to MBL that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.
8. Integrations with Third Party Services8.1 The Platform Services are integrated with those Third Party Services identified in the Services Order Form as at the Effective Date. MBL may integrate additional Third Party Services with the Platform Services with the prior written consent of the Customer.
8.2 MBL may remove, suspend or limit any Third Party Services integration at any time in its sole discretion.
8.3 The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. MBL does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.
8.4 The Customer acknowledges that:
(a) the integration of Third Party Services may entail the transfer of Customer Data from the Platform Services to the relevant Third Party Services; and
(b) MBL has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Customer Data resulting from any integration with any Third Party Services.
8.5 Without prejudice to its other obligations under this Clause 8, the Customer must ensure that it has in place the necessary contractual safeguards to ensure that both:
(a) the transfer of relevant Customer Personal Data to a provider of Third Party Services is lawful; and
(b) the use of relevant Customer Personal Data by a provider of Third Party Services is lawful.
8.6 The Customer warrants to MBL that the transfer of Customer Data by MBL to a provider of Third Party Services in accordance with this Clause 8 will not infringe any person's legal or contractual rights and will not put MBL in breach of any applicable laws.
8.8 Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 16.1:
(a) MBL gives no warranties or representations in respect of any Third Party Services; and
(b) MBL shall not be liable to the Customer in respect of any loss or damage that may be caused by any Third Party Services or any provider of Third Party Services.
9. No assignment of Intellectual Property Rights9.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from MBL to the Customer, or from the Customer to MBL.
10. Charges10.1 The Customer shall pay the Charges to MBL in accordance with these Terms and Conditions.
10.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to MBL.
11. Payments11.1 MBL shall issue invoices for the Charges to the Customer in accordance with the Services Order Form (or if invoicing dates are not specified in the Services Order Form, at any time following the provision of the corresponding Services).
11.2 The Customer must pay the Charges to MBL within the period of 30 days following the issue of an invoice in accordance with this Clause 11.
11.3 The Customer must pay the Charges by bank transfer (using such payment details as are notified by MBL to the Customer from time to time).
11.4 If the Customer does not pay any amount properly due to MBL under these Terms and Conditions, MBL may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11.5 MBL may suspend the provision of any Services if any amount due to be paid by the Customer to MBL under the Agreement is overdue, and MBL has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend Services on this basis.â€Œ
12. Confidentiality obligations12.1 MBL must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as MBL uses to protect MBL's own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the Customer Confidential Information.
12.2 The Customer must:
(a) keep MBL Confidential Information strictly confidential;
(b) not disclose MBL Confidential Information to any person without MBL's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of MBL Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to MBL Confidential Information.
12.3 Notwithstanding Clauses 12.1 and 12.2, a party's Confidential Information may be disclosed by the other party to that other party's officers, employees, professional advisers, insurers, agents, services providers and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
12.4 No obligations are imposed by this Clause 12 with respect to a party's Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
(c) is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
12.5 The restrictions in this Clause 12 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
12.6 The provisions of this Clause 12 shall continue in force indefinitely following the termination of the Agreement.
13. Data protection13.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
13.2 The Customer warrants to MBL that it has the legal right to disclose all Personal Data that it does in fact disclose to MBL under or in connection with the Agreement.
13.3 The Customer shall only supply to MBL, and MBL shall only process, in each case under or in relation to the Agreement:
(a) the Personal Data of data subjects falling within the categories specified in Schedule 3 (Data processing information) (or such other categories as may be agreed by the parties in writing); and
(b) Personal Data of the types specified in Schedule 3 (Data processing information) (or such other types as may be agreed by the parties in writing).
13.4 MBL shall only process the Customer Personal Data for the purposes specified in Schedule 3 (Data processing information).
13.5 MBL shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 13.
13.6 MBL shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the United Kingdom and the European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
13.7 The Customer hereby authorises MBL to make the following transfers of Customer Personal Data:
(a) MBL may transfer the Customer Personal Data to its sub-processors in the jurisdictions identified in Schedule 3 (Data processing information), providing that such transfers must be protected by any appropriate safeguards identified therein; and
(b) MBL may transfer the Customer Personal Data to a country, a territory or sector to the extent that the relevant data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
13.8 MBL shall promptly inform the Customer if, in the opinion of MBL, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
13.9 Notwithstanding any other provision of the Agreement, MBL may process the Customer Personal Data if and to the extent that MBL is required to do so by applicable law. In such a case, MBL shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
13.10 MBL shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
13.11 MBL and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
13.12 MBL must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, MBL shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days' written notice to MBL, providing that such notice must be given within the period of 7 days following the date that MBL informed the Customer of the intended changes. MBL shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on MBL by this Clause 13.
13.13 As at the Effective Date, MBL is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the categories identified in Schedule 3 (Data processing information).
13.14 MBL shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
13.15 MBL shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. MBL may charge the Customer at its standard time-based charging rates for any work performed by MBL at the request of the Customer pursuant to this Clause 13.15.
13.16 MBL must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 48 hours after MBL becomes aware of the breach.
13.17 MBL shall make available to the Customer all information necessary to demonstrate the compliance of MBL with its obligations under this Clause 13 and the Data Protection Laws. MBL may charge the Customer at its standard time-based charging rates for any work performed by MBL at the request of the Customer pursuant to this Clause 13.17.
13.18 MBL shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
13.19 MBL shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of MBL's processing of Customer Personal Data with the Data Protection Laws and this Clause 13. MBL may charge the Customer at its standard time-based charging rates for any work performed by MBL at the request of the Customer pursuant to this Clause 13.19, providing that no such charges shall be levied where the request to perform the work arises out of any breach by MBL of the Agreement or any security breach affecting the systems of MBL.
13.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
14. Warranties14.1 The Customer warrants to MBL that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
14.2 MBL warrants to the Customer that:
(a) MBL has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
(b) MBL will comply with all applicable legal and regulatory requirements applying to the exercise of MBL's rights and the fulfilment of MBL's obligations under these Terms and Conditions;
(c) MBL has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions; and
(d) the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 MBL warrants to the Customer that the Platform Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person.
14.4 If MBL reasonably determines, or any third party alleges, that the use of the Platform Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, MBL may at its own cost and expense:
(a) modify the Platform Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Platform Services in accordance with these Terms and Conditions.
14.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
15. Acknowledgements and warranty limitations15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, MBL gives no warranty or representation that the Platform Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, MBL gives no warranty or representation that the Platform Services will be entirely secure.
15.3 The Customer acknowledges that the Platform Services are designed to be compatible only with that software and those systems specified as compatible by MBL in the Services Order Form; and MBL does not warrant or represent that the Platform Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that MBL will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Platform Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, MBL does not warrant or represent that the Platform Services or the use of the Platform Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16. Limitations and exclusions of liability16.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 16.1;
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions; and
(c) shall not affect the Customer's obligations to pay the Charges under the Agreement.
16.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
16.4 Neither party shall be liable to the other party in respect of any loss of revenue or income.
16.5 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 16.5 shall not protect MBL unless MBL has fully complied with its obligations under Clause 7.3 and Clause 7.4.
16.6 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
16.7 The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) GBP 1,000.00; and
(b) the total amount paid and payable by the Customer to MBL under the Agreement in the 12 month period preceding the commencement of the event or events.
17. Force Majeure Event17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
18. Termination18.1 Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination.
18.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and the breach is not remediable; or
(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 14 days following the giving of a written notice to the other party requiring the breach to be remedied.
18.3 Either party may terminate the Agreement immediately by giving written notice of termination 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
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
18.4 MBL may terminate the Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to MBL under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) MBL has given to the Customer at least 14 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 18.4.
18.5 The Agreement may only be terminated in accordance with its express provisions.
19. Effects of termination19.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.9, 8.8, 11.2, 11.3, 11.4, 12, 13, 16, 19, 21, 22, 23, 24, 25, 26, 27 and 28.
19.2 The termination of the Agreement will not affect the Customer's obligations to pay the Charges and will not give rise to any obligation upon MBL to refund any Charges.
19.3 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
20. Subcontracting20.1 Subject to any express restrictions elsewhere in these Terms and Conditions, MBL may subcontract any of its obligations under the Agreement.
20.2 MBL shall remain responsible to the Customer for the performance of any subcontracted obligations.
21. Assignment21.1 The Customer hereby agrees that MBL may assign, transfer or otherwise deal with MBL's contractual rights and obligations under these Terms and Conditions.
21.2 The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of MBL, such consent not to be unreasonably withheld or delayed.
22. No waivers22.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
22.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
23. Severability23.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
23.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
24. Third party rights24.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
24.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
25. Variation25.1 The Agreement may not be varied except by means of a written document signed by or on behalf of each party.
26. Entire agreement26.1 The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
26.2 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 the Agreement.
26.3 The provisions of this Clause 26 are subject to Clause 16.1.
27. Law and jurisdiction27.1 These Terms and Conditions shall be governed by and construed in accordance with English law.
27.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
28. Definitions28.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Admin Account" means an administrator account enabling a person to access the Platform Services and to configure and monitor the Customer Applications;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Campaign" means a fundraising or other marketing campaign that will be implemented by means of a Customer Application through the Platform Services;
"Charges" means the following amounts:
(a) the amounts specified in the Services Order Form; and
(b) with respect to any Services to be provided or work to be done on the basis of time spent by MBL, amounts calculated by multiplying MBL's standard time-based charging rates (as notified by MBL to the Customer from time to time) by the time spent by MBL's personnel performing the relevant Services or doing the relevant work;
"Confidential Information" means MBL Confidential Information and the Customer Confidential Information;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer" means the person or entity identified as such in the Services Order Form;
"Customer Application" means the web-based fundraising application that is generated by, and will be published through, the Platform Services;
"Customer Confidential Information" means:
(a) any information disclosed by the Customer to MBL during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as "confidential" or should have been reasonably understood by MBL to be confidential; and
(b) the Customer Data and Customer Personal Data, save to the extent that it is published through the Customer Application by or with the authorisation of the Customer;
"Customer Data" means all data, works and materials uploaded to or stored on the Platform by the Customer, or uploaded to or stored in the Customer Application by any person (including dedications to be published using the Customer Application);
"Customer Personal Data" means any Personal Data that is processed by MBL on behalf of the Customer in relation to the Agreement;
"Customisation" means a customisation of the Customer Application or the Platform Services, whether made through the development, configuration or integration of software, or otherwise;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data;
"Effective Date" means the date upon which the parties formally agree the Services Order Form;
"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 the internet or any public telecommunications network, hacker attacks, denial of service 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);
"MBL" means Minted Box Limited, a company incorporated in England and Wales (registration number 06844403) having its registered office at White Lodge, Manor, Road, Ripley, Woking, GU23 6JW;
"MBL Confidential Information" means:
(a) any information disclosed by MBL to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as "confidential" or should have been understood by the Customer (acting reasonably) to be confidential;
(b) the financial terms of the Agreement; and
(c) any roadmap for the development of the Platform or Platform Services disclosed by MBL to the Customer;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" 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 and rights in designs);
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"Platform" means the platform managed by MBL and used by MBL to provide the Platform Services, including the application and database software for the Platform Services, the system and server software used to provide the Platform Services, and the computer hardware on which that application, database, system and server software is installed;
"Platform Services" means ema, a software-based fundraising service which will be made available by MBL to the Customer as a service via the internet in accordance with these Terms and Conditions;
"Services" means any services that MBL provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an order form for the Services made available by MBL to the Customer and signed or otherwise agreed by or on behalf of each party;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Platform Services, but shall not include the provision of training services;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time; and
"Third Party Services" means any third party hosted or cloud services specified as such in the Services Order Form, or agreed by the parties in writing, that may transmit data to and/or from the Platform Services.
Schedule 1 (Acceptable Use Policy)
1. Introduction1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of our hosted and web-based services and websites (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Minted Box Ltd (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
2. General usage rules2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) constitute a breach of official secrets legislation; or
(j) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for childrenâ€Œ.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Etiquette5.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
5.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
5.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
5.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
5.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
6. Marketing and spam6.1 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
6.2 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
6.3 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
7. Monitoring7.1 You acknowledge that we do not actively monitor the Content or the use of the Services.
Schedule 2 (Support SLA)
1. Helpdesk1.1 MBL shall make available to the Customer a helpdesk, accessible via email, in accordance with the provisions of this Schedule 2.
1.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
1.3 MBL shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
1.4 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
2. Response and resolution2.1 Issues raised through the Support Services shall be categorised as follows:
(a) critical: the Platform Services are inoperable or a core function of the Platform Services is unavailable;
(b) serious: a core function of the Platform Services is significantly impaired;
(c) moderate: a core function of the Platform Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Platform Services is significantly impaired; and
(d) minor: any impairment of the Platform Services not falling into the above categories; and any cosmetic issue affecting the Platform Services.
2.2 MBL shall determine, acting reasonably, into which severity category an issue falls.
2.3 MBL shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:
(a) critical: 1 Business Hour;
(b) serious: 4 Business Hours;
(c) moderate: 1 Business Day; and
(d) minor: 5 Business Days.
2.4 MBL does not guarantee that issues will be resolved within any particular time period or at all.
3. Provision of Support Services3.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
4. Limitations on Support Services4.1 MBL shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of the Platform Services by the Customer; or
(b) any alteration to the Platform Services made without the prior consent of MBL.
Schedule 3 (Data processing information)
1. Categories of data subject and types of Personal DataMBL may process the Personal Data of: (i) users of the Customer Application, including individuals posting dedications (names, email addresses and dedications); and (ii) Admin Account users (names and email addresses).
2. Purposes of processingMBL may process the Customer Personal Data for the purposes of providing the Services (including communicating with users) and monitoring the provision of the Services.
3. Sub-processors of Personal DataSee: