Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services shall be governed by these Terms and Conditions.
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and other accounts;
"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
"Branding Notice" means any “Powered by Warden.co” text included in the Provider’s embeddable Security Center or any User notifications, including emails or other forms of electronic communications.
"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;
"Charges" means the following amounts:
(a) amounts calculated by adding the Customer Fixed Charge Rate to the product of the Provider's Variable Rate by the number of the Customer’s Monthly Active Users for a given month, excluding any included Customer Monthly Active Users;
"Customer" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date upon which the parties execute a hard-copy Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by the Provider on the Provider's website;
“Fixed Charge Rate” means the fixed rate that appears on the Services Pricing page upon the Effective Date. An example Fixed Charge Rate can be of 100 USD.
"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);
“Free Trial” means a period of 14 days at the beginning of the subscription to the Services where the Customer is not charged for any usage until the end of the Trial. The Customer may cancel before the end of the trial and no Charges will be made.
"Hosted Services" means warden.co, docs.warden.co, api.warden.co and app.warden.co which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Documentation;
"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, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
“Monthly Active Users” means the number of Users that are use the Customer’s web or mobile application at least once in a calendar month;
"Permitted Purpose" means using the information and data provided by the Customer to provide the Services;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means WardenTech LTD, a limited company incorporated in England with registered number 10382099 and registered address at 86-90 Paul Street, London, United Kingdom, EC2A 4NE;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted 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 and the main body of these Terms, including any amendments to that documentation from time to time;
"Update" means a hotfix, patch or minor version update to any Platform software;
"Upgrade" means a major version upgrade of any Platform software.
"User" means any person or entity that uses the Customer’s web or mobile application; and
“Variable Rate” means the price per Monthly Active User listed on the Provider’s website at the time of completing the Services Order Form.
2.1 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 17.
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. Hosted Services
3.1 The Provider shall ensure that the Platform will on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account.
3.2 The Provider hereby grants to the Customer a licence to use the Hosted Services for the internal business purposes of the Customer in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;
3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(c) the Customer must not republish or redistribute any content or material from the Hosted Services; and
(d) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
3.6 The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of the Agreement; or
(e) scheduled maintenance carried out in accordance with the Agreement.
3.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.10 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.
3.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 14 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Maintenance Services
4.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
4.2 The Provider shall where practicable give to the Customer at least 7 Business Days' prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this main body of these Terms and Conditions.
4.3 The Provider shall provide the Maintenance Services with reasonable skill and care.
5. Support Services
5.1 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of these Terms and Conditions.
5.2 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.
5.3 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
6. Customer Data
6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement.
6.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement 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 any jurisdiction and under any applicable law.
6.3 The Provider shall create a back-up copy of the Customer Data at least weekly, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
7. Breach of Provisions
7.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
8. No assignment of Intellectual Property Rights
8.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
9.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
9.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 9.2.
9.3 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 the Provider.
9.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.
9.5 The customer shall not paid for any usage on the Free Trial Period which may start on the Enacted Date until the end of the trial.
10.1 The Customer must pay the Charges by debit card or credit card (using such payment details as are notified by the Provider to the Customer from time to time).
11. Provider's confidentiality obligations
11.1 The Provider 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;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 11 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider 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 Provider; or
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer 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 the Provider on any recognised stock exchange.
11.5 The provisions of this Clause 11 shall continue in force indefinitely following the termination of the Agreement.
12. Data protection
12.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with these Terms and Conditions and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).
12.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and
13.1 The Provider gives no warranty about the Platform and the Hosted Services. Without limited the foregoing, the Provider does not warrant that the Services will meet your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
13.2 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
14. Acknowledgements and warranty limitations
14.1 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, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15. Limitations and exclusions of liability
15.1 To the maximum extent permitted by law, the Provider excludes all liability and responsibility to the Customer (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Services.
15.2 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 6-month period preceding the commencement of the event or events.
16. Force Majeure Event
16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement, that obligation will be suspended for the duration of the Force Majeure Event.
16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 The Provider may termination the agreement by giving the Customer a 30 days written notice of termination with at least 30 days.
17.2 The Customer may terminate the agreement through the suspend account functionality in the hosted services. The Services will be provided until the end of the billing period.
17.3 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;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
18. Effects of termination
18.1 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, 3.11, 7, 11, 15, 18, 21 and 22.
18.2 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.
19.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Section 4 of the Services Order Form and Clause 19.2):
(a) sent electronically via email to the registered email for the party.
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
19.2 The Provider's contact details for notices under this Clause 19 are as follows:
86-90 Paul Street, London, United Kingdom, EC2A 4NE
19.3 The addressee and contact details set out in Section 4 of the Services Order Form and Clause 19.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 19.
20.1 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision 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 (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.2 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
20.3 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.
20.4 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
20.5 Subject to Clause 15.1, a Services Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
20.6 These Terms and Conditions shall be governed by and construed in accordance with English Law.
20.7 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
21. Branding Notices
21.1 The Provider reserves the right to add a Branding Notice to any of their product or services, including ones that are used by the Customer on the Customer’s website.
21.1 The Customer must not remove the Branding Notice without express written permission from the Provider.
22.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
22.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
22.3 References in these Terms and Conditions to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.
22.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.