These Master Terms of Service, Order Form(s) and Statement of Works (SOW) set out the basis upon which you subscribe to and/or use the Service and Additional Services and together shall be defined as the Agreement.
“Account” means the Customer’s unique registered account with Giants Technology through which their Authorised Users can log into and access the Service. The Account contains the permissions and set-up of each Authorised User.
“Additional Services” means any services agreed to be provided to a Customer in accordance with clause 3.2 below and as specified in any Order Form.
“Authorised User(s)” means your Account Manager and the employees, agents and independent contractors your Account Manager authorises to access and use the Service.
“Customer” means the customer identified on an Order Form submitted to Giants Technology
“Customer Data” means any data provided to GT by the Customer to include Personal Data of Authorised Users.
“Data Protection Legislation” means the Data Protection Act 1998, the Data Protection Act 2018 (upon enactment), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any legislation implementing the General Data Protection (EC 2016/569) Regulations.
“Fees” means the fees for the Service or Additional Service(s) payable by the Customer pursuant to this Agreement and the relevant Order Form.
“Intellectual Property Rights” means (a) patents, trademarks, service marks, registered designs, applications for any of those rights, trade and business names (including Internet domain names), unregistered trademarks, unregistered trade and business names, database rights, copyrights, rights in designs and inventions and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, including the “look and feel” of any websites; and (b) rights of the same or similar effect to those specified in paragraph (a); in each case, in any jurisdiction whether registered, registrable or otherwise.
“Order Form” means the then-current order form signed by the parties.
“Service” means the online community software product we make available as a service via the Site. The Giants Technology Service is Software as a Solution (“SaaS”) enabling customers to create and grow thriving and collaborative member communities in a safe, online environment. The Giants Technology software provides workflow, collaboration and analytics capabilities to the customer through the Service.
“Giants Technology” means Standing on Giants Technology Ltd, with registered company number 11979894, whose registered office is at 114a Cromwell Road, London SW7 4AG.
“Statement of Work” or “SOW” means Giants Technology’ standard form for ordering Professional Services, which may be agreed by the parties, and which would specify the scope and schedule of Professional Services to be performed by Giants Technology for Customer and the applicable fees. Each Statement of Work entered into hereunder shall be governed by the terms of this Agreement.
2.1 The Service shall commence on the Service Start Date detailed on the Order Form and shall continue for the 12 months, the Minimum Term. Thereafter, it shall be automatically renewed for additional twelve (12) months (each a Renewal Term) subject to the terms and conditions of this Agreement until or unless:
3.1 Subject to the terms of any Order Form agreed between the parties, GT shall provide the Service through its Site.
3.2 Additional Services are also available to a Customer from time to time. An Order Form shall set out the agreed terms for any Additional Services to be provided and shall be subject to this Agreement. The Additional Services may consist of:
3.3 Subject to the terms of any agreed SOW between the parties, GT may provide Professional Services.
4.1 Upon signature of this Agreement, and in consideration of the provision of the Service by Giants Technology, Customer shall be invoiced and agrees to pay the Fees specified in the Order Form. Fees are due annually in advance for the Service, net thirty (30) calendar days date of invoice. Additional Services shall be invoiced, and Customer agrees to pay the Fees, in advance in accordance with the Order Form.
4.2 Professional Services Fees will be invoiced separately in accordance with any SOW relating thereto.
4.3 Any chargeable or reimbursable expenses incurred whilst providing the Service or Additional Services shall be invoiced and payable.
4.4 Customer shall notify Giants Technology in writing within fifteen (15) calendar days of receipt of an incorrect or invalid invoice, giving their reasons. If only part of an invoice is disputed the Customer will pay the undisputed amount as detailed herein.
4.5 Except where any payments are disputed in good faith, if we have not received payment within thirty (30) calendar days after the due date, and without prejudice to any other rights and remedies available to us:
4.6 All amounts and fees stated or referred to in this Agreement:
5.1 Subject to payment of the Fees, we grant you a non-exclusive, non-transferable, personal and non-sub-licensable licence to permit Authorised Users to use the Service during the Term pursuant to the terms of this Agreement.
5.2 You shall ensure that each Authorised User shall keep a secure and confidential login and password to access the Service and shall not disclose such login and password to any other person.
5.3 If we discover that any Authorised User is sharing their login details or passwords, we may terminate this Agreement or any relevant SoW immediately and you will pay us for the use of the Service by each additional person we find to be using the Service.
5.4 Your Account Manager may delete Authorised Users’ accounts and authorise other users to access and use the Service.
5.5 Additional Authorised Users may be added at any time by contacting us at email@example.com, or by following the instructions within the Service.
5.6 You are permitted to set-up one (1) Account per contracting party and you must not, and ensure that your staff do not, set-up multiple Accounts unless we agree otherwise on the Order Form or in writing.
5.7 The Customer is responsible for the activity of their Authorised Users, including maintaining the confidentiality of the login details and any activities that occur under the Account. The use of “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) is recommended with your Account. If you have any concerns about your login details or think they have been misused, you should contact us promptly at firstname.lastname@example.org.
5.8 The rights provided under this Clause 4 are granted to the Customer and shall not be considered granted to any subsidiary or holding company of the Customer.
6.1 You shall not access, store, distribute or transmit any viruses, data or any material during the course of your use of the Service that:
6.2 We may, without liability to you, disable the Service or suspend any SoW to the extent necessary to disable access to any data or material that breaches the provisions of Clause 6.1.
6.3 You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
6.4 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify Giants Technology.
7.1 Provision of the Service to Customer shall start on the Service Start Date.
7.2 Giants Technology will be responsible for the provision of the Service and the Customer is responsible for the timely delivery of any Data reasonably required by Giants Technology to perform the On-Boarding Service and for the networks, connections and computer systems to enable Authorised Users to access the Services.
7.3 Giants Technology will use commercially reasonable endeavours to make the Service available with an uptime rate of 99.95%.
7.4 Customer acknowledges that the Service is dependent on access to various third party services and you agree that we are not responsible for the non-availability, delays, failures or interruption affecting the Service or the performance of the Service caused by any such third party services or errors or bugs in software, hardware or the Internet on which the Service relies as you acknowledge that we do not control such third party services and such errors or bugs are inherent in the use of such software, hardware and the Internet.
7.5 The Customer assumes sole responsibility for results obtained from the use of the Service and for conclusions drawn or decisions taken from such use and you rely on the results obtained from the use of the Service at your own risk.
7.6 Giants Technology warrants and undertakes that:
7.7 Giants Technology’ obligation to Customer in the event of a breach of the warranty in 7.6, at Giants Technology’ sole discretion is to:
7.8 Giants Technology shall have no liability or obligation for a breach of this warranty unless it has received written notice from Customer of any Service non-conformance within fifteen (15) Business Days from the date of awareness by Customer of such non-conformance.
7.9 Except for the express warranties provided in this Agreement, the Services are provided and made available “as is” and the warranties contained in this agreement are in lieu of all other warranties, representations or conditions, express, implied, statutory or otherwise, including but not limited to, those implied warranties of merchantability and fitness for a particular purpose, all of which are expressly disclaimed. Giants Technology does not represent that the Services will be uninterrupted or error free or meet Customer’s specific requirements.
7.10 If and when applicable, Giants Technology will comply with The Network and Information Systems Regulations 2018 in relation to the security of our IT systems and we shall ensure we report any security breach in accordance with the Regulations.
8.1 You shall provide us with all necessary cooperation in relation to this Agreement and access to such information as may be reasonably required by us.
8.2 You will:
9.1 For the purposes of this Clause 9, the terms “Personal Data”, “Data Processor” “Data Subject” and “Data Controller” shall have the same meaning as set out in the Data Protection Legislation.
9.2 We do not claim ownership of your Customer Data. You retain all right, title and interest in and to the Customer Data although you grant us a licence to use the Customer Data solely for the purpose of providing the Service. You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
9.3 Customer’s Authorised Users have full editing capabilities for the Customer Data and can update their Personal Data records and consent preferences by accessing our Site.
9.4 If we process any Personal Data as a result of hosting the Customer Data or as a result of your use of the Site or the Service, you agree that we do so as Data Processor and that you are the Data Controller in relation to such Personal Data.
9.5 We agree that, in relation to such Personal Data:
(i) the name and details of the Data Processors;
(ii) the categories of processing carried out by the relevant Data Processor;
(iii) details of any transfers of Personal Data outside the United Kingdom;
(iv) a general description of the technical and organisational security measures implemented by Giants Technology;
(i) notify you of the breach no later than 12 hours after becoming aware of the breach;
(ii) provide you with such details as you reasonably require regarding:
(a) The nature of the breach, including categories and numbers of Data Subjects and Personal Data records concerned;
(b) any investigations into a breach;
(c) any likely consequences;
(d) any measures taken to address the breach to include any mitigation of adverse effects.
9.6 Where we collect Personal Data from you or any Authorised Users for our own purposes in connection with the operation of our Service and our business (for example providing technical support services), you and any Authorised Users agree that we may use this Personal Data for these purposes.
9.7 Each party shall comply with its relevant obligations under all applicable data protection legislation and shall ensure that it has obtained all consents as required by applicable data protection legislation as necessary for the purposes of this Agreement.
9.8 Giants Technology shall not disclose the Personal Data to any third party in any circumstance other than in compliance with this Agreement, Customer’s written instructions or in compliance with a legal obligation.
9.9 Giants Technology shall co-operate with and assist Customer as necessary to enable Data Subjects to exercise their rights under the Data Protection Legislation, including without limitation in connection with any subject access requests received from Data Subjects.
9.10 Upon reasonable request, and subject to the confidentiality provisions of the Agreement, Giants Technology shall provide Customer with information relating to the security testing and reviews of systems and infrastructure that store, process and/or transmit Personal Data.
10.1 You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Service.
10.2 We may use your company name, logo and related trade marks in any of our publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that you use the Service and you grant us such rights as our necessary to use your name, logo and related trade marks for this purpose.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available for use for any purpose other than as needed to perform this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms and conditions.
11.4 Each party shall take a back-up of its own Confidential Information.
11.5 We acknowledge that the Customer Data is your Confidential Information.
11.6 This Clause 11 shall survive termination of this Agreement, however arising.
12.1 Giants Technology will defend and indemnify Customer against all damages and losses awarded against Customer or agreed by Giants Technology in final settlement (including reasonable legal fees) arising from a claim that the Service used within the scope of this Agreement infringes any European Union or North American third party intellectual property rights provided that: (a) Customer notifies Giants Technology in writing within thirty (30) calendar days of the claim; (b) Giants Technology has sole control of the defence and all related settlement negotiations; and (c) Customer provides Giants Technology with the assistance, information and authority necessary to perform the above. Reasonable, documented, out-of-pocket expenses incurred by Customer in providing such assistance will be reimbursed by Giants Technology.
12.2 If Customer’s normal use or access to the Service is held or believed by Giants Technology to infringe as detailed in 12.1 above, then Giants Technology may at its expense:
12.3 This indemnity will not apply to infringement arising out of the use of the Service or any part thereof in combination with any equipment and/or computer programs not approved by Giants Technology for use with the Service if such infringement would have been avoided by the use of the Services without such equipment and/or programs. The foregoing states the entire liability of Giants Technology with respect to infringement or alleged infringement of any third-party rights of any kind whatsoever.
12.4 Giants Technology has no control over the use of the Services made by the Customer, or the content of the Customer Data. In order to protect Giants Technology and our ability to continue to provide the Services we require the following indemnity. You shall indemnify and defend Giants Technology and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable attorneys’ fees) arising out of a claim brought by a third party relating to your use of the Service (except to the extent caused by our negligence) including without limitation our hosting and use of Customer Data and your decisions, financial, business and commercial judgments, and acts or omissions, based on your use of the Service. Giants Technology shall provide Customer prompt notice in writing of any such claim or action. Customer shall have sole control of the defence and all related settlement negations and Giants Technology shall provide the assistance, information and authority necessary to perform the above. Reasonable, documented, out-of-pocket expenses incurred by Giants Technology in providing such assistance will be reimbursed by Customer. Giants Technology shall be entitled to participate in the defence with its own counsel and at its own expense.
13.1 NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S liability in respect of death, personal injury, OR DAMAGE TO TANGIBLE PROPERTY arising from its negligence OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2 SUBJECT TO THE EXCLUSIONS IN CLAUSE 13.1 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL COSTS, DAMAGES, CHARGES OR EXPENSES OF ANY KIND WHATSOEVER, HOWEVER ARISING UNDER THE AGREEMENT.
13.3 To the extent that Giants Technology is liable under this Agreement, Giants Technology’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid in the twelve (12) month period immediately preceding the date on which the liability arose.
13.4 The limitations set forth in Clause 13.3 shall not apply to matters subject to indemnification under this Agreement or infringement or misappropriation of Intellectual Property Rights.
13.5 With the exception of Clause 13.1, Giants Technology will have no liability for any loss or damage (direct or indirect) however arising under this Agreement where Customer is not paying to use or access the Service (as you have signed up to the free “Free Trial” Plan).
14.1 We may terminate this Agreement by notice to you with immediate effect, or such notice as we may elect to give you, if you:
14.2 Either party may terminate this Agreement at any time on written notice to the other if the other:
All licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and Deliverables;
14.4 The Customer shall immediately pay to Giants Technology any sums due to Giants Technology under this Agreement, including all outstanding invoices and interest and, in respect of any Services supplied for which no invoice has been submitted, Giants Technology may submit an invoice, which shall be payable on receipt;
14.5 Each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
14.6 Giants Technology may destroy or otherwise dispose of any of the Customer Data and Customer Materials in its possession, unless Giants Technology receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Giants Technology shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Giants Technology in returning or disposing of Customer Data; and
14.7 Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.1 FORCE MAJEURE. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: non-availability or failure of any third-party service, act of God, governmental act, war, fire, flood, explosion, communications or failure of the Internet or civil commotion.
15.2 WAIVER. No waiver of any rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
15.3 SEVERABILITY. If any provision of this Agreement is judged to be illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
15.4 ASSIGNMENT. Either party may assign this Agreement in whole or in part with prior written notification to the non-assigning party. This Agreement will be binding upon the parties hereto and any authorised assigns.
15.5 NO PARTNERSHIP OR AGENCY. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
15.6 THIRD PARTY RIGHTS. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.7 NOTICE. Any notice required to be given pursuant to this Agreement shall be in writing and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or signed and scanned and sent by email. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered seventy-two (72) hours after posting and correctly directed faxes and emails shall be deemed to have been received instantaneously on transmission, provided that they are sent to correct email address or fax number.
15.8 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
15.9 ENTIRE AGREEMENT. This Agreement, any SoW and the Order Form(s), together with the documents referred to in them, constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in it and supersedes, cancels and nullifies any previous agreement between the Parties in relation to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.
Each of the Parties acknowledges and agrees that in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) other than as expressly set out in this Agreement and any document referred to. The only remedy available to either Party in respect of any such statements, representation, warranty or understanding shall be for breach of contract. Nothing in these Conditions shall operate to exclude any liability for fraud.