This agreement sets out the terms on which Insite Group Limited, a company incorporated and registered in England and Wales with company number 11690214 whose registered office is at Windsor House, 9-15 Adelaide Street, Luton, Bedfordshire, England, LU1 5BJ (Insite), will make the Services (as defined below) available to the individual or organisation (if any) whose details are set out in the Order (Customer). This agreement will come into effect once these terms are accepted by the Customer.
By clicking on the “accept” button you warrant and represent that you are authorized to agree to these terms on behalf of the Customer. [Marked]
The definitions and rules of interpretation in this clause apply in this agreement.
Active Projects: the projects in the Platform that are listed as ‘Active Projects’.
Add-Ons: additional services, features and/or products offered by Insite or a third-party as an addition or extension to the Platform or Services.
Annual Plan: a Plan purchased by the Customer on an annual basis.
Applicable Data Protection Laws: to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data and; to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Insite is subject, which relates to the protection of personal data.
Bespoke Plan: a custom Plan subscribed to by the Customer by both parties signing and executing these terms and an Order.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential, including information identified as Confidential Information in clause 13.1.
Customer Data: the data inputted by the Customer, Users, or Insite on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation: the document made available to the Customer by Insite online via https://insiteapp.zendesk.com/hc/en-gb or such other web address notified by Insite to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: in the case of a Self-Service Plan, the date the Customer accepts these terms, and in the case of a Bespoke Plan, as set out in the Order.
Enhanced Support Services: has the meaning given in clause 6.9.
Initial Plan Term: the initial term of the Plan, being:
(a) the Trial Period for a Trial;
(b) where a Self-Service Plan has been purchased, 1 month for a Monthly Plan and 12 months for an Annual Plan; and
(c) where a Bespoke Plan has been purchased, the period set out in the Order.
Metered Charges: Plan Fees that are payable by the Customer based on its usage of Active Projects. Plan Fees will only be payable in this way where it is set out in the Order.
Monthly Plan: a Plan purchased by the Customer on a monthly basis.
Normal Business Hours: 8.30 am to 6.00 pm local UK time, each Business Day.
Order: either the checkout page for orders placed for Self-Service Plans, or a document entitled “Order Form” for Bespoke Plans (as applicable), which include details such as the name of the Customer, the Plan Fees, any Plan Limits, any Add-Ons, the Initial Plan Term and any Trial Period.
Out-of-Scope Query: a request for support made by the Customer not relating to any operational failure or error of the Services, but rather by an issue caused by the Customer or a cause outside Insite’s control (including any user error and lack of training of Users in the use of the Service).
Plan: the subscription purchased by the Customer pursuant to clause 11 which entitles Plan Users to access and use the Services and the Documentation, in accordance with this agreement and the Plan Limits.
Plan Admins: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation and have the authority to create Active Projects and add Users to those Active Projects.
Plan Fees: the subscription fees payable by the Customer to Insite for the Plan or Trial (if applicable), as set out in the Order, subject to any increase in accordance with clauses 3.3, 4 and 11.10 where applicable.
Plan Limit(s): the limits that apply to the usage of the Services for the Customer’s Plan as detailed in the Order, including the limit on the number of Plan Users that can use the Services, the number of Active Projects at any one time, and any Project User Limits.
Plan Term: has the meaning given in clause 16.1 (being the Initial Plan Term together with any subsequent Renewal Periods).
Plan Users: Plan Admins and those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation and whose user account is included in the Plan member list.
Platform: the online software applications provided by Insite as part of the Services.
Project User: an individual who can be added to Active Projects and can use the functionality of the Platform made available to them within each Active Project they are added to. Project Users do not have the ability to create Active Projects.
Project User Limit: the maximum number of Project Users that can participate in an Active Project as specified in the Order.
Renewal Period: the period described in clause 16.1. Self-Service Plan: a Plan subscribed to by the Customer via Insite’s website in accordance with one of the standardised subscription tiers available.
Services: the subscription services provided by Insite to the Customer under this agreement via https://teams.insiteapp.co.uk/ and https://admin.insiteapp.co.uk/, Insite’s mobile application available via the Apple App Store and Google Play Store, or any other website notified to the Customer by Insite from time to time, as more particularly described in the Documentation.
SLA: Insite’s service level agreement for the Services, available at https://insite.co.uk/sla/. Support Query: has the meaning given in clause 6.1(b).
Support Services: has the meaning given in clause 6.1(b).
Trial: has the meaning given in clause 3.1.
Trial Period: the length of time a Trial will run for, as specified in the Order. UK GDPR: has the meaning given to it in the Data Protection Act 2018. Users: Plan Users and Project Users.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Clause headings shall not affect the interpretation of this agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to writing or written excludes fax but not email.
The Customer’s Plan
Subject to the restrictions set out in this clause 2 and the other terms and conditions of this agreement, Insite hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Users to use the Services and the Documentation in accordance with the Plan (and in accordance with the Plan Limits) purchased by the Customer during the Plan Term solely for the Customer’s internal business operations.
In relation to the Plan Users, the Customer undertakes that:
(a) the maximum number of Plan Users that it authorises to access and use the Services and the Documentation shall not exceed the number of Plan User accounts it has purchased from time to time;
(b) it will not allow or suffer any Plan User’s account to be used by more than one individual Plan User unless it has been reassigned in its entirety to another individual Plan User, in which case the prior Plan User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Plan User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed reasonably frequently, and that each Plan User shall keep their password confidential; and
(d) it shall comply with any fair use limits relating to the Services as notified to it by Insite from time to time. One such limit is in relation to the archiving and unarchiving of Active Projects. This feature must be used in good faith and not used to circumvent the purpose of any Active Project limit applied to the Services.
Insite shall be entitled to audit the Customer’s use of the Services in order to assess its compliance with this agreement at any time and without prior notice to the Customer. Such audit may be carried out by Insite remotely. If any of the audits reveal that the Customer has underpaid Plan Fees to Insite or that any User accounts have been used by more than one User, then without prejudice to Insite’s other rights, the Customer shall pay to Insite an amount equal to such underpayment as calculated in accordance with the Plan Fees within 5 Business Days of the date of the relevant audit. Further, Insite shall be entitled to suspend or terminate access to any User accounts being used by more than one User.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property,
and Insite reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to and use of the Services if it uploads any material to the Platform that breaches the provisions of this clause.
The Customer shall not:
(a) 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:
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
(f) introduce or permit the introduction of any Virus into Insite’s network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Insite.
The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Insite may offer to the Customer a trial version of the Plan for free or at a reduced fee (Trial) for the Trial Period.
Insite shall determine the Customer’s eligibility for a Trial and shall have sole discretion in determining whether the Customer may proceed with a Trial. Insite may withdraw or modify a Trial at any time without prior notice and with no liability to the Customer, to the extent permitted under applicable law.
The Customer is not ordinarily required to provide card or payment details to start certain Trials. However, Insite reserves the right to require the Customer to provide payment details in accordance with clause 11 prior to the start of a Trial where such Trial is offered to the Customer at a reduced fee or where the Trial automatically converts into a full-paid Plan at the end of the Trial Period.
Where the Customer has provided card or payment details for a Trial, the Customer agrees that Insite may automatically begin charging the Customer for the full-paid version of the Plan on the first day following the end of the Trial Period on a recurring monthly or annual basis (as applicable to the Plan). If the Customer does not wish to proceed with a paid Plan following a Trial, the Customer may terminate this agreement in advance of the end of the Trial Period by giving at least one Business Day’s notice in writing to Insite, or otherwise in accordance with clause 16.
Increasing the Plan Limits and purchasing Add-Ons
Subject to the rest of this clause, the Customer may, from time to time during any Plan Term, increase the Plan Limits, purchase any Add-Ons (where it has purchased a Bespoke Plan), and upgrade the Plan it is subscribed to. Insite shall increase the Plan Limits, provide any Add-Ons, and upgrade the Customer’s Plan in accordance with the provisions of this agreement.
If the Customer has purchased a Self-Service Plan, it shall be entitled to increase its Plan Limits or upgrade to another Self-Service Plan via its account dashboard in the Platform.
If the Customer has purchased a Bespoke Plan and wishes to increase the Plan Limits, purchase any Add-Ons for its Plan, and/or upgrade its Plan the Customer shall notify Insite of its request in writing. Insite shall evaluate such request and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). If the request has been approved, Insite shall either: (i) send the Customer a new quote; or (ii) the parties may agree the details relating to the increase in Plan Limits, the purchase of Add-Ons (such as any adjustment to the Plan Fees or the Plan Term), and/or the upgrade in Plan in writing (including in an Order). Where the Customer accepts the quote, or the parties otherwise agree the details to the change in writing, Insite shall implement the increase to the Plan Limit, provide the Add-Ons, and/or upgrade the Customer’s Plan within 14 days of its approval of the Customer’s request.
Where the Customer wishes to upgrade from a Self-Service Plan to a Bespoke Plan, the parties shall agree the details of the upgrade in writing in an Order.
Where the Add-Ons purchased are subject to a one-off fee, the Customer must pay such fee on the date of purchase.
In respect of Increased Plan Limits, additional subscription Add-Ons, and Plan upgrades the Plan Fees will be amended accordingly. Insite shall be entitled to either:
(a) charge Plan Fees on a pro-rata basis for the remainder of the then current Initial Plan Term or Renewal Period (as applicable); and/or
(b) where the Customer has purchased an Annual Plan, amend the Customer’s then current Initial Plan Term or Renewal Period (as applicable) such that it shall expire or renew (as applicable) twelve months after the date on which the change comes into effect,
and either raise an invoice or charge the Customer’s Payment Method on the date of the purchase.
Insite shall, during the Plan Term, provide the Services applicable to the Plan purchased by the Customer and make available the Documentation to the Customer on and subject to the terms of this agreement.
Insite shall use commercially reasonable endeavours to make the Services available in accordance with the SLA.
The Customer agrees that the SLA contains its sole and exclusive remedy for interruption, partial unavailability, and complete unavailability of the Services, and any other item set out in the SLA.
Insite may suspend the Services immediately, without prior notice or liability to the Customer, in the event the Customer breaches the terms of this agreement.
Insite shall be entitled to update, modify and change the Services on an ongoing basis provided that it gives the Customer at least 30 days’ prior written notice of any update, modification or change that will materially adversely affect the Customer’s use of the Services. Following receipt of such notice, the Customer shall be entitled to terminate this agreement by written notice to Insite before the expiry of the notice provided by Insite.
The Customer acknowledges and agrees that certain new features introduced will only be available for certain Plans, and may not be available on the Customer’s current Plan.
Insite shall be entitled to make available new features on a trial or beta basis for use by the Customer from time to time. The Customer acknowledges and agrees that such features are provided “as is” and without warranty of any kind, and Insite accepts no liability for any defect or error experienced by, or any loss suffered by, the Customer in using the feature.
Training and Support
As part of the Services, Insite will provide:
(a) training to the Customer where training is included in the Plan purchased by the Customer; and
(b) the Customer with Insite’s standard customer support services in accordance with this clause 6 (Support Services) whereby the Customer may submit support queries to Insite during Normal Business Hours via Insite’s hosted service at https://insiteapp.zendesk.com/hc/en-gb or through Insite’s web and mobile applications (Support Query).
Standard Support Services
The Support Services provided under clause 6.1(b) are limited solely to the Customer and not to any of its contractors or associates.
The Customer may only raise a maximum of two unrelated Out-of-Scope Queries in each Business Day.
Insite shall respond to a Support Query within 5 Business Days of receipt of the same. A response to a Support Query will consist, as a minimum, of an acknowledgement of receipt, an initial diagnosis of the issue, a request for any further information required to resolve the issue if required and an anticipated duration for resolution of the issue if applicable.
The Customer agrees to provide to Insite all co-operation, support, and information as is reasonably requested by Insite to enable Insite to provide Support Services.
If Insite spends more than 4 business hours in any calendar month on the resolution of Out-of-Scope Queries, Insite shall have no obligation to continue providing Support Services in respect of Out-of-Scope Queries to the Customer for the remainder of that calendar month. In such circumstances, Insite and the Customer may agree additional charges for the resumption of the Support Services in respect of Out-of- Scope Queries.
Insite provides no warranty or representation that a Support Query will be resolved within a particular timeframe.
Nothing in this clause 6 shall affect any other rights the Customer may have under the SLA.
Enhanced Support Services
Where included in the Plan, Insite will provide additional Support Services to the Customer (Enhanced Support Services). Where the Customer is entitled to Enhanced Support Services, clauses 6.10 to 6.13 shall apply and shall take precedence over clauses 6.1 to 6.7 in the event of a conflict with these clauses.
The Customer may only raise a maximum of four unrelated Out-of-Scope Queries in each Business Day.
If Insite spends more than a total of 12 business hours in any calendar month on the resolution of Out-of- Scope Queries, Insite shall have no obligation to continue providing Enhanced Support Services in respect of Out-of-Scope Queries to the Customer for the remainder of that calendar month. In such circumstances, Insite and the Customer may agree additional charges for the resumption of the Enhanced Support Services in respect of Out-of-Scope Queries.
The Customer agrees to provide to Insite all co-operation, support, and information as is reasonably requested by Insite to enable Insite to provide Enhanced Support Services.
Insite shall deliver a 1-hour set-up session to up to three of the Customer’s officers and employees who are Plan Admins to introduce the Services and, as a minimum, demonstrate to them how to access the Services through Insite’s website and/or via mobile applications. Such training shall be suitable for Plan Admins. Insite shall provide additional set-up support to the Customer (including training suitable for the role of Project User) where additional charges for the same have been agreed between the parties.
In this clause 7, Data Controller, Data Processor, Data Subject and Personal Data have the meanings as defined in the Applicable Data Protection Laws
Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Applicable Data Protection Laws.
The parties acknowledge that for the purposes of the Applicable Data Protection Laws, the Customer is the Data Controller and Insite is the Data Processor. The following table sets out the scope, nature and purpose of processing by Insite, the duration of the processing and the types of Personal Data and categories of Data Subject:
|Data Processing Details|
|Subject matter||The processing of personal data resulting from the provision of services by Insite under this agreement.|
|Nature and purpose||The personal data will be processed in the course of the operation of the Services.|
|Duration||The duration of this agreement.|
|Types of personal data||Names and email addresses of Users, profile images, employer name, employment position, signature, device ID, and device name.|
|Categories of Data Subject||Users.|
Without prejudice to the generality of clause 7.2, Insite shall, in relation to any Personal Data processed in connection with the performance by Insite of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless Insite is required by Applicable Data Protection Laws to otherwise process that Personal Data. Where Insite is relying on Applicable Data Protection Laws as the basis for processing Personal Data, Insite shall promptly notify the Customer of this before performing the processing required by Applicable Data Protection Laws unless the Applicable Data Protection Laws prohibits Insite from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) not transfer any Personal Data outside the United Kingdom or the EEA unless the following conditions are fulfilled:
the Customer or Insite has provided appropriate safeguards in relation to the transfer;
the Data Subject has enforceable rights and effective legal remedies;
Insite complies with its obligations under the Applicable Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred; and
Insite complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(d) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(f) at the written request of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Protection Laws to store the Personal Data (the Customer acknowledges and agrees that an individual that has been a Project User on the Customer’s Active Projects will still have access to the Customer’s Active Projects following termination of that individuals’ engagement with the Customer, unless the Customer removes that individual as a Project User from its Active Projects);
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for reasonable audits by the Customer or Customer’s designated auditor (provided Customer provides Insite with at least fourteen (14) days prior written notice of any such audit and carries out no more than one such audit every twelve (12) months); and
(h) inform the Customer if, in the opinion of Insite, the instructions of the Customer infringe Applicable Data Protection Laws.
The Customer hereby provides its prior, general authorisation for Insite to appoint processors to process personal data (including Customer Data), provided that Insite:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Insite; and
(c) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and can demonstrate, to Insite’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Customer’s sole and exclusive remedy shall be to terminate this agreement on 30 days’ written notice.
Insite may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
Third party providers
Insite undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Insite’s instructions, or modification or alteration of the Services by any party other than Insite or Insite’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Insite will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.
(a) does not warrant that:
This agreement shall not prevent Insite from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
Insite warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Insite shall be for Insite to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Insite. Insite shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, except those third parties sub-contracted by Insite to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
The Customer shall:
(a) provide Insite with:
all reasonable co-operation in relation to this agreement; and
all reasonable access to such information as may be required by Insite; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Insite may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Users’ acts or omissions that, if performed by the Customer, would breach this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Insite, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Insite from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Insite’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
Charges and payment
This clause 11 shall not apply where the Customer is participating in a free Trial and such Trial automatically terminates at the end of the Trial Period in accordance with clause 16.2.
The Customer shall pay the Plan Fees to Insite for the Plan and/or Trial (as applicable) in accordance with this clause 11.
The Customer shall on the Effective Date provide to Insite (or as applicable its authorised third-party payment provider (the Payment Provider)) valid, up-to-date and complete details for its chosen payment method (e.g., credit or debit card or PayPal) (the Payment Method) or approved purchase order information or invoicing address acceptable to Insite (and/or the Payment Provider, as applicable) and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) details of its Payment Method to Insite (and/or the Payment Provider, as applicable), the Customer hereby authorises Insite (and/or the Payment Provider, as applicable) to bill such card:
on or after the Effective Date for the Plan Fees payable in respect of the Initial Plan Term; and
subject to clause 16.1 and clause 11.4, after the date falling 7 days prior to the next Renewal Period for a Monthly Plan, and after the date falling 30 days prior to the next Renewal Period for an Annual Plan, for the Plan Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information or invoicing address to Insite, Insite shall be entitled to invoice the Customer:
on or after the Effective Date for the Plan Fees payable in respect of the Initial Plan Term; and
subject to clause 16.1 and clause 11.4, after the date falling 7 days prior to the next Renewal Period for a Monthly Plan, and after the date falling 30 days prior to the next Renewal Period for an Annual Plan, for the Plan Fees payable in respect of the next Renewal Period
and the Customer shall pay each invoice within 7 days after the date of such invoice.
Insite (and/or the Payment Provider, as applicable) shall bill the Customer’s Payment Method or raise an invoice with the Customer (as applicable) for Metered Charges in arrears one month after the Effective Date and subsequently, on the same date of each month thereafter.
Plan Fees which are determined using Metered Charges are calculated on a daily basis at 23:00UTC by determining the quantity of Active Projects exceeding the Plan Limits at any point within the previous 24 hours. Each Active Project is assigned a daily cost as defined in the Plan.
In addition to any other right or remedy Insite may have, Insite may charge the Customer a reasonable fee, and the Customer shall be required to pay such fee, in the event that the Customer breaches clause 2.2(d) (fair use limits).
Unless the Customer gives notice to terminate this agreement under clause 16.1(a), the Customer will be liable to pay the Plan Fees for the next applicable Renewal Period.
If Insite has not received payment within 9 days after the due date, and without prejudice to any other rights and remedies of Insite:
(a) Insite shall be entitled, without liability to the Customer and in Insite’s sole and absolute discretion, to suspend the Customer’s right to use the Services, disable the Customer’s and any Plan User’s password, account and access to all or part of the Services (including any Active Projects) and Insite shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this agreement:
(a) shall be payable in the currency set out in the Order;
(b) are, subject to clause 15.3(b), non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to Insite’s invoice(s) at the appropriate rate.
Insite shall be entitled to increase the Plan Fees at the start of each Renewal Period upon 14 days’ prior notice to the Customer for a Monthly Plan, and 45 days’ notice to the Customer for an Annual Plan, and the Plan Fees shall be deemed to have been amended accordingly.
Insite shall be entitled to provide discounts on the Plan Fees. One such discount may be offered against the initial term (Initial Term Discount). Any Initial Term Discount will apply until the end of the Initial Term of the agreement. Thereafter, the non-discounted Plan Fees will apply. Initial Term Discounts will not apply to any one-off fees.
The Customer acknowledges and agrees that Insite and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
Insite confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
The Customer agrees that:
(a) Insite shall be entitled to publish the Customer’s name and refer to it as a customer for marketing purposes, and use the Customer’s then current trade mark, logo and name on Insite’s website;
(b) Insite shall be entitled to issue a press release that identifies the Customer as a customer of the Services (Press Release). Insite will provide the Customer with a draft copy of the Press Release for approval. The draft Press Release will be deemed to be approved if the Customer does not provide any feedback, approval or rejection of the Press Release within 5 days after Insite provides the draft to the Customer. The Customer will not unreasonably withhold or delay providing approval;
(c) it will, on Insite’ request, provide Insite with a quote from a suitably senior individual familiar with the Services regarding the Customer’s experience in, and benefit received from, using the Services, that Insite can use in the Press Release;
(d) Insite shall be entitled to prepare, and the Customer agrees to participate in, a case study, or other agreed upon marketing activity (Marketing Materials). Insite will provide the Customer with a draft copy of such Marketing Materials for approval. The draft Marketing Materials will be deemed to be approved if the Customer does not provide any feedback, approval or rejection of the Marketing Materials within 5 days after Insite provides the draft to it. The Customer will not unreasonably withhold or delay providing approval; and
(e) Insite shall be entitled to use and distribute any marketing materials created under this clause on its website and social media channels, in sales presentations and written communications (including email), including to prospective customers.
Confidential Information means all written or oral confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with the Services provided by Insite under this agreement, including but not limited to:
(a) the existence and terms of this agreement or any agreement entered into in connection with this agreement;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
(c) any information developed by the parties in the course of carrying out this agreement and the parties agree that:
details of the Services, and the results of any performance tests of the Services, shall constitute Insite’s Confidential Information; and
Customer Data shall constitute the Customer’s Confidential Information.
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
(d) the parties agree in writing is not confidential or may be disclosed.
Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 13.
A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, by a court or other authority of competent jurisdiction) provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this clause 13 are granted to the other party, or to be implied from this agreement.
On termination of this agreement, each party shall:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
The above provisions of this clause 13 shall survive for a period of three years from termination or expiry of this agreement.
The Customer shall defend, indemnify and hold harmless Insite against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Insite provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
Insite shall defend the Customer, its officers, directors, and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Insite is given prompt notice of any such claim;
(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Insite in the defence and settlement of such claim, at Insite’s expense; and
(c) Insite is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Insite may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall Insite, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Insite; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Insite; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Insite or any appropriate authority.
The foregoing and clause 15.3(b) states the Customer’s sole and exclusive rights and remedies, and Insite’s (including Insite’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of liability
Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Insite shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Insite by the Customer in connection with the Services, or any actions taken by Insite at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
Nothing in this agreement excludes the liability of Insite:
(a) for death or personal injury caused by Insite’s negligence; or
(b) for fraud or fraudulent misrepresentation.
Subject to clause 15.1 and clause 15.2:
(a) Insite shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) Insite’s total aggregate liability in any 12-month period beginning on the Effective Date or any anniversary of it (each a Contract Year) in contract (including in respect of the indemnity at clause 14.2), 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 Plan Fees paid in that Contract Year.
Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Insite’s Intellectual Property Rights.
Term and termination
Subject to clause 16.2, this agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Plan Term and, thereafter, this agreement shall be automatically renewed for successive periods of 1 month for a Monthly Plan or 12 months for an Annual Plan (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least:
seven (7) days before the end of the Initial Plan Term or any Renewal Period in the case of a Monthly Plan; or
thirty (30) days before the end of the Initial Plan Term or any Renewal Period in the case of an Annual Plan,
in which case this agreement shall terminate upon the expiry of the applicable Initial Plan Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Plan Term together with any subsequent Renewal Periods shall constitute the Plan Term.
Where the Customer is participating in a Trial with no automatic conversion into a full-paid Plan at the end of the Trial Period in accordance clause 3.3, this agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and automatically terminate at the end of the Trial Period.
Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.3(c) to clause 16.3(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
Insite shall be entitled to terminate this agreement with immediate effect by giving written notice to the Customer if there is a change of control of the Customer.
On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Customer shall be entitled to continued access to the Platform solely in order to delete its Customer Data from the Platform. Insite shall be entitled to destroy or otherwise dispose of any of the Customer Data in its possession at any time following 6 months after the effective date of the termination of this agreement; and
(d) 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.
Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate this agreement by giving 5 Business Days’ written notice to the affected party.
The Customer acknowledges and agrees that, should it provide any suggestions, comments or feedback to Insite regarding the Services (Feedback), regardless of whether or not Feedback is provided formally, the Customer grants Insite a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up licence and right to use the Feedback for any business purpose.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. 15
If any provision or part-provision of this agreement is deemed deleted under clause 22.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
The Customer shall not, without the prior written consent of Insite, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
Insite may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
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).
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.
This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to that party. Where notice is provided to Insite, notice by email shall be sent to the following address: firstname.lastname@example.org; where notice is provided to the Customer, notice by email shall be sent to the email address used by the Customer to create its account to access the Services.
Each party may update its address for the purpose of this clause by giving notice to the other party in writing.
Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).