Last Updated: 20 November 2024
These terms and conditions are between 1Breadcrumb UK Ltd, a company registered in England and Wales with company number 15043657 (we, us, or our) and you, the person or entity stated in the Fee Proposal (you or your), together the Parties and each a Party.
Together, these terms and conditions and the Fee Proposal form the entire agreement under which we will provide the Services to you (Agreement).
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Disclosure
Any template document or form provided on the Platform or with services is for general informational purposes only, and on an “as is” basis. Whilst we use reasonable endeavours to keep the information up to date, we make no representation that any templates or information provided is accurate, complete, suitable or up-to-date. You acknowledge and agree that any information, material or advice contained in a template does not constitute legal advice. It is your sole responsibility to determine the suitability, reliability and usefulness of the templates. Any reliance you place on such templates and information is strictly at your own risk. We recommend that you seek your own legal advice in respect of any templates, forms or other documents provided on the Platform. To the extent permitted by law, we do not assume any responsibility or liability, and you waive and release us from all responsibility or liability, arising from or connected with your use or reliance on the templates provided on the Platform.
1. Acceptance
You accept this Agreement by the earlier of:
(a) confirming that you accept the Fee Proposal via the platforms or applications through which we provide this Agreement to you, including our website;
(b) instructing us (whether orally or in writing) to proceed with the provision of the Services; or
making part or full payment of the Fees.
2. Term
Subject to each Party’s right to terminate this Agreement in accordance with its terms, this Agreement commences on the Commencement Date and will continue for 12 months (Initial Term). On the expiry of the Initial Term, this Agreement will be automatically renewed for subsequent 12-month period (each a Renewal Period), unless either Party provides written notice at least 30 Business Days before the end of the Initial Term or the end of the then-current Renewal Period (as applicable) that it does not wish to renew this Agreement.
3. Services
3.1 In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel. We warrant to you that the Services will be provided using reasonable care and skill.
3.2 We will not be responsible for any Services unless expressly set out in the inclusions in the Fee Proposal.
3.3 Subject to any other provisions of this Agreement, we will commence providing the Services within a reasonable time after the Commencement Date, or as otherwise agreed between the Parties in the Fee Proposal or otherwise.
4. SaaS Licence
4.1 In consideration of your payment of the SaaS Solution Fee, we will supply you with the SaaS Solution in accordance with the Fee Proposal.
4.2 During the Term, and subject to your compliance with this Agreement, we grant you and your Authorised Users a non-exclusive, non-transferable, non-sublicensable and revocable licence to access and use the SaaS Solution solely for your business purposes and as contemplated by this Agreement (SaaS Licence).
4.3 You agree that the SaaS Licence permits you to access and use the SaaS Solution in accordance with the SaaS Conditions, as set out in the Fee Proposal.
5. Authorised Users
5.1 You will ensure each Authorised User complies with the terms of this Agreement.
5.2 Each Authorised User must agree to our End User Licence Agreement in order to access the SaaS Solution.
5.3 You may request in writing that additional Authorised Users be granted a licence to access the SaaS Solution in accordance with clause 12.
6. Account
6.1 You will require an Account in order to access and use the SaaS Solution.
6.2 Each Authorised User will require a login (which is linked to your Account), in order to access and use the SaaS Solution.
6.3 You must ensure that any information provided to us for any Account or login is accurate and complete, and you warrant that you are authorised to provide this information to us.
6.4 You and your Authorised Users must keep your Account and login details secure and confidential. You agree to immediately notify us if you become aware of, or have reason to suspect, any suspicious or unauthorised access to your Account or use of any login details linked to your Account.
6.5 We may suspend access to your Account where we reasonably believe there has been any unauthorised use of or access to the SaaS Solution. Where we do so, we will notify you within a reasonable time of the suspension occurring, and the Parties will work together to resolve the matter.
7. SaaS Licence – Additional Conditions of Use
You must not (and you must ensure that each Authorised User does not):
(a) access or use the SaaS Solution except as permitted by the SaaS Licence, or other than through the interface that is provided by us;
(b) access or use the SaaS Solution in any way that is improper or breaches any Laws, infringes any person’s rights (including Intellectual Property Rights and privacy rights), or gives rise to any civil or criminal liability;
(c) interfere with or interrupt the supply of the SaaS Solution or our System, or any other person’s access to or use of the SaaS Solution;
(d) introduce any Harmful Code into the SaaS Solution or our System;
(e) directly or indirectly use, copy, decompile or reverse engineer the SaaS Solution;
(f)copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the SaaS Solution or otherwise attempt to discover any part of the source code of the SaaS Solution;
(g) use any unauthorised, modified version of the SaaS Solution, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Solution;
(h) allow others to access or use your Account (or in the case of Authorised Users, their login details), including any password or authentication details;
(i) attempt to access any data or log into any server or account that you are not expressly authorised to access;
(j) use the SaaS Solution in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
(k) circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
(l) access or use the SaaS Solution to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
8. Availability
8.1 From time to time, we may perform such reasonable scheduled and emergency maintenance and updates in relation to the SaaS Solution in order to continue to supply the SaaS Solution to you (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the SaaS Solution, may need to be suspended for a time in order for us to perform Scheduled or Emergency Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance caused or contributed to by events or circumstances occurring outside of our reasonable control (including but not limited to Scheduled or Emergency Maintenance as a result of any Third Party Inputs).
8.2 We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the SaaS Solution.
9. Third Party Inputs
9.1 You acknowledge and agree that the Services may interact with, or be reliant on, certain Third Party Inputs, including your operating system, web browser, and project management platforms.
9.2 You acknowledge and agree that, unless we have expressly agreed to provide the services described in this clause 9.2 in the Fee Proposal:
(a) you are responsible for obtaining and managing all licences for the relevant Third Party Inputs;
(b) you are responsible for paying all fees related to the Third Party Inputs; and
(c) you agree to comply with terms and conditions applicable to the relevant Third Party Inputs at all times.
9.3 We do not make any warranty or representation in respect of any Third Party Inputs.
9.4 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any Third Party Inputs.
9.5 This clause 9 will survive the termination or expiry of this Agreement.
10. Support Services
10.1 In order for you to receive support services, you or your Authorised User must place a request over the phone or via email to your nominated Customer Success Manager.
10.2 We will use our best endeavours to make support services available to you during the times as set out in the Fee Proposal.
10.3 Unless otherwise agreed, support under this Agreement is not to be used to support any other products or services and does not include training, installation of software or hardware, software development or the modification, deletion or recovery of data or any on-site services.
11. Additional Services
11.1 You may request Additional Services, including support and assistance on a consultancy basis or bespoke customisation to the scope or functionality of the SaaS Solution, by providing written notice to us.
11.2 We may, at our discretion, provide you with written notice in the form of a statement of work, setting out (among other things) the Additional Services requested and any further fee required for us to undertake the Additional Services (Statement of Work).
11.3 If you agree to the Statement of Work for the Additional Services, we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.
11.4 Each Statement of Work will be subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between a Statement of Work and this Agreement, the terms of this Agreement will prevail.
12. Variations
12.1 You may request a variation or change to the Services, including the timing for the provision of the Services, or a change to the SaaS Conditions (including any change to the Authorised User numbers) (Variation), by providing written notice (including by email and our online portal) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by any Variation Request accepted in writing.
12.2 If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with this clause 12.
12.3 Any Variation will apply within a reasonable time after our acceptance of your Variation Request, and if applicable, any increase to the Fees will be charged on a pro-rata basis if such increase occurs during the then-current Fee period.
13. Your Obligations and Representations
13.1 You agree:
(a) to comply with this Agreement and all applicable Laws;
(b) to provide all assistance, information, documentation, access, facilities and other things reasonably necessary to enable us to comply with our obligations under this Agreement or at Law;
(c) to provide us and our Personnel with reasonable, convenient and safe access to your premises and Systems to the extent reasonably necessary in order for us to supply the Services, and at the times agreed between the Parties;
(d) to ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked;
(e) to make any changes to your Systems, such as System upgrades, that may be required to support the delivery and operation of any Services;
(f) to ensure that any Systems used in connection with the Services have all necessary approvals and comply with all Laws;
(g) that you have reviewed and understand the terms of this Agreement, and that you (and Authorised Users) will use the Services in accordance with them;
(h) to notify us of any breach or suspected breach of this Agreement by you (or an Authorised User), within 24 hours of becoming aware of any such breach or suspected breach; and
(i) that you are responsible for all Authorised Users and other users within your organisation or within your control using the Services, including your Personnel.
13.2 You acknowledge and agree that:
(a) the technical processing and transmission of the Services, including Your Data, may be transferred unencrypted and involves transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices;
(b) the Services are provided to you and your Authorised Users, solely for you and your Authorised Users’ benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
(c) any information, advice, material, work and services (including the Services) provided by us under this Agreement does not constitute legal or risk management advice;
(d) you will be responsible for the use of any part of the Services by your Authorised Users and any other person you provide with access to the Services, and you must ensure that no person uses any part of the Services:
(1) to break any Law or infringe any person’s rights (including Intellectual Property Rights);
(2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(3) in any way that damages, interferes with or interrupts the supply of the Services; and
(e)you will not alter or modify the Services in any way that is not contemplated by the purposes of the Services.
14. Payment
14.1 You agree to pay us the Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms.
14.2 You agree that within the 10 Business Days following each anniversary of the Commencement Date, we may amend the Fees by providing written notice to you (with such amendment to take effect at the beginning of the following calendar month). If you do not agree to any amendment made to the Fees, you may terminate this Agreement by giving us notice in writing, in which case, this Agreement will be terminated at the end of the calendar month in which you give us notice and clause 20.2 will apply.
14.3 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) after a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees); and/or
(b) charge interest at a rate equal to 4% above the Bank of England’s base rate, from time to time, but at 4% a year for any period when that base rate is below 0%, per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
14.4 You will not be entitled to any part of the Services until the Fees have been paid in full.
14.5 To the maximum extent permitted by law, there will be no refunds or credits for any unused Services (or part thereof).
15. Intellectual Property
Our Intellectual Property Rights
15.1 As between the Parties, you acknowledge and agree that we own all Intellectual Property Rights in:
(a) Our Materials;
(b) New Materials or Improvements; and
(c) any Feedback,
and as between the Parties, these Intellectual Property Rights will at all times vest, or remain vested, in us, and nothing in this Agreement constitutes an assignment or transfer of such Intellectual Property Rights. To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
15.2 As between the Parties, you acknowledge and agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
15.3 You also agree that you must not, whether directly or indirectly, without our prior written consent:
(a) take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise; or
(b) remove or deface any confidentiality, copyright or other proprietary notice placed on the SaaS Solution.
Your Intellectual Property Rights
15.4 As between the Parties, you will continue to own all Intellectual Property Rights in Your Materials.
15.5 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.
15.6 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
Your Data
15.7 As between the Parties:
(a) Your Data is and will remain your property; and
(b) you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.
15.8 You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data during the Term (and for a reasonable period after the Term), to:
(a) supply the Services to you and your Authorised Users (including to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under this Agreement;
(b) diagnose problems with the Services;
(c) enhance and otherwise modify the Services;
(d) perform Analytics;
(e) develop other services, provided we de-identify Your Data; and
(f) as reasonably required to perform our obligations under this Agreement.
15.9 You acknowledge and agree that you are responsible for (meaning we are not liable for):
(a) the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and
(b) backing up Your Data.
15.10 You represent, warrant, acknowledge and agree that:
(a) you have obtained all necessary rights, releases and permissions to provide or have Your Data provided to us and to grant the rights granted to us in this Agreement;
(b) Your Data (and its transfer to and/or use, collection, storage or disclosure by us as contemplated by this Agreement) does not and will not violate any Laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(c) the operation of the Services is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Services.
15.11 This clause 15 will survive termination or expiry of this Agreement.
16. Analytics
16.1 You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
(a) does not contain any identifying information; and
(b) is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
16.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
16.3 We may use and disclose to our service providers anonymous data about your access and use of the SaaS Solution for the purpose of helping us improve the SaaS Solution. Any such disclosure will not include details of your, or any Authorised User’s, identity or personal information.
17. Confidential Information
17.1 Subject to clause 17.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.
17.2 Clause 17.1 does not apply where disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing party ensures the adviser complies with the terms of clause 17.1.
17.3 This clause 17 will survive the termination of this Agreement.
18. Exclusions to liability
18.1 To the maximum extent permitted by law, we exclude all warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
18.2 To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your Computing Environment;
(b) your, your Authorised Users, or your Personnel’s acts or omissions that are in breach of this Agreement or a misuse of the Software Solution that is not in accordance with its intended purpose;
(c) any use or application of the Services by a person or entity other than you or your Authorised Users, or other than as reasonably contemplated by this Agreement; or
(d) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us.
18.3 This clause 18 will survive the termination or expiry of this Agreement.
19. Limitations on liability
19.1 The restrictions on liability in this clause 19 apply to every liability arising under or in connection with this Agreement including liability in statute, contract, equity, tort (including negligence), misrepresentation, restitution, indemnity or otherwise.
19.2 Nothing in this Agreement limits any Liability which cannot legally be limited, including Liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) defective products under the Consumer Protection Act 1987.
19.3 Subject to clause 19.3 (liability which cannot legally be limited), but despite anything to the contrary, to the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by the other Party to mitigate its loss; and
(c) our aggregate liability for any and all Liability arising from or in connection with this Agreement will be limited to 100% of the Price paid or payable by you during the first 12 months of the Term..
19.4 This clause 19 will survive the termination or expiry of this Agreement.
20. Termination
20.1 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
20.2 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Services;
(b) you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and
(d) upon request by us, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control, subject to clause 15.
20.3 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
20.4 Where this Agreement is terminated by us pursuant to clause 20.1 you agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees).
20.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
20.6 This clause 20 will survive the termination or expiry of this Agreement.
21. General
21.1 Access: The Services may be accessed in the United Kingdom and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of the United Kingdom. If you access the Services from outside of the United Kingdom , you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.
21.2 Amendment: Subject to clause 12, we may amend this Agreement at any time by providing notice to you in writing, via email or on our website. By continuing to use the Services after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Agreement. If you do not agree to the amendment, you may close your Account with effect from the date we notify you of the amendment of these terms by providing written notice to us. If you terminate this Agreement, you will no longer be able to access our Services (including the SaaS Solution) on and from the date of cancellation, and if you have paid any Fees upfront, you will be issued a pro-rata refund based on the portion of the Term remaining.
21.3 Assignment: Subject to clause 21.4, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
21.4 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
21.5 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
21.6 Data Protection: Each Party agrees:
(a) to comply with Applicable Data Protection Law; and
(b) to comply with the terms of our Data Processing Addendum set out at Attachment 1 to this Agreement, and that the terms of the Data Processing Addendum form part of this Agreement.
21.7 Disputes: You agree to notify us should you have concerns relating to our performance of the Services. A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting:
(a) where both Parties are incorporated or habitually reside in the United Kingdom, the Dispute is to be referred to mediation. If the Parties cannot agree on who the mediator should be, either Party may ask the Centre for Effective Dispute Resolution to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties; or
(b) where one Party is incorporated or habitually resides outside of the United Kingdom, the Dispute is to be referred to arbitration administered by the London Court of International Arbitration (LCIA), with such arbitration to be conducted in London, England, in English and in accordance with the LCIA Rules. The number of arbitrators will be one. The costs of arbitration will be shared equally between the Parties and the determination of the arbitrator will be final and binding.
Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
21.8 Entire agreement: This Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
21.9 Force Majeure: A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
21.10 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
21.11 Governing law: This Agreement is governed by the laws of England and Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in England and Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
21.12Illegal Requests: We reserve the right to refuse any request for or in relation to any Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with this Agreement.
21.13 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
21.14 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
21.15 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website, in our promotional material or in any case studies or other miscellaneous promotional material, and you authorise us to use your business name and logo for this purpose.
21.16 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
21.17 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause 21.17, the Parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.18 Taxes: The Fees are exclusive of any tax imposed by any government, state or local authority on the value of goods and/or services and includes goods and services tax, sales tax, use tax, indirect tax, value added tax, excise tax, customs tax, tariffs and duties (Taxes), which will be your responsibility to pay. If we are required to pay any Taxes in relation to the Services supplied under this Agreement, the applicable Taxes will be set out in the invoice provided to you and the Fees payable by you under this Agreement must be increased by the applicable Taxes. This clause 21.18 shall not apply to any taxes imposed on our net income.
22. Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Fee Proposal, and:
Account means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Solution.
Additional Services means any Services not set out in the Services description in the Fee Proposal which we agree to provide to you.
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Applicable Data Protection Law means the laws and regulations applicable to the processing of Personal Data by the Parties in connection with this Agreement, including the Data Protection Act 2018.
Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in the Fee Proposal.
Business Day means a day on which banks are open for general banking business in England, excluding Saturdays, Sundays and bank holidays.
Commencement Date means the date this Agreement is accepted in accordance with clause 1.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Fees under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
End User Licence Agreement means the end user licence agreement that your Authorised Users must accept when they first register on the SaaS Solution.
Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel and your Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.
Fees means the unit price set out in the Fee Proposal, as adjusted in accordance with this Agreement.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, business names, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the provision of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), misrepresentation, restitution, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights means any moral rights, including those conferred by Chapter IV of the Copyright, Designs and Patents Act 1988.
New Materials means all Intellectual Property developed, adapted, modified or created by either Party or their respective Personnel in the provision of the Services, but excludes Our Materials and Your Materials.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by English and international laws.
Payment Terms means the timeframe for payment of the Fee, as set out in the Fee Proposal.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Fee Proposal means the Fee Proposal incorporating these terms and conditions.
SaaS Conditions means any restriction on use or function of the SaaS Solution set out in the Fee Proposal, including but not limited to the number of Authorised Users you may have or access to functions you have not subscribed for.
SaaS Solution means our cloud-based and mobile software solution known as “1Breadcrumb”, which allows you to automate your construction safety and compliance systems, including inductions, SWMS, permits, plant inductions, site attendance, and more.
Services means the products and services that we agree to perform under this Agreement, including the provision of the SaaS Solution and as further particularized in the Fee Proposal.
System means all hardware, software, networks, telecommunications and other IT systems used by a Party from time to time, including a network.
Third Party Inputs means third parties or any goods and services provided by third parties that you engage or integrate with our Software Solution, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Your Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel and your Authorised Users into the Services or stored by or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.
ATTACHMENT 1 – DATA PROCESSING ADDENDUM
1. General
This Data Processing Addendum (DPA) supplements the terms of the 1Breadcrumb Terms and Conditions that this DPA is attached to (Agreement) and applies to our provision of Services to you under the Agreement.
2. Definitions
2.1 Capitalised terms in this DPA have the meaning given in the Agreement, and as set out below:
EU GDPR means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation).
Transferred Data means any Personal Data Processed by us or our Personnel on behalf of you in connection with the Agreement.
Restricted Transfer means a transfer of personal data from the United Kingdom to any other country which is not subject to adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018.
UK GDPR means the EU GDPR as incorporated into United Kingdom law by virtue of Section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018.
UK Addendum means the international data transfer addendum to the European Commission’s standard contractual clauses for international data transfers approved by the Information Commissioner’s Office under section 119A of the Data Protection Act 2018 on 21 March 2022 (version B.1.0), and as updated from time to time.
2.2 The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Sub-Processor” shall have the same meaning as in the UK GDPR.
3. Roles of the Parties
3.1 Where you provide personal data to us to sign up to our Services and create an account, we are acting as a data controller.
3.2 Where you invite your workers to use our Services and/or tailor our Services to induct workers to a site and request that we collect particular personal data from your workers, we are acting as your data processor and you are acting as a data controller.
4. Processing of Personal Data
4.1 Each Party agrees to comply with Applicable Data Protection Law in the Processing of Transferred Data.
4.2 You instruct us to process Transferred Data in accordance with this DPA (including in accordance with Annex 1).
4.3 We agree to not process Transferred Data other than on your documented instructions.
5. Our Personnel
We agree to take reasonable steps to ensure the reliability of any of our Personnel who may have access to the Transferred Data, ensuring in each case that:
(a) access is strictly limited to those individuals who need to know / access the relevant Transferred Data, as strictly necessary for the purposes of the Agreement; and
(b) the relevant Personnel are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
6. Security
6.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we agree to implement appropriate technical and organizational measures in relation to the Transferred Data to ensure a level of security appropriate to that risk in accordance with Applicable Data Protection Law, and as further particularized in Annex 2.
6.2 In assessing the appropriate level of security, we agree to take into account the risks that are presented by Processing, in particular from a Personal Data Breach.
7. Sub-Processing
7.1 You authorise our engagement of the Sub-Processors already engaged by us at the date of this DPA that are set out in Annex 3.
7.2 Where we wish to engage a new Sub-Processor, we agree to provide written notice to you of the details of the engagement of the Sub-Processor at least 7 days’ prior to engaging the new Sub-Processor (including details of the processing it will perform). You may object in writing to our appointment of a new Sub-Processor within 5 days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the Parties will discuss such concerns in good faith with a view to achieving resolution. If the Parties are not able to achieve resolution, we may, at our election:
(a) not appoint the proposed Sub-Processor;
(b) not disclose any Transferred Personal Data we process on the your behalf to the proposed Sub-Processor; or
(c) inform you that we may terminate the Agreement (including this DPA) for convenience, in which case, clause 14.3 will apply.
7.3 You agree that the remedies described above in clauses 7.2(a)-(c) are the only remedies available to you if you object to any proposed Sub-Processor by us.
7.4 Where we engage a Sub-Processor to process Transferred Personal Data, we agree to enter into a written agreement with the Sub-Processor containing data protection obligations no less protective that those in this DPA with respect to the Transferred Personal Data (including in relation to Restricted Transfers), and to remain responsible to you for the performance of such Sub-Processor’s data protection obligations under such terms.
7.5 Where the transfer of Transferred Data from us to a Sub-Processor is a Restricted Transfer, it will be subject to the UK Addendum (and documents or legislation referred to within it), which shall be deemed to be incorporated into this DPA, and the UK Addendum is considered an appropriate safeguard.
8. Data Subject Rights
8.1 Taking into account the nature of the Processing, we agree to assist you by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of your obligations, as reasonably understood by the you, to respond to requests to exercise Data Subject rights under the Applicable Data Protection Law.
8.2 We agree to:
(b) promptly notify you if we receive a request from a Data Subject under any Applicable Data Protection Law in respect of Transferred Data; and
(c) ensure that we do not respond to that request except on your documented instructions or as required by Applicable Data Protection Law to which we are subject, in which case we shall, to the extent permitted by Applicable Data Protection Law, inform you of that legal requirement before we (or our Sub-Processor) respond to the request.
9. Personal Data Breach
9.1 We agree to notify you without undue delay upon becoming aware of a Personal Data Breach affecting Transferred Data, providing you with sufficient information to allow you to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
9.2 We agree to co-operate with you and take reasonable commercial steps as directed by you to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
9.3 If you decide to notify a Supervisory Authority, Data Subjects or the public of a Data Breach, you agree to provide us with advance copies of the proposed notices and, subject to Applicable Data Protection Law (including any mandated deadlines under the UK GDPR), allow us an opportunity to provide any clarifications or corrections to those notices.
10. Data Protection Impact Assessment and Prior Consultation
We agree to provide reasonable assistance to you with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which you reasonably consider to be required by article 35 or 36 of the UK GDPR or equivalent provisions of any other Data Protection Law (to the extent you do not otherwise have access to the relevant information and such information is in our control).
11. Deletion or return of Personal Data
Subject to this clause 11, and subject to any document retention requirements at law, we agree to promptly and in any event within 60 business days of the date of cessation of any Services involving the Processing of Transferred Data (Cessation Date), delete and procure the deletion of all copies of those Transferred Data.
12. Audit Rights
12.1 Subject to this clause 12, where required by law, we shall make available to you on request all information reasonably necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by you or an auditor mandated by you in relation to the Processing of the Transferred Data by us.
12.2 Where clause 12.1 applies, any audit (or inspection):
(a) must be conducted during our regular business hours, with reasonable advance notice (which shall not be less than 30 business days);
(b) will be subject to our reasonable confidentiality procedures;
(c) must be limited in scope to matters specific to you and agreed in advance with us;
(d) must not require us to disclose to you any information that could cause us to breach any of our obligations under Applicable Data Protection Law;
(e) to the extent we need to expend time to assist you with the audit (or inspection), this will be funded by you, in accordance with pre-agreed rates; and
(f) may only be requested by you a maximum of one time per year, except where required by a competent Supervisory Authority or where there has been a Personal Data Breach in relation to Transferred Data, caused by us.
12.3 Information and audit rights of you only arise under section 12.1 to the extent that the Platform Terms and Conditions does not otherwise give it information and audit rights meeting the relevant requirements of Applicable Data Protection Law.
13. Liability
Despite anything to the contrary in the Agreement or this DPA, to the maximum extent permitted by law, the Liability of each Party and its affiliates under this DPA is subject to the exclusions and limitations of Liability set out in the Agreement.
14. Termination
14.1 Each Party agrees that a failure or inability to comply with the terms of this DPA and/or the Applicable Data Protection Law constitutes a material breach of the Agreement. In such event, you may, without penalty:
(a) require us to suspend the processing of Transferred Data until such compliance is restored; or
(b) terminate the Agreement effective immediately on written notice to us.
14.2 In the case of such suspension or termination, we shall provide a prompt pro-rata refund of all sums paid in advance under the Agreement which relate to the period of suspension or the period after the date of termination (as applicable).
14.3 Notwithstanding the expiry or termination of this DPA, this DPA will remain in effect until, and will terminate automatically upon, deletion by us of all Transferred Data covered by this DPA, in accordance with this DPA.
ANNEX 1
DESCRIPTION OF TRANSFER
| Personal Data Transferred |
|
| Special Categories of Personal Data and criminal convictions and offences | Induction Data (as described above), may include data relating to a worker’s physical or mental health (including in relation to existing health conditions, allergies, details of a worker’s medication and their covid-19 vaccination status). |
| Relevant Data Subjects |
|
| Frequency of the transfer | Continuous |
| Nature of the transfer | As specified in the Agreement and this DPA, including without limitation:
|
| Purpose of processing | The purpose of the transfer and processing are as specified in the Agreement and this DPA. |
| Duration of the Processing | The term of the Agreement and for a period of 60 days after termination or expiry of the Agreement. |
ANNEX 2
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
| TECHNICAL AND ORGANISATIONAL MEASURES | DETAILS |
| Internal policies e.g. security policy, data retention and deletion policies |
|
| Pseudonymisation and encryption of personal data |
|
| Product security features |
|
| Network security |
|
| Physical security and disaster recovery |
|
| Human resources security |
|
ANNEX 3
LIST OF SUB-PROCESSORS
| SUB-PROCESSOR | LOCATION | PURPOSE/ SERVICES | WEBSITE & CONTACT DETAILS |
| Google LLC | Australia, Ireland, United States |
Cloud services, data centre services, marketing, advertising and analytics | https://cloud.google.com1600 Amphitheatre Parkway Mountain View, California USA 94043 |
| HubSpot, Inc. | Australia,United States | Software for marketing, sales, and customer service. | https://www.hubspot.com2 Canal Park, Cambridge, MA 02141 |
| Xero, Inc. | New Zealand | Cloud-based accounting software. | https://www.xero.comWellington, 19/23 Taranaki Street, Te Aro |
| National Australia Bank | Australia | Financial institution. | https://www.nab.com.au395 Bourke St, Melbourne, Victoria |
| Australia and New Zealand Banking Group Limited | Australia | Financial institution. | https://www.anz.com833 Collins St, Docklands, Victoria |
| Slite Inc. | Belgium | Team management software. | https://slite.com490 Post Street, Suite 640San Francisco, California |
| Crossbeam, Inc. | United States | Data escrow service. | https://www.crossbeam.com/1339 Chestnut St #1500, Philadelphia |
| Microsoft | Australia, Ireland, Canada, United States | Multinational technology company providing software products, productivity applications and the Azure cloud computing platform. | https://www.microsoft.com1 Microsoft Way, Redmond, Washington |
| Cloudflare, Inc. | Australia, Ireland, Canada, United States | Content delivery network services, cloud cybersecurity, DDoS mitigation, wide area network services. | https://www.cloudflare.com101 Townsend St.San Francisco, California |
| Whispir Ltd | Australia | Marketing & Customer communications platform. | https://www.whispir.comLevel 29/385 Bourke St, Melbourne Victoria |
| Touch SMS | Australia | Cloud communications company | https://www.touchsms.com.au/55 Miller St, Pyrmont, New South Wales |
| Twilio | United States | Cloud communications company | https://www.twilio.com/101 Spear Street, Fifth Floor, San Francisco, California |
| SendGrid, Inc. | United States | Marketing communication platform. | https://sendgrid.com1801 California Street, Denver |
| Airwallex Pty Ltd | Australia | Multinational financial technology company. | https://www.airwallex.com/7/15 William St, Melbourne Victoria |
| Procore Technologies, Inc. | Australia, Ireland, UK, Canada, United States | Construction management software. | https://www.procore.com6309 Carpinteria Avenue Carpinteria, California |
| Pendo.io, Inc | Google Cloud EU multi-region | Digital platform to analyse user behaviour. | https://www.pendo.io/Raleigh, North Carolina |
| Hotjar | Ireland | Digital insights and behavior analytics | https://help.hotjar.com/hc/en-us5th Floor, Dragonara Road, Paceville St Julian’s STJ 3141 |
| elastic.co | Australia, Ireland,Canada | Software for search, logging, security, observability and analytics | https://www.elastic.co/Mountain View, California, United States |