The definitions in this clause apply in these Terms.
Active User: an Authorised User who logs on to the Service in any Billing Month.
Authorised Users: (1) those employees of the Customer who are authorised by the Customer to use the Service; and (2) any Trusted Third Parties.
Billing Month: the period between the date on which the Subscription Service is first provided to the Customer and the same date in the next month, and each subsequent monthly period ending on the same date of the month, provided that if that date does not exist in any month (for example 31st) the period shall be deemed to end on the last day of that month.
Contract: the legal agreement between Solverboard and the Customer on which the Service is provided in accordance with these Terms.
Customer: the company or other legal person or entity that contracts with Solverboard to receive the Service for its Authorised Users.
Service: idea and innovation management process subscription service provided by Solverboard to the Customer on these Terms
Solverboard: Solverlink Limited (trading as Solverboard), a company registered in England and Wales under Company Number 09788026 and having its registered office at Unit 1.1, Paintworks, Bristol, BS4 3EH, United Kingdom.
Trusted Third Party: any person (not being an employee of the Customer) who the Customer may permit from time to time to access the Service.
2. SUBSCRIPTION SERVICE
2.1 Solverboard grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Service during the term of the Contract solely for the Customer’s internal business operations and subject always to these Terms.
2.2 The Customer may from time to time choose to allow Trusted Third Parties to use the Service as Authorised Users, whether or not the Customer makes any charge to the Third Parties for such use. In all such cases, the Customer shall:
(a) be responsible for the payment to Solverboard of all related monthly subscription fees in accordance with clause 7 below;
(b) be responsible for the compliance by all Trusted Third Parties with these Terms as if they were the employees of the Customer.
2.3 The Customer shall not:
(a) allow any person to use the Service who is not an Authorised User; or
(b) (subject to clause 2.2 above) use the Service to provide services to third parties.
2.4 The Customer may increase or decrease the number of Authorised Users at any time. Solverboard will continuously monitor the number of Active Users accessing the Service.
2.5 The Customer shall not access, store, distribute or transmit any harmful computer code (including viruses and other malware), or any material during the course of its use of the Service 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) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Solverboard reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.6 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.
3. SERVICE LEVELS
3.1 Solverboard shall, during the term of the Contract, provide the Service to the Customer on and subject to these Terms.
3.2 Solverboard shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10 pm to 2 am UK time; and
(b) unscheduled maintenance, provided that Solverboard has where possible used reasonable endeavours to give the Customer reasonable advance notice.
3.3 Solverboard will, as part of the Service and at no additional cost to the Customer, provide the Customer with Solverboard’s standard customer support services.
4. CUSTOMER DATA AND DATA PROTECTION
4.1 The Customer shall own all right, title and interest in and to all data that it uploads to the Service (“Customer Data”) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 Solverboard shall back up the Customer Data hourly and store the back up on a separate network from the Service. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Solverboard to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Solverboard. Solverboard shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except any third parties sub-contracted by Solverboard to perform services related to Customer Data hosting, maintenance and back-up).
4.3 To the extent that Solverboard processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the parties record their intention that the Customer shall be the data controller and Solverboard shall be a data processor and:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA in order to carry out the Service and Solverboard’s other obligations under the Contract;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Solverboard so that Solverboard may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4.4 In these terms, “Data Protection Legislation” means (whilst they are in force):
(i) the Data Protection Act 1998;
(ii) the EU General Data Protection Regulation (“GDPR”); and
(iii) any successor legislation to the Data Protection Act 1998 or the GDPR and any other applicable laws and regulations relating to the processing of personal data and privacy.
“Personal Data”, “Data Controller”, “Data Processor”, “Data Subject” and “Process” are as defined in the Data Protection Legislation.
4.5 We shall both at all times during the term of the Contract comply with all applicable requirements of the Data Protection Legislation in relation to the Processing of Personal Data.
We will maintain a written log of all Processing of Personal Data performed on your behalf, and provide you with a copy of such log on request. The written log shall include the following information:
- the purposes of the processing;
- the categories of data subjects and of personal data;
- the categories of recipients to whom Personal Data have been or will be disclosed;
- the envisaged time limits for erasure of personal data;
- a list of any transfers of Personal Data to a third party outside the EEA and UK (including the name of the relevant non-EEA country and organisation), and documentation of the suitable safeguards in place for such transfers. For the avoidance of doubt, all such transfers are subject always to your consent in accordance with this Contract; and
- a general description of the technical and organisational security measures referred to in this Contract.
4.6 Where we Process Personal Data on your behalf, we shall, in respect of such Personal Data:
- not access or use Personal Data except as is necessary to provide the Services, and then only as reasonably necessary for the performance of the Contract;
- act strictly in accordance with the Contract and on your written instructions received from time to time;
- comply promptly with any request from you to amend, delete or transfer Personal Data;
- not disclose Personal Data to any employee, director, agent, contractor or affiliate of ours (“our Personnel”), or any third party, except as is necessary for the performance of the Services, or to comply with applicable laws, or with your prior written consent;
- implement and maintain appropriate technical and organisational measures:
- to protect the security and confidentiality of Personal Data Processed by us in providing the Services;
- to protect Personal Data at all times against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure, access, or Processing; or
- as required under the Data Protection Legislation.
- notify you of any request made by a Data Subject under Data Protection Legislation in relation to or in connection with Personal Data Processed by us on your behalf and at all times cooperate with and assist you to execute your obligations under the Data Protection Legislation in relation to such Data Subject requests;
- process the Personal Data in accordance with the specified duration, purpose, type and categories of Data Subjects as specified in the Schedule to this Contract.
4.7 We shall within 24 hours, or earlier if reasonably practicable, of becoming aware, notify you in writing of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data. The notice provided will specify:
- the categories and number of the individuals and the records concerned;
- the likely consequences of the breach;
- any steps taken to mitigate and address the breach; and
- specify an appropriate point of contact within our organisation who you can contact about the breach.
We must promptly give you the detail we request to allow us to understand the impact of the breach. We will promptly comply with any instructions provided by you, and cooperate with you, in relation to the data breach.
4.8 You give us general authorisation to use sub-contractors and processors who are compliant with Data Protection Legislation to Process Personal Data on your behalf. We will have executed a written contract with the third party which contains terms for the protection of Personal Data which are no less protective than these .
4.9 We shall not, and shall procure that our subcontractors shall not, transfer or Process, any Personal Data outside the EEA and/or the UK without your prior written consent. You shall notify us of the terms you would require for your consent to be given.
4.10 We shall provide you with such reasonable assistance as you require in relation to any complaints made by Data Subjects or investigations or enquiries made by any regulator or supervisory authority relating to you or your obligations under the Data Protection Legislation.
4.11 In relation to Personal Data Processed by us under the Contract, we shall co-operate with you to the extent reasonably necessary to enable you to adequately discharge your responsibility as a data controller under Data Protection Legislation (including in respect of the preparation of data protection impact assessments).
4.12 You shall have the right (at your own cost) to audit us and relevant records and materials as necessary to demonstrate our compliance with our obligations At any time we will co-operate fully to allow and assist such audits, including on-site inspections of our business premises or processing facilities, conducted by you or your auditor.
4.13 We will tell you immediately if we are asked to do something which might infringe the Data Protection Legislation or other data protection law of the EU or a Member State.
4.14 We shall ensure that any of our Personnel with access to Personal Data are both bound by confidentiality obligations in respect of access, use or processing of such Personal Data, and have received appropriate training.
4.15 At your request, we shall provide a copy of all Personal Data held by us in the format and on the media reasonably specified by you.
4.16 On termination or expiry of the Contract, at your request, or if your account is inactive for 24 months we shall delete or return to you all Personal Data processed by us on your behalf, and we shall delete existing copies of such Personal Data except where necessary to retain such Personal Data strictly for the purposes of compliance with UK, EU or EU Member State Laws applicable to us. In the case of termination of contract at your request we will suspend the account immediately and commence termination of the Contract following a 48hr grace period.
4.17 We will each agree to any reasonable amendment to the Contract required to bring it into line with any amendment to or re-enactment of any Data Protection Legislation, in particular to reflect the GDPR, or to allow each of the parties to comply with any requirement or recommendation of the Information Commissioner or any other data protection or supervisory authority in relation to the Processing of Personal Data.
Schedule: Data Processing Information
It is a requirement of the GDPR that the following details must be notified in the Contract between controller and processor:
- the subject matter and duration of the processing: the processing is for the purposes of presenting and responding to challenges and also developing a knowledge base of ideas, solutions, challenges and internal and external technologies. As regards duration, see 4.16 above. The Personal Data will be processed for so long as the client remains subscribed to Solverboard WORK;
- the nature and purpose of processing: posting the challenge, proposed solutions and comments on the Solverboard website;
- the type of personal data and categories of data subject: contact information and CVs. Employees of and consultants to companies, sole traders, partners, academics and others interested in the proposed challenges and solutions.
5. SOLVERBOARD’S OBLIGATIONS
5.1 Solverboard warrants that the Service will be provided substantially in accordance with its description set out at https://solverboard.com/pricing and with reasonable skill and care (“the Warranty”).
5.2 The Warranty shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Solverboard’s instructions, or modification or alteration of the Service by any party other than Solverboard or Solverboard’s duly authorised contractors or agents. If the Service does not conform with the Warranty, Solverboard will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the Warranty. Notwithstanding the foregoing, Solverboard:
(a) does not warrant that the Customer’s use of the Service will be uninterrupted or error-free; or that the Service, and/or the information obtained by the Customer through the Service will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 Solverboard warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
6. CUSTOMER’S OBLIGATIONS
The Customer shall:
6.1 provide Solverboard with:
(a) all necessary co-operation in relation to the Contract; and
(b) all necessary access to such information as may be required by Solverboard;
in order to provide the Service;
6.2 comply with all applicable laws and regulations with respect to its activities under the Contract;
6.3 carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner.
6.4 ensure that the Authorised Users use the Service in accordance with the Contract and shall be responsible for any Authorised User’s breach of the Contract;
6.5 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Solverboard’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.
7. CHARGES AND PAYMENT
7.1 The Customer shall pay monthly subscription fees to Solverboard for the Service in accordance with this clause. No refunds are given for subscription fees that have been paid.
7.2 Subscription fees shall be calculated by reference to the total number of Active Users during each Billing Month. Invoices shall be generated automatically on the last day of each Billing Month and payment collected on the same day by Braintree or such other automatic payment system that Solverboard may use from time to time.
7.3 If Solverboard has not received payment by the due date, and without prejudice to any other rights and remedies of Solverboard:
(a) Solverboard may, without liability to the Customer, disable the Customer’s, account and access to all or part of the Service and Solverboard shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at the statutory rate for the time being in force under the Late Payment of Commercial Debts (Interest) Act 1998 continuing until fully paid, whether before or after judgment.
(c) All amounts are exclusive of value added tax, which shall be added to Solverboard’s invoice(s) at the appropriate rate.
7.4 Solverboard will give 7 days’ notice of any increase in the subscription fees charged per user, to take effect at the start of a Billing Month.
8. PROPRIETARY RIGHTS
8.1 The Customer acknowledges and agrees that Solverboard and/or its licensors own all intellectual property rights in the Service. Except as otherwise expressly stated, the Contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Service.
8.2 Solverboard confirms that it has all the rights in relation to the Service that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
Each party shall keep secret and treat as confidential all information obtained from the other which is either stated to be confidential or could reasonably be regarded as confidential and shall not use any part of such information for any unauthorised purpose nor disclose any part of such information to any person other than its employees, agents or sub-contractors where such disclosure is required for the performance of the party’s obligations under the Contract. This clause shall not extend to information which was already in the lawful possession of a party prior to the Contract or which is already public knowledge or becomes so subsequently (other than as a result of a breach of this clause) or which is trivial or obvious. The obligations of confidentiality under this clause shall survive the expiry or any termination of the Contract.
10.1 The Customer shall defend, indemnify and hold harmless Solverboard 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 Service, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Solverboard 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.
10.2 Solverboard shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Service infringes any United Kingdom patent, copyright, trade mark or database right, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Solverboard is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Solverboard in the defence and settlement of such claim, at Solverboard’s expense; and
(c) Solverboard is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, Solverboard may procure the right for the Customer to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the Contract on one week’s notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall Solverboard, 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 Service by anyone other than Solverboard; or
(b) any trade mark or other branding used by the Customer in relation to the Service; or
(c) the Customer’s use of the Service in a manner contrary to the instructions given to the Customer by Solverboard; or
(d) the Customer’s use of the Service after notice of the alleged or actual infringement from Solverboard or any appropriate authority.
10.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Solverboard’s (including Solverboard’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. LIMITATION OF LIABILITY
11.1 This clause sets out the entire financial liability of Solverboard (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with the Contract;
(b) in respect of any use made by the Customer of the Service or any part of it; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.2 Except as expressly and specifically provided in the Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Service by the Customer, and for conclusions drawn from and decisions based on such use;
(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 the Contract.
11.3 Nothing in the Contract excludes the liability of Solverboard:
(a) for death or personal injury caused by Solverboard’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 Subject to clauses 11.2 and 11.3:
(a) Solverboard shall not be liable whether in tort (including negligence), breach of statutory duty, contract, misrepresentation, misstatement, restitution or otherwise for any loss of profits, loss of business, 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 the Contract; and
(b) Solverboard’s total aggregate liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, misstatement, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to £100,000.
12. TERM AND TERMINATION
12.1 The Contract shall, unless otherwise terminated in accordance with its terms, continue for as long as the Customer continues to subscribe for the Service.
12.2 The Customer may cancel the Service at any time by notice to Solverboard. If the Customer does so but later renews its subscription for the Service a new Contract will be entered into on such renewal and the new Billing Month will start on the date of the new Contract.
12.3 Either party shall be entitled to terminate the Contract forthwith by written notice to the other if the other party:
(a) commits any material breach of the Contract that is not capable of remedy;
(b) commits any material breach of the Contract that is capable of remedy and fails to remedy it within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
(c) is involved in any legal proceedings concerning its solvency, or ceases trading, or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary (other than for the purposes of an amalgamation or reconstruction), or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any analogous event occurs in any relevant jurisdiction.
12.4 On expiry or termination of the Contract for any reason:
(a) all licences granted under the Contract shall immediately terminate;
(b) Solverboard may destroy or otherwise dispose of any of the Customer Data in its possession; and
(c) any accrued rights shall not be affected or prejudiced.
13. FORCE MAJEURE
Solverboard shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Solverboard or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Solverboards or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15. ENTIRE AGREEMENT
15.1 The Contract constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
15.2 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether or not party to the Contract) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
16. THIRD PARTY RIGHTS
The Contract does not confer any rights on any person or party under the Contracts (Rights of Third Parties) Act 1999.
17. GOVERNING LAW
The Contract 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 construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).