U>P Licence Agreement
Terms and Conditions
Updated December '18
The definitions in this clause apply in the Licence.
- U>P: the evaluation and reporting software Unlocking Potential produced by Assist Social Capital CIC (ASC) a company registered in Scotland with company number SC270426.
- Users: person or entity authorised to use the Services by the Licence holder.
- Business Hours: Monday to Friday 9 am to 5 pm, local UK time, excluding weekends and public holidays.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.
- Documentation: the documents made available to you online via the Website, which set out a description of the Services, including the Instruction Manual for the Services.
- Fees: the fees payable by you to use U>P as set out in the Licence.
- Services: the software service which may include other support services such as face-to-face or online trainings, interviewing, data analysis, reporting and presentations.
- Software: the online software applications provided by U>P as part of the Services.
- Term: has the meaning given in clause 14.1.
- Terms: the terms and conditions set out in this document.
- Virus: We make every effort to check and test material at all stages of production to ensure that it is virus free. It is your responsibility to ensure that you are protected against viruses by installing the latest virus checking software. We do not accept responsibility for any viruses from this site or any other site that you may link to from this site.
- Website: www.unlocking-potential.co
- Your Data: the data input by you or your Users, for the purpose of using the Services or facilitating your use of the Services.
- You: the U>P Licence holder and Customer; a person or entity with ability to enter into contract.
- Us: we, our or us refers to Assist Social Capital CIC, company number SC270426.
2. TAKING ON A LICENCE
A Licence allows a User to access the Services. No matter the role, an account is required for each User. An account may be provided through the Services interface as an invite link from the Customer. Each User must agree to these Terms to activate their account. Account commences when we make them available to Customer and continue for the term specified in the Services Licence, as applicable.
2.1 The Licence will set out the number of Users. Once you purchase a Licence we grant to you a non-exclusive, non-transferable right to permit the Users to use the Services and the Documentation during the Term solely for your internal business operations.
2.2 You will not access, store, distribute or transmit any Viruses, or any material while using the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, political inclination; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property; and we have the right, without affecting our other rights, to disable your access to any material that breaches the above.
2.3 You will not:
except as may be allowed by any applicable law:
- and except if permitted under the Licence, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- 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
- use the Services and/or Documentation to provide services to third parties; or
- subject to clause 17.8 (a), 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 Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under the Licence.
2.4 Please ensure that you 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, notify us immediately.
2.5 Except as otherwise allowed in the Licence, your rights under the Licence are granted to you only, and shall not be considered granted to any of your subsidiaries or holding companies.
2.6 The 30 days free trial continues until terminated, while a paid Licence has a term that may expire or be terminated. The Licence remains effective until expired or been terminated.
3. SUPPLY OF THE SERVICES
3.1 We will, during the Term, provide the Services and make available the Documentation to you in accordance with the terms of the Licence, which will be provided to you on payment of the Fees.
3.2 We will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
- planned maintenance which will be carried out at a reasonable time; and
- unscheduled maintenance provided that we have used reasonable endeavours to give you at least 6 Normal Business Hours’ notice in advance.
3.3 We will provide you with our standard support services during Normal Business Hours.
3.4 We reserve the right to alter these Terms from time to time by posting new terms and conditions on the Site. Your continued use of U>P following such change will be deemed to be your acceptance of such change. It is your responsibility to check regularly to determine if the Terms have been changed. If you do not agree to any change to the Terms, you must stop using U>P with immediate effect.
4. YOUR DATA
4.1 You own all rights in Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
You are responsible for all data including login credentials, usernames and passwords, for your accounts as well the accounts of your Users. We will not be responsible for any damages, losses or liability to your data caused by your, Authorised Users, or anyone else, if such information is not kept safe and confidential by you or your Authorised Users, or if such information is misappropriated or tampered with by an unauthorised third party logging into and accessing the Services.
4.2 We will follow our archiving procedures in respect of Your Data as set out in our Back-Up Policy available in our FAQs, as such document may be amended by us in our sole discretion from time to time. In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore Your Data from the latest back-up of Your Data maintained by us in accordance with the archiving procedure. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by us to perform services related to Your Data maintenance and back-up).
4.4 We both agree that you shall be the data controller and we shall be a data processor as we process any personal data on your behalf and: (a) you acknowledge and agree that the personal data may be transferred or stored outside the EEA with selected providers that comply with GDPR, in order to carry out our Services and our other obligations under the Licence; (b) you will ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with the Licence on your behalf; (c) you will ensure that the authorised users have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and (d) we shall both take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4.5 We may use anonymous data for analysis purposes, to model social capital outcomes and track the efficiency of activities and to gain an insight into behaviours so that strategies which add value can be developed to inform and improve U>P Services.
4.6 We may exchange with third parties anonymous data that has been analysed to model social capital outcomes and track the efficiency of activities and to gain an insight into behaviours so that strategies which add value to community benefit policies can be developed to inform and improve U>P Services.
5. THIRD PARTY PROVIDERS
You understand that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. We shall have no liability in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. We undertake to work with third party providers who comply with GDPR requirements.
6. OUR RESPONSIBILITIES
6.1 The Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 Clause 6.1 will not apply to the extent of any non-conformance which is caused by your use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than U>P or its duly authorised contractors or agents. If the Services do not conform with clause 6.1, we will, at our own expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of clause.
6.3 However, we:
- do not warrant that your use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements; and
- are not responsible for any delays, delivery failures, hacking, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 The Licence shall not prevent us 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 the Licence.
7. YOUR RESPONSIBILITIES
- provide us with: (i) all necessary co-operation in relation to the Licence; and (ii) all necessary access to such information as may be required by us; in order to provide the Services, including but not limited to Your Data and security access information;
- comply with all applicable laws and regulations;
- carry out all other responsibilities set out in the Licence in a timely and efficient manner;
- ensure that the Authorised Users use the Services and the Documentation in accordance with the Licence and shall be responsible for any Authorised User’s breach of the Licence;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our/their obligations under the Licence;
- ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
- be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
8. DEVELOPMENTS TO THE SOFTWARE
8.1 The following clauses 9.2 to 9.5 will apply in the event that we make any bespoke changes to the Software specifically for you.
8.2 Any developments to the Software shall at all times remain the property of U>P and you acquire no rights in or to such developments other than those expressly granted by the Licence.
8.3 We grant you the non-exclusive, non-transferable right to use the developments to the Software for your internal business operations.
8.4 We shall make the developments to the Software in accordance with the requirements set out in a Licence from you and provide additional documentation in relation to the developed software.
8.5 We shall submit invoices in accordance with the relevant Licence for the development work carried out.
9. FEES AND PAYMENT
For Customers that purchase our Services, fees are specified in your Licence.
9.1 Unless otherwise stated, prices are in sterling and are exclusive of value added tax. We shall invoice you for all appropriate taxes and expenses for which we are liable to collect. You shall be liable to pay any penalties or interest on such taxes which are payable by us as a result of your delay in paying such charges. For information about our charges and pricing for Services please get in touch at firstname.lastname@example.org
9.2 We will charge you and you agree to pay when due, the Fees for the Services in accordance with your Licence.
9.3 Unless you have made other arrangements, we will charge your credit card, or by other relevant means, either annually or monthly (as agreed), beginning on the date that we first make the Services available to you.
9.4 You shall provide to us valid, up-to-date and valid, up-to-date and complete contact and billing details and any relevant credit card details and you authorise us to bill such payment channels for the Fees in accordance with the Licence.
9.5 We reserve the right to suspend all Services if the Fees remain unpaid for a period of 15 days from the due date or if our charges to your credit card or any other payment methods are rejected for any reason.
9.6 We may charge interest on a daily basis on any overdue amounts at an annual rate of 3% over the then current base lending rate of the Bank of Scotland from time to time, starting on the due date for payment and continuing until fully paid.
9.7 All Fees:
- shall be payable the currency set out in your Licence;
- are non-cancellable and non-refundable unless authorised by us;
- are exclusive of VAT, which shall be added at the appropriate rate.
9.8 If there is a dispute with respect any of the Fees, you shall pay the undisputed portion of the Fees promptly and provide written details specifying the basis of any dispute.
9.9 When you pay on an annual basis we will charge you annually in advance for the number of Authorised Users as set out by you in your Licence.
9.10 For those Services provided on a month-to-month basis, we shall be entitled to increase our charges at any time upon 30 days’ prior notice to you. If your Licence contains Services with a specified term longer than one month, then we may increase your charges effective as of the first day of the renewal term following 30 days from the day of our written notice of such fee increase.
10. OUR RIGHTS
You acknowledge and agree that we (or our licensors) own all intellectual property rights in the Software, Services and the Documentation. Except as expressly stated within the Licence, we do not grant you 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 Services or the Documentation.
11.1 We may both be given access to Confidential Information belonging to the other. Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the receiving party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 We shall both hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Licence.
11.3 We shall both take all reasonable steps to ensure that the other’s Confidential Information to which we have access is not disclosed or distributed by our employees or agents in violation of the Licence.
11.4 Neither of us shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute our Confidential Information.
11.6 We acknowledge that Your Data is your Confidential Information.
11.7 We may not issue a press release or advertisement or make any other public comment relating to your use of the Services without your prior written consent (such consent not to be unreasonably withheld or delayed).
You shall indemnify us 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 your use of the Services and/or Documentation, provided that:
- you are given prompt notice of any such claim;
- we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
- you are given sole authority to defend or settle the claim.
13. LIMITATION OF LIABILITY
13.1 This clause 13 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
- arising under or in connection with the Licence;
- in respect of any use made by you of the Services and Documentation or any part of them; and
- in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Licence.
13.2 Except as expressly and specifically provided in the Licence:
- you assume sole responsibility for results obtained from your use of the Services and the Documentation, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts which you provide to us in connection with the Services, or any actions taken by us at your direction;
- 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 Licence; and
- the Services and the Documentation are provided to you on an “as is” basis.
13.3 Nothing in the Licence excludes our liability for anything which cannot be excluded by law.
13.4 Subject to clause 13.2 and clause 12: we 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, 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 Licence.
14.1 The term for each Licence begins on the date that we make the Services available to you and shall continue thereafter until terminated by one of us in accordance with clause 14.2 or clause 15.
14.2 Either one of us may terminate the Licence by giving the other no less than 30 days’ written notice. If cancellation is requested after 15th of the month, you will have to pay their invoice for the current month and next month. If cancellation is requested before 15th, your Licence will be terminated at the end of the subscription month. If they need extra time to get data out of the system, they will be billed for a full month (to be paid in advance). Subscription will not be reactivated until payment is received and cleared. If you terminate the Licence by giving notice under this clause 14.2, you will not be entitled to a refund for any Fees paid by you as at the effective date of termination and all Fees due from you up to the effective date of termination shall be payable in accordance with the relevant Licence or these Terms.
15. SUSPENSION OF SERVICES
15.1 We may suspend the Services without liability if:
- we reasonably believe that the Services are being used (or have been or will be used) in breach of the Licence;
- we discover that you are, or affiliated in any manner with, a person who has used similar services abusively in the past;
- we reasonably believe that the Services have been accessed or manipulated by a third party without your consent;
- we reasonably believe that the suspension of the Services is necessary to protect our network or our customers;
- a payment of the Fees due is overdue; or
- we are required by law or a regulatory or government body to suspend your Services.
15.2 We will give you reasonable advance notice of a suspension and a chance to remedy the grounds on which the suspension is based, if we deem it acceptable to do so.
15.3 If the suspension was based on your breach of the Licence, then we may continue to charge you the Fees for the Services during the suspension and may charge you a reasonable reinstatement fee (at our discretion) upon reinstatement of the Services.
16.1 Your right to terminate: You may terminate the Licence immediately for breach on written notice if we:
- materially fail to provide the Services as agreed and do not remedy that failure within 30 days of your written notice describing the failure.
16.2 Our right to terminate: We may terminate the Licence immediately on written notice if:
- you did not have the legal right or authority to enter into the Licence on behalf of the person represented to be the customer;
- any Fees are overdue and you do not pay the overdue amount within 4 Business Days of our written notice;
- you have made payment arrangements via credit card or other third party and the third party refuses to honour or reverses our charges, or you initiate a charge-back;
- you fail to comply with any other obligation stated in the Licence and do not remedy the failure within 30 days of our written notice to you describing the failure;
you (or we reasonably believe that you)
- are unable to pay your debts
- enters into compulsory or voluntary liquidation
- compounds with or contravenes a meeting of its creditors
- has a receiver or manager or an administrator appointed (or an application is made to the court for the same) or
- ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts (each an “Insolvency Event”).
16.3 On termination of the Licence for any reason:
- all licences granted under the Licence shall immediately terminate;
- we shall both return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other;
- we may destroy or otherwise dispose of any of Your Data in our possession unless we receive, no later than ten days after the effective date of the termination, a written request for the delivery to you of the then most recent back-up of Your Data.
17.1 Force majeure – We shall have no liability to you if we are prevented from or delayed in performing our obligations under the Licence, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any third 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 suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
17.2 Conflict – If there is an inconsistency between any of the provisions in these Terms and a Licence, the provisions in the Licence will prevail.
17.3 Variation – These Terms and Conditions are subject to change without prior written notice. This version was published on October 2017.
17.4 Waiver – No failure or delay by either one of us to exercise any right or remedy provided under the Licence 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.
17.5 Rights and remedies – Except as expressly provided in the Licence, the rights and remedies provided under the Licence are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision (or part of a provision) of the Licence are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.7 Entire Licence
- The Licence, and any documents referred to in it, constitute the whole agreement between us and supersede any previous arrangement, understanding or agreement between us relating to the subject matter they cover.
- You acknowledge and agree that in accepting the terms of the Licence you do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of the Licence, other than as expressly set out in the Licence.
- You shall not without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Licence.
- We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Licence.
17.9 No partnership or agency – Nothing in the Licence is intended to or shall operate to create a partnership between us, or authorise either one of us to act as agent for the other, and neither one of us 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).
17.10 Third party rights – The Licence do not confer any rights on any other person or party pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Any notice required to be given under the Licence shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Licence, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Licence.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
17.12 Governing law and jurisdiction
- The Licence 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 Scotland.
17.13 Arbitration – Any dispute or difference arising out of or in connection with this Licence, including any question regarding its existence, validity or termination, shall be determined by arbitration according to Arbitration Rules set out in the Arbitration (Scotland) Act 2010 (the “Rules”) by one or more arbitrators to be agreed between the parties (or failing agreement within fourteen days after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the Scottish Arbitration Centre on the written application of either party). The language to be used in the arbitral proceedings shall be English. The seat of arbitration shall be Edinburgh, Scotland. The procedural law of this place shall apply where the Rules are silent. Each party shall be entitled to seek preliminary injunctive relief or other temporary measures from the courts of competent jurisdiction, provided that any proceedings and decisions as to the merits of the dispute are exclusively governed and resolved by arbitration with this clause.
Named Third Parties
Authorised users may provide the names of third party individuals who are not interviewed. In some instances these individuals will not be in a position to give their consent to the terms of the processing of their personal data as it will not be possible in most instances to follow up or inform all the individuals mentioned. Without this data being collected it would be impossible to deliver effective evaluations. The details of these individuals will not be made publicly available and will be anonymised in all external publications. All data input into U>P is only available to the U>P customer, their authorised users, and ASC as the data processor.
We plan to further develop U>P over the years to make it more user-friendly and add more value for our service users. In every case, Customers will be kept up-to-date about any changes to U>P. Any significant changes will be assessed to ensure data is protected and complies with GDPR.
NB. You are liable for the security of your data. Ensure that you exit from your U>P account at the end of each session. We cannot and will not be liable for any claims, loss or damage of any nature whatsoever, including indirect, consequential or economic losses of profit arising from your failure to comply with these requirements.
We will maintain administrative, physical, and technical safeguards. Those safeguards will include measures for preventing unauthorised access, use, modification, deletion and disclosure of your Data by our personnel.
Notify us immediately if you become aware of any unauthorised use of your password or account or any other breach of security by sending an appropriately worded email to info(at)unlocking-potential.co
We welcome suggestions about U>P that can be used to make the service more effective and user friendly. Any feedback or suggestions regarding the Services used by us to improve U>P and the Service, grants us an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to you, any Authorised User or other customer personnel.