Terms and Conditions of Use for Keychain and CPD – Software as a Service
Onefile Ltd is a company registered in England under company number 4404879 whose registered office is at Sixth Floor, Arndale House, Manchester, M4 3AQ (“the Licensor”). The Licensor makes the Keychain and CPD software as a service available to you (the “User“) on the basis that you accept these terms and conditions. If you do not agree with or accept these terms and conditions then you must not use the Services described within these terms.
1.1 In the context of these Terms and Conditions (unless the context otherwise requires):
Clients means the customers of the Licensor, such as colleges or employers for example, who may have purchased the Licensor’s services on behalf of its students or employees;
Conditions means these terms and conditions or any of them;
Confidential Information means all information (whether written or oral) on or relating to the Software which is available only to users and know-how of the Licensor supplied or disclosed to users or their employees, contractors or representatives both before the commencement of and during the term of the Licence in accordance with these Conditions or otherwise;
CPD means the software as a service that is provided by the Licensor to the User for recording the User’s continuous professional development records and that is optionally turned on by the User after a Keychain has been created;
Keychain means the software as a service that is provided by the Licensor to the User as a password manager;
Licence means the licence granted pursuant to Condition 2;
Malicious Code means any virus, worm, Trojan Horse, cancelbot or any other destructive or contaminating program;
Parties means the Licensor and the User;
Permitted Use means use of the Software as described in their respective definitions;
Personal Data shall have the meaning given to it in Article 4 of the General Data Protection Regulations (GDPR);
Services any service that the Licensor provides to the User such as providing access to the Software and any documentation on how to use the Software, and, placing advertising content on the web pages used by the User that the Licensor considers to be relevant to the User; and
Software means the Keychain and/or CPD.
The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.2 The singular shall include the plural and vice versa and each of the male, female and neutral pronouns shall be interchangeable.
1.3 Reference to any rule of law includes common law, statute or statutory regulations, applicable laws of the European Union and the decisions of any court of competent jurisdiction.
2.1 The Licensor grants to the User a non-exclusive non-transferable licence to use the Software for the Permitted Use and subject to all the provisions of these Conditions until the Licence expires or is terminated in accordance with Condition 8 or otherwise.
2.2 The User shall not use the Software other than for the Permitted Use.
2.3 The User confirms that they are over the age of sixteen at the time of using the Services.
3. Obligations of the user
3.1 agrees to be responsible for obtaining and maintaining, at its own expense, all computer hardware, software, communication equipment and access lines necessary to access and use the Software, except for the Software which the Licensor will make available for the User’s use pursuant to these Conditions;
3.2 agrees to maintain the confidentiality of its login ID and password. The User is responsible for all use of its account, whether or not such use was actually or expressly authorised by the User;
3.3 acknowledges that the Licensor has access to the User’s Personal Data and allows the Licensor to access and use the User’s Personal Data in order to provide the Services, subject to all applicable data protection legislation;
3.4 agrees to keep their contact details updated, especially email address;
3.5 agrees to be contacted by the Licensor from time to time, using the contact details the User has provided in the Software, for the purposes of being notified about the Services only;
3.6 acknowledges that the Licensor may from time to time amend the Software as the Licensor reasonably considers necessary to reflect changes in the relevant requirements and procedure; and
3.7 agrees to indemnify the Licensor and keep the Licensor at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Licensor on a solicitor and own client basis) and other liabilities however arising directly or indirectly as a result of any breach or non-performance by the User of any of the User’s obligations under these Conditions.
4. Restrictions on user
4.1 shall not use the Software other than for the Permitted Use nor use the Software for the purpose of operating a bureau service for third parties;
4.2 shall not make any copy of the whole or any part of the Software;
4.3 shall not merge or combine the whole or any part of the Software with any other software;
4.4 shall not upload to the Software any material that is obscene, offensive, threatening, insulting, defamatory, racist, sexist, in breach of copyright or any other intellectual property right, in breach of any applicable law or damaging to data, the Software or the performance of the Licensor’s or any other person’s computer system;
4.5 shall not attempt to access the information of any other user or any other part of the Software which the User is not authorised to access; and
4.6 shall not tamper with the Software in any way whatsoever, including without limitation by introducing Malicious Code.
5.1 The Licensor may, at its discretion, monitor the User’s use of the Software to determine and ensure compliance with these Conditions and to protect itself and other users from fraudulent, unlawful or abusive use of the Software.
5.2 The Licensor may also disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of the Licensor or to comply with any law, regulation or government request.
5.3 The Licensor may also monitor usage of the Services and if it has not seen any activity with the Services for more than 12 months then it may write to the User asking the User whether it wishes to continue using the Services and if it receives no reply within 30 days then it will terminate the agreement as per Condition 8.5.
6. Intellectual Property Rights
6.1 The User agrees that all copyright, database rights, trade marks, know-how and other intellectual property rights in the Software are and remain the exclusive property of the Licensor.
6.2 Subject to the limitation contained in Condition 14, the Licensor will indemnify the User and hold the User harmless against costs, expenses and liabilities reasonably incurred or sustained by the User directly resulting from any claim by any third party against the User that the Software infringes any intellectual property rights of such third party, provided that:
6.2.1 the User notifies the Licensor immediately in writing of any notice of any such claim;
6.2.2 the User co-operates with the Licensor in all reasonable respects in connection with the investigation and defence of any such claim; and
6.2.3 the Licensor shall have sole control of the defence of any such claim and all negotiations for its settlement or compromise.
6.3 If the Software becomes or is, in the Licensor’s opinion, likely to become, the subject of a claim for copyright, patent or trade mark infringement or trade secret misappropriation, the User will permit the Licensor, at the Licensor’s expense, to:
6.3.1 procure for the User the right to continue using the Software; or
6.3.2 replace or modify the same so that it becomes non-infringing; or
6.3.3 terminate the Licence.
6.4 Where third-party software is supplied by the Licensor in conjunction with the Software, such supply is subject to the third-party supplier’s terms and conditions, sample copies of which can be provided on request. The Licensor makes no separate representations and offers no separate warranties in respect of such third-party software and its operation.
7.1 The Software is provided by the Licensor and accepted by the User “as is” and “as available”. The Licensor will not be under any liability if the Software is used in a manner in breach of this Condition. Except as expressly provided in these Conditions, all other warranties and conditions, express or implied, including any warranties of satisfactory quality or fitness for any particular purpose, are specifically excluded and disclaimed to the fullest extent permitted by law.
7.2 The Licensor will at all times use reasonable endeavours to maintain an uninterrupted and error-free service; however, the Licensor makes no representations or warranties that use of the Software will be uninterrupted or error-free. The Licensor cannot accept any responsibility for interruption to the availability of the Software if this is due to circumstances beyond the Licensor’s direct control, in particular, interruption to the availability of the internet or the communications links which are provided to the Licensor by third parties.
8. Term and Termination
8.1 The Licence shall remain in force indefinitely until either party terminates the Licence.
8.2 The User may terminate the Licence at any time by giving written notice to the Licensor.
8.3 The Licensor may terminate the Licence by giving 30 days’ written notice to the User.
8.4 The Licensor may terminate the Licence immediately by giving notice in writing to the User if the User commits any continuing or material breach of any of the provisions of these Conditions and, in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
8.5 The Licensor may terminate the Licence by giving 30 days’ written notice to the User if there has been a period of inactivity for more then 12 months as per Condition 5.3.
9. Consequences of Termination
9.1 The expiration or termination of the Licence shall be without prejudice to the accrued rights of the Parties and any provision of these Conditions which relates to or governs the acts of the Parties subsequent to such expiry or termination hereof shall remain in full force and effect and shall be enforceable notwithstanding such expiry or termination.
9.2 If the Licence is terminated, then the User shall immediately cease to use the Software.
9.3 Within 7 days of the termination, the Licensor will permanently remove the Personal Data of the User from its data storage systems, save any backup copies of the Personal Data that will be held for the duration of the retention period as specified in the Licensor’s backup policy that can be found at http://www.onefile.co.uk/policies/backup.
10. No partnership or agency
The User shall not pledge the credit of the Licensor nor represent itself as being the Licensor nor an agent, partner, employee or representative of the Licensor and shall not hold itself out as such nor as having any power or authority to incur any obligation of any nature, express or implied, on behalf of the Licensor and nothing in these Conditions shall operate so as to constitute the User an agent, partner, employee or representative of the Licensor.
11. Assignment and Third-Party Rights
11.1 The Licence and all the rights and benefits of the User under these Conditions may under no circumstances be assigned, disposed of, transferred, held in trust or otherwise dealt with by the User in any way whatsoever.
11.2 The User agrees that the Licensor may delegate or subcontract the responsibility for performing any of its obligations hereunder to any third party at any time whatsoever.
11.3 It is the intention of the Parties that nothing in these Conditions shall confer on any third parties any rights or benefits.
12. Force majeure
The Licensor shall not be responsible to the User for any delay in performance or non-performance due to any causes beyond the reasonable control of the Licensor including Acts of God, earthquakes, floods, fires, riot, terrorist activity, war, embargoes, strikes or lock-outs.
If any of the provisions of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of these Conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties agree to attempt to substitute for any valid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
Except in respect of death or personal injury caused by the negligence of the Licensor or its employees, the Licensor shall not be liable to the User by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Conditions, for any indirect, special or consequential loss or damage (whether for loss of profit, data or goodwill or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Licensor, its employees or agents or otherwise) which arise out of or in connection with the Software and the entire liability from time to time of the Licensor under or in connection with the Software shall not exceed £5,000.
15. Data Protection
The Licensor will hold all Personal Data supplied by the User to the Licensor in accordance with the provisions of the Data Protection Act 1998 and from 25 May 2018, the General Data Protection Regulations.
16.1 The User undertakes to the Licensor to:
16.1.1 keep confidential all the Licensor’s Confidential Information and not to disclose any of the Licensor’s Confidential Information to any person;
16.1.2 use the Licensor’s Confidential Information solely for using the Software for the Permitted Use in accordance with these Conditions.
16.2 The provisions of Condition 16.1 shall not apply to the extent that the Licensor’s Confidential Information is:
16.2.1 in the public domain; or
16.2.2 trivial or obvious.
16.3 For the avoidance of doubt, the Licensor’s Confidential Information shall not be deemed for the purpose of this Condition 16 to be in the public domain if it is known by other users as a consequence of the use by such persons of the Software.
16.4 The Licensor shall keep confidential all information inputted by the User in the course of using the Software for the Permitted Use and shall not disseminate such information to any third parties, save as required by law.
No failure on the part of any party to exercise or delay in exercising any right hereunder shall be deemed a waiver thereof or of any other right, nor shall any single or partial exercise preclude any further or other exercise of such right or any other right.
Any notice required to be given hereunder by any party shall be in writing sent by email to [email protected] and shall be deemed effective when sent to the correct email address of the addressee. Each of the Parties shall notify the others of any change of email address within 48 hours of such change.
19. Entire Agreement
These Conditions and the documents referred to herein constitute the entire agreement between the Parties, supersede any previous agreement or understanding. All other terms and conditions, express or implied, by statute or otherwise, or imposed or sought to be imposed by the User, are excluded to the fullest extent permitted by law. The Licensor shall have the right to vary these Conditions from time to time by publishing details on the Licensor’s website at www.onefile.co.uk.
20. Applicable Law
English law shall apply to these Conditions and the Parties agree to submit to the exclusive jurisdiction of the English Courts.
Last updated: 23rd May 2018