Last updated: 14 November 2019
Terms and Conditions
Please read these Terms and Conditions carefully. By registering for, accessing or using the Hosted Services (Qunote), you are expressing your acceptance of these Terms and Conditions and entering into a legal agreement between You and Us. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If the legal entity that you represent does not agree with these terms and conditions, you must not accept this Agreement, register for, access or use the Hosted Services.
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
“Agreement” means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
“Business Day” means any weekday other than a bank or public holiday in England or a defined company closedown period between 27-31 December each year;
“Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day;
“Charges” means the following:
- A subscription charge based on the number of registered users logging in to the Platform during a calendar month according to rates published on the Qunote website: https://www.qunote.com/pricing.
- Plus a storage charge based on the amount of server space taken up by the user according to rates published on the Qunote website: https://www.qunote.com/pricing
- Such amounts as may be agreed in writing by the parties from time to time.
“Customer“, “You” or “Your” means both you and any legal entity or firm that you’re authorised to represent.
“Confidential Information” means:
(a) any information disclosed by You to Us during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as “confidential”; or
(ii) should have been reasonably understood by us to be confidential; and
(b) the Customer Data;
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by You; transmitted by the Platform at the instigation of You; supplied by You to Us for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by You (but excluding analytics data relating to the use of the Platform and server log files);
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679) and the Data Protection Act 2018;
“Effective Date” means the date upon which You register an account on the Qunote Platform by completing the online registration form published at www.qunote3.net/signup.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means the Qunote Platform which will be made available by Us to You as a service via the internet in accordance with these Terms and Conditions;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of updates and upgrades;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom;
“Platform” means the platform owned and managed by the Us to provide the Hosted Services to You, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Services” means any service that we provide to You, or have an obligation to provide to You, under these Terms and Conditions;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari.
“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and its Schedules, including any amendments to that documentation from time to time;
“We” “Our” or “Us” means The Bubblegate Company T/A Qunote a company incorporated in England and Wales (registration number 03662705) having its registered office at Cage Farm Studio, Stowting Hill, Stowting, Kent, TN25 6BE, UK.
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 18.
2.2 Unless the parties expressly agree otherwise in writing, registering an account on the Qunote Platform shall create a distinct contract under these Terms and Conditions.
3. Hosted Services
3.1 The Platform will automatically generate an account for You on the Effective Date.
3.2 On creation of an account, we will grant You a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for your internal business purposes during the Term.
3.3 The Hosted Services may only be used by your officers, employees, agents and subcontractors.
3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by Us to You under Clause 3.2 is subject to the following prohibitions:
(a) You must not sub-license your right to access and use the Hosted Services;
(d) You must not republish or redistribute any content or material from the Hosted Services;
(e) You must not make any alteration to the Platform; and
(f) You must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without our prior written consent.
3.5 You must use reasonable endeavours, including reasonable security measures relating to user account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an account.
3.6 The parties acknowledge and agree that Schedule 2 (Service Level Agreement) shall govern the availability of the Hosted Services.
3.7 You must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with your authority comply with Schedule 1 (Acceptable Use Policy).
3.8 You must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.9 You must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.10 For the avoidance of doubt, You have no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.11 We may suspend the provision of the Hosted Services to You if any amount due to be paid by You to Us under the Agreement is overdue, and we have given you at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Maintenance and Support Services
4.1 We shall provide the Maintenance Services to you during the Term. The Maintenance Services will be provided with reasonable skill and care, and in accordance with Schedule 2 (Service Level Agreement) of this agreement
4.2 We shall provide the Support Services to You during the Term. The Support Services will be provided with reasonable skill and care, and in accordance with Schedule 2 (Service Level Agreement) of this agreement
4.3 We may suspend the provision of the Maintenance Services or the Support Services if any amount due to be paid by you to us under the Agreement is overdue, and we have given you at least 30 days’ written notice, following the amount becoming overdue, of our intention to suspend the Maintenance or Support Services on this basis.
5. Your obligations
5.1 Save to the extent that the parties have agreed otherwise in writing, You must provide to Us, such co-operation, support, advice, information and documentation as are reasonably necessary to enable Us to perform our obligations under the Agreement.
6. Customer Data
6.1 You hereby grant Us a non-exclusive licence to store, transmit, analyse, copy and back-up the Customer Data to the extent reasonably required for the performance of Our obligations and the exercise of Our rights under the Agreement. You also grant us the right to sub-license these rights to our hosting service providers, subject to any express restrictions elsewhere in the Agreement.
6.2 You warrant to Us that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6.3 We shall create a back-up copy of the Customer Data at least daily, and shall ensure that each such copy is sufficient to enable us to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
6.4 Within the period of 2 Business Days following receipt of a written request from You, We shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by Us in accordance with Clause 6.3. You acknowledge that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
7. Our right to use your feedback
7.1 If You submit feedback and suggestions in relation to the Hosted Services, We will have full rights to use your feedback and suggestions without any encumbrances. By submitting feedback and suggestions in relation to the Hosted Services, You warrant and represent that You own or otherwise control the rights necessary to do so and You are granting Us and Our affiliated companies permission to: use, modify, copy, distribute, transmit, publicly display, publicly perform, reproduce, publish, sublicense, create derivative works from, transfer, or sell any such feedback or suggestions; and sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the feedback or suggestion. No compensation will be paid with respect to use by us of the materials contained within such feedback or suggestions.
7.2 We are under no obligation to post or use any materials you may provide within feedback and suggestions, and may remove such materials at any time at our sole discretion.
8. No assignment of Intellectual Property Rights
8.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from Us to You.
9.1 You must pay the Charges to the Us in accordance with these Terms and Conditions.
9.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by You to Us.
9.3 We may elect to vary any element of the Charges by giving you not less than 30 days’ written notice of the variation.
10.1 We shall issue invoices for the Charges to you at the end of each calendar month.
10.2 You must pay the Charges to the us within the period of 30 days following the issue of an invoice in accordance with this Clause 10.
10.3 You must pay the Charges by direct debit, or in special circumstances, in agreement with us, by bank transfer.
10.4 If You do not pay any amount properly due to the Us under these Terms and Conditions, we may:
(a) charge you interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the you pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11. Our confidentiality obligations
11.1 We agree that we will:
(a) keep the Customer Data strictly confidential;
(b) not disclose the Customer Data to any person without Your prior consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of the Customer Data as We use to protect Our own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Data and
(e) not use any of the Customer Data for any purpose other than those strictly necessary for providing the Hosted Services, Maintenance Services and Support Services to you.
11.2 Notwithstanding Clause 11.1, We may disclose the Customer Data to the Our employees and subcontractors who have a need to access the Customer Data for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Data
11.3 This Clause 11 imposes no obligations upon Us with respect to Customer Data that:
(a) is known to Us before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of Ours; or
(c) is obtained by Us from a third party in circumstances where the we have no reason to believe that there has been a breach of an obligation of confidentiality.
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Data is required to be disclosed by any law or regulation, or by any judicial or governmental order or request.
11.5 The provisions of this Clause 11 shall continue in force indefinitely following the termination of the Agreement.
12. Data protection
12.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Data.
12.2 You warrant to Us that you have a legal basis for collecting, storing, processing and disclosing all Customer Data held within Your account on the Platform, and that it discloses to Us under or in connection with the Agreement.
12.5 We shall process the Customer Data only during the Term and for not more than three months following the end of the Term, subject to the other provisions of this Clause 12.
12.6 We shall process the Customer Data only on your documented instructions (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
12.7 We shall inform you promptly if, in Our opinion, an instruction of Yours relating to the processing of the Customer Data infringes the Data Protection Laws.
12.8 Notwithstanding any other provision of the Agreement, We may process the Customer Data if and to the extent that we are required to do so by applicable law. In such a case, We shall inform you of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
12.9 We shall ensure that persons authorised to process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.10 Both parties shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Data.
12.11 We will not engage any third party to process the Customer Data without Your prior specific or general written authorisation. In the case of a general written authorisation, we shall inform You at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if you object to any such changes before their implementation, then You may terminate the Agreement on 7 days’ written notice to us, providing that such notice must be given within the period of 7 days following the date that the we informed you of the intended changes. We shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on us by this Clause 12.
12.12 As at the Effective Date, You hereby authorise Us to engage, as sub-processors with respect to Customer Data.
12.13 We shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist You with the fulfilment of your obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
12.14 We shall assist You in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. We may charge You for any work performed by us at your request pursuant to this Clause 12.14.
12.15 We will notify you of any Personal Data breach affecting the Customer Data without undue delay and, in any case, not later than 72 hours after the we become aware of the breach.
12.16 We will make available to You all information necessary to demonstrate our compliance with Our obligations under this Clause 12 and the Data Protection Laws. We may charge you for any work performed by Us at your request pursuant to this Clause 12.16.
12.17 The facility exists on the Platform for You to download all of Your personal data. At a separate charge, we are able to download from the database Your Customer Data in Machine Readable format. We will, at your request, delete or return all of the Customer Data to You after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data. A request by You, to delete or return Your Personal data will only be actioned following a request by the owner of the account or a person acting with legal authority.
12.18 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
13.1 We warrants to you that:
(a) We have the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
(b) We will comply with all applicable legal and regulatory requirements applying to the exercise of Our rights and the fulfilment of the Our obligations under these Terms and Conditions; and
(c) We have or have access to all necessary know-how, expertise and experience to perform Our obligations under these Terms and Conditions.
13.2 We warrant to you that:
(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(e) the Platform will incorporate security features reflecting the requirements of good industry practice.
13.3 We warrant to You that the Hosted Services, when used by you in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.
13.4 We warrant to You that the Hosted Services, when used by You in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
13.5 If we reasonably determine, or any third party alleges, that the use of the Hosted Services by You in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, we may at our own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for You the right to use the Hosted Services in accordance with these Terms and Conditions.
13.6 You warrants to Us that you have the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
13.7 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14. Acknowledgements and warranty limitations
14.1 You acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, we give no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, we give no warranty or representation that the Hosted Services will be entirely secure.
14.3 You acknowledge that we will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, we do not warrant or represent that the Hosted Services or the use of the Hosted Services by You will not give rise to any legal liability on the part of You or any other person.
15.1 You indemnify Us against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by us arising directly or indirectly as a result of any breach by You of these Terms and Conditions or a third-party claim against us relating to Your use of the Hosted Services (except as far as we are at fault).
15.2 The indemnity protection set out in this Clause 15 shall be subject to the limitations and exclusions of liability set out in the Agreement.
16. Limitations and exclusions of liability
16.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
16.3 We will have no liability arising from Your use of the Hosted Services in respect any loss of profits or anticipated savings, loss of revenue or income, loss of use or production, loss of business, contracts or opportunities, or any losses arising out of a Force Majeure event.
16.4 Our liability to You in respect of any loss or corruption of any data, database or software will be limited to taking reasonable steps to try and recover that data from available back-ups.
16.5 We shall not be liable to You in respect of any special, indirect or consequential loss or damage.
16.6 Our total aggregate liability to You under the Agreement shall not exceed the total amount paid by You to Us in the 12 calendar months immediately preceding the date on which the claim giving rise to liability arose.
17. Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1 Either party may terminate the Agreement by giving to the other party not less than 30 days’ written notice of termination, expiring at the end of any calendar month.
18.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and the breach is not remediable;
(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
18.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company re-organisation where the resulting entity will assume all the obligations of the other party under the Agreement)]; or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
18.4 We may terminate the Agreement immediately by giving written notice to you if:
(a) any amount due to be paid by you to us under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) We have given you at least 30 days’ written notice, following the failure to pay, of our intention to terminate the Agreement in accordance with this Clause 18.4.
18.5 The rights of termination set out in the Agreement shall not exclude any rights of termination available at law.
19. Effects of termination
19.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 10.2, 10.4, 11, 12.1, 12.3, 12.4, 12.5, 12.6, 12.7, 12.8, 12.9, 12.10, 12.11, 12.12, 12.13, 12.14, 12.15, 12.16, 12.17, 12.18, 15, 16, 19, 22, 23, 24, 25, 26.1, 25, 28 and 29.
19.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
19.3 Within 30 days following the termination of the Agreement for any reason you must pay to us any Charges in respect of Services provided to you before the termination of the Agreement.
19.4 On termination of the agreement by either party, You will continue to be liable for our Charges until such time as all of Your Customer Data is removed from the Platform. We will maintain Your Customer Data for a period of three months following the termination of the agreement following which all Your Customer Data will be deleted. Before deleting Your Customer Data we will notify you by serving a notice under the terms of laid out in Section 20 below.
20.1 Any notice from You to Us under these Terms and Conditions must be provided in writing, by email to the email address firstname.lastname@example.org or post to The Bubblegate Company Limited, Cage Farm Studio, Stowting Hill, Stowting, TN25 6BE, United Kingdom. If the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.2 Any notice from Us to You under these Terms and Conditions must be provided in writing, by email to the address specified as ‘Main contact email address’ within your account on the Platform, or by post to the address specified as the ‘Billing address’ within your account on the Platform. If the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.3 The contact details set out in Clause 20.1 may be updated from time to time. When this happens, we will give you written notice of the update.
21.1 Subject to any express restrictions elsewhere in these Terms and Conditions, We may subcontract any of our obligations under the Agreement, providing that We give to You, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
21.2 We shall remain responsible to You for the performance of any subcontracted obligations.
21.3 Notwithstanding the provisions of this Clause 21 but subject to any other provision of these Terms and Conditions, You acknowledge and agree that We may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
22.1 You hereby agree that the we may assign, transfer or otherwise deal with our contractual rights and obligations under these Terms and Conditions.
22.2 We hereby agree that You may assign, transfer or otherwise deal with Your contractual rights and obligations under these Terms and Conditions.
23. No waivers
23.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
23.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
24.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
24.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
25. Third party rights
25.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
25.2 The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.
26.1 The Agreement may not be varied except in accordance with this Clause 26.
26.2 We may vary the Agreement at any time. We will use all reasonable endeavours to provide 30 days’ notice of material changes to the Agreement, except where immediate changes are required for reasons that we cannot control. We will notify You of changes by email or displaying a visible notice within the Platform. If a change to the agreement is not material, we may not notify You. If you do not accept a change to the Agreement, you have the right to terminate this agreement in accordance with Clause 18.
27. Entire agreement
27.1 These Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
27.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
27.3 The provisions of this Clause 27 are subject to Clause 16.1.
28. Law and jurisdiction
28.1 These Terms and Conditions shall be governed by and construed in accordance with English law.
28.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
29.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
29.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
29.3 References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
29.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
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Schedule 1 (Acceptable use policy)
1.1 This acceptable use policy (the “Policy“) sets out the rules governing:
(a) Your use of Qunote platform at www.qunote3.net (the “Services“); and
(b) the transmission, storage and processing of content by you, or by any person on Your behalf, using the Services (“Content“).
1.2 By using the Services, you agree to the rules set out in this Policy.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by Us in any manner licensed or otherwise authorised by You, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(f) be in contempt of any court, or in breach of any court order;
(g) constitute a breach of racial or religious hatred or discrimination legislation;
(h) constitute a breach of official secrets legislation; or
(i) constitute a breach of any contractual obligation owed to any person.
4. Marketing and spam
4.1 Content must not constitute or contain spam, and You must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
4.2 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that You find using the Services.
4.3 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
4.4 You must not use the Services in any way which is liable to result in the blacklisting of any of Our IP addresses.
5. Regulated businesses
5.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
5.2 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
5.3 You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
6.1 You acknowledge that We may actively monitor the Content and the use of the Services.
7. Data mining
7.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
8.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
9. Harmful software
9.1 The Content must not contain or consist of, and You must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
9.2 The Content must not contain or consist of, and You must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
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Schedule 2 (Service level agreement)
1.1 We shall use all reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.9% during each calendar month.
1.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether We have met the uptime guarantee given in Paragraph 2.1:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of Our hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between Us and that company;
(d) a fault or failure of Your computer systems or networks;
(e) any breach by You of the Agreement; or
(f) scheduled maintenance carried out in accordance with the Agreement.
2. Maintenance, Updates & Upgrades
2.1 We shall where practicable give You at least 5 Business Days’ prior written notice of scheduled Maintenance Services, Updates or Upgrades that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services.
2.2 We shall use all reasonable endeavours to supply scheduled Maintenance Services outside Business Hours, except in the case that more immediate remedial Maintenance Services are deemed necessary in the event of issues or defects having a material adverse impact on the operation, functionality or performance of the Hosted Services.
3.1 We shall make available to You a helpdesk in accordance with the provisions of this Schedule 2.
3.2 You may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and You must not use the helpdesk for any other purpose.
3.3 You shall ensure that the helpdesk is accessible by telephone, email and using the in-platform ticketing system.
3.4 We shall ensure that the helpdesk is operational during Business Hours during the Term.
3.5 You should ensure that all requests for Support Services that You may make from time to time shall be made through the helpdesk.
3.6 We shall use all reasonable endeavours to respond to requests for Support Services promptly.
3.7 Issues raised through the Support Services shall be assessed in terms of severity with respect of their impact on the operation, functionality or performance of the Hosted Services. The timeframes in which issues will be investigated and dealt will be determined by Us in accordance with their severity.
3.8 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
3.9 We shall have no obligation to provide Support Services in respect of any issue caused by the improper use of the Hosted Services by You.