The following definitions and rules of interpretation apply in these Terms:
Application: the online platform and software applications provided by BI as part of the Services.
BI: Board Intelligence Ltd.
Charges: any charges set out in the Order, including the Licence Charge, the Technical Set-up Charge, the Workshop Charges, the Consultancy Charges and where applicable charges for Additional User Subscriptions added during the Term.
Client: the client named in the Order.
Client Data: data the Client provides to BI to enable BI to provide the Services including personal data BI processes on the Client’s behalf in the performance of the Services.
Confidential Information: the terms of the Contract, and information that is proprietary or confidential including any information concerning the business, affairs, IPR, clients or suppliers of the disclosing Party directly or indirectly disclosed (or made available) to the receiving Party.
Contract: the contract between BI and the Client for the supply of the Services made up of the Order and these Terms.
controller, processor, data subject, personal data, personal data breach, processing and supervisory authority shall have the meaning given to them in the DPL.
Deliverables: any deliverables that may be produced or made available by BI in connection with the Services, including (but not limited to) any templates, tools, Workshops, Workshop materials, reports, research, and guidance documents.
DPL: all data protection and privacy legislation in force from time to time applicable to a Party including, UK GDPR, the UK Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
ICO: means the Information Commissioner's Office or its successor or replacement as the supervisory authority for data protection in the UK.
Initial Term: the initial term of the Contract as detailed in the applicable Order.
IPR: patents, rights to inventions, copyrights and related rights, design rights, trademarks, service marks, trade secrets, business names and domain names, moral rights, know-how, rights in get-up, goodwill and the right to sue for passing off, database rights, rights in computer software, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the order form signed between the parties.
Parties: BI and the Client, and Party shall mean either one of them.
Renewal Period: has the meaning given in clause 13.1.
Security Testing: includes but is not limited to (i) penetration, (ii) red team, and (iii) any type of manual or automated vulnerability scanning.
Services: the services to be supplied by BI to the Client as set out in the Order, including any associated Deliverables.
Start Date: the earliest “access from” date stated on the Order.
Term: the period during which the Contract is in full force and effect.
Terms: these terms and conditions as amended from time to time in accordance with clause 15.6.
UK GDPR: the retained version of the EU General Data Protection Regulation ((EU) 2016/679) in the UK, as defined in s.3(10) of the Data Protection Act 2018, and as supplemented by s.205(4), and all references in these Terms to "GDPR" are to UK GDPR unless otherwise stated.
Users: those individuals named and authorised by the Client to use the Application or added pursuant to clause 5.
User Subscriptions: the user subscriptions purchased by the Client pursuant to the Contract.
Virus: shall mean any malicious code (including malware, worms, trojan horses, and viruses) which may adversely affect: (a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) access to or the operation or reliability of any programme or data; or (c) the user experience.
Workshop: means any training delivered to the Client and or its Users.
If the word “including” or any similar word is used in these Terms before describing any items, such items are examples only and should not be regarded as an exhaustive list.
BASIS OF AGREEMENT
The Contract is a legally binding agreement between BI and the Client for the use of the Services. If the Client signs an Order that references the Terms, the Client is deemed to have accepted the Terms.
The Client agrees that the Terms contains the only terms which BI is prepared to contract upon for the supply of the Services and to the entire exclusion of all other terms or conditions whether contained or referred to in any quotation, acknowledgement, acceptance, specification, purchase order or any other similar document
The Terms take precedence over the Order in case of conflict.
BI will provide the Services with reasonable skill and care.
The Services may only be used by the Users.
BI grants the Client a non-exclusive, royalty-free, non-transferable licence to permit Users to use the Application and the Deliverables for the Term and for the Client’s own internal business purposes. The Client will notify BI of any breach of this clause 4 which it becomes aware of within 48 hours.
The Client will use Services and Deliverables in accordance with applicable laws and regulations.
The Client undertakes that:
the maximum number of Users that it authorises to access and use the Application and the Deliverables shall not exceed the number of User Subscriptions it has purchased from time to time;
it will not allow any User Subscription to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Application;
each User shall keep the password for his/her use of the Application secure;
it shall maintain an up to date list of current Users;
it will not access, store, distribute or transmit any Viruses; and
it will not access, store, distribute or transmit any material during the course of their use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive.
The Client will not (and will not permit any third party to) copy, adapt, reverse engineer, decompile, disassemble or modify the Application or the Deliverables in whole or in part.
The Client will not record any Workshop, nor allow access to the Deliverables to anyone who is not a User, or use the Deliverables to run its own training or workshops.
Subject always to clause 10, BI may monitor the use of the Application to improve its services and to ensure that the Client is complying with the terms of the Contract. BI may contact Users directly in relation to the Services.
The Client will not (and will not authorise any third party) to conduct any form of Security Testing against the Application.
The number of User Subscriptions available to the Client as of the Start Date is set out in the Order.
The Client may, from time to time during the Term, add additional User subscriptions (“Additional User Subscriptions”). Additional User Subscriptions are those in excess of the number set out in the Order, the Client will have been deemed to have purchased Additional User Subscriptions and BI shall grant access to the Application to such additional Users in accordance with the provisions of the Contract. Additional User Subscriptions shall be invoiced retrospectively in accordance with clause 6 and such invoices to be paid by the Client in accordance with clause 6.3
CHARGES AND PAYMENT
The Client will pay BI the Charges in accordance with this clause 6.
The Charges are exclusive of value added tax, which shall be added to BI’s invoice(s) at the appropriate rate. The Client will (where applicable) pay all international bank fees/charges.
The Client will pay the Charges within thirty (30) days of the date of the applicable invoice.
BI may invoice for the Charges as follows:
the Technical Set-Up Charge shall be invoiced at any time from the Start Date;
the Licence Charge shall be invoiced annually in advance at any time from the Start Date and on each anniversary of the commencement of the Initial Term thereafter;
Additional User Subscriptions shall be invoiced as set out in clause 5.2.
If BI has not received payment within thirty (30) days after the due date:
BI may, without liability to the Client, disable the Client's passwords, account and access to all or part of the Application and BI shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of BI’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
The Charges shall be applied as set out in the Order Form for the duration of the Initial Term.
The Charges for any Renewal Period will be priced in accordance with BI’s then current list price, unless expressly set out in the Order Form. The price changes will take effect on or about the date of the start of the Renewal Period and BI will provide at least forty-five (45) days’ prior written notice of such changes.
The Client will reimburse BI for any reasonable expenses incurred by BI in connection with the Services, in accordance with BI’s current Expenses Policy (a copy of which is available on request) and which have been agreed by the Client in writing prior to the expense being incurred.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any withholding or deduction is required by law, the Client shall, when making the payment to which the withholding or deduction relates, pay to BI such additional amount as will ensure that BI receives the same total amount that it would have received if no such withholding or deduction had been required.
shall co-operate with BI in all matters relating to the Services;
confirms that it has completed any required due diligence relating to the Services;
will keep a back-up copy of all Client Data; and
is responsible for ensuring Users can connect from the Client’s network to the Application over the internet and for ensuring Users install maintenance updates of the Application as soon as reasonably practicable after receipt.
APPLICATION SUPPORT AND UPDATES
BI will provide the Application and support services for the Application in accordance with BI’s current Standard Support Policy (a copy of which is available on request).
BI may make updates of the Application available to the Client from time to time. Maintenance updates will be provided without charge.
BI and/or its licensors own the IPR in the Services (including the Application) and (subject to clause 9.2) the Deliverables. Except as expressly stated, the Contract does not grant the Client any rights to or in, any IPRs or any other rights or licences in respect of the Services or the Deliverables.
The Client shall own all IPRs in and to all of the Client Data (including any Client Data in the Deliverables) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
The Client grants BI a licence to use the Client Data: (i) for the provision, support and optimisation of the Services; and (ii) to improve its service provided that in each case, BI will not access the contents of any file, documentation or information uploaded to the Application by the Client or a User without the prior written consent of the Client.
Each Party acknowledges and agrees that its (or its licensors’) IPRs used in the provision and/or receipt of the Services will not breach any law or infringe any IPR of any third party and that it has the right to grant the licences under the Contract.
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under, or receive the benefit of, the Contract. A Party's 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; or
is independently developed by the receiving Party and such independent development can be evidenced in writing.
Subject to clause 10.4 or as otherwise permitted hereunder, each Party shall take reasonable steps (and no less than the steps it takes to protect its own Confidential Information) to ensure that it holds the Confidential Information of the other Party in confidence and does not make the Confidential Information available to any third party, nor use the Confidential Information of the other Party for any purpose other than the performance of the Contract.
A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.3, it takes into account where possible the reasonable requests of the other Party in relation to the content of such disclosure.
The Client acknowledges that details of the Services and the Deliverables (excluding any Client Data in the Deliverables) constitute BI’s Confidential Information.
BI acknowledges that the Client Data is the Confidential Information of the Client.
Subject always to clause 11.2:
the Client assumes sole responsibility for the results and conclusions obtained from the use of the Services and/or any of its acts or omissions based on BI’s analysis and recommendations;
BI will have no liability for any loss caused by errors or omissions in any information, instructions or scripts the Client provides in connection with the Services, or any actions taken by BI at the Client’s direction;
neither party will be liable to the other for any claims for (i) loss of profit, turnover, contracts, reputation or anticipated savings (in each case whether direct, indirect or consequential) or (ii) any special, incidental, indirect or consequential damages; and
BI’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to £100,000.
Nothing in the Contract excludes or limits either Party's liability (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) for breach of the terms implied by s12 of the Supply of Goods Act 1979 or s2 of the Supply of Goods and Services Act 1982; (d) to pay the Charges; or (e) which cannot otherwise be excluded or limited by law.
All conditions, warranties, representations and all other terms of any kind whatsoever implied by statute, common law or otherwise, are to the fullest extent permitted by law excluded from the Contract.
Both Parties will comply with the DPL applicable to them at the relevant time. This clause 12 is in addition to, and does not relieve, remove or replace, a Party's obligations under the DPL.
If BI processes any personal data on the Client’s behalf in the performance of the Services (“Client Personal Data”) it is intended that the Client will be the data controller and BI will be the data processor. Accordingly BI shall:
process Client Personal Data in accordance with the Client’s lawful documented instructions that are consistent with the Contract from time to time;
immediately inform the Client if, in its opinion, an instruction infringes DPL;
ensure that access to the Client Personal Data is limited to the BI personnel and authorised sub-processors who need access to it to supply the Services and who are subject to an enforceable obligation of confidence with regards to the Client Personal Data;
allow for an audit (no more than once per annum) by the Client and any auditors appointed by it in order for BI to demonstrate its compliance with this clause 12. For the purposes of such audit, upon reasonable notice, BI shall make available (at Client’s cost) to the Client and any appointed auditors all information that the Client deems reasonably necessary to demonstrate BI’s compliance with this clause 12. Any audit will be (i) performed during BI’s normal business hours (ii) conducted in a collaborative manner with a view to minimising the disruption to BI’s business; and (iii) unless impossible, performed on a remote or desk top basis;
following termination of the Contract at the Client’s option either return all of the Client Personal Data (and copies of it) or securely dispose of the Client Personal Data except to the extent that any applicable law requires BI to store it;
without undue delay, notify the Client on receipt of any notices received by BI relating to the processing of the Client Personal Data including (but not limited to) data subject requests, complaints and/or correspondence, or any personal data breach relating to Client Personal Data. BI will provide the Client with such information and assistance as the Client may reasonably require in relation to such notice or breach (at the Client’s cost); and
ensure that appropriate technical and organisational measures shall be taken to ensure a level of security of the Client Personal Data appropriate to the risk (including measures taken against unauthorised or unlawful processing or accidental loss or destruction of, or damage to, such Client Personal Data) and promptly providing to the Client details of those measures from time to time on receipt of the Client’s written request.
BI will provide such assistance (at the Client’s cost) as the Client may reasonably require in relation to:
the need to undertake a data protection impact assessment in accordance with the DPL; and
any approval of the ICO or other supervisory authority to any processing of the Client Personal Data.
BI may transfer personal data that it processes under the Contract to countries outside of the UK and the EEA to the extent that any one or more of the following applies:
BI has in place with the receiving entity standard contractual clauses as approved by an applicable supervisory authority in respect of the relevant transfer;
the transfer is to a country that is deemed to have an adequate level of protection under the DPL;
there is an approved code of conduct in place together with binding and enforceable commitments of the receiving entity to apply the appropriate safeguards, in accordance with Article 46(2)(e) of the GDPR;
there is an approved certification mechanism in place together with binding and enforceable commitments of the receiving entity to apply the appropriate safeguards, in accordance with Article 46(2)(f) of the GDPR;
the receiving entity has binding corporate rules in place in accordance with Article 47 of the GDPR; or
to the extent that the transfer is to an entity located in the United States, such entity participates in such mechanism as may replace or supersede the EU-US Privacy Shield from time to time, or any equivalent mechanism implemented for UK-US data transfers, provided such mechanism has been approved by the applicable supervisory authority in relation to the transfer.
BI will process the Client Personal Data for the purposes of providing the Services and for the duration of the Contract. Processing will include the collection, organisation, structuring, storage, back-up, retrieval, transmission and erasure of Client Personal Data. The personal data categories and data subject types (other than Users) are determined by the Client and its Users and include : (i) personal data uploaded to, or otherwise disclosed by the Client or its Users via the Application; (ii) contact details and identifiers of the personnel of the Client and its Users (such as names, titles, addresses, email addresses, IP addresses and phone numbers); and (iii) any other personal data made available by the Client or its Users to BI to process on the Client’s behalf in the performance of the Services.
Taking into account the state of technical development and the nature of processing, BI shall take all measures required pursuant to Article 32 of the GDPR.
The Client will take appropriate technical, security and organisational measures to protect any personal data transferred to BI in accordance with the Contract from unauthorised disclosure.
The Client will ensure that it has all necessary appropriate consents (or alternative lawful grounds under DPL) and notices in place to enable lawful transfer of the personal data to BI for the duration and purposes of the Contract so that BI may lawfully use, process and transfer the personal data in accordance with the Contract on the Client's behalf.
The Client acknowledges that BI may process personal data provided under or in connection with the Contract as a data controller including for the purposes of: (i) administering the Client account; (ii) complying with law or regulation; (iii) providing Clients and Users with information and support in connection with its services; (iv) ensuring the security of the Services. Where BI acts as data controller, it shall ensure that it has lawful basis for doing so and otherwise comply with the DPL. For the avoidance of doubt, the processing contemplated by this clause 12.9 shall not permit BI to access the content of any file, documentation or information uploaded to the Application by the Client or a User without prior consent.
The Client acknowledges that BI will be entitled to appoint sub-processors of Client Personal Data and that the general authorisation to do so provided by this clause 12.10 is subject to BI informing the Client in the event of any change to those sub-processors. Details of BI’s sub-processors are available at: https://www.boardintelligence.com/sub-processors. BI will inform the Client in the event of any change to those sub-processors provided the Client opts-in by signing up here: https://www.boardintelligence.com/sub-processors. BI will appoint each sub-processor under a written agreement containing materially equivalent data protection obligations as this clause 12. BI will remain responsible for each sub-processor’s compliance with BI’s obligations under this clause 12.
DURATION AND TERMINATION
The Contract shall commence on the Start Date and (subject to the provisions of the Order, and the remainder of this clause 13) shall continue until expiry of the Initial Term. On expiry of the Initial Term, the Contract will renew automatically for additional, successive 12-month periods (each, a Renewal Period), unless terminated by either Party giving the other Party at least 30 days' written notice before the first day of any Renewal Period. During each Renewal Period, the Contract will be deemed to be varied as per clause 15.6.
Either Party may terminate the Contract with immediate effect by giving notice in writing to the other Party in the event that: (a) the other Party commits a material breach of the Contract which is not capable of being remedied or if capable of being remedied, is not remedied within 30 days of that Party being notified in writing of the breach; or (b) the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets, ceasing to carry on business or any analogous event occurs in any other jurisdiction.
BI may terminate the Contract with immediate effect by giving notice in writing to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment.
Upon termination of the Contract for any reason:
BI will (unless BI has terminated the Contract pursuant to clause 13.2 or clause 13.3) reimburse the Client for any Charges pre-paid for Services not delivered as at the date of termination;
BI will invoice the Client for any Services supplied but not yet invoiced and such invoices shall be paid pursuant to clause 6;
the Client shall download copies of all the Client Data stored on the Application by the date of termination. Thereafter BI shall be entitled to destroy or otherwise dispose of any of the Client Data in its possession;
all rights and licences granted to the Client under Contract will cease, including access to the Application and any Deliverables, and the Client will cease all activities authorised by the Contract;
any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced; and
clauses 9, 10, 11 and 13, and any clauses which expressly or by implication have effect after termination will continue in full force and effect.
Neither Party shall be in breach of the Contract or liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from any event beyond its reasonable control, including industrial disputes, failure of a utility service or telecommunications network, act of God, war, riot, civil commotion, malicious damage, accident, breakdown of machinery, fire, flood, cyber attack or an IT failure as a consequence of malicious third party software which could not reasonably have been prevented.
Any notices under the Contract will be in writing and given by hand or by pre-paid first-class post or other next working day delivery service to the address for each Party set out in the Order (with a copy by email to firstname.lastname@example.org).
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address; and
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting.
Clauses 15.1 and 15.2 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
The Client acknowledges that BI will be entitled to subcontract the hosting and other elements of the Services to a third party provided that BI shall remain responsible to the Client for Services performed by a third party.”
Unless otherwise agreed, the Client agrees to BI’s use of the Client’s name and/or logo in BI’s marketing materials.
BI may amend its terms and conditions from time to time. If the Client continues to use the Services during any Renewal Period, the amended terms and conditions in force at the commencement of the Renewal Period found at https://www.boardintelligence.com/platform-termsandconditions will be deemed to be the Terms of the Contract. The Client should check the terms and conditions then in force prior to the start of a Renewal Period. Subject to this clause 15.6 and Addition of User Subscriptions during the Term, no variation of the Contract shall be effective unless it is in writing and signed by both Parties.
Neither Party will assign its rights or transfer its obligations under the Contract without the prior written consent of the other Party (not to be unreasonably withheld or delayed), except that BI may assign its rights or transfer its obligations to a company within its group of companies or in connection with a sale of a division, product or service or in connection with a reorganisation, merger, acquisition, sale or similar business transaction. BI will give the Client notice of any such assignment.
A person who is not party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The Contract constitutes the entire agreement between the Parties and supersedes all previous agreements, warranties and representations between the Parties, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any innocent or negligent statement, representations, assurances or warranty that is not set out in the Contract.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be construed as a waiver of any subsequent right or remedy. A failure or delay by a Party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by the laws of England and Wales and each Party irrevocably agrees that the courts of England and Wales shall have the exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.