1. Definitions and interpretation
1.1 In these Conditions:
- “Applications” means the software or applications which have been developed by Thyngs that are to be made available to the Customer, as set out in the Order;
- “Business Day” means a day other than a Saturday, Sunday or bank or public holiday in England;
- “Conditions” means the terms and conditions set out in this document;
- “Confidential Information” means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any person, firm or organisation associated with that party;
- “Contract” means the agreement between Thyngs and the Customer for the supply of the Service incorporating these Conditions and the Order;
- “Customer” means the person who purchases the Service from Thyngs and whose details are set out in the Order;
- “Customer Data” means all information uploaded to, collected and stored by the Customer on the Service including any pages linked to from the Customer’s pages on the Service;
- “Customer Support Services” means any support services to be provided by Thyngs to the Customer as described in the Order;
- “Data Protection Laws” means the Data Protection Act 2018 and (with effect from 25th May 2018) Regulation (EU) 2016/679 (General Data Protection Regulation)
- “Documentation” means any documents (in whatever media) provided to the Customer to facilitate use of the Service;
- “Fees” means the fees for the Customer’s use of the Service as set out in the Order;
- “Force Majeure” means an event or sequence of events beyond any party’s reasonable control preventing or delaying it from performing its obligations under the Contract, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
- “Infringing Data” means information or data that (i) infringes any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute; or (ii) infringes any third party Intellectual Property Rights; or (iii) includes any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous;
- “Intellectual Property Rights” means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
- “Order” means the Customer’s order for the Service as accepted by Thyngs and incorporating these Conditions;
- “Service” means the remote provision of the Applications to the Customer;
- “Thyngs” means Thyngs Limited a company incorporated in England and Wales with company number 10049849 whose registered office is at Floor 2, St James Mill, Whitefriars, Norwich, United Kingdom, NR3 1TN; and
- “Users” means the officers, employees or representatives of the Customer that are authorised to access to the Service.
2. Application of these Conditions
2.1 These Conditions apply to and form part of the Contract between Thyngs and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Thyngs otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of Thyngs.
2.4 Thyngs may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until Thyngs sends the Customer a written acceptance of the Order.
2.5 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3. Service and availability
3.1 Thyngs shall make the Service and the Documentation available to the Customer throughout the term of the Contract excluding:
(a) scheduled maintenance;
(b) emergency maintenance; or
(c) downtime caused in whole or part by Force Majeure.
3.2 Thyngs will use reasonable endeavours to notify the Customer in advance of scheduled maintenance but the Customer acknowledges that it may receive no advance notification for emergency maintenance or downtime caused by Force Majeure.
3.3 Where applicable the Customer Support Services will be available to the Customer through the helpdesk during the hours specified in the Order in accordance with the Documentation.
3.4 The Customer acknowledges that Thyngs shall be entitled to modify the features and functionality of the Service as part of its ongoing development of the Applications and the Service without prior notice to the Customer. Thyngs shall use reasonable endeavours to ensure that any such modification does not adversely affect the Customer’s use of the Service.
4. Supplier warranties
4.1 Thyngs warrants to the Customer that the Service will be supplied with reasonable care and skill and shall conform in all material respects with the description of the Service provided in the Documentation.
4.2 Thyngs does not warrant or represent that the Service will be free from errors and interruptions.
4.3 The warranties in this Condition are subject to the Customer giving notice to Thyngs as soon as it is reasonably able upon becoming aware of the breach of warranty. When notifying Thyngs of a breach the Customer shall use its reasonable endeavours to provide Thyngs with such documented information, details and assistance as Thyngs may reasonably request.
4.4 Thyngs will not be liable under this Condition or be required to remedy any problem arising from or caused by the Customer’s use of the Service in a manner other than as directed by Thyngs.
4.5 The Customer acknowledges and agrees that:
(a) Thyngs is not and cannot be aware of the extent of any potential loss resulting from any failure by Thyngs to discharge its obligations under these Conditions;
(b) the Service has not been designed to meet the Customer’s individual requirements; and
(c) it is the Customer’s responsibility to ensure the facilities and functions of the Service meet the Customer’s requirements and will not cause any error or interruption in the Customer’s own software or systems.
5. Use of the Service
5.1 Thyngs grants the Customer a non-transferable, non-exclusive right for the term of the Contract to allow the Customer and its Users access to the Service.
5.2 Prior to providing Users with access to the Service, the Customer shall ensure that all Users are aware of the terms of these Conditions, including their obligation to comply with any other user terms applicable to the Service and notified to the Customer. The Customer shall only provide Users with access to the Service via the access method provided by Thyngs and shall not provide access to anyone other than a User.
5.3 Except to the extent such activities are expressly agreed by the parties, the Customer’s rights to benefit from the Service does not permit it, or the Users, to:
(a) copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Service;
(b) use the Service to provide outsourced services to third parties or make it available to any third party or allow or permit a third party to do so;
(c) combine, merge or otherwise permit the Service (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;
(d) attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the Service, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and
(e) to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Service, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.
5.4 The Customer warrants and represents that it shall, and ensure that Users shall, keep confidential and, except as provided for in these Conditions, not share with any third party their password or access details provided to facilitate access to the Service.
5.5 The Customer shall not, and shall procure that the Users shall not, introduce any software virus or other malware (including any bugs, worms, logic bombs, trojan horses or any other self propagating or other such program) that may infect or cause damage to the Service or Thyngs’ systems or otherwise disrupt the provision of the Service.
5.6 The Customer shall not be permitted to frame or mirror any part of the Service other than as permitted by the Documentation or with Thyngs’ express written consent.
5.7 Thyngs reserves the right to monitor usage by all Users (by way of audits or otherwise) during the term of the Contract for the purpose of (among others) ensuring compliance with the terms of these Conditions. Any audit may be carried out by Thyngs or a third party authorised by Thyngs. If any audit reveals that any password has been provided to an individual that is not a User, the Customer shall, without delay, disable any such passwords and notify Thyngs immediately.
5.8 In the event of unauthorised use of the Service by the Customer or Users, Thyngs reserves the right to deny the Customer or Users access to the Service by blocking, without prior notification, the IP addresses that the Customer or Users used to access the Service.
6. Suspension of access
6.1 Thyngs may suspend access to the Service if:
(a) Thyngs suspects that there has been any misuse of the Service or breach of these Conditions or the Documentation; or
(b) the Customer fails to pay any sums due to Thyngs by the due date for payment.
6.2 Thyngs will notify the Customer as soon as possible after suspending the Service.
6.3 Where the reason for the suspension is suspected misuse of the Service or breach of these Conditions, without prejudice to its rights under Condition 15, Thyngs will take steps to investigate the issue and may restore or permanently suspend access at its discretion. If Thyngs considers it appropriate to permanently suspend access to all Users, it will notify the Customer in writing and the Contract will terminate immediately on service of such notice.
6.4 In relation to suspensions under Condition 6.1 (b), access to the Service will be restored promptly after Thyngs receives payment in full and cleared funds.
6.5 Fees shall remain payable during any period of suspension notwithstanding that the Customer or some of the Users may not have access to the Service.
7.1 The Customer shall pay Thyngs the Fees for use of the Service.
7.2 Thyngs shall be entitled to increase the Fees at any time on not less than 3 months’ notice to the Customer.
8.1 The Fees shall be payable as set out in the Order.
8.2 All Fees are exclusive of value added tax (if any) or any other locally applicable equivalent sales taxes (VAT), which is payable by the Customer at the rate and in the manner from time to time prescribed by law.
8.3 Amounts payable to Thyngs under these Conditions shall be paid into Thyngs’ bank account by the electronic transfer of immediately cleared funds.
8.4 If any Fees are not paid in full by their due date:
(a) Thyngs may, without limiting its other rights, charge interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 as amended or modified;
(b) interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment; and
(a) Thyngs may suspend access to the Service until payment of all outstanding sums have been received in full in accordance with Condition 6.1(b).
9. Thyngs’ Intellectual Property Rights
9.1 All Intellectual Property Rights in and to the Applications, Documentation or any part of the Service belong to and shall remain vested in Thyngs. To the extent that the Customer acquires any Intellectual Property Rights in the Applications, Documentation or any part of the Service, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Thyngs. The Customer shall execute all such documents and do such things as Thyngs may consider necessary to give effect to this Condition.
9.2 Thyngs shall indemnify the Customer from and against all losses which are suffered by the Customer in the event that its use of the Service infringes the Intellectual Property Rights of any third party (Supplier IPR Claim) provided that Thyngs shall have no such liability if the Customer:
(a) has caused or contributed in any material way to Supplier IPR Claim by not using the Service in accordance with these Conditions or the Documentation;
(b) does not notify Thyngs in writing setting out full details of any Supplier IPR Claim of which it has notice as soon as is reasonably possible;
(c) makes any admission of liability or agrees any settlement or compromise of the relevant Supplier IPR Claim without the prior written consent of Thyngs;
(d) does not let Thyngs at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Supplier IPR Claim; or
(e) does not, at Thyngs’ request and own expense, give Thyngs all reasonable assistance in the circumstances described above.
9.3 If any Supplier IPR Claim is made or is reasonably likely to be made against the Customer, Thyngs shall promptly and at its own expense either:
(a) procure for the Customer the right to continue using the Service; or
(b) modify or replace the infringing part of the Service, and without adversely affecting the functionality of the Service as set out in these Conditions so as to avoid the infringement or alleged infringement, provided that if Thyngs having used its reasonable endeavours, neither of the above can be accomplished on reasonable terms, Thyngs shall (without prejudice to the indemnity above) refund the Fees paid by the Customer in respect of the future use of the Service. Together with the indemnity given above, this shall be the Customer’s sole and exclusive remedy in respect of the Service infringing Intellectual Property Rights.
10. Customer Data
10.1 The Customer shall not use Infringing Data on the Service.
10.2 The Customer grants a royalty-free, non-transferable, non-exclusive licence for the term of these Conditions to Thyngs to use the Customer Data:
(a) to the extent necessary to perform the Service; and
(b) for aggregated or statistical analysis purposes, including to track use of Thyngs enabled objects.
10.3 The Customer acknowledges that Thyngs has no control over the content of the Customer Data hosted as part of the provision of the Service and does not actively monitor the content of the Customer Data.
10.4 Thyngs shall notify the Customer immediately if it becomes aware of any allegation that any Customer Data may be Infringing Data and Thyngs shall have the right to remove Customer Data from the Service without the need to consult the Customer.
10.5 The Customer shall indemnify Thyngs from and against all loss caused to Thyngs as a result of the Customer’s use of Infringing Data on the Service.
11. Information security
11.1 Thyngs shall be responsible for taking reasonable and prudent measures to safeguard the security of the Customer Data in its possession, including maintaining appropriate firewalls, encryption and anti-virus protection.
11.2 Thyngs shall notify the Customer as soon as possible upon discovery of any data security incident impacting the Customer Data.
11.3 Thyngs shall not be responsible for any loss or damage to Customer Data to the extent that such loss or damage was caused by the Customer or a third party (other than a subcontractor or representative of Thyngs).
12. Data protection
12.1 Each party agrees that, in the performance of its respective obligations under these Conditions, it shall comply with the provisions of applicable Data Protection Laws to the extent it applies to each of them.
12.2 For the purpose of this Condition ‘data controller’, ‘data processor’, ‘data subject’, ‘Information Commissioner’, ‘personal data’ and ‘processing’ shall have the meanings given to them in the Data Protection Laws.
12.3 The parties agree that the Customer is the data controller in respect of any personal data that Thyngs processes in the course of providing services for the Customer (other than business contact data processed by Thyngs to allow it to manage the Customer’s account) and Thyngs is a data processor in line with Article 28 of UK GDPR.
12.4 Accordingly, Thyngs agrees that it shall:
(a) only carry out processing of the Customer’s personal data on the Customer’s instructions from time to time, including as described in this Contract and for the purposes of providing the Service;
(b) implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and accidental destruction or loss;
(c) make available to the Customer a list of any subcontractors engaged in the processing of the Customer’s personal data and include in any contract with any subcontractors who shall process personal data directly or indirectly on the Customer’s behalf, provisions which are equivalent to those in this Condition 12.4;
(d) as soon as reasonably practicable refer to the Customer any requests, notices or other communication from data subjects, the Information Commissioner or any other law enforcement authority, for the Customer to resolve.
12.5 The Customer consents to Thyngs’ use of subcontractors in accordance with Condition 12.4 (c).
13.1 Each party agrees that it may use the other party’s Confidential Information only in the performance of its rights and obligations under these Conditions and that it shall not disclose the other party’s confidential information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this Condition 13.
13.2 Each party may disclose the other party’s Confidential Information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s confidential information in order to perform the disclosing party’s rights and obligations under these Conditions provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this Condition 13 as if it were a party.
13.3 Each party may disclose any Confidential Information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
14. Limitation of liability
14.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this Condition 14.
14.2 Subject to Condition 14.6, Thyngs’ total liability shall not exceed the Fees paid in the previous 12 months.
14.3 Subject to Condition 14.6, Thyngs shall not be liable for consequential, indirect or special losses.
14.4 Subject to Condition 14.6, Thyngs shall not be liable for any of the following (whether direct or indirect) loss of profit, loss of data, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated) or harm to reputation or loss of goodwill.
14.5 Except as expressly stated in these Conditions, and subject to Condition 14.6, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
14.6 Notwithstanding any other provision of these Conditions, the liability of the parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other losses which cannot be excluded or limited by applicable law;
15. Term and termination
15.1 Either party may terminate the Contract at any time by giving the other party not less than [one month’s] written notice.
15.2 Thyngs may terminate the Contract at any time by giving notice in writing to the Customer if:
(a) the Customer or any User commits a material breach of these Conditions and such breach is not remediable;
(b) the Customer or any User commits a material breach of these Conditions which is capably of being remedied by which is not remedied within 30 days of receiving written notice of such breach;
(c) the Customer has failed to pay any amount due under these Conditions on the due date and such amount remains unpaid within 30 days after the Customer has received notification that the payment is overdue; or
(d) any consent, licence or authorisation held by the Customer is revoked or modified such that it is no longer able to comply with its obligations under these Conditions or access and use the Service;
15.3 Either party may terminate the Contract at any time by giving notice in writing to the other party if that other party:
(a) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
(b) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
(c) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
(d) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
(e) has a resolution passed for its winding up;
(f) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
(g) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;
(h) has a freezing order made against it;
(i) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
(j) is subject to any events or circumstances analogous to those in Conditions 15.3 (a) to 15.3 (i) in any jurisdiction;
(k) takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in Conditions 15.3 (a) to 15.3 (j) including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
15.4 The right of a party to terminate the Contract pursuant to Condition 15.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to these Conditions.
15.5 If a party becomes aware that any event has occurred, or circumstances exist, which may entitle the other party to terminate the Contract under this Condition 15, it shall immediately notify the other party in writing.
15.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
16. Exit and return of Customer Data
16.1 In the event of termination of the Contract for any reason:
(a) the right to access the Service provided under these Conditions shall terminate immediately;
(b) the Customer shall immediately pay all outstanding invoices of Thyngs;
(c) Thyngs shall promptly invoice the Customer for all Services provided but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Customer;
(d) the Customer shall within 7 days return or destroy (at Thyngs’ option) all Confidential Information or Documentation in its possession or under its control and all copies of such information; and
(e) all provisions of these Conditions shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
16.2 On the termination or expiry of the Contract, Thyngs shall at the Customer’s cost return or destroy (at the Customer’s option) all Customer Data.
17. Force majeure
Neither party shall have any liability under or be deemed to be in breach of these Conditions for any delays or failures in performance of these Conditions which result from any event beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than 3 months, either party may terminate the Contract by written notice to the other party.
In the event that any of these Conditions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such Condition shall to that extent be severed from the remaining Conditions which shall continue to be valid to the fullest extent permitted by law.
No failure to exercise or delay in exercising any right, power or remedy under these Conditions will operate as a waiver of that right, power or remedy. Any waiver of a breach of any terms of these Conditions does not constitute a waiver of any other breach and shall not affect the other terms of these Conditions.
20. Third party rights
Except as expressly provided for in these Conditions, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
21. Governing law and Jurisdiction
21.1 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).