App Can Limited Online Licence Agreement (“Licence Agreement”)

GENERAL TERMS AND CONDITIONS

For Use of AppCan Cloud and AppCan Mobile.

This Licence Agreement is between App Can Limited (“AppCan”) and the Customer.

AppCan has agreed to supply the Online Services and Materials to the Customer.

The following terms and conditions govern the Customers use of the Online Services known as AppCan Cloud and AppCan Mobile and described in Appendix 1 to this Schedule and supplied by AppCan (the “Online Services”) and the materials and content available therein (“Materials”):

Definitions

Authorised Device means any device which is listed in the most recent Documentation as being compatible with the Online Services (e.g., an iPad, iPhone or iPod Touch) and which is owned or controlled by the Customer or Authorised User.

Authorised User means the users described in clause 2.1 this Licence.

Compatible Data Files means those data files which are listed in the Documentation as being compatible with the Online Services from which an Authorised User takes data to create Files.

Covered Party means (a) AppCan, our affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of AppCan or our affiliates; and (b) each third party supplier of Materials, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or any of their affiliates.

Data means data comprising the Personal Data (as defined herein), Compatible Data Files and Files.

Documentation means the installation guides, manuals and other documentation made available to the Customer by AppCan, which are related to the Product.

File means reports created by an Authorised User for use by an Authorised User that contains data.

Licence Agreement means this agreement.

Web Site Use Terms Agreement means the Web Site Use Terms agreement between the Customer and AppCan to which this Licence Agreement is in force in conjunction with together with the Privacy Policy and the Cookie Policy.

Online Services means the AppCan Mobile and/ or the AppCan Cloud.

Order means the order provided to AppCan by the Customer for the provision of the Online Services and any subsequent orders provided for the further provision of the Online Services.

Supplemental Terms means any additional terms agreed between AppCan and the Customer in addition to these Terms.

1. LICENCE; RESTRICTIONS ON USE

1.1 Subject to any Supplemental Terms which may apply for Specific Materials, the Customer are granted a non-exclusive, non-transferable, limited licence to access and use the Online Services and Materials from time to time made available to the Customer for the purposes only of creating apps for AppCan Mobile (e.g. Data Collector, Document Distribution, Alerts etc), viewing data, and managing the system.

This licence is subject to the following limitations:

(a) The right to electronically display Materials retrieved from the Online Services is limited to the display of such Materials to an Authorised User subject to the Supplemental Terms for Specific Materials;

1.2 To the extent expressly permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms for Specific Materials, the Customer may make copies of their data and distribute.

1.3 The Customer will not attempt to access, upload, distribute or make available for distribution any proprietary and/or confidential Compatible Data Files unless the Customer has sufficient rights and proper authorisation to do so.

1.4 The Customer will not distribute nor make available for distribution any proprietary and/or confidential Compatible Data Files to third parties who do not themselves have sufficient rights and proper authorisation to access and/or download such proprietary and/ or confidential Files.

1.5 The Customer acknowledges and agrees that certain third party software, which is not incorporated into the Online Service, may be required in order for the Customer to use or enjoy the full benefit of the Online Service (including, without limitation, Adobe Flash Player). The Customer shall be fully responsible for obtaining a lawful copy of such software. The Customers use of such separately acquired third party software shall be in accordance with any terms and conditions of the end user license agreement provided with such software. The Customer acknowledges that their access to and use of the Online Service does not carry, and the Customer does not receive under this Licence Agreement any licence, covenant not to sue, or other rights under any third party intellectual property rights or other rights. The Customer hereby agrees not to use the Online Service not to upload or store any Compatible Data Files nor to create, access, display, manipulate, store or distribute any Files which contain proprietary third party content or data unless and until the Customer has obtained all necessary rights therefor.

1.6 The Customer or their Authorised User warrant that they will only upload to the Online Services Compatible Data Files.

1.7 All right, title, and interest (including all copyrights and other intellectual property rights) in the Online Services and Materials (in both print and machine-readable forms) belong to AppCan or our third party suppliers. The Customer acquire no ownership of copyright or other intellectual property rights or proprietary interest in the Online Services, Materials, or copies thereof.

1.8 Except as specifically provided herein, the Customer may not use the Online Services or Materials retrieved from the Online Services in any fashion that infringes the copyright or proprietary interests therein.

1.9 The Customer may not remove or obscure the copyright notice or other notices contained in Materials retrieved from the Online Services.

1.10 The Customer will not attempt to reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods or techniques embodied in the Online Services, except to the extent expressly permitted by applicable law, notwithstanding contractual obligations to the contrary, and then only after (i) The Customer has notified AppCan in writing of the Customers intended activities and the information sought and (ii) AppCan fails to provide such information within a reasonable period of time following such notice;

1.11 The Customer will not modify, transfer, assign, pledge, rent, lease, sell, resell, or create derivative works based on the Online Services, including but not limited to, the Files or any user interfaces related to the foregoing;

1.12 The Customer will not attempt to install the Online Services on any unauthorised device.

1.13 All access to and use of the Online Services via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Online Services is strictly prohibited. Use of the Online Services is permitted only via manually conducted, discrete, individual search and retrieval activities.

2. ACCESS TO ONLINE SERVICES

2.1 Only the Customers employees and support personnel authorised by both AppCan and the Customer shall be entitled to access and use the Online Services and Materials (“Authorised Users”).

2.2 The Customer must ensure that each person having access to the Online Services and Materials:

(a) is an Authorised User; and

(b) is using those Online Services and Materials only in accordance with these General Terms and Conditions.

(c) AppCan will make commercially reasonable efforts to make the Online Services available 24 hours a day, 7 days a week, except for: (a) scheduled maintenance as posted on the ‘Support’ menu of AppCan Cloud.

(d) AppCan will not be responsible and will not be held liable for any unavailability caused by circumstances beyond reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or denial of service attacks.

(e) AppCan will provide support to the Customer via its telephone support on telephone number 0208 133 1222 to the Customer between the hours of 9:00am to 5:30pm Monday to Friday (excluding UK bank holidays). AppCan shall make available to the Customer email support support@appcan.co.uk. Support details are shown on the ‘Support’ page of AppCan Cloud.

3. LIMITED WARRANTY

3.1 AppCan represent and warrant that AppCan have the right and authority to make the Online Services and Materials available pursuant to these General Terms and Conditions and the Web Site Use Terms.

3.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 3.1, THE ONLINE SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND APPCAN MAKE NO EXPRESS WARRANTIES UNDER THIS LICENCE AGREEMENT, INCLUDING WITHOUT LIMITATION THAT THE ONLINE SERVICES AND MATERIALS ARE OR WILL BE COMPLETE OR FREE FROM ERRORS OR THAT INFORMATION WILL CONTINUE TO BE AVAILABLE TO APPCAN TO ENABLE APPCAN TO KEEP THE ONLINE SERVICES AND MATERIALS UP-TO-DATE.

4. LIMITATION OF LIABILITY

4.1 To the maximum extent permitted by law, a Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services or any Materials available or not included therein, (b) the unavailability or interruption to the supply of the Online Services or any features thereof or any Materials, (c) Subscriber’s use or misuse of the Online Services or Materials (regardless of whether the Customer received any assistance from a Covered Party in using or misusing the Online Services), (d) The Customers use of any equipment in connection with the Online Services, (e) the content of Materials, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any negligence of a Covered Party or its employees, contractors or agents in connection with the performance of our obligations under this Licence Agreement.

4.2 The Covered Party’s liability to the Customer for breach of any condition or warranty implied under any law which cannot be lawfully modified or excluded by this Licence Agreement shall, to the extent permitted by law, be limited at the Covered Party’s option to supplying the Online Services or Materials again or paying for their re-supply. Nothing in this Licence Agreement is intended to exclude liability for death or personal injury resulting from any negligence by the Covered Party.

4.3 Our liability to the Customer for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Customer caused or contributed to that loss or damage.

4.4 SUBJECT TO CLAUSE 4.2, THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY OTHER CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR MATERIALS SHALL NOT EXCEED THE AMOUNT OF THE CUSTOMERS ACTUAL DIRECT DAMAGES. THE CUSTOMERS RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH THE CUSTOMER MAY HAVE AGAINST ANY COVERED PARTY AND SHALL BE SUBJECT TO THE LIABILITY CAP OF THE ACTUAL AMOUNT ALREADY PAID TO US BY THE CUSTOMER.

4.5 SUBJECT TO CLAUSE 4.2, THE COVERED PARTIES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LEGAL FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY.

4.6 The Materials are provided for reference purposes only and are not intended, nor should they be used, as a substitute for professional advice or judgement or to provide legal advice with respect to particular circumstances.

4.7 Whilst reasonable efforts are made to keep the Materials up to date, the Customer should obtain independent verification or advice before relying upon any piece of information in circumstances where loss or damage may result.

4.8 Any password / ID number issued by AppCan to an Authorised User is personal and confidential to that Authorised User. If AppCan suspect that any password / ID is being used by an Unauthorised User or a different Authorised User to the person to whom it was issued, that Password / ID may be cancelled.

5. MISCELLANEOUS

5.1 In the event that no Notice of Termination has been received by AppCan prior to 90 days before the expiry of this period, this Licence Agreement shall continue for a further period equal to the initial period. In such circumstance, the total price paid by the Customer will be initial price for the initial term plus an agreed increase in price. This Licence Agreement and any additionally agreed terms may be changed from time to time as described below or by written agreement. Charges and payment terms may be changed in accordance with the Customers applicable price schedule; all other provisions may be changed by AppCan immediately upon notice. The Customers subscription for access to the Online Services may be terminated immediately upon notice to AppCan if any change is unacceptable. Continued use of the Online Services following any change constitutes acceptance of the change.

5.2 Either party may terminate the subscription for access to the Online Services. The Customer may terminate this Licence Agreement by giving AppCan at least 90 days’ written notice, to expire the day before the anniversary of the commencement date or minimum period (whichever is the longer) as specified in the acceptance of the Order Form.  AppCan may terminate this Licence Agreement by giving at least 30 days’ notice.  AppCan’s only obligation in this event shall be the pro rata refund of any charges paid in advance. AppCan may suspend or discontinue providing the Online Services to the Customer without notice and pursue any other remedy legally available to it if the Customer fail to comply with any of your obligations hereunder.

5.3 Neither Party will disclose to any third party details of this Licence Agreement or any of the negotiations undertaken in relation to this Licence Agreement without the prior written consent of the other.

5.4 Except as otherwise provided herein, all notices and other communications to the Customer hereunder shall be in writing. Notices to the Customer shall be deemed to have been properly given on the date posted.

5.5 The failure of AppCan or any third party supplier of Materials to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.

5.6 The Customer may not assign their rights or delegate their duties under these General Terms and Conditions or any additional terms without our prior written consent.

5.7 These General Terms and Conditions and any additional terms shall be governed by and construed in accordance with the laws of England.

5.8 Each third party supplier of Materials has the right to assert and enforce these provisions directly on its own behalf as a third party beneficiary.

5.9 AppCan will use personal information collected about Authorised Users for the purposes of providing access to and use of the Online Services to Authorised Users and providing customer support, billing and other similar activities related to the Online Services.

5.10 Save for the owners of any intellectual property supplied by AppCan, no third parties shall acquire any rights under this Licence Agreement and the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.

6. Audit

6.1 The Customer agrees to keep records sufficient to demonstrate the Customers compliance with this Licence Agreement, including the number of users using the Online Service. AppCan may, upon reasonable advance written notice to the Customer, audit the Customers use of the Online Services. If an audit reveals that the Customer has used the Online Services beyond the scope of this Licence Agreement, or the Customer has failed to pay any associated subscription fees for such use, then, in addition to any other remedies AppCan may have, the Customer shall cure such breach within thirty (30) days of written notice from AppCan by paying all applicable subscription fees which were due and payable by the Customer at the time the Customer exceeded the scope of the Customers subscription or failed to pay such fees. In the event any such audit reveals that the Customer have underpaid AppCan by an amount greater than five percent (5%) of the amounts due to AppCan in the period being audited, or that the Customer has knowingly breached any material obligation hereunder, then, the Customer shall also pay or reimburse AppCan the cost of the audit.

7. Privacy

7.1 The Customer acknowledges and agrees that they are the data controller of the data that they upload to AppCan and that AppCan are the data processor.

7.2 AppCan and the Customer agree to be bound by the terms contained within Appendix 2 of this Online Agreement in respect to the processing of personal data.

8. Server Communications

8.1 The Customer acknowledge and agree that the Online Services may contain server access restrictions, security and other technology designed to offer the Customer features that prevent unauthorised use of the Online Services. The Online Services may cause an Authorised Device to automatically connect to the internet, upload or download data and may prevent uses of the Online Services that are not permitted (e.g., the Online Services or certain functions or features thereof may self-encrypt or otherwise be rendered unusable through security features offered with the Online Services). The Customer agrees that the Customer will not attempt to, or encourage or assist any other person to, circumvent or modify any security technologies included as part of the Online Services.

9. Logon Credentials

9.1 The Customer acknowledges and agrees that, if the necessary functionality is made available as part of the Online Services, the Customer shall require each Authorised User to create a user account, including a user name and password or other logon credentials (altogether, “Logon Credentials”) in order to access and use the Online Services via an Authorised Device. Each Authorised User is solely responsible for maintaining the confidentiality of their Logon Credentials and for all activities on the Online Services that occur through the use of such Logon Credentials.

10. Payment

10.1 The Customer shall pay the fees specified in the acceptance by us of the Order and agreed between the Customer and AppCan.

10.2 The fees are payable in pounds sterling.

10.3 The fees are based on products and/or services purchased as per the Order.

10.4 Payment obligations are not voidable and fees paid are non-refundable.

10.5 The number of Authorised User subscriptions purchased cannot be decreased during the relevant term stated on the Order, if applicable.

10.6 Authorised User subscription fees are based on the duration of the term, as specified in the Order.

10.7 AppCan will invoice the Customer in advance and otherwise in accordance with the Order.

10.8 Unless otherwise stated in the Order, invoiced charges are due thirty (30) days after the invoice date.

10.9 The Customer is responsible for maintaining complete and accurate billing and contact information on file with AppCan.

10.10 If the Customer fails to make payments when due, then in addition to its other rights and remedies, AppCan will have the right to terminate the Online Services immediately and to recover its reasonable costs and expenses, including reasonable legal fees, expended in collection of such payments.

Appendix 1

1. Description of Online Services

AppCan Cloud is a cloud based portal that Customers can access to build ‘apps’ (e.g Data Collector, Document Distribution etc) for use on AppCan Mobile, send Alerts (notifications) to users and manage user access / permissions.  Data captured on AppCan Mobile is returned to AppCan Cloud for the Customer to review / analyse etc.

AppCan Mobile is our iPhone & iPad ‘app’, that allows the Customers to view the apps built on AppCan Cloud, and capture data. This data is uploaded to AppCan Cloud.

Please refer to our website, www.appcan.co.uk for full details.

Appendix 2

1. The Customer acknowledges and agrees that the Customers access to the Online Services may require the Customers or the Customers Authorised User to provide certain personal and non-personal information about the Customer or the Customers Authorised User, such as Logon Credentials (as defined below), name, email address, telephone number, mailing address, company name, employment title, and/or certain technical information about the system hardware and software that is being used by the Customer or the Customers Authorised User (hereinafter referred to as “Personal Data”). AppCan will collect, use and in certain limited circumstances disclose the Customers Personal Data (e.g. to contractors and service providers who are assisting AppCan in the operation or hosting of the Online Services) in accordance with its Privacy Policy.
2. The Customers acknowledges and agrees that AppCan processes such information, including the Customers Authorised User’s Personal Data, in its capacity as data processor and that the Customer remains at all times the data controller of such processing. Notwithstanding anything to the contrary, in the Customers capacity as data controller, it is the Customers exclusive responsibility to obtain the Customers Authorised User’s consent to such processing, to convey the information notices as required by applicable law, to make any necessary filings with the appropriate data protection authority(ies), to enforce and comply with the Customers Authorised User’s request to access and/or rectify and/or delete his/her Personal Data.
3. AppCan shall;

a. Process personal data only for the purpose of performing the Services; and
b. Process personal data only on the instructions of the Customer which the Customer may give to AppCan from time to time concerning such processing.  Such instructions may include;

i. the instructions relating to processing set out in this Agreement
ii. the provision of explanatory information on AppCan business, processes, systems and/or controls; and
iii. the delivery up at the Customer’s expense of any relevant personal data in such form as the Customer may reasonably request.

c. AppCan shall:

i. promptly inform the Customer if it believes that any instruction provided by the Customer infringes data protections laws;
ii. take measures to ensure the security and integrity of personal data processed under this Agreement ensuring compliance at all times with clauses 10 (Security) and 9; and
iii. ensure that it’s personnel, to the extent that they are involved in the processing in connection with this Agreement are: (i) subject to a duty of confidence which covers all personal data processed under this Agreement comprising appropriate binding obligations to protect the confidentiality of such personal data.

4.  Co-operation and assistance

a. AppCan shall provide the Customer with all reasonable assistance requested by the Customer, at the Customers expense, from time to time in order to comply with its obligations and fulfil Data Subjects’ rights under Data Protection Laws, including without limitation with regards to meeting the Customers’ obligations under Article 32 to 36 (inclusive) of the GDPR (including undertaking any data protection impact assessments and consultation with a Supervisory Authority that the Customer may decide to undertake).

5. Data Subject Rights

a. AppCan shall assist the Customer by appropriate technical and organisational measures to comply with its obligations and fulfil data subjects’ rights in respect of, data protection laws.

6. Notifications

a. AppCan shall without undue delay notify the Customer on becoming aware of:

i. any request in respect of, or invocation of, any of their rights under data protection laws, or queries from data subjects in respect of the Data
ii. a Security Incident in respect of Data;

7. Security

a. The recipient party of personal data processed under this Agreement shall ensure that it has implemented and shall maintain all appropriate technical and organisational security measures to safeguard personal data processed pursuant to this Agreement against unauthorised or unlawful processing and against accidental loss, disclosure or destruction of, or damage to, personal data processed under this Agreement in such a way as to comply with data protection laws, including (as appropriate):

i. encryption of the personal data;
ii. measures which ensure the confidentiality, integrity, availability and resilience of the systems processing;
iii. limiting disclosure of personal data in the case of the AppCan, to the personnel who necessarily require access in order to perform the AppCan’s obligations under the Agreement.

8. Record-keeping and Audit

a. the Customer may require AppCan at any time to return, delete and/or destroy (as applicable) any and all the Data immediately upon the Customer’ written request.
b. allow the Customer, its agents, representatives and external auditors access (on reasonable notice) to any premises where the Data is Processed under this Agreement to allow the Customer to audit at the Customers own expense its compliance with this Agreement and provide reasonable co-operation as requested by the Customer in the performance of such audit; and

9. Data Transfers and Use of sub-processors

a. AppCan shall not cause the Data to be transferred to and/or otherwise processed in a non-adequate country without the Customer’ prior written consent, such consent not to be unreasonably withheld. To the extent that the Customer consents to any such transfer or other processing in a non-adequate Country, then AppCan shall ensure and procure that such transfer or other processing is undertaken subsequent to ensuring compliance with data protection laws