Ottertrack (Forge41 Limited) terms and conditions

1. Definitions

1.1 In these Terms and Conditions:

"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services;

"Agreement" means a contract made under these Terms and Conditions between the Provider and the Customer;

"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 09:00 to 17:00 GMT or BST on a Business Day;

"Charges" means the amounts specified in our monthly pricing plans;

"Customer" means the person or entity identified as such in the Services Order Form;

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Customer using the Hosted Services (but excluding usage data relating to the Platform and Hosted Services, and excluding server log files);

"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement, but excluding personal data with respect to which the Provider is a data controller;

"Data Protection Laws" means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;

"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Effective Date" means following the Customer completing and submitting the online registration form published by the Provider on the Provider's website, the date upon which the Provider sends to the Customer an order confirmation;

"EU GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include 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, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means the logbook, skill and training tracking service Ottertrack, which will be made available by the Provider to each Customer 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);

"Personal Data" means personal data under any of the Data Protection Laws;

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services 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;

"Provider" means Forge41 Limited, a company incorporated in the United Kingdom (registration number 15784946);

"Service Data" means all data, works and materials provided or made available to the Customer by means of the Hosted Services under the Agreement, excluding the Customer Data;

"Services" means the skill and training tracking service that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions];

"Services Order Form" means the completed registration form submitted by the customer incorporating these Terms and Conditions by reference;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;

"Supported Web Browser" means the current release from time to time of Microsoft Edge, 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 Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time;

"UK GDPR" means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; and

"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.

2. Term

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 15 or any other provision of these Terms and Conditions.

2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract between the parties.

3. Hosted Services

3.1 The Provider hereby grants to the Customer a non-exclusive licence to use the Hosted Services by means of the User Interface for the tracking of an organisation's skill currency, skill competency, and training during the Term.

3.2 The licence granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:

(a) the User Interface should only be used through a Supported Web Browser;

(b) the User Interface may only be used by the named users identified in the Customer's team, providing that the Customer may change, add or remove a designated named user in accordance with a functional team management portal;

(c) the User Interface must not be used at any point in time by more than the number of concurrent users specified in their plan, providing that the Customer may add or remove user licences in accordance with their subscription portal;

3.3 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.1 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Hosted Services;

(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;

(c) the Customer must not use the Hosted Services to provide services to third parties;

(d) [the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.

3.4 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.

3.5 The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services but does not guarantee 100% availability.

3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy) and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 1 (Acceptable Use Policy).

3.7 The Customer 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.

3.8 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.

3.9 The Customer 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, the Customer has 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 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

4. Service Data

4.1 The Provider grants to the Customer a non-exclusive, worldwide licence to access, copy, transmit, store, edit, create derivative works of and otherwise use the Service Data, and to distribute and publish the Service Data and edited versions and derivative works of the Service Data, in each case during the Term and thereafter and for the internal business purposes of the Customer, subject to the other provisions of this Clause 4.

4.2 Except to the extent required by law on a non-excludable basis, the Customer must not:

(a) use the Service Data or any part of the Service Data in any way that is unlawful or in breach of any person's legal rights under any applicable law or in any way that is offensive, indecent, discriminatory or otherwise objectionable;

(b) use the Service Data to create, generate, train, verify or test any AI Systems that compete with or are intended to compete, or provide or will provide identical or similar functionality to, the Hosted Services or any other products or services of the Provider.

4.3 The Customer shall implement and maintain reasonable security measures relating to the Service Data to ensure that no unauthorised application or person may gain access to the Service Data.

5. Customer Data

5.1 The Customer hereby grants to the Provider a non-exclusive, worldwide licence to:

(a) copy, store and transmit the Customer Data;

(b) edit, translate and create derivative works of the Customer Data; and

(c) distribute and publish the Customer Data to the Customer.

to the extent reasonably required for the performance of the obligations of the Provider under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers strictly for this purpose and subject to any express restrictions elsewhere in the Agreement.

5.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights of any person, and will not breach the provisions of any law, statute or regulation, in the United Kingdom.

6. Support Services

6.1 The Provider shall provide the Support Services to the Customer during the Term.

6.2 The Provider shall make available to the Customer an email-based helpdesk.

6.3 The Provider shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.

6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

6.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.

6.6 The Provider shall have no obligation to provide Support Services:

(a) to the extent that the requested Support Services amount to general training in the use of the Hosted Services;

(b) in respect of any issue that could have been resolved by a competent person who had received general training in the use of the Hosted Services;

(c) in respect of any duplicate issues raised by or on behalf of the Customer;

(d) in respect of any issue caused by the improper use of the Hosted Services by or on behalf of the Customer; or

(e) in respect of any issue caused by any alteration to the Hosted Services, or to the configuration of the Hosted Services, made without the prior written consent of the Provider.

6.7 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

7. No assignment of Intellectual Property Rights

7.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

8. Charges

8.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.

8.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.

8.3 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 90 days' written notice of the variation.

9. Payments

9.1 The Customer must pay the Charges to the Provider in advance of the period to which they relate.

10. Data protection

10.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

10.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.

10.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of Employees of the following types: basic personal identifiers; and the Provider shall only process the Customer Personal Data in accordance with the Customer's instructions, which instructions comprise: i) to provide the Hosted Services to the Customer under the agreement, and ii) to comply with applicable law.

10.4 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 10.

10.5 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions.

10.6 The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:

(a) the Provider may transfer the Customer Personal Data to its third party processors in the jurisdictions identified elsewhere in this Clause 10 and may permit its third party processors to make such transfers, providing that such transfers must be protected by Standard Contractual Clauses;

(b) the Provider may transfer the Customer Personal Data from the UK to the EEA, and may permit its third party processors to do so, in any period during which EEA states are not treated as third countries under the UK GDPR or during which EEA states benefit from adequacy regulations under the UK GDPR;

10.7 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

10.8 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

10.9 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

10.10 The Provider shall implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data. Such measures will include using managed hosting providers with data sovereignty within the United Kingdom with industry-standard access controls, using secure, multi-factor authentication to access infrastructure providers holding any Customer Personal Data, use encryption-at-rest where applicable, ensure that Customer Personal Data is displayed only to that Customer through software-based segregation so that no other Controller can view, modify, or erase data of other Controllers, ensure that the Customer is notified if any Provider administrator access to Customer Personal Data occurs, and allow the Customer to set role-based access controls to their data.

10.11 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 30 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days' written notice to the Provider, providing that such notice must be given within the period of 30 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 10.

10.12 The Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties:

(a) Amazon Web Services EMEA SARL, (AWS Europe) for database hosting, application server hosting, storage of Customer-provided attachments to logbooks, and transactional email (eg. account creation, forgotten password requests).

10.13 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

10.14 The Provider shall assist the Customer 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. The Provider may charge the Customer for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.14.

10.15 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 24 hours after the Provider becomes aware of the breach.

10.16 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 10 and the Data Protection Laws.

10.17 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer 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.

10.18 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 10. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.18, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.

10.19 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.

11. Warranties

11.1 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

11.2 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.

12. Acknowledgements and warranty limitations

12.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

12.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

12.3 The Customer acknowledges that the Provider will not provide any legal 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, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

13. Limitations and exclusions of liability

13.1 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.

13.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 14.1; 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.

13.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

13.4 The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.

13.5 The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.

14. Force Majeure Event

14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

15. Termination

15.1 Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination.

15.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.

16. Effects of termination

16.1 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, 4.1, 4.2, 4.3, 4.5, 5.3, 7, 9, 10, 13, 16, and 18].

16.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.

16.3 Within 30 days following the termination of the Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services that were agreed to be provided to the Customer before the termination of the Agreement; and

(b) if terminated by the Provider, the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

without prejudice to the parties' other legal rights.

17. Notices

17.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:

(a) sent by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient's email server; or

(b) sent using the contractual notice mechanism incorporated into the Hosted Services, in which case the notice shall be deemed to be received upon dispatch

18. General

18.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.

18.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision 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 (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

18.3 The Provider may vary the Agreement by giving to the Customer at least 30 days' written notice of the variation. Subject to this, the Agreement may only be varied by a written document accepted by or on behalf of each of the parties.

18.4 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time. Save to the extent expressly permitted by applicable law, the Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.

18.5 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

18.6 Subject to Clause 14.1, a Services Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

18.7 The Agreement shall be governed by and construed in accordance with English law.

18.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

19. Interpretation

19.1 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.

19.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

19.3 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.

19.4 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.