Terms of service

1. Introduction

1.1 These Terms of Service are a contract between you and Elm Technologies Ltd a company incorporated in England and Wales with company number 12155299 and registered office at Flat 3, Shepperton Road, London, N1 3EX, United Kingdom, trading as elm (we, us).

1.2 You confirm your legal agreement to be bound by these Terms of Service and that you have authority to bind any organisation that you represent to these Terms of Service.

1.3 The Service (as defined below) provided by us shall be on these Terms of Service and to the extent permitted by law we exclude all other terms and conditions of business, including any that you may send to us, and all terms otherwise implied by law, custom or previous course of dealing to the maximum extent permitted by law.

1.4 We may amend these Terms of Service on at least 60 days’ written notice to you.

2. Definitions and Interpretation

2.1 In these Terms of Service, the following words have the following meanings:

Client Data: all data and computer programmes on your System that we access during the provision of the Service including the Client Personal Data;

Client Personal Data: any personal data which we may access during the provision of the Service;

Confidential Information: has the meaning given to it in Condition 7;

Data Protection Legislation: any laws and regulations of the UK relating to the processing of personal data including the Data Protection Act 2018 and the General Data Protection Regulation 2016/679 (GDPR). The terms controller, data subject, processor, process, processed, and processing, personal data shall have the meaning given to them in the Data Protection Legislation.

Fee: the fee due for the Services;

Firewall: any software or system designed to prevent access to or from your System;

IP Rights: any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design right, rights in trade, business or domain names, rights in trade dress, rights in inventions, performers rights, rights in confidential information or know-how or any similar or equivalent rights in any part of the world;

Report: the report that is made available to you on the Website or via custom links provided for client login on completion of the Service;

Service: all services offered by us and selected by you;

System: the systems, appliances, software and/or hardware that we may access in providing the Services to you;

Website: our website available at getelm.co; and

Working Days: any day that is not a Saturday, Sunday or public holiday in England and Wales.

2.2 Words in the singular include the plural and, in the plural, include the singular.

2.3 The headings shall not affect the interpretation of these Terms of Service.

2.4 References to Conditions are references to the numbered provisions of these Terms of Service.

2.5 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party’s other rights and remedies.

2.6 Any phrase introduced by the words including shall be construed as illustrative and shall not limit the generality of the related general words.

2.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.

3. Sign Up

3.1 To sign up and create an account on our Website, you must:

(a) be at least 18 years old;

(b) be legally capable of entering into a contract;

(c) not have previously been convicted of any computer misuse or online fraud or similar crime.

3.2You are responsible for keeping your account password confidential and you are responsible for any activity under your account. Please take precautions to protect your password and contact us immediately if you believe there has been any unauthorised use of your account.

3.3 When you use our Website you must comply with all applicable laws and you agree not to:

(a) try to gain unauthorised access to the Website or any networks, servers or computer systems connected to the Website;

(b) reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble all or part of the Website save to the extent expressly permitted by law not capable of lawful exclusion; and

(c) use or access the Website to build or support, and/or assist a third party in building or supporting, products or services competitive to us.

3.4 We may freely use any anonymous data that we learn, acquire or obtain in connection with your use of the Website and our provision of the Services in order to improve, review and analyse the Website and Services.

3.5 We shall use reasonable endeavours to make the Website available at all times, but you acknowledge that there may be occasions when access to the Website may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. We shall have no liability to you for such interruption but shall try to restore access as soon as we can in accordance with our service level agreement.

4. The Service

4.1 You agree that we cannot provide the Service if there is a Firewall in place on your System. Therefore, before we carry out a Service, we will check your System for Firewalls. If we establish that there is a Firewall in place, we shall notify you accordingly. You must then whitelist us to bypass the Firewall to enable us to perform the Service.

4.2 You grant to us a non-exclusive right and licence to use the System to perform the Service.

4.3 You warrant and represent that:

(a) you are the owner of the System and Client Data and/or have the right to engage us and allow us to perform the Service on the System and Client Data. Immediately on our request you shall provide documentary evidence of your compliance with this Condition 4.3(a);

(b) you have a backup of all content on your System immediately before engaging us to provide the Services and continue to do so on an on-going basis in accordance with best industry practice to enable you to reinstate any Client Data lost or damaged through the Scanning Services;

(c) your use and operation of the System is lawful and you do not operate the System in order to carry out any unlawful activities;

(d) you have obtained the permission of any third party service providers, including ISPs, third party software vendors and equipment owners to allow us to perform the Service on the System and Client Data; and

(e) to the best of your knowledge, the System is currently operating in accordance with its specification, and there are no known viruses or other harmful code within the System.

4.4 All third party consents required under Condition 4.3 shall include authorisation for the purposes of the Computer Misuse Act 1990, and confirmation that the Service may impair the operation of the System, the Client Data, and the access to the System.

4.5 You shall indemnify and keep us, our officers and agents, indemnified from and against any costs, claims, liabilities, expenses, damages, fees (including court and legal fees) and losses that we may suffer as a result of a breach of the warranties contained in Condition 4.3, including any third party any claim we receive that through accessing the System to provide the Service we are in breach of any applicable laws or infringing any third party rights, including IP Rights.

4.6 You agree that if at any time you fail to provide any information, assistance and/or access that we deem reasonably necessary to provide the Service, including access to Systems, then we shall be entitled to suspend the provision of the Service on notice to you without liability until such failure is remedied.

4.7 There may be issues with your System that prevent us from providing you with a Report, including:

(a) a Firewall or log-in change;

(b) hardware faults;

(c) any systems misconfiguration; and/or

(d) third party network, issues or suspensions including public network issues or suspensions.

If we are unable to provide you with a Report for any reason set out above, we shall have no liability to you, and we shall not be obliged to refund the all or any part of the Fee.

5. Fees

5.1 The Fee is payable in full and cleared funds without offset, deduction or counterclaim on a monthly basis in advance. We shall be under no obligation to begin the Service until the first instalment of the Fee is paid. Payment is to be made pounds sterling, is non-refundable and the Fee is exclusive of VAT and any other taxes or duties that shall be charged in addition, at the rates in force at the time of application.

5.2 If you fail to pay any instalment of the Fee by the agreed due date, without limiting any other rights and remedies available to us, we may:

(a) suspend provision of the Service; and/or

(b) charge costs and interest on any outstanding amount accruing in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from the due date, until the outstanding amount is paid in full.

5.3 We reserve the right to increase the Fee on 60 days’ written notice to you.

6. IP Rights

6.1 The IP Rights in the Website, Service and Report is owned by or licensed to us. Subject to payment of the relevant Fee, you may access the Report on our Website, and you may use the Report for your own purposes. You may share the Report with third parties only if those parties will use the Report for your purposes.

6.2 You agree that we shall be entitled to reproduce and use your name and associated logos within publicity for the Website, Service and our business generally.

6.3 You grant to us the right and licence to use, edit, copy, modify and distribute any feedback you provide to us within publicity for the Website, Services and our business generally.

7. Confidential Information

7.1 Confidential Information shall mean all information that is marked confidential or is manifestly by its nature confidential and whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, customers, employees or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party). We acknowledge and agree that the System and the Client Data is your Confidential Information.

7.2 The Receiving Party shall not, and shall ensure that its employees shall not, use copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under these Terms of Service

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7.3 The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees to the extent that they need to know the same in order to carry out its obligations under the Conditions and where those employees are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.

7.4 The provisions of Conditions 7.1, 7.2 and 7.3 shall not apply to any Confidential Information which:

(a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;

(b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information;

(c) is already known to the Receiving Party; or

(d) is required to be disclosed by any court, government or administrative authority competent to require disclosure.

8. Disclaimer – Your attention is particularly drawn to this Condition

8.1 Whilst we provide the Services and prepare the Report using reasonable skill and care. However, you agree that:

(a) you are solely responsible for ensuring that the Service is appropriate and suitable for your needs;

(b) the Report is for information only and does not constitute any form of advice, recommendation or arrangement by us;

(c) the Report is based on the Client Data and accordingly if there is any delay, error or omission in the Client Data, this will be reflected in the Report.

8.2 You agree that you have not been induced to enter into these Terms of Service by any representation or by any warranty (whether oral, or in writing, or in any other form) except those expressly made part of these Terms of Service. To the extent permitted by law, no representations, warranties or conditions are given or assumed by us in relation to the Service.

8.3 We shall not be liable to you for:

(a) loss of profits;

(b) loss of business;

(c) loss or corruption of data or information;

(d) business interruption;

(e) loss of goodwill or reputation;

(f) loss of or wasted expenditure and/or staff or management time; and/or

(g) any kind of special, indirect, consequential loss or pure economic loss whether or not advised of the possibility of the same.

8.4 Our total liability to you for all claims or series of claims under these Terms of Service whether in contract, negligence or otherwise for any damages, losses or expenses shall be limited to the cost of the Fee paid for the Service during the previous 12 months.

8.5 If at any time either party is prevented or hindered from carrying out its obligations under these Terms of Service for reasons beyond its control, including war, invasion, armed conflict, terrorism, strike, lock-out, labour dispute, pandemic, epidemic, riot, civil commotion, accident, act of God, fire, flood and storm it shall notify the other party accordingly, and its obligations under these Terms of Service shall be suspended.

8.6 Nothing in these Terms of Service limits or excludes our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation, and/or any other liability that cannot lawfully be excluded under English law.

9. Data Processing

9.1 The parties acknowledge that during the provision of the Service, we may access names, email addresses and other personal data included within the System. For the purposes of the Data Protection Legislation we are the processor of the Client Personal Data, and you are the controller of the Client Personal Data.

9.2 The parties shall both comply at all times with the Data Protection Legislation and shall not do anything (or fail to do anything) to cause the other party to breach any of its obligations under the Data Protection Legislation. Each party shall promptly notify the other party if it becomes aware of any breach of the Data Protection Legislation by it in connection with the Service.

9.3 You warrant that you have the right to engage us to process the Client Personal Data under the Data Protection Legislation.

9.4 You agree that we shall be entitled to sub-contract processing of the Client Personal Data provided that it shall be fully responsible for the acts and omissions of all sub-processor as if they were our acts and omissions.

9.5 In processing the Client Personal Data on your behalf, we shall:

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a) process the Client Personal Data only as necessary to provide the Service;

(b) co-operate with you, and promptly provide such information and assistance as you may reasonably require, to enable you to comply with your obligations under the Data Protection Legislation taking into account the nature of the processing and the information available to us;

(c) comply with any request from you requiring us to amend, transfer or delete Client Personal Data (to the extent we store the Client Personal Data on our systems) or to restrict processing and we shall confirm that such request has been implemented;

(d) take and implement all such technical and organisational security procedures and measures necessary and appropriate which ensure a level of security to preserve the security and confidentiality of any Client Personal Data processed by us having regard to the types of personal data being processed and to the extent we store the Client Personal Data on its systems;

(e) upon termination of the Service or as may be requested in writing at any time by you, cease to use the Client Personal Data and at your discretion return the Client Personal Data and delete all copies of it to the extent commercially possible (to the extent we store the Client Personal Data on its systems); and

(f) notify you if we become aware of any security breach affecting the Client Personal Data on our system;

(g) permit you and/or your auditor to inspect and audit our activities under this Clause 8 during working hours and on reasonable notice at non more than once in each 12 (twelve) month period; and

(h) co-operate and assist you or any regulator where you are required to deal or comply with any assessment, enquiry, notice or investigation by a relevant regulator so as to enable you to comply with all of your obligations as a controller which arise as a result of such an assessment, enquiry, notice or investigation.

9.6 You agree that we may process Client Personal Data outside the European Economic Area, including through its sub-contractors, provided that we shall ensure that any processing that does take place, complies with the Data Protection Legislation or to a country, a territory or sector to the extent that the European Commission has decided that the country, territory or sector ensures an adequate level of protection for Personal Data.

9.7 Notwithstanding any other provision of these Terms of Service, we may process the Client Personal Data if and to the extent that we are required to do so by applicable law. In such a case, we shall inform you of the legal requirement before processing, unless that law prohibits such information.

10. Non-solicitation

10.1 During the provision of the Service, and for a period of 12 (twelve) months after termination, you may not solicit for hire or hire as an employee, or engage as an independent contractor any of our members of staff without our prior consent.

10.2 If you breach the provisions of Condition 10.1, without prejudice to any other right or remedy available to us, you shall pay to us an amount equal to the salary or other payment payable to the employee in question during its contractual notice period or such equivalent amount where the member of the staff is not an employee.

10.3 The provisions of this Condition 10 shall not stop you from hiring any individual who responds to a public advertisement in relation to a vacancy.

11. Termination

11.1 You may terminate the Service at any time on 30 days’ written notice to us. We may terminate your account at any time too on 30 days’ written notice to you, if for example we cease to provide the Service.

11.2 In addition, either party may terminate the Services immediately on written notice if the other party:

(a) commits any material breach of any of the terms of these Terms of Service and if such breach is capable of remedy fails to remedy that breach within 10 (ten) Working Days of being notified of the breach; and/or

(b) enters into liquidation compulsorily or voluntarily or compounds with its creditors or has an administrator, receiver or administrative receiver appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt (except where any action occurs for the purposes of reconstruction or amalgamation whilst solvent).

11.3 Termination shall not affect the accrued rights of the parties or the operation of any Condition which expressly or by implication should continue after termination, including the right to claim damages in respect of any breach of these Terms of Service which existed at or before the date of termination.

12. Dispute Resolution

12.1 If a dispute arises between us in respect of the provision of these Terms of Service, then within 7 (seven) days of the dispute arising, the dispute shall be escalated to a director or such other person of equivalent seniority as agreed between the parties. Within 7 (seven) days of escalation such nominated persons shall speak in a good faith effort to resolve the dispute.

12.2 If no resolution to the dispute so referred has been agreed within a further 21 (twenty-one) days, then the parties will attempt to settle it by mediation in accordance with the Dispute Resolution (CEDR) Model Mediation Procedure. To initiate the mediation a party must give notice in writing to the other party to the dispute requesting mediation. Unless agreed between the parties, the mediator will be nominated by CEDR. The mediation will start no later than 7 (seven) days after the date of the notice. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

12.3 These Terms of Service are governed by and will be construed in accordance with the laws of England and Wales. The parties submit to the exclusive jurisdiction of the courts of England and Wales in relation to any legal actions or proceedings arising out of or in connection with these Terms of Service. Your consumer statutory rights are not affected by any provision of this Condition 12.3.

13. General

13.1 In providing the Services, we shall comply with the Bribery Act 2010, and our own anti-bribery policy as we may amend and update from time to time.

13.2 We operate as an independent contractor and nothing contained in these Terms of Service shall be construed to imply that there is any relationship between the parties of employer/employee, partnership nor are we engaging in any joint venture and accordingly neither of us shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise.

13.3 Nothing in these Terms of Service shall confer or purport to confer on any other third party any benefit or the right to enforce these Terms of Service under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

13.4 You shall not assign or delegate your rights and/or obligations under these Terms of Service, in whole or in part, to any third party by operation of law or otherwise, without our prior written consent. We may assign or delegate our rights and/or obligations under these Terms of Service at our discretion.

13.5 If any provision of these Terms of Service is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties.

13.6 No waiver or delay by a party in enforcing its rights will prejudice or restrict those rights and no waiver of any right will operate as a waiver of any later right or breach.

13.7 Any notice given under these Terms of Service shall be in writing and shall be served by delivering the notice personally, by email or by pre-paid first class post to the address or email address as either party notifies to the other from time to time. Any such notice shall be deemed to have been received if delivered personally or by email at the time of delivery and if delivered by first class post 24 hours from the date of posting.

These Terms of Service were last updated on 16 June 2020. You may contact us if you wish to review any previous version.

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