These Cloud Terms of Service (these “Terms”) are between you and Tocalabs Ltd (a company incorporated in England, United Kingdom with registered number 11396834 and whose registered office is at 5th Floor, One New Change, London EC4M 9AF) (“Toca”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you.
PLEASE NOTE THAT IF YOU SIGN UP FOR THE CLOUD PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Cloud Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your agreement to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for the Cloud Product, create a Cloud Product account, or place an Order.
1. What these Terms cover.
1.1. Cloud Product. These Terms govern our Cloud Product, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy), and your Orders.
1.2. Software Products Not Covered. These Terms do not apply to our downloadable software products, use of which requires a separate Software Licence Agreement with us. For clarity, however, any software (e.g., a desktop or mobile application) we provide as part of the Cloud Product itself remains subject to these Terms.
2. How the Cloud Product is administered.
2.1. Administrators. Through the Cloud Product, you may be able to specify certain End Users as an Administrator, who will have important rights and controls over your use of the Cloud Product and End User Accounts. This may include adding bots (which may incur fees); creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. An Administrator may also take over management of accounts previously registered using an email address belonging to your domain. Without limiting Section 2.3 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become an Administrator and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Cloud Product for you.
2.2. End User Consent. You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) Toca’s provision of the Cloud Product to Administrators and End Users.
2.3. Responsibility for End Users. You are responsible for understanding the settings and controls for the Cloud Product and for controlling whom you allow to become an End User. You are responsible for compliance with these Terms by all End Users. Please note that you are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data, even if those End Users are not from your organization or domain. We may display our User Notice to End Users at sign up, account creation, Cloud Product registration, or in-product.
2.4. Credentials. You must require that all End Users keep the user IDs and passwords for the Cloud Product strictly confidential and do not share such information with any unauthorised person. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorised use of which you become aware.
2.5. Domain Name Ownership. Where you are required to specify a domain for the operation of the Cloud Product, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the Cloud Product.
3. What's included in your Cloud Product subscription; what are the restrictions.
3.1. Access to Cloud Product. Subject to these Terms and during the applicable Subscription Term, you may access and use the Cloud Product for your own business purposes, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorised use of the Cloud Product, to download and use the software associated with the Cloud Product. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2. Support. During the Subscription Term, we will provide support for the Cloud Product in accordance with the Support Policy, and the applicable Order.
3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of an part of the Cloud Product; (b) rent, lease, distribute, sell, sub licence, or transfer the Cloud Product to a third party; (c) interfere with or otherwise circumvent mechanisms in the Cloud Product intended to limit your use; (d) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (e) remove or obscure any proprietary or other notices contained in the Cloud Product; (f) use the Cloud Product for competitive analysis of the Cloud Product or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Product; or (g) encourage or assist any third party to do any of the foregoing.
4. Our security and data privacy policies.
4.1. Security. We implement security procedures designed to help protect Your Data from security attacks.
4.2. Privacy. We collect certain data and information about you and your End Users in connection with your and your End Users’ use of the Cloud Product and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.
4.3. Improving Cloud Product. We are always striving to improve the Cloud Product. In order to do so, we use analytics techniques to better understand how our Cloud Product is being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.
5. Terms that apply to Your Data.
5.1. Using Your Data to provide the Cloud Product to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Product. Subject to these Terms, and solely to the extent necessary to provide the Cloud Product to you, you grant us a worldwide, limited term licence to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in the Cloud Product constitutes a modification or derivative work, the foregoing licence also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Product with End User permission in order to respond to your support requests.
5.2. Your Data Compliance Obligations. You and your use of the Cloud Product (including use by your End Users) must comply at all times with these Terms, the Acceptable Use Policy and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud Product and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Product.
5.3. No Sensitive Data. You will not submit to the Cloud Product (or use the Cloud Product to collect) any Sensitive Data except where such submission and processing of such Sensitive Data is permitted under applicable Laws. Notwithstanding any other provision to the contrary, we have no liability under these Terms for such Sensitive Data.
5.4. Your Indemnity. You will defend, indemnify and hold harmless Toca from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.2 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of the Cloud Product, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Sensitive Data); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim; (b) the exclusive right to control and direct the investigation, defence or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.
5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the Cloud Product. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, we may (1) remove Your Data from the Cloud Product or (2) suspend your access to the Cloud Product. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to the Cloud Product as described in this Section 5.5.
6. Using third-party products with the Cloud Product.
6.1. Third-Party Products. You (including your End Users) may choose to use or procure other third party products or services in connection with the Cloud Product, or implementation, customisation, training or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the Cloud Product, we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with the Cloud Product. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
7. Additional Services.
7.1. Additional Services. Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us.
7.2. Our Deliverables. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Cloud Product, subject to the same usage rights and restrictions as for the Cloud Product. For clarity, Our Deliverables are not considered the Cloud Product, and the Cloud Product is not considered to be Our Deliverables.
7.3. Your Materials. You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any Cloud Product, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.
8. Billing, renewals, and payment.
8.1. Subscription. The Cloud Product is offered on a subscription basis, as defined in your Service Order Form.
8.2. Renewals. Except as otherwise specified in your Service Order Form, unless either party cancels your subscription prior to expiration of the current Licence/Subscription Term, your subscription will automatically renew for another Licence/Subscription Term of a period equal to your initial Licence/Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Cloud Product or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the Cloud Product continuing to be offered and will be charged at the then-current rates.
8.3. Adding Users. You may add users, increase storage limits, or otherwise increase your use of Cloud Product by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
8.4. Payment. You will pay all fees in accordance with each Order, by the due dates specified in the Order. If a purchase order number is required in order for an invoice to be paid, then you must provide such purchase order number to Toca by emailing the purchase order number to finance@toca.io. For Additional Services provided at any non-Toca location, unless otherwise specified in your Order, you will reimburse us for our pre-approved travel, lodging and meal expenses, which we may charge as incurred. Other than as expressly set forth in Section 9 (Our return policy), Section 14 (IP Indemnification) or Section 17 (Changes to these Terms), all amounts: (i) shall be paid in pounds sterling; (ii) are non-refundable, non-cancellable and non-creditable; and (iii) are exclusive of VAT, which shall be added to the Order at the appropriate rate. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
8.5. Delivery. We will deliver the login instructions for the Cloud Product to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
8.6. Reseller Orders. This Section 8.6 applies if you purchase the Cloud Product, Support or any Additional Services through a Reseller.
(a) Instead of paying Toca, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. Toca may suspend or terminate your rights to use the Cloud Product if Toca does not receive the corresponding payment from the Reseller.
(b) Instead of an Order with Toca, your order details will be as stated in the order placed with Toca by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to Toca.
(c) If you are entitled to a refund under these Terms, then unless otherwise specified by Toca, Toca will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
(d) Resellers are not authorised to modify these Terms or make any promises or commitments on Toca’s behalf, and Toca is not bound by any obligations to you other than as set forth in these Terms.
9. Our return policy.
As part of our commitment to customer satisfaction, you may terminate your initial Order of the Cloud Product under these Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for the Cloud Product. In the event you terminate your initial Order under this Section 9, at your request (which may be made through your account with us), we will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order of the Cloud Product and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that we may change this practice in the future in accordance with Section 17 (Changes to these Terms).
10. IP Rights in the Cloud Product and Feedback.
The Cloud Product (including any content or information contained therein) is made available on a limited access basis, and is protected by copyright and other intellectual property laws. No ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Product). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, licence, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise. We claim no right, title or ownership to any intellectual property rights subsisting in any products which are developed by you whilst using Our Technology.
11. Confidentiality.
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Product will be deemed our Confidential Information without any marking or further designation. Except as expressly authorised herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 11. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
12. Term and Termination.
12.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of the Subscription Term.
12.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
12.3. Termination for Convenience. You may choose to stop using the Cloud Product and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 9 (Our return policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
12.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using the Cloud Product and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Product during the applicable Subscription Term. If you terminate these Terms in accordance with Section 12.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 12.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
12.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 8.4 (Payment), 10 (IP Rights in the Cloud Product and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13 (Limitation of Liability), 14 (IP Indemnification) (but solely with respect to claims arising from your use of the Cloud Product during the Subscription Term), 16 (Dispute Resolution) and 19 (General Provisions).
13. Warranties and Limitation of Liability.
13.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms and will comply with Laws.
13.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Product (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”). All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by Law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
13.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, or (ii) if the non-conformity was caused by misuse, unauthorised modifications or third-party products, software, services or equipment. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 13.
13.4. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.5. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
13.6. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders; (2) your breach of Section 3.3 (Restrictions); and (3) claims for: (i) death or personal injury caused by the negligence of Toca, its officers, employees, contractors or agents; (ii) fraud or fraudulent misrepresentation; or (iii) any other claim or liability which may not be excluded by Law.
14. IP Indemnification.
We will defend you against any claim brought against you by a third party alleging that the Cloud Product, when used as authorised under these Terms, infringe a patent right granted in the United States, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable legal fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. Our indemnification obligations above do not apply: (1) if the Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (2) if the Cloud Product is used in combination with any non-Toca product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorised use of the Cloud Product; (4) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the Cloud Product or (5) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 14 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
15. Publicity Rights.
We may identify you as a Toca customer in our promotional materials. We will promptly stop doing so upon your request sent to info@toca.io.
16. Dispute Resolution.
16.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 16.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 16.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
16.2. Governing Law; Jurisdiction. These Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
16.3. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
17. Changes to these Terms.
We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 19.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
17.1. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 8.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the Cloud Product for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
17.2. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
18. Changes to the Cloud Product.
You acknowledge that the Cloud Product is an on-line, subscription-based product, and that in order to provide improved customer experience we may make changes to the Cloud Product, and we may update the applicable Documentation accordingly. Subject to our obligation to provide the Cloud Product and Additional Services under existing Orders, we can discontinue the Cloud Product, any Additional Services, or any portion or feature of the Cloud Product for any reason at any time without liability to you.
19. General Provisions.
19.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Tocalabs Ltd, Davidson House, Forbury Square, Reading, Berkshire, RG1 3EU, Attn: CEO. Your notices to us will be deemed given upon receipt.
19.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a licence by a government agency.
19.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorised above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
19.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Product and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Product or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
19.5. Conflicts. In event of any conflict between the main body of these Terms and Our Policies, Our Policies will control with respect to their subject matter.
19.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 17 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorised representative of each party.
19.7. Third Party Rights. These Terms does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.8. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
19.9. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
20. Definitions.
Certain capitalised terms are defined in this Section 20, and others are defined contextually in these Terms.
“Additional Services” means consulting or other services related to the Cloud Product we provide to you, as identified in an Order.
“Administrator” mean the person designated by you who administers the Cloud Product to End Users on your behalf.
“Cloud Product” means our hosted or cloud-based solution, including any software we provide as part of the Cloud Product.
“Documentation” means our standard published documentation for the Cloud Product.
“End User” means an individual you permit or invite to use the Cloud Product.
“End User Account” means an account established by you or an End User to enable the End User to use or access the Cloud Product.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Cloud Product, Support or Additional Services.
“Laws” means all applicable laws, regulations and conventions, including those related to data privacy and data transfer, and the exportation of technical or personal data.
“Notification Email Address” means the email address(es) you used to register for the Cloud Product account or otherwise sign up for the Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
“Order” means our applicable online order page(s), flows, in-product screens or other Toca-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Cloud Product, (ii) the number of End Users, Subscription Term, domain(s) associated with your use of the Cloud Product, storage capacity or limits, or other scope of use parameters (iii) the amount or rate you will be charged, the billing and renewal terms, and form of payment, and (iv) the Scope of Use. Orders may also include Additional Services.
“Our Deliverables” means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.
“Our Policies” means our Acceptable Use Policy, Privacy Policy, and Support Policy, and (unless specified) any other policies or terms referenced in these Terms.
“Our Technology” means the Cloud Product, Our Deliverables, their “look and feel”, any of our APIs, SDKs or other Toca developer assets and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“Reseller” means an authorised partner or reseller of Our Technology or our other software products.
“Scope of Use” means a Customer’s authorised Scope of Use for the Cloud Products specified in an Order.
“Sensitive Data” means any (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) credit, debit or other payment card data subject to PCI DSS; (iii) social security numbers, driver’s licence numbers or other government ID numbers; or (iv) any data similar to the foregoing that is protected under Law.
“Subscription Term” means your permitted subscription period for the Cloud Product, as set forth in the applicable Order.
“Support” means support for the Cloud Product, as further described in the Support Policy. Your Support level will be specified in the applicable Order.
“Training” means Toca-provided training and certification services.
“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to the Cloud Product. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Cloud Product.
“Your Materials” means your materials, systems, personnel or other resources.