Melius Cyber Consultancy Ltd Software Subscription Service Agreement
Valid for all clients who signed the agreement on or before 31st July 2022
This is the Service Agreement for the Melius Cyber Consultancy Limited Cyber Safe Plus software (“MCSP”).
In this Agreement “we” and “us” means Melius Cyber Consultancy Limited of Suite 2, Hadrian House Street, Beaminster Way East, Newcastle upon Tyne NE3 2ER.
By completing and submitting the online registration form and/or accessing our software you represent either:
(1) (If you are using the service as an individual) that you are over the age of 18 to register for the service; or
(2) (if you are registering your company to use the service) that you have authority to enter into this Agreement on behalf of your company.
If you are entering into this Agreement on behalf of your company, the Term “you” in this Agreement means your company and all of its employees.
You are agreeing to all the terms of this Subscription Service Agreement (“Agreement”)
Terms and Conditions
1. Formation of Contract
1.1 This Agreement and the terms set out in the Activation Invoice (“Activation Invoice”) supplied by us to you and accepted by you when making the payment to us requested in the Activation Invoice, constitute the contract between you and us (“Contract”).
1.2 Both parties agree that the Contract is the complete and exclusive statement of the mutual untanding of the parties and supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications to the Contract must be in writing signed by both parties, except as otherwise provided herein.
2. Melius Cyber Safe Plus (MCSP)
2.1 MCSP consists of a service which involves the provision of a cloud hosted dashboard interface, penetration test, threat dedication and scanning tools, data encryption, data transmission, data access and data storage.
2.2 We will provide MCSP on and subject to the terms of this Agreement.
2.3 We will use commercially reasonable endeavours to make MCSP available 24 hours a day, seven days a week, except for:
i. planned maintenance carried out during the maintenance window of 8.00 pm to 8.00 am UK time; and
ii. unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give you at least 6 Normal Business Hours’ notice in advance.
2.4 For the purpose of this Agreement “Normal Business Hours” means the hours of 9am to 5pm Monday to Friday except for public holidays.
2.5 We will, as part of MCSP and at no additional cost, provide you with our standard customer support services during Normal Business Hours in accordance with our Support Fair Usage Policy [FUP] Document in effect at the time that the MCSP is provided. We may amend the Support FUP Document in our absolute discretion from time to time. You may purchase enhanced support services or additional training separately at our then current rates.
2.6 We will provide MCSP with reasonable skill and care, but we do not warrant that your use of MCSP will be uninterrupted or error-free; nor that MCSP and/or the information obtained by you through MCSP will meet your requirements; and we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that MCSP may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2.7 We will inform you of any significant changes to MCSP or to the terms and conditions of this Agreement that we may make from time to time.
3. Use of Melius Cyber Safe Plus (MCSP)
3.1 We grant to you subject to the terms and conditions of this Agreement, a non-sub licensable, non-exclusive and non-transferable licence to permit the authorised number of users to use MCSP, in object code form only, and only in accordance with the applicable end user documentation, if any, and solely in conjunction with this Agreement.
3.2 The number of authorised users shall be determined by the purchase by you of individual subscriptions as set out in the Activation Invoice. You agree that the maximum number of users permitted to use MCSP shall not exceed the number of user subscriptions you have purchased from time to time. You further agree that you will not allow any user subscription to be used by more than one individual authorised user. Each authorised user shall keep a secure password for their use of MCSP, and we recommend such password should be changed no less frequently than monthly. Each authorised user shall keep their password confidential. You will maintain a written, up to date list of current authorised users and provide such list to us within 5 business days of our written request at any time or times, and permit us to audit the details supplied, at our cost in such a manner as shall not substantially interfere with you normal business. In the event that any such audit determines that more persons have been using MCSP than the number of authorised users for which you have paid us, any cost of such audit shall be borne by you.
3.3 You will not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of MCSP in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of MCSP; or
(c) access all or any part of MCSP in order to build a product or service which competes with MCSP; or
(d) use MCSP and/or any appropriate end user documentation to provide services to third parties; or
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make MCSP available to any third party except the authorised users, or
(f) attempt to obtain, or assist third parties in obtaining, access to MCSP.
3.4 You must use all reasonable endeavours to prevent any unauthorised access to, or use of, MCSP, and in the event of any such unauthorised access or use, promptly notify us.
3.5 You acknowledge that we retain exclusive ownership throughout the world of MCSP, any portions or copies thereof and any improvements or modifications made by you or your associates in breach of clause 3.3, and all rights therein. You agree that you will, and will procure that any associate of yours will, sign any agreement that we require you to sign to ensure that any improvements or other modifications or other rights in and relating to MCSP remain under the absolute ownership of us.
3.6 Upon termination of this Agreement for any reason, this Licence will terminate, and you, and any user accessing MCSP by means of a company account, if applicable, will cease to use or have access to MCSP.
4. Restrictions
4.1 You must not access, store, distribute or transmit any viruses, or any material during the course of its use of MCSP that:
i. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
ii. facilitates illegal activity;
iii. depicts sexually explicit images;
iv. promotes unlawful violence;
v. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
vi. causes damage or injury to any person or property;
and we reserve the right, without liability to you, to disable your access to any material that breaches the provisions of this clause.
4.2 You hereby agree to defend, indemnify and hold us blameless against any claim or action that arises from your use of MCSP in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.
5. Privacy Policy and Confidentiality
5.1 Our policy is to respect the privacy of our users. We may provide information such as your name, address, and credit card number to organizations (such as credit verification and billing services) to ensure that we receive proper payment for our services. We will not share, rent, sell, or trade personal information (including e-mail addresses) that identifies our customers or users to third parties. We will not share, rent, sell, or trade data contained in your account.
5.2 However, we may use this information to contact you to ensure that you are satisfied with MCSP and our performance, learn about any ideas you may have to improve our offerings, call your attention to additional offerings or services we provide, and communicate other information that we believe will be useful. In addition, we may share e-mail address and other information required to ensure that our channel partners and contractors can provide services and support subscribed to by you.
5.3 We may occasionally ask you to provide demographic or personal preference data. If you elect to provide such data, we may use them to analyse the characteristics of our customers and visitors to our website(s) (www.meliuscyber.com). We may also use such data to customize the specific information provided to you, or tailor it to better meet your needs. We may share information aggregated from such data with third parties without notifying you.
5.4 User and Account Data given to us are considered confidential. Our privacy policy is subject only to our obligation to comply with applicable laws and lawful government requests, to operate our business properly, and to protect our users or us. We reserve the right to contact users of MCSP via e-mail or other means to inform them of their account status or changes or alterations to the service, or to inform them about additional offerings or services being provided or contemplated. We reserve the right at any time to change our privacy policy upon thirty (30) days notice to users, which notice will be sent by e-mail.
6. Data Policies
6.1 You own all rights, title and interest in and to all of the data which you upload and store within MCSP and have sole responsibility for the legality, reliability, integrity, accuracy and quality of that data.
6.2 We will follow our archiving procedures for your data as set out in our Back-Up Policy available at such website address as may be notified to you from time to time, as such document may be amended by us in our sole discretion from time to time. We will not be responsible for any loss, destruction, alteration or disclosure of data caused by any third party (except those third parties sub-contracted by us to perform services related to data maintenance and back-up).
6.3 If we process any personal data on your behalf when performing our obligations under this agreement, you agree that you shall be the data controller and we will be a data processor and in any such case:
i. you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and any authorised users are located in order to carry out our obligations under this Agreement;
ii. you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;
iii. you will ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
iv. we will process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time; and
v. both of us shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6.4 We will use our reasonable efforts to protect your data behind secure firewall systems.
6.5 We operate a Fair Use Policy in connection with data storage enabling reasonable storage in relation to the business practices of any individual client and revenue we receive for the service. We do not impose any set storage limits and ask that you do not abuse this policy. MCSP is not to be used as a repository for bulk storage from other internet sources such as Job boards or CV databases. We reserve the right to charge additional storage fees or suspend accounts if this policy is abused.
6.6 We provide an import interface enabling a swift free self-service facility for your data. You are responsible for the loading of your data, its quality and integrity. Any expertise required to correct errors in data entry will attract charges to correct these at our standard rates. We do not as part of this Agreement provide a managed data import or data migration service as part of MCSP.
8. Provision of Contact Information and Billing
8.1 You will pay to us the Subscription Fees for the User Subscriptions in respect of the number of authorised users set out in the Activation Invoice, in accordance with this clause.
8.2 You will on registering to use MCSP provide to us valid up-to-date and complete credit or debit card details and complete contact and billing details and, by providing your credit or debit card details to us, you hereby authorise us to bill such credit or debit card for the amounts set out in 8.3 below.
8.3 On the date of registering to use MCSP you will pay to us the Subscription Fees payable in respect of the initial 12 months from that date, or 1 month from that date (if you have opted for the monthly payment plan), and on the same date of subscription in each subsequent year (or month) you will pay the Subscription Fees to us. You agree to be committed to this contract for an initial 12-month term and we will provide you with an annual (12 month) invoice in respect of your contract.
8.4 Subscription fees will be collected on the 1st day of the month. Therefore, your initial payment will include, where applicable, the pro rata subscription fee for the balance of the month you subscribed.
8.5 If we have not received any payment within 7 days after the due date, and without prejudice to any of our other rights and remedies:
i. we may, without liability to you, disable your password, account and access to all or part of MCSP and we shall be under no obligation to provide access to any or all of MCSP while the invoice(s) concerned remain unpaid; and
ii. interest shall accrue on such due amounts at an annual rate equal to 3% above the then current base lending rate of Barclays Bank at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.6 All amounts and fees stated or referred to in this Agreement:
i. shall be payable in pounds sterling;
ii. are non-cancellable and non-refundable;
iii. are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
iv. are exclusive of any expenses incurred in relation to onsite training, which shall be
invoiced separately.
9. Prices
9.1 Prices are guaranteed for the period of 12 months from the date on which you make the initial payment to us required by the Activation Invoice. There will be an annual price increase on the 1st of April each year, and this will be reflected to your next annual invoice, but not in any current invoice, issued before the first of the 1st of April that year.
9.2 If MCSP is not used within the period of time for which payment has been made, that time may not be carried over into any subsequent period. You remain responsible for payments for any unused period.
9.3 All prices are subject to VAT at the applicable rate.
10. Publicity and Marketing
10.1 By becoming a user of MCSP you agree that we may, at our discretion, issue a press release announcing the use of MCSP by you. As of the date of registration to use MCSP, you hereby grant us the right to refer to your use of MCSP, along with your logo, on the customers section of our website(s) (www.meliuscyber.com) until such time as: (a) this Agreement is terminated or (b) you discontinue your use of MCSP.
12. Data Protection
12.1 It is your responsibility to apply and hold a valid Data Protection number in line with your responsibilities, in-line with the Data Protection Act 1998 (“DPA”) or any other Legislation. We are not responsible and cannot be held responsible for your failing to comply with said DPA or other Legislation.
13. Termination
13.1 Subject to clause 13.2, this Agreement is for a minimum 12-month term (“Initial Term”). If you wish to cancel the Agreement before the end of the Initial Term, you will still be liable to pay fees for the full 12 months and any outstanding balance will become payable immediately. After the Initial Term (unless either party requests termination of the Agreement by giving at least thirty (30) days notice before the end of the Initial Term), this Agreement will automatically extend for a further 12-month term and will continue to do so on the annual anniversary of the Initial Term, unless either party requests termination of the Agreement by giving at least thirty (30) days notice before the end of the current 12-month.
13.1.1 Termination of this agreement will only be acknowledged by Melius Cyber Consultancy if termination has been given in writing by sending an official email to sd@meliuscyber.com. Any other methods of termination of this agreement will not be acknowledged by Melius Cyber Consultancy and as such the request will be deemed null and void.
13.2 In the event that you are in material breach of your obligations under this Agreement we may terminate this Agreement immediately by providing you with written notice of termination.
13.3 We will delete archived data but will not do so until ninety (90) days after the termination of this Agreement.
13.4 Upon expiration or termination, you will immediately cease all use of the MCSP and any applicable end user documentation. You are entitled to retrieve a back-up of your data, subject to your then current fees being paid.
13.5 The following provisions of this Agreement shall survive termination or expiration of this Agreement: Section 3.5 (regarding our ownership of MCSP), 4, 8 (regarding payment obligations), 11, 12 and 13. Termination is not an exclusive remedy and all other remedies will be available whether or not the licence granted herein is terminated. Notwithstanding the foregoing, if you are dissatisfied with MCSP, the materials available on or through MCSP, or with any of our terms and conditions, your sole and exclusive remedy is to discontinue using MCSP.
14. Warranty and Disclaimer
14.1 MCSP is provided “as is” without warranty of any kind, and we disclaim all warranties, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement. Some countries do not allow limitations on implied warranties, so the above limitation may not apply to you. We do not represent or warrant that MCSP will be uninterrupted or error-free, that defects will be corrected, or that this site or the server that makes it available, are free of viruses or other harmful components. Any material downloaded or otherwise obtained through the use of MCSP is done at your risk and you will be solely responsible for any damage to your computer system or network, or loss of data that results from use of MCSP.
15. Limitation of Liability
15.1 Nothing in this Agreement shall limit or exclude our liability for (a) death or personal injury caused by our negligence or the negligence of our sub-contractors or (b) fraud or fraudulent misrepresentation.
15.2 Our total liability with respect for the subject matter of this Agreement (including, but not limited to, liability arising out of contract, tort, strict liability, breach of warranty or otherwise), will be limited to the fees paid by you to us for MCSP under this Agreement in the 12 month period prior to the act of injury that gave rise to the liability. Neither we nor our licensors shall be liable in any event for loss or inaccuracy of data, loss of profits or revenue, or indirect, special, incidental or consequential damages (including, without limitation, the cost of any substitute procurement), whether or not foreseeable and even if we have been advised of the possibility of such damages.
16. Miscellaneous
16.1 This Agreement is between us and you and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing MCSP by means of an account established by you). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by you except with our prior written consent.
16.2 This Agreement will be governed by and construed in accordance with English law. You and we agree to submit to the exclusive jurisdiction of the courts located in England.
16.3 Both parties agree that any cause of action arising out of or related to MCSP must commence within one (1) year after the cause of action arose or otherwise such cause of action will be permanently barred.
16.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect whatsoever.
16.5 All notices under this Agreement will be in writing and will be deemed to have been duly served, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
16.6 It is the express will of the parties that this Agreement and all related documents have been drawn up in English.
