FOD Pool Terms and Conditions
1. DEFINITIONS
1.1 Words that are capitalised but have not been defined in these FOD Pool Terms have the meanings given to them in the Conditions. In addition, in these FOD Pool Terms the following definitions have the meanings given below.
Authorised Users means users employed and authorised by you to use FOD Pool (Evaluation) in accordance with the terms of these FOD Pool Terms.
Description means the description of FOD Pool (Evaluation) made available by us to you (as updated by us from time to time).
Documentation means any relevant instructions as to how to use FOD Pool (Evaluation) made available by us to you (as updated by us from time to time).
Feedback has the meaning given to that term in clause 4.8.
FOD IPR has the meaning given to that term in clause 4.1.
FOD Provided Materials means all of the Materials provided or made available by us or on our behalf, but excluding all Your Data, Your Materials and Third Party Data.
FOD Pool (Evaluation) means our cloud-based platform referred to as ‘FOD Pool’ to which you have subscribed and we have provided you with access free of charge.
FOD Pool (Subscribed) means our cloud-based platform referred to as ‘FOD Pool’ to which you have subscribed and we have provided you with access at a charge.
FOD Pool (Evaluation) Code means the source code for FOD Pool (Evaluation) (or any relevant part of it).Maintenance means any work on our Network or FOD Pool (Evaluation), including to maintain, repair or improve the performance of our Network or FOD Pool (Evaluation).
Materials means all services, data, information, content, Intellectual Property Rights, websites, software and other materials.
Network means any part of a communications network used by us to provide any part of FOD Pool (Evaluation).
Permitted Purpose means use of FOD Pool (Evaluation) by you and the Authorised Users for your internal business operations in accordance with the applicable Documentation, these FOD Pool Terms and our requirements communicated to you from time to time. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law:
(a) copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of FOD Pool (Evaluation) or Documentation;
(b) permitting any use of FOD Pool (Evaluation) or Documentation in any manner by any third party (including by any of your Affiliates and their Representatives) without our written consent beforehand;
(c) combining, merging or otherwise permitting FOD Pool (Evaluation) (or any part of it) to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or
(d) attempting to reverse engineer, observe, study or test the functioning of or decompile FOD Pool (Evaluation) (or any part), except as expressly permitted under these FOD Pool Terms.
Third Party Data means any data provided by FOD directly or obtained from third parties that are not property of FOD.
Third Party Software means third party software included (or to be included) or linked to FOD Pool (Evaluation) as a result of either your request or our recommendation and which is licensed directly to you or which we have procured specifically on your behalf.
Your Data means all data owned by you that is uploaded or hosted on any part of FOD Pool (Evaluation) by you.
Your Materials any data (including Your Data), materials, information, software, equipment or other resources controlled, owned by or licensed to you.
2. THESE TERMS
2.1 These FOD Pool Terms govern the provision of access to FOD Pool (Evaluation). If you want to access or use FOD Pool (Subscribed), separate terms and conditions apply.
3. FOD POOL (EVALUATION)
Operation of FOD Pool (Evaluation)
3.1 Subject to these FOD Pool Terms, we grant you a non-exclusive, non-transferable, personal right to:
3.1.1 allow Authorised Users to access and use FOD Pool (Evaluation); and
3.1.2 copy and use the Documentation, in each case, as strictly necessary for your use of FOD Pool (Evaluation) for the Permitted Purpose.
3.2 You acknowledge that the provision of FOD Pool (Evaluation) does not include any services, systems or equipment required to access the internet (and that you are solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications and data transmission charges incurred by you in connection with use of FOD Pool (Evaluation)).
3.3 You warrant and represent that you and all others acting on your behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights as necessary for use of FOD Pool (Evaluation)) their password or access details for FOD Pool (Evaluation).
3.4 You will:
3.4.1 inform us immediately if an Authorised User’s ID or password has, or is likely to, become known to an unauthorised person, or is being or may be used in an unauthorised way;
3.4.2 prevent unauthorised access to FOD Pool (Evaluation);
3.4.3 satisfy our security checks if a password is lost or forgotten; and
3.4.4 change any or all passwords or other systems administration information used in connection with FOD Pool (Evaluation) if we request you to do so in order to ensure the security or integrity of FOD Pool (Evaluation);
3.4.5 distribute, manage and maintain access profiles, passwords and other systems administration information relating to the control of Authorised Users’ access to FOD Pool (Evaluation);
3.4.6 not perform scans or electronic testing of any kind on FOD Pool (Evaluation), our networks, and our servers including, without limitation, vulnerability scanning or testing, penetration scanning or testing or any other type of scanning or testing of FOD Pool (Evaluation), our networks, and our servers;
3.4.7 ensure the security and proper use of all valid Authorised User access profiles, passwords and other systems administration information used in connection with FOD Pool (Evaluation); and
3.4.8 where we provide FOD Pool (Evaluation) for access by a specified number of Authorised Users, ensure that the maximum number of Authorised Users that you authorise to access and use FOD Pool (Evaluation) will not exceed the number of Authorised Users permitted by us;
3.4.9 not allow any Authorised User account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User; and
3.4.10 not do (or permit any person to do) anything that is likely to adversely interfere with our business, systems or operations, nor transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware, malware, ransomware or any other harmful programs or similar computer code designed to adversely affect the operation of any of our computer software, hardware or IT networks or systems.
3.5 You will:
3.5.1 be liable for the acts and omissions of the Authorised Users as if they were your own;
3.5.2 only provide Authorised Users with access to FOD Pool (Evaluation) via the access method provided by us and shall not provide access to (or permit access by) anyone other than an Authorised User; and
3.5.3 procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on you under these FOD Pool Terms, including all obligations and restrictions relating to our Confidential Information.
3.6 You acknowledge and accept:
3.6.1 we may carry out Maintenance; and
3.6.2 we may modify the features and functionality of FOD Pool (Evaluation) (for example, patches, bug fixes or to add functionality) in our sole discretion.
Acceptable use of FOD Pool (Evaluation)
3.7 As a condition of use of FOD Pool (Evaluation), you agree not to use FOD Pool (Evaluation) nor permit it to be used:
3.7.1 for any purpose that is unlawful under any applicable Law or prohibited by these FOD Pool Terms;
3.7.2 to commit any act of fraud;
3.7.3 to distribute any virus, disabling code (including code intended to limit or prevent any use any software or system) or other malicious software (including malware, trojan horses, ransomware and spyware);
3.7.4 to simulate communications from us or another service or entity in order to collect identity information, authentication credentials, or other information (‘phishing’);
3.7.5 in any manner that disrupts our operations, business, equipment, websites or systems or any other person or entity (including any denial of service and similar attacks);
3.7.6 to gain unauthorised access to or use of any computers, data, systems, accounts or networks of any person;
3.7.7 to attempt to circumvent any security controls or mechanisms;
3.7.8 to attempt to circumvent any password or user authentication methods of any person;
3.7.9 in any manner inconsistent with these FOD Pool Terms or the Documentation; or
3.7.10 in any manner which does not comply with the provisions relating to Intellectual Property Rights contained in these FOD Pool Terms.
3.8 Your Data and any communication made on or using FOD Pool (Evaluation) by any person must conform to appropriate and lawful standards of accuracy, decency and lawfulness. In particular, you warrant and undertake that Your Data and each such communication shall at all times be:
3.8.1 submitted lawfully and without infringement of any Intellectual Property Rights of any person;
3.8.2 free of any virus, disabling code (including code intended to limit or prevent any use any software or system) or other malicious software (including malware, trojan horses, ransomware and spyware) at the point of entering FOD Pool (Evaluation) or our systems; and
3.8.3 provided with the necessary consent of any third party.
Disclaimer about FOD Pool (Evaluation)
3.9 You acknowledge that FOD Pool (Evaluation) and any associated services made available to you under these FOD Pool Terms are provided on an ‘as is’ and ‘as available’ basis without warranty or other obligation, whether express or implied to the maximum extent permitted by applicable law.
Your acknowledgements
3.10 You acknowledge that:
3.10.1 neither we nor our third-party providers control your equipment or the transfer of data over communications facilities;
3.10.2 FOD Pool (Evaluation) may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of those communications facilities; and
3.10.3 we and our third party providers are not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from the interruptions described in clauses 3.10.1 and 3.10.2.
3.11 You hereby acknowledge and agree that we cannot, therefore, guarantee:
3.11.1 that any communications component(s) of FOD Pool (Evaluation) will be available to you at all times or free from faults or interruptions;
3.11.2 the receipt by any intended recipient of any message and/or other form of communication sent using any relevant communications component(s) of FOD Pool (Evaluation) (as applicable); or
3.11.3 the retrieval by any intended recipient of any message and/or other form of communication using any relevant communications component(s) of FOD Pool (Evaluation) (as applicable).
3.12 You also acknowledge that no liability or is accepted by us (howsoever arising whether under contract, tort, in negligence or otherwise):
3.12.1 that the operation of FOD Pool (Evaluation) shall not be subject to errors or defects; or
3.12.2 that FOD Pool (Evaluation) shall be compatible with any other software or service or with any hardware or equipment.
Third Party Data
3.13 We do not make any warranty or representation (whether express or implied), to you or any other person or entity as to the accuracy, timeliness, completeness, merchantability or fitness for any particular purposes of any Third Party Data.
3.14 Subject to clause 7.1 and to the fullest extent permitted under applicable Law, we disclaim any and all liability with regard to your use of and reliance on any Third Party Data.
3.15 You acknowledge and accept:
3.15.1 your use of Third Party Data may be subject to the requirements imposed by the relevant Third Party Data provider and you agree to comply with those requirements;
3.15.2 that access to some Third Party Data may be subject to approval by the relevant Third Party Data provider and/or the direct grant of a licence to you. Where any Third Party Data provider requires you to enter into a direct agreement with them in respect of the Third Party Data licence you shall do so promptly;
3.15.3 all Third Party Data is proprietary to the Third Party Data provider that supplies it (and/or its licensors); and
3.15.4 certain types of misuse or misappropriation of Third Party Data may cause a Third Party Data provider irreparable harm, with respect to which such Third Party Data provider may be entitled to injunctive or other equitable relief.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 All Intellectual Property Rights in and to FOD Pool (Evaluation) (including in the Documentation, Description, FOD Pool (Evaluation) Code and all FOD Provided Materials) and any associated services provided under these FOD Pool Terms belong to and shall remain vested in us or our licensors (the FOD IPR) and you do not acquire any rights of ownership in any of the FOD IPR.
4.2 Otherwise to the extent specifically agreed by us or allowed by applicable Law, you may not (nor permit others) to at any time:
4.2.1 use the FOD IPR for any purpose other than that permitted by these FOD Pool Terms;
4.2.2 access all or any part of the FOD IPR to build a product or service which competes with all or any part of the FOD IPR; or
4.2.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make all or any part of the FOD IPR available for the benefit of third parties.
4.3 Where we have agreed to customise, configure, integrate, support or otherwise manage any Third Party Software for you, then you acknowledge and agree that:
4.3.1 the software licences for such Third Party Software are to be purchased separately and independently by you directly from such third party owners or licensors under and in accordance with these FOD Pool Terms of such owners or licensors;
4.3.2 our authority to execute, perform and deliver our obligations under these FOD Pool Terms are dependent upon you obtaining the required licences and permissions for relevant Third Party Software which shall be your sole responsibility and liability; and
4.3.3 we will have no liability or responsibility for such Third Party Software except to the extent otherwise specifically agreed between us in writing.
4.4 You grant to us and our Affiliates a worldwide, royalty-free, transferable, non-exclusive right and licence, to:
4.4.1 use, copy, host, store, display, modify, adapt and reproduce Your Materials and develop derivative works for the purposes of providing FOD Pool (Evaluation) for your benefit or otherwise to exercise our rights, remedies and obligations under these FOD Pool Terms; and
4.4.2 where necessary, sub-licence (or otherwise make available) Your Materials to any subcontractors or suppliers used by us, but only as required for the provision of FOD Pool (Evaluation); and
4.4.3 utilise Your Materials in an anonymised and aggregated form for our business purposes (such as statistical information to improve the functionality of FOD Pool (Evaluation)).
4.5 You will:
4.5.1 obtain and maintain all necessary licences and consents required for us and you to use Your Materials and any Third Party Data in respect of which you have a direct licence with the relevant Third Party Data provider; and
4.5.2 be solely responsible for the population, accuracy, completeness, design, appropriateness, creation, maintenance, and updating of all Your Materials in the use of FOD Pool (Evaluation).
4.6 You acknowledge and agree that:
4.6.1 we will not be liable for any errors or inaccuracies in Your Materials or any changes or modifications to Your Materials by us due to your instructions; and
4.6.2 we will not be held responsible in any way for any Intellectual Property Right infringement, the violation of any other person’s rights or the violation of any laws, arising out of or related to Your Materials.
4.7 You warrant, undertake and represent to us that:
4.7.1 all licences and consents have been and shall be obtained and maintained in respect of the Your Materials and any Third Party Data and any Third Party Software in respect of which you have or should have a direct licence with the relevant Third Party Data or Third Party Software provider while we have a need to use them for the purposes of these FOD Pool Terms; and
4.7.2 Your Materials, any other material provided by you (or on your behalf) to us, and any Third Party Data and any Third Party Software in respect of which you have or should have a direct licence with the relevant Third Party Data or Third Party Software provider shall not infringe the rights of any third party (including any Intellectual Property Rights).
4.8 We may use any feedback and suggestions for improvement relating to the Services and/or FOD Pool (Evaluation) provided by you without charge or limitation (Feedback). You hereby assign (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to us at the time the Feedback is first provided to us.
4.9 Except for the rights expressly granted in these FOD Pool Terms, you will not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in FOD Pool (Evaluation) and no Intellectual Property Rights of either party are transferred or licensed as a result of these FOD Pool Terms.
5. YOUR DATA
5.1 Your Data will remain your property.
5.2 Except to the extent that we have direct obligations under applicable data protection Laws, you acknowledge that we have no control over any of Your Data hosted as part of the provision of FOD Pool (Evaluation) and may not actively monitor or have access to the content of the Your Data. You shall ensure (and are exclusively responsible for) the accuracy, quality, integrity and legality of the Your Data and that your use (including use in connection with FOD Pool (Evaluation)) complies with all applicable Laws and Intellectual Property Rights.
5.3 We agree to use: (i) firewalls and other technology generally used in the trade to seek to prevent unauthorised third-party access to our computer systems storing Your Data; and (ii) available encryption technology generally used in the trade to prevent unauthorised third-party access to Your Data transmissions. However and regardless of any other terms of our Agreement, we will not be liable to you in the event that: (i) our use of firewalls and other technology used by us fails to prevent unauthorised third party access to Your Data; or (ii) our use of encryption technology used by us fails to prevent unauthorised third party access to Your Data transmissions.
5.4 If we receive any request for disclosure of Your Data by a law enforcement authority, we will, unless prevented by Law:
5.4.1 notify you prior to making any such disclosure to enable you to take such steps as you deem reasonably necessary to maintain the confidentiality of Your Data; and
5.4.2 agree the timing and exact content of any such disclosure with you in advance of it being made.
6. WHEN YOUR ACCESS TO FOD POOL (EVALUATION) BEGINS AND HOW LONG IT LASTS
6.1 You access to FOD Pool (Evaluation) begins on the date we grant you access and shall continue for the Term, unless terminated earlier in accordance with these FOD Pool Terms.
6.2 Either of us may immediately terminate these FOD Pool Terms and the provision of access to FOD Pool (Evaluation) at any time on giving the other written notice.
6.3 We may restrict or suspend your access to FOD Pool (Evaluation) if:
6.3.1 if you do not pay what you owe us under any other contract that you have entered into with us, as set out in that other contract;
6.3.2 if we need to do Maintenance;
6.3.3 if we need to or reasonably believe we need to in order to protect the integrity or security of our Network or FOD Pool (Evaluation); or
6.3.4 if we consider it is within our business interests to do so.
6.4 On termination of these FOD Pool Terms for any reason your access to FOD Pool (Evaluation) will cease immediately.
7. HOW FAR WE EACH ARE RESPONSIBLE
7.1 Nothing in these FOD Pool Terms excludes or limits the liability of either of us for:
7.1.1 death or personal injury caused by either of us being negligent;
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 any other liability that cannot be excluded or limited by applicable law.
7.2 Subject to clause 7.1, we will not be held liable under or in connection with these FOD Pool Terms and whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution, or in any other way, for any special, indirect or consequential loss or damage.
7.3 Subject to clause 7.1, we will not be held liable under or in connection with these FOD Pool Terms and whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution, or in any other way (including under any indemnity), for any of the following losses, no matter if those losses are direct or indirect: loss of profit, revenue or anticipated savings; loss of business, contracts or commercial opportunity; loss or corruption of software or systems; harm to reputation or loss of goodwill; loss from wasted expenditure, wasted time or business interruption; loss, destruction or corruption of data; or any liability to third parties.
7.4 Subject to clauses 7.1, our total liability to you under or in connection with these FOD Pool Terms, and whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution, or in any other way (including under any indemnity), will be limited to £1,000.
7.5 To the maximum extent permitted by law, we shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of these FOD Pool Terms to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by: (a) any Relief Event; (b) the failure of any network, hardware, software or service which is not under our control; (c) any unauthorised access to or use of FOD Pool (Evaluation), save to the extent this is due to our breach of our security obligations under these FOD Pool Terms; (d) links to third party websites or the transfer of data to third party servers (other than by us); or (e) denial of service attacks (other than where we have failed to provide appropriate security measures for an environment we control).
7.6 No claim under these FOD Pool Terms may be brought against us more than 3 months after you discovered the basis for the claim.
7.7 To avoid doubt, our performance of our obligations under these FOD Pool Terms shall be provided to you only and we will have no obligations, duties or liabilities under these FOD Pool Terms directly to any Authorised User.
7.8 We exclude from these FOD Pool Terms, as far as the law allows, any warranties, conditions or other terms that might be implied by statute or common law.
7.9 This clause 7 shall survive the termination or expiry of these FOD Pool Terms.
Version: May 2024
