Cloud Subscription Agreement - FileHound (CSA) V4.1

>SAMPLE OF CURRENT 4.1 AGREEMENT ONLY<

This Cloud Subscription Agreement is a binding agreement between [the client's name], the official user of FileHound Document Management (hereinafter referred to as the "Client"), and Element3 Software Limited, a company registered in the United Kingdom under number 07308314, whose registered office is located at Caxton House Hertford England SG13 7TZ (hereinafter referred to as the "Service Provider").
 

WHEREAS: 

1.    The Service Provider is engaged in the business of providing an electronic document management service via a hosted SaaS or privately hosted platform accessible via the web.

2.    The Client wishes to procure an electronic document management service from the Service Provider and the Service Provider agrees to provide a service under the terms and conditions set out in this Agreement.

IT IS AGREED as follows:

Definitions and Interpretation 

In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

1)     Unless the context otherwise requires, each reference in this Agreement to:

a)    “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

b)    a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

c)    “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;

d)    a Schedule is a schedule to this Agreement; and

e)    a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.

f)      The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

g)    Words imparting the singular number shall include the plural and vice versa.

h)    References to any gender shall include the other gender.

2)    Term

a)    The Services will be provided by the Service Provider during the term of this agreement (the “Term"), which shall commence when signed and will continue for one year and annually thereafter unless otherwise terminated in accordance with Clause 9 of this Agreement.

b)    The Term will be automatically renewed on each anniversary (the “Automatic Annual Renewal Date”) on the same terms and conditions plus any annual increase as set out in this Agreement for a further period of 1 year unless otherwise terminated in accordance with Clause 9 of this Agreement.

3)    Fees and Payment

a)    The Client shall pay a Service Fee as listed in Schedule 2 plus any pre-agreed annual increase to the Service Provider on each anniversary of service commencement in consideration of the Services.

b)    The Client shall be invoiced separately for any new Software or Services that may be supplied by the Service Provider. The cost of any such Software or Services shall be as per the Service Provider’s current price list.

c)    All Invoices shall be sent to the Client at the address detailed in the preamble to this Agreement unless otherwise agreed by the Parties and shall be paid within 30 days of the invoice date.

d)    All sums specified in this Agreement are exclusive of any value added tax unless expressly stated otherwise.

4)    Services

a)    The Service Provider shall use its reasonable endeavours to ensure the Services are available and in accordance with prevailing best practices in the industry.

b)    During the Term of this Agreement, Client will receive a royalty free, non-assignable, nonexclusive, worldwide right to access and use the Subscription Services solely for your internal business operations subject to the terms of this Agreement and up to the number of Users in the Schedule.

c)    Client acknowledges that this Agreement is a services agreement and FileHound will not be delivering copies of the Software or any part of the Software code to Client as part of the Subscription Service.

d)    The Service Provider will use its reasonable endeavours to provide 99% Service availability but does not guarantee 100% uptime and for the avoidance of doubt any downtime either directly or indirectly caused by any of the following shall not be deemed a breach of this Agreement:

e)    Any breach by the Client of this Agreement;

i)      A failure of the telecommunications network;

ii)     A Force Majeure event;

iii)   An immediate and critical update requirement which if delayed may compromise security, availability or performance;

iv)   Any scheduled maintenance carried out; or

v)    The Client’s computer system or software not operating correctly.

f)      The Services shall be deemed to include the following:

i)      The Service Provider will ensure that an active account(s) is created for the Client and provide the necessary login detail(s) on or before the Service commences;

ii)     An email support service during Business Hours;

iii)   Corrections of any replicable Defects in the Software that may be necessary to ensure appropriate operation of the Service;

iv)   At least 10 (ten) days prior notice to any scheduled maintenance works required;

v)    Periodic version updates of Software

g)    This Agreement shall not be deemed automatically to cover any additional Software that the Client may purchase during the Term.  Extension of the Services to cover such new Software shall occur only by agreement between the Parties and may result in an increase in the Service Fee, such increase being at the discretion of the Service Provider.

h)    Under no circumstances shall the Service Provider undertake any work that may result in the infringement of the Software, such work to include, but not be limited to the unauthorised modification of Software.

i)      The Service Provider will use reasonable endeavours to establish connectivity and compatibility with other systems but does not guarantee compatibility with any other software or system.

j)      The following are expressly excluded from the Services and shall only be undertaken at the discretion of the Service Provider at extra cost to the Client:

i)      Support and maintenance of computer hardware and software not provided as part of the service;

ii)     Provision of any high availability or replication services;

iii)   Support of any third party software which may be used in collaboration with the Service Provider’s solution but is not supported by the Service Provider;

iv)   Support of client desktop, laptop or mobile operating system, including their browsers and networking capability; and

k)    All services provided by FileHound under this Agreement extend to the Client only, and do not extend to any other person, corporation or entity, regardless of their relationship with the Client and under no circumstances will FileHound be obliged to provide services or support to third parties.

5)    Client’s Obligations

a)    The Client shall enable the Service Provider to remotely access the Clients FileHound System as and when required so that the Service Provider may reasonably require such access in order to provide any support Services.

b)    The Client shall perform its obligations under this Agreement in a reasonable and timely manner in accordance with the provisions of this Agreement.

c)    The Client shall use its reasonable endeavours to keep the Service Provider informed of any special requirements (including, but not limited to, legislative requirements) applicable to the rendering of the Services.  

d)    The Client may not resell any services from the Providers Services or allocate usage or resources for any other purpose other than for their sole use of the FileHound Document Management System.

e)    The Client will ensure that the Service is used in such a way as to not cause damage to or impair the operation or availability of the Service.

f)      The Client shall use all reasonable endeavours to ensure that no unauthorised access to the Service using logon credentials supplied to the client can take place and the Client will ensure that appropriate security is in place to prevent any unauthorised access.

g)    The Client shall ensure that the Service is not used in any way that is unlawful, illegal, fraudulent or harmful on in any way this connected with any activity which is unlawful, illegal, fraudulent or harmful.

h)    The Client must adhere to the Service Provider’s End User License Agreement (EULA) and ensure that all users using the Service must adhere to the End User License Agreement. 

i)      The Client may not use the Service for any unlawful or otherwise inappropriate purposes.  This includes, but is not limited to:

i)      Distribution of computer viruses, malware, spyware or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;

ii)     Distribution of pirated material including, but not limited to, software, videos, music and written works; and

iii)   Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or that which encourages criminal activities.

j)      The Client may not use the service in such a way as to link to any other websites or systems hosting any material.

k)    The Client undertakes to ensure that any and all personal information used as part of the service is gathered, processed and held in accordance with the relevant provisions of the Data Protection Act 1998.

l)      The Client shall be responsible for all activity relating to the use of the service.

6)    Service Provider’s Obligations

a)    The Service Provider shall use its reasonable endeavours to ensure that it does:

i)      Provide a service that reflect good industry standard security features;

ii)     Provide a platform that is appropriate to the service being delivered;

iii)   Provide a service which when used in accordance with this Agreement does not breach any laws and regulations applicable under English law;

iv)   Not unnecessarily make the service unavailable unless the requirement is critical;

v)    Shall provide all maintenance services with appropriately skilled staff and take reasonable care not to extend any planned outage time;

vi)   Not impose any unreasonable expense upon the Client in connection with its use of the Service; and

vii)  Not carry out any scheduled maintenance without providing the Client with at least 10 (ten) business days prior notice.

b)    The Service Provider shall immediately notify the Client of:

i)      Any security or data breach; and

ii)     Any additional charges which may be incurred without the Client’s immediate knowledge.

7)    Warranty 

a)    The Service Provider warrants to the Client that the Services supplied under this Agreement will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.

b)    Warranties for both parties are expressly set out in this Agreement. Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the satisfactory quality, fitness for purpose, or ability to achieve a particular result, of the Services is given or assumed by the Service Provider, and all such warranties, conditions, undertakings and terms are excluded.

c)    The Client acknowledges that due to the nature of complex software and hardware design and implementation that the services provided cannot be entirely free from security vulnerabilities and the Service Provider offers no warranty or representation that the service will be entirely secure.

d)    The Service Provider does not warrant that all problems can and will be corrected. The Service Provider shall use its reasonable endeavours to correct problems so long as the problems are replicable or otherwise identifiable by the Service Provider.

e)    The Service Provider does not warrant, and the Client agrees, that the complex software used to provide the services under this Agreement will be free from defects, errors and bugs.

f)      The Service Provider warrants to the Client that it has the authority and legal right to enter into and fulfil its obligations under this Agreement and the Service Provider also warrants that in exercising its rights to fulfil its obligations under this Agreement it will comply with all applicable regulatory and legal requirements.

g)    The Client warrants to the Service Provider that it has the authority and legal right to enter into this Agreement and undertake its obligations under this Agreement.

8)    Liability

a)    The Service Provider shall during the term of this Agreement, maintain employer's liability, third party liability, product liability and professional negligence insurance cover in respect of its liabilities arising out of or connected with this Agreement, such cover to be to a minimum value of £1,000,000 and with an insurance company of repute. The Service Provider shall on request supply copies of the relevant certificates of insurance to the Client as evidence that such policies remain in force. The Service Provider undertakes to use reasonable commercial efforts to pursue claims under such insurance policies.  

b)    The Service Provider shall indemnify the Client for direct damage to tangible property caused by the negligence of its employees in connection with the performance of the Services under this Agreement or by defects in any Software or other product supplied pursuant to this Agreement. The Service Provider's total liability under this Clause shall be limited to £500,000 for any one event or series of connected events.  

c)    Save in respect of claims for death or personal injury arising from the Service Provider's negligence, in no event will the Service Provider be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Service Provider, whether such damages were reasonably foreseeable or actually foreseen.  

d)    Except as provided above in the case of personal injury, death and damage to tangible property, the Service Provider's maximum liability to the Client under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to a sum equivalent to the price paid during that Service Period up until the point of claim to the Service Provider for the Services, Software or other products that are the subject of the Client's claim. The sum not to exceed the sum for which the Service Provider carries comprehensive insurance cover pursuant to clause 8.a.

e)    Neither party shall be liable to the other party in respect of any losses resulting from a Force Majeure Event.

f)      In respect of this Agreement and the provision of services used in accordance with this Agreement neither party shall be liable to the other for any loss of business, loss of production or loss of opportunities. 

g)    The Client's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action. For the purposes of this clause, the 'the Service Provider' includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.

9)    Termination

a)    The Service Provider shall be entitled to terminate this Agreement in the event that:

i)      The Client has failed to pay the Service Fee to the Service Provider for a period exceeding 30 days and fails or refuses to do so following the expiry of a written notice from the Service Provider requesting such payment within 7 days; or

ii)     The Client demands services which do not form part of the Services and which are not covered by this Agreement.

b)    The Client shall be entitled to terminate this Agreement in the event that:

i)      The Service Provider fails on more than 5 consecutive occasions within a period of 12 consecutive months to render the required Services to the Client in a timely manner and in accordance with the terms of this Agreement; or

c)    Either Party has the right to terminate the agreement immediately if the other:

i)      has committed a material breach of this agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 14 days after a written notice to do so; or

ii)     goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.

iii)   Either party has the right to terminate this agreement providing ninety (90) days written notice prior to the Automatic Annual Renewal Date.

iv)   In the event of termination for default committed by the Client, all payments required under this Agreement shall become due and immediately payable.

v)    Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Agreement shall survive termination under this Clause.

10) Confidentiality

a)    Each Party undertakes that it shall, at all times during the continuance of this Agreement and 3 years after its termination:

i)      keep confidential all Confidential Information;

ii)     not disclose any Confidential Information to any other person;

iii)   not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;

iv)   not make any copies of, record in any way or part with possession of any Confidential Information.

11) Either Party may:

a)    disclose any Confidential Information to:

i)      any sub-contractor or supplier of that Party

ii)     any governmental or other authority or regulatory body; or

iii)   any employee or officer of that Party or of any of the aforementioned persons;

b)    to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person in question that the Confidential Information is confidential and obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

c)    use any Confidential Information for any purpose, or disclosure it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.

d)    The provisions of this Clause 10 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

12) Intellectual Property Rights

a)    The Service Provider shall retain the ownership of any and all Intellectual Property Rights which may subsist in the products of the Services as provided by the Service Provider.         

b)    Throughout the Term of this Agreement, the Service Provider shall be deemed to automatically grant a royalty-free, non-exclusive licence of any and all such rights to the Client to use the same in accordance with the terms and conditions of this Agreement and the Services.

c)    The Service Provider warrants to the Client that the services provided and used in accordance with the terms of this agreement shall not infringe the Intellectual Property Rights of any person.

d)    If reasonably determined by the Service Provider that the service provided under the terms and in accordance with this Agreement infringes and person’s Intellectual Property Rights, the provider may deem it necessary at its own expense to:

i)      Adapt the service so that any infringements no longer exists; or

ii)     Purchase the required rights so that the service provided no longer infringes any other person’s Intellectual Property Rights.  

13) Relationship of Parties

a)    Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Client.

14) Assignment

15) The Service Provider retains the right to assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part.

16) Force Majeure

a)    Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

17) Severance

a)    The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

18) Entire Agreement

a)    This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement.  Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.

b)    Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.

c)    This agreement is not intended for any third party and is intended for the benefit of the parties named in this Agreement only. 

d)    The Service Provider reserves the right to change the terms of this Agreement and any and all other terms and conditions and/or policies which may affect the Client in order to comply with changes in the law.

19) No Waiver

a)    The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

20) Non-Exclusivity

a)    The relationship between the Parties under this Agreement is and shall remain non-exclusive.  Both parties are free to enter into similar relationships with other parties.

21) Dispute Resolution (Arbitration)

a)    It is agreed that where any dispute or difference relating to this Agreement arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.

b)    The arbitrator shall be agreed by the Parties or in the event of failure to agree shall be appointed by the President for the time being of the Law Society of England and Wales.

c)    The arbitration shall take place in the region of Greater London and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.

d)    The Parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.

e)    The Parties shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable.  The Parties shall co-operate fully with the arbitrator to achieve this objective.

f)      The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon both Parties.

g)    The Parties agree to exclude any right of application or appeal to the courts of England and Wales concerning any question of law arising in the course of the arbitration.

22) Law and Jurisdiction

a)    This Agreement shall be governed by the laws of England and Wales.

b)    Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.

23) Notices:

a)    FileHound includes the following Open-Source Software (OSS) components that are used to provide various functionalities within the system. As these OSS components are licensed under various licenses, it is important for users of FileHound to review and comply with the terms and conditions of each license:

i)      Elasticsearch - This is a distributed search and analytics engine that is used for full-text search, structured search, and analytics. Elasticsearch is licensed under the Elastic License, which is a source-available license that includes some restrictions on usage and distribution: https://www.elastic.co/licensing/elastic-license

ii)     Zeebe - This is a workflow engine that is used for orchestrating microservices and other distributed systems. Zeebe is licensed under the Zeebe Community License v1.0, which is a permissive license: https://camunda.com/legal/terms/cloud-terms-and-conditions/zeebe-community-license-v1-0

iii)   Tesseract - This is an optical character recognition (OCR) engine that is used for converting images of text into machine-readable text. Tesseract is licensed under the Apache License 2.0, which is a permissive license: https://github.com/tesseract-ocr/tesseract/blob/main/LICENSE

iv)   PDF.js - This is a JavaScript library that is used for displaying PDF documents in web browsers. PDF.js is licensed under the Apache License 2.0, which is a permissive license: https://github.com/mozilla/pdf.js/blob/master/LICENSE

b)    FileHound has not made any modifications or changes to the license key functionality, nor removed or obscured any functionality in the software that is protected by the license key. Additionally, FileHound has not altered, removed, or obscured any licensing, copyright, or other notices associated with the open source software components used in the product. We are committed to upholding the integrity of the open source software ecosystem and complying with all applicable license terms and conditions, and we take our responsibilities as a software developer and distributor seriously.

Schedule 1

Description of software subscription and service - i.e FileHound Cloud Essentials Package - 50 user subscription pack with details of the subscription start date.

Schedule 2

Description of service Fee and billing schedule

The Contract has been drawn up in two original copies whereby each Party acknowledges having received its copy.  

Last updated: August 2023