Terms of Service

‘Malcolm!’ is service provided by Acknowledgment Limited, a company incorporated in England with company number 04675294 and whose registered office address is at 64 Southwark Bridge Road, London, England, SE1 0AS (“Malcolm!”, “we” or “us”). These terms and conditions (the “Agreement” or “Terms”) govern the relationship between Malcolm! and its Customers (“you”) in relation to the supply of the Services (as defined below).

1.

INTERPRETATION

1.1

The following definitions apply in these Terms:

Authorised Users: the Customer, and those employees, contractors, associates or community members invited by the Customer to access and make use of the Services under this Agreement.

Commencement Date: the date of the commencement of the Services.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information under the terms of clause 9.

Customer: means the company, partnership or individual who registers a customer account on the Platform.

Customer Data: the data inputted into the information fields of the Service by the Customer or by Authorised Users.

End User: means users who are able to see and interact with the content created within Malcolm! by a Malcolm! User. End Users may supply End User Data.

End User Data: means data which is submitted to the Platform by End Users.

Fees: the fees payable by the Customer to Malcolm! for the Services, as set out on the Platform (which shall include the addition of VAT where applicable at the prevailing rate).

Instance: an ‘Instance’ is a collection of related FAQ’s and/or workflows that End Users will be able to see and interact with and a set of management tools that Malcolm! Users will be able to use. Each ‘Instance’ also includes a hosted hub that can be customised and branded.

Instance Owner: means a Malcolm! User who has set up one or more Instances of Malcolm! and/or has been made the Instance Owner by the previous Instance Owner. The Instance Owner is the Malcolm! User with responsibility for all Instance content and administration and, following the free trial, for payment for the Services.

Integrations: are third party services that may be connected to a Malcolm! Instance. The Malcolm! User can configure Integrations such that User Content or End User Data is transferred to those third party services.

Malcolm! User: a user who has registered to use the Services at malcolm.app. Malcolm! Users can be added to one or more Instance.

Platform: means the application available at website, malcolm.app, and its associated functionality and mobile applications.

Services: means access to and use of Malcolm! a customer support and customer servicing application suite that is provided at malcolm.app.

Software: Malcolm!'s proprietary software application which has been designed to assist with customer support, FAQ’s, web journeys and more, provided to the Customer under this Agreement.

Term: means the term of this Agreement.

User Content: means content provided by a Malcolm! User within an Instance and which can be seen and interacted with by other Malcolm! Users and End Users.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

2.

LICENCE AND COMMENCEMENT AND DURATION OF THE SERVICES

2.1

The Customer is granted a licence for all Authorised Users to use the Services during the Term on the terms and subject to the conditions set out in this Agreement.

2.2

Your Licence to use the Services begins on the date we send your confirmation email. You will be entitled to use the Services for the period of your Free Trial (unless terminated earlier in accordance with these Terms). Once your Free Trial has expired the Services shall automatically continue for recurring periods of one month (a “Billing Month”) until terminated by you or us in accordance with these Terms.

2.3

You may terminate your licence with us by deleting your user account on the Platform. This will be processed immediately. If you are an Instance Owner your Instance(s) will be deleted at the same time as your user account.

2.4

We may suspend or terminate your access or use of the Services immediately on notice to you, or remove any User Content, in the event that you fail to comply with one or more of these Terms or we believe that there has been fraudulent use, misuse or abuse of the Services. In such case, no Fees shall be refunded to you. We may also suspend or terminate your access for any other reason at our discretion, in which case you may be entitled to the return of any unused Fees you have paid.

2.5

The Customer’s licence is not exclusive and Malcolm! is entitled to grant similar licences to other customers or users at any time at its entire discretion.

2.6

Authorised Users will be able to access the Services through the Malcolm! Platform. Whilst the Platform is fully functionable through most browsers, Malcolm! does not warrant that it will be fully accessible or operational with all browsers.

2.7

Malcolm! gives no warranty or guarantee over the quality, accuracy or completeness of any results which may be obtained by using the Services.

3.

AVAILABILITY OF THE SERVICES

3.1

Malcolm! does not guarantee that the Services will be available at all times and the Customer accepts that the Services may be unavailable due to maintenance or for any other reason. In such circumstances, Malcolm! shall use reasonable commercial efforts to restore Services to full availability as soon as possible.

3.2

Malcolm! will make reasonable commercial efforts to support the latest version of web browsers and operating systems. However, Malcolm! does not guarantee support for any particular web browser or version.

3.3

Malcolm! hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to allow Authorised Users to access and use the Services.

3.4

Authorised Users are not permitted to store, distribute or transmit any Virus, or any material through the Platform that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.

3.5

Authorised Users shall not:

(a)

attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(b)

attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(c)

access all or any part of the Software in order to build a product or service which competes with the Software and/or the Services;

(d)

use the Software to provide services to third parties; or

(e)

transfer, temporarily or permanently, any of its rights under this Agreement, or

(f)

assist any third parties (who are not permitted to obtain access under these Terms) to obtain access to the Services.

3.6

The Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Services and notify Malcolm! promptly of any such unauthorised access or use.

4.

CUSTOMER DATA

4.1

The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

4.2

The Customer grants to Malcolm! a royalty-free, non-exclusive, non-transferable licence to process Customer Data in accordance with the terms of this Agreement for the purpose of fulfilling its obligations under this Agreement.

4.3

Malcolm! shall follow its standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Malcolm! to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Malcolm! in accordance with its standard archiving procedures. Malcolm! shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

4.4

The Customer is able to download or export its Customer Data at any time. Instructions on how to do so are available on the Platform.

4.5

If Malcolm! processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Malcolm! shall be a data processor and in any such case:

(a)

the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Malcolm! so that Malcolm! may lawfully process the personal data in accordance with this Agreement on the Customer’s behalf;

(b)

Malcolm! shall process the personal data in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

(c)

each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage; and

(d)

any user shall ensure that when setting up workflows or making any other use of the Services that they possess the relevant consent or lawful permission to use, process and share End User Data and that they comply with all relevant data protection laws in all relevant jurisdiction(s) in relation to the data processed through the Malcolm! Platform.

5.

USER CONTENT

5.1

Users shall be solely responsible for their own User Content and the consequences of posting or publishing them.

5.2

Each user represents and warrants that:

(i)

it owns or has the necessary rights and permissions to use and authorizes us to use all copyright, trademark or other proprietary rights in and to any User Content to enable inclusion and use on the Platform and in accordance with these Terms; and

(ii)

whilst, the user retain all of its ownership rights in its User Content, by submitting the User Content to us, the user hereby grants Malcolm!, in addition to any other rights which Malcolm! may have, a worldwide, non-exclusive and transferable license to use, copy, prepare derivative works of, display and broadcast the User Content in connection with the Platform and our business, including without limitation to grant access to the Platform to third parties to view the User Content (and derivative works thereof).

(iii)

users will not: (i) submit material that is false or misleading, copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless the user is the owner of such rights or has permission from their rightful owner to post the User Content and to grant Malcolm! all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Malcolm!, its business or any third party; (iii) submit material that is unlawful, obscene, libelous, threatening, pornographic, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or (iv) misidentify themselves in submitting the User Content or misstate their true identity.

5.3

Users warrant that they will not at any time: impersonate any other person by using their login details (with or without permission of that user); allow any other person to use their login details; do anything likely to impair, interfere with or damage or cause harm or distress to any persons using the Services; use the Services or the content available on the Platform to do anything that will infringe any intellectual property right or other rights of any third party; or use any information obtained using the Services or available on the Platform otherwise than in accordance with these Terms.

5.4

We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content. Users understand that when using the Platform, they may be exposed to User Content from a variety of sources, and that Malcolm! are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. Users may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and users waive any legal or equitable rights or remedies they may have with respect thereto, and agree to indemnify and hold Malcolm!, our owners, affiliates, employees, agents and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to the use of the Services.

5.5

Any breach of the terms of this clause 5 will result in the user’s account being immediately terminated and may result in the user becoming liable to legal action.

6.

CUSTOMER'S OBLIGATIONS

6.1

The Customer shall:

(a)

provide Malcolm! with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Malcolm! in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer's other business applications; and

(b)

comply with all applicable laws and regulations with respect to its activities under this Agreement.

7.

CHARGES AND PAYMENT

7.1

The Customer shall pay the Fees for the Services.

7.2

Fees are incurred on a per Instance basis. The Instance Owner is responsible for supplying valid payment details.

7.3

Fees for Instances on Micro and Team plans are currently billed monthly in advance. However, Malcolm! reserves the right to amend its Fees or billing structure at any time.

7.4

If the Customer cancels an Instance no fees will be refunded for any remaining period of the monthly billing cycle.

7.5

All amounts and fees stated or referred to in this Agreement are exclusive of value added tax, which shall be added at the appropriate rate.

7.6

Unless otherwise agreed, the Customer shall pay the Fees on a monthly basis. If Malcolm! has not received payment within five days after the due date, and without prejudice to any other rights and remedies of Malcolm!:

(a)

Malcolm! shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and may stop serving user content.

(b)

If Malcolm! continues to serve user content after the due date we reserve the right to apply interest which shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

(c)

As a result of non-payment Malcolm! may at its discretion suspend or terminate Instances and remove all associated content and customer data from the Platform.

8.

INTELLECTUAL PROPERTY RIGHTS

8.1

The Customer acknowledges and agrees that Malcolm! and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

8.2

‘Malcolm!’ is a registered trademark of Acknowledgement Ltd, in trademark classes 9 and 42, registered in the UK with trademark number UK00003163714.

9.

CONFIDENTIALITY

9.1

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not include information that:

(a)

is or becomes publicly known other than through any act or omission of the receiving party; or

(b)

was in the other party's lawful possession before the disclosure; or

(c)

is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d)

is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e)

is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.2

Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

9.3

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

9.4

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

9.5

Malcolm! acknowledges that the Customer Data is the Confidential Information of the Customer.

9.6

The Customer agrees that Malcolm! can make reference to them as a client and use the Customer’s name and logo and/or reproduce screen shots of the Customer’s website on Malcolm!’s website or any other marketing material for Malcolm! for an indefinite period unless explicitly requested to keep private.

9.7

The above provisions of this clause 9 shall survive termination of this Agreement, however arising.

10.

WARRANTY AND INDEMNITY

10.1

The Customer warrants and undertakes that:

(a)

any Customer Data and any information, specifications or materials given to Malcolm! will not infringe any intellectual property or other rights of any third party (including but not limited to framing and linking to third party websites and/or third party proprietary material) and complies with the requirements of the Data Protection Act 1998 (as amended); and

(b)

it has supplied and shall continue to supply accurate replies, information and specifications in response to all Malcolm!’s enquiries, requests for information and specifications in respect of all matters relating to the Services.

10.2

The Customer shall defend, indemnify and hold harmless Malcolm! against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Software or Services.

10.3

Malcolm! shall have no liability in respect of any alleged infringement of any intellectual property rights of any third party where such claim is based on:

(a)

a modification of the Software by anyone other than Malcolm!; or

(b)

the Customer's use of the Software in a manner contrary to the instructions given to the Customer by Malcolm!; or

(c)

the Customer's use of the Software after notice of the alleged or actual infringement from Malcolm! or any appropriate authority.

10.4

The foregoing and the terms of clause 11 set out the Customer’s sole and exclusive rights and remedies, and Malcolm!’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

11.

LIMITATION OF LIABILITY

11.1

This clause 11 sets out the entire financial liability of Malcolm! (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer arising under or in connection with this Agreement, in respect of any use made by the Customer of the Services or the Software or any part of them or in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2

Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer. Malcolm! shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Malcolm! by the Customer in connection with the Services, or any actions taken by Malcolm! at the Customer's direction. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

11.3

Nothing in this Agreement excludes the liability of Malcolm! for death or personal injury caused by Malcolm!'s negligence or for fraud or fraudulent misrepresentation.

11.4

Subject to clause 11.3, Malcolm! shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement and Malcolm!'s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.

12.

TERM AND TERMINATION

12.1

This Agreement shall commence on the Commencement Date and shall continue for the Term. Fees are incurred per Instance and where the Fees are paid monthly, this Agreement shall automatically renew for monthly periods, unless the customer gives notice by cancelling their plan before the monthly renewal date.

12.2

Without affecting any other right or remedy available to it, Malcolm! may terminate this Agreement with immediate effect by giving written notice to the Customer if:

(a)

the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;

(b)

the Customer commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c)

the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or

(d)

the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company).

12.3

On termination of this Agreement for any reason:

(a)

all licences granted under this Agreement shall immediately terminate;

(b)

the Customer shall cease to use the Software and shall uninstall or delete any Software, library or materials belonging to Malcolm! from its computer systems and communication devices;

(c)

Malcolm! may destroy or otherwise dispose of any of the Customer Data in its possession; and

(d)

any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

13.

FORCE MAJEURE

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Malcolm! or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Malcolm!s or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Agreement by giving 30 days' written notice to the other party.

14.

WAIVER

14.1

A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

14.2

Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

15.

RIGHTS AND REMEDIES

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

16.

SEVERANCE

16.1

If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

16.2

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17.

ENTIRE AGREEMENT

17.1

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2

Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

18.

ASSIGNMENT

18.1

The Customer shall not, without the prior written consent of Malcolm!, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

18.2

Malcolm! may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

19.

NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

20.

VARIATION

Malcolm! may update or amend these Terms from time to time. The Customer should check its Customer Platform to see the latest version of these Terms which shall apply to use of the Software and Services with effect from the date of the update.

21.

THIRD PARTY RIGHTS

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

22.

NOTICES

22.1

Any notice required to be given by you under this Agreement may be sent by email to support@malcolm.app or given in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address set out in this Agreement.

23.

PRIVACY POLICY

You acknowledge that you have read, understand and agree to Malcolm’s Privacy Policy, which is hereby incorporated into and made a part of these Terms of Service by this reference.

24.

GOVERNING LAW

This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

25.

JURISDICTION

The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement, the Software or the Services (including non-contractual disputes or claims).

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