Terms and Conditions
Utegra ® is a registered trading brand of SurveyShack (SSL) Ltd a company registered in England and Wales with Company Number 8753421 and registered office at Mountbatten House, Fairacres, Windsor, Berkshire, SL4 4LE United Kingdom (“Utegra”, “we” or “us”). These terms and conditions form part of the Agreement (defined and detailed below) between you and us which governs all orders made by you with us for the Utegra Software, Software as a Service (SaaS) and Services (defined below), including software licences and consultancy, software design, graphical design and all related services. And, together with any documents they expressly incorporate by reference, govern your access to and use of the Utegra web site, including any content, functionality and services offered on or through www.utegra.co.uk and any other websites or mobile applications that post a link to these Terms and Conditions (and which are owned and operated by Utegra).
Please read the following terms and conditions of service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you access or use the Utegra Software, SaaS or Services.
1. General Terms
1.1 In this Agreement:
1.1.1 “Agreement” has the meaning given in clause 2.4;
1.1.2 “Service(s)” means the Bespoke Services, Custom Development Services, Managed Services, required by you as specified in the proposal
1.1.3 “Utegra Software” means any URL’s commissioned by or belonging to us, or any URL chosen by you, any custom software developed for you, or any Utegra SaaS tool, Custom Web Solutions and any subscription tools or licensed tools
1.1.4 “Staff” includes employees and sub-contractors;
1.1.5 “(W)we” “our” and “us” means SurveyShack (SSL) Ltd of Mountbatten House, Fairacres Windsor, Berkshire, SL4 4LE, trading as Utegra
1.1.6 “(Y)you” means the person (which includes a company or other business or organisation) contracting to obtain the Works (defined below) from us. Where “you” means more than one person, each one of you is responsible, individually, for each of the obligations of all of you under this Agreement;
1.1.7 “Personal Data”, “Process”, “Processor”, “Processing” shall have the same meaning as defined in the Data Protection Act 2018 (and General Data Protection Regulation (GDPR));
1.2 Paragraph headings are merely a guide and are not intended to be part of this agreement.
2. The Agreement
2.1 We agree to supply you with the Services for the price set out in the proposal and subject to the terms set out in this Agreement.
2.2 This Agreement constitutes the entire agreement between us and supersedes all prior oral and written agreements between us. You confirm you have not entered into this Agreement on the basis of any representations that are not expressly incorporated into this Agreement.
2.3 No variations to this Agreement may be made by you unless made in writing and signed by you or your authorised representative and a director of SurveyShack (SSL) Limited.
2.4 “Agreement” means:
2.4.1 amendments to these terms and conditions (made in accordance with clause 2.3);
2.4.2 the proposal;
2.4.3 documents explicitly referred to in the proposal;
2.4.4 these terms and conditions.
2.5 Where there is any conflict between the various documents constituting the Agreement, the documents shall take precedence in the order they are listed in clause 2.4.
2.6 This Agreement will apply to the exclusion of all other terms and conditions including those you may purport to apply under your purchase order, confirmation of order, or similar document.
3. Orders and Access
3.1 We may give estimates where requested and you acknowledge that such estimates are based only on a brief and indefinite outline of your requirements. Estimates do not amount to proposals. Proposals are provided once we have more knowledge of your requirements and amount to an indication that we may be willing to supply a particular Service at a particular price. Proposals are valid for 30 days only, unless otherwise agreed with us in writing, after which we reserve the right to alter the price(s) specified in the proposal.
3.2 A proposal and/or an estimate does not amount to a contractual offer.
3.3 All prices specified in the proposal and/or estimate are exclusive of VAT or other applicable taxes unless specifically stated.
3.4 No contract will come into place until either you receive an email or letter, or a written invoice from us, which will act as our acceptance of your offer made by either your submission to us of a purchase order for, or made by your instruction to proceed with, the Services.
3.5 In the case of a Utegra Software licence, we will, once the Utegra Software is ready, notify you of your access details, which will give you access to the Software either via our website www.utegra.co.uk or any other URL which you have chosen or from which the Utegra Software runs.
3.6 You agree to all these terms and conditions when you access or use the Utegra Software and Services that we provide to you via our website www.utegra.co.uk or any other URL which you have chosen or from which the Utegra Software runs.
4. The Services – variation and cancellation
4.1 You shall be responsible for communicating to us all information we require and which you believe will be necessary for us to provide the Services to you and will notify us if there are any issues which may affect the provision of the Services by us.
4.2 The specification of the Services will be as set out in the proposal and you shall, before placing your order, check the specification thoroughly. By submitting an order to us, you confirm that the specification is correct.
4.3 We reserve the right to make changes to the specification from time to time so long as the alteration does not substantially reduce the value or performance of the Services.
4.4 If you ask us to alter the specification after the order has been placed, we may consider doing so, at our discretion, and only after discussing with you the nature of the change, the procedures for implementing such change and any variation to the charges payable by you. (Please also refer to clause 13.6).
4.5 If, after you have placed the order, you wish to cancel it, we may consider doing so at our discretion and subject to you paying us our anticipated loss due to this cancellation (including loss of reasonable profit).
14.6 Right to Modify the SaaS; Use of Customer Feedback. Utegra may from time to time, in its sole discretion, change some or all of the functionality or any component of the SaaS. If Customer suggests or recommends any new features, functionality or any other changes to the SaaS, Utegra is free to use such suggestions and recommendations, without any attribution or compensation to any party.
5. Payment of Price
5.1 You must pay us the price specified in the proposal (or any other price notified to you where the validity of the proposal has expired) including any VAT or applicable taxes which may apply, in accordance with these terms and on the dates contained in it.
5.2 If we have undercharged you the VAT that should have been due on an order, you agree to pay us the outstanding VAT immediately. If we have overcharged you VAT, we shall refund the amount that you have overpaid.
5.3 Payment will be due in full immediately on receipt of our invoice unless stated by us in our proposal and/or invoice that payment is due within 30 days in which case the full price will be payable within 30 days of the date of our invoice, or other such credit terms as we expressly agree in writing, for the Services.
5.4 In the case of Utegra Software, the licence is a subscription for a pre-determined period of time and renewal fees will be payable depending on the specific subscription period.
5.5 If you fail to pay the whole or part of any sum you owe us by the time it becomes due for payment:
5.5.1we reserve the right to suspend your username and prevent you from having access to the Software and/or website;
5.5.2 all sums which you owe us (whether under this Agreement or any other agreement we have with you) will become due for payment immediately, and we may issue court proceedings against you to recover them without giving you any further notice;
5.5.3 we may charge you interest on the overdue sums at a rate of 6% over the base rate of Royal Bank of Scotland plc until payment in full is made.
5.6 You must pay us the whole of the amount due, and you may not set off or deduct anything from this amount without our written permission.
5.7 We may assign the benefit of any debt owed to us by you to any third party at any time, without giving you any notice.
6. Intellectual Property and other Rights
6.1 In consideration of the price paid for the Services, we grant you a non-exclusive, non-transferable, revocable, licence to use the Software.
6.2 You acknowledge that all intellectual property rights (including, without limitation, copyright, registered and unregistered trademarks and designs, and patents) in our questionnaires, Utegra Software (including code, algorithms and updates), programmes, website and any material of any nature which we provide you with belongs to us (or is licensed to us). Nothing in this Agreement is intended either to licence (except as permitted under this agreement) or transfer any intellectual property rights to you. For the avoidance of doubt, all intellectual property rights in any materials you provide to us, including your trade mark and brand, and any proprietary data, and all intellectual property rights in designs commissioned by us, for you, belong to you.
6.3 If we have agreed that we are to do anything under this Agreement on your instructions, and as a result we are in breach of any rights of anyone else (or anyone else threatens us with proceedings for breach of their rights) you agree to indemnify us against any loss we may suffer, including legal costs, in defending or resisting the proceedings or claim, or settling the proceedings or claim on legal advice. Your obligations under this clause will remain after the rest of this Agreement has terminated whatever the reason for termination.
6.4 If you become aware of any circumstances which may lead to a claim under clause 6.3 above, you agree to notify us about them as soon as possible.
6.5 If, as a result of such a claim or threat, we decide that it is no longer commercially sensible to proceed with your order, we may cancel the order in accordance with the provision set out below.
6.6 We will use reasonable commercial efforts to ensure that nothing we do under this Agreement will infringe the intellectual property rights of others. If we do anything under this Agreement which results in an actual or threatened infringement of the rights of anyone else (provided that it was something which was not done at your explicit direction or with your specific consent) (“a Claim”) we may at our option:
6.6.1 obtain a licence or settlement of the Claim (at no cost to you);
6.6.2 perform our obligation in a different way to avoid the Claim;
6.6.3 cancel the Agreement.
6.7 You warrant that you will not modify, adapt, merge, translate, disassemble, reverse engineer or decompile the whole or any part of the Utegra Software unless expressly permitted by and in accordance with any statutory provisions.
7. Assignment, Sub Contracting
7.1 We will not sub-contract the performance of our duties under this Agreement without your prior written consent, such consent not to be reasonably withheld.
7.2 We shall not assign, novate or otherwise transfer this Agreement or any of its rights and duties without your prior written consent.
7.3 You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of your rights or obligations under this Agreement.
8. Third Party Recommendations and Statements
8.1 As part of carrying out our obligations under this Agreement we may recommend or suggest that an alternative 3rd party carry out work for you, or supplies goods, software or services to you. By making this recommendation or suggestion, we do not guarantee the quality of that work or those goods, software or services and will not be liable for them.
8.2 Where we provide goods or software originally manufactured or developed by others, we may pass on to you statements or representations about such software or goods. We pass this information on to you in good faith but we do not undertake to verify them or guarantee their accuracy, and exclude any liability in relation to these goods and software.
9. Unforeseen Circumstances
9.1 We shall not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen event beyond our reasonable control including and without limitation fire, flood, industrial action, act of terrorism or act of God.
10. Warranties, Indemnities and Liability
10.1 We will not be liable for any consequential or indirect loss damage whether for loss of profit, loss of anticipated savings or costs of loss of staff time, and whether arising out from negligence, breach of contract or howsoever, even if we had been advised of the possibility of such damages.
10.2 We will not be liable in respect of any machine or system and will not incur any liability in the event that a system failure results from any interfacing with non-compliant hardware or third-party software.
10.3 You acknowledge that we cannot be held liable for any downtime in respect of any circumstance affecting our associated hosting partners and bandwidth carriers.
10.4 We do not warrant that the use of the Software will be uninterrupted or error free but we will use our best endeavours to prevent such errors and/or interruptions occurring, and we will remedy such errors and/or interruptions as soon as possible.
10.5 Our entire liability under this Agreement shall be limited to the price paid for the Services to which the claim relates in any one year.
10.6 Nothing at all in this agreement (which includes all documentation referred to in it) is designed or intended to exclude or restrict either party’s liability for the death of or personal injury to anyone caused by that party’s negligence or the negligence of anyone for whom that party are responsible, including employees, sub-contractors and agents.
10.7 You agree to indemnify us and hold us harmless from and against all and any claims, demands, loss, damage, liability, cost and expense arising out of by reason of any breach of this Agreement or breach of any of your representations and warranties contained herein.
11. Time for Performance
11.1 Unless otherwise agreed in writing between us, whenever we agree to do anything by or on a particular time and/or date, we will use our best endeavours to do so by or on that particular time and/or date, but we shall not be liable for late or non-performance.
12. Maintenance and Support
12.1 We are continually developing our Software (unless it is custom software) and from time to time may provide various updates and upgrades to the Software free of charge. We may also develop additional updates and upgrades which will not be free of charge, but will be optional extras for you to purchase. You acknowledge that such updates and upgrades may require our site to be temporarily rendered unusable whilst being installed.
12.2 Any maintenance requests must be made through the existing support system by sending an email to firstname.lastname@example.org We will use our best endeavours to deal with all urgent queries within 6 normal working hours of receiving your request. Normal working hours are between 9am and 5pm, Monday to Friday. Any requests made after normal working hours will be dealt with the next working day.
12.3 Training sessions relating to the Software can be arranged at your request and based on your requirements. The training sessions will be charged on an hourly rate and you will be required to pay for any related travel and subsistence expenses, and the cost of the venue you require.
12.4 We will provide you with access to an electronic manual for the Software.
12.5 We reserve the right to download your database files for maintenance and backup purposes, and you are free to request an export file or to download directly from our website any of your own data at any time for your own use.
13. Special Terms
Custom Software Development Services, Managed Services and Bespoke Services
13.1 Where we tailor the functionality of the Utegra Software to meet your needs (“Custom Development Services”), we reserve the right to incorporate any such software developed or customised by us for you into the Utegra Software for use with future clients, and clauses 13.4 to 13.6 will apply.
13.2Where we personalise questionnaires to match your brand appearance and in accordance with your requirements (“Bespoke Services”) or create questions based on the information you require (“Managed Service”), clauses 13.4 to 13.6 will apply.
13.3 We will provide the Custom Software Development Services, Bespoke Services and Managed Services as required by you and as set out in the proposal and develop the Custom Software or questionnaires (“Bespoke Works”) in accordance with your instructions and written specification (which you will provide to us with your purchase order) and the deadlines agreed by us.
13.4 Once we have developed the Bespoke Works, we will send these to you for your approval and/or testing. If you are satisfied that the Bespoke Works have been produced in accordance with your specification, you will immediately notify us in writing of your acceptance of the Bespoke Works.
13.5 Where you are not satisfied that the Bespoke Works have been produced in accordance with your specification, you will notify us in writing within 5 working days from receiving the Bespoke Works from us and we will then carry out any amendments that need to be made and you will receive the Bespoke Works again for acceptance.
13.6 Where you make a change to your specification (including without limitation changes to your branding requirements, changes to the outcomes you wish to achieve through the questionnaires and changes to the format in which you wish to view the results and reports of the questionnaire) that requires considerably more time being spent by us in developing the Bespoke Works (“Changes”), we reserve the right to charge for the additional work based on our hourly rates. We will not carry out any Changes until and unless the additional fees have been agreed with you.
14.1 You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of your rights or obligations under this Agreement.
14.2 We may at any time assign or subcontract all or any of our rights or obligations under this agreement.
15.1 Where any notice is required to be given under this Agreement, it is validly given if it is in writing and sent by fax, email or prepaid first-class or airmail post to the correct fax number, email address or postal address of the relevant party as contained on the proposal or prior correspondence, or subsequently notified to the other party. Where sent by fax or email, the notice is deemed to have arrived 24 hours after the date and time of sending. If sent by email, the notice is deemed to have arrived 24 hours after it was sent (unless within those 24 hours the sender has been sent an email saying that the notice has not been delivered). If sent by post, the notice is deemed to have arrived on the third working day after the day on which it was sent (if sent to an address within the UK), the fifth working day (if sent to an address within the EU) or the tenth working day (anywhere else in the world) (unless in each case within that period it was returned as undelivered).
16. Confidentiality and Solicitation of Staff
16.1 For purposes of this Agreement, “Confidential Information” means, with respect to either party, any and all information in written, representational, electronic, verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of or relating to the disclosing party (including, but not limited to, information identified as being proprietary and/or confidential or pertaining to, pricing, marketing plans or strategy, volumes, services rendered, customers and suppliers lists, financial or technical or commercial or service matters or data, employee/agent/ consultant/officer/director related personal or sensitive data and any information which might reasonably be presumed to be proprietary or confidential in nature).
16.2 Confidential Information shall exclude any such information which:
16.2.1 is known to the public (through no act or omission of the receiving party in violation of this Agreement);
16.2.2 is lawfully acquired by the receiving party from an independent source having no obligation to maintain the confidentiality of such information;
16.2.3 was known to the receiving party prior to its disclosure under this Agreement;
16.2.4 was or is independently developed by the receiving party without breach of this Agreement; or
16.2.5 is required to be disclosed by governmental or judicial order, in which case the party so required shall give the other party prompt written notice, where possible, and use reasonable efforts to ensure that such disclosure is accorded confidential treatment and also to enable such other party to seek a protective order or other appropriate remedy at such other party’s sole costs.
16.3 Each party agrees that it shall take reasonable measures to protect the confidentiality of and avoid disclosure and unauthorised use of the Confidential Information of the other party. Without limiting the foregoing, each party shall:
16.3.1 take at least those measures that it takes to protect its own most highly confidential information
16.3.2 ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees, and
16.3.3 each party shall maintain a list of all individuals who are given access to any of the Confidential Information of the other party. Neither party shall make any copies of the Confidential Information of the other party unless the other party previously approves the same in writing. Each party shall reproduce the other party’s proprietary rights notices on any such approved.
16.4 You agree not to approach or engage any of our staff with whom you have had contact directly or indirectly within at least six months after the termination of this Agreement between you and us. For the avoidance of doubt, you will also not (for the six month period following termination of this Agreement) identify any of our staff to any other person with a view to that other person engaging our staff member.
17. Term and Termination
17.1 This Agreement shall commence at the point in time that a contract comes into place in accordance with clause 3.4, and shall continue until the completion of your project using the Software, unless terminated earlier in accordance with this clause.
17.1.1 In the case of an annual licence subscription this agreement will continue for the initial annual term, unless terminated earlier in accordance with this clause 17 and will automatically renew for further annual terms thereafter unless either party notifies the other party of its intent not to renew at least thirty (30) days before the end of the initial annual term or subsequent renewal annual term.
17.2 If you commit a breach of this Agreement (including non-payment of our fees) and you are unable to remedy such breach within 14 days of receiving written notice from us requiring the breach to be remedied, we may terminate this agreement immediately without notice.
17.3 Either of us may terminate this Agreement immediately without giving written notice to the other in the event that any of the following occurs:
17.3.1 the presentation of a bankruptcy or winding-up petition against the other party;
17.3.2 an encumbrancer takes possession, or a receiver is appointed over all or any part of the other party’s assets;
17.3.3 the commencement of any winding-up process (other than for the purposes of reconstruction or amalgamation);
17.3.4 the entry into or proposal of any form of voluntary arrangement or composition with the other party’s creditors;
17.3.5 the other party becomes subject to an administration order;
17.3.6 anything analogous to any of the foregoing in any jurisdiction; or
17.3.7 the other party ceases or threatens to cease to carry on business.
17.4 The rights to terminate this Agreement given by this clause shall be without prejudice to any right or remedy of either party in respect of the breach concerned (if any) or any other breach.
17.5 On termination of this Agreement by us, we shall no longer be under any obligation to do any work for you under it, and you immediately become liable to pay us all sums which you owe us (in relation to this and other agreements we may have with you). In addition, you will be liable to pay us for all work carried out for you until the date of termination.
18.1 If we fail to rely on our strict legal rights under this Agreement, this will not prevent us from relying on those rights at any time in the future.
18.2 If any clause within this Agreement is deemed to be invalid then the particular offending clause in question shall be removed but the remainder of the Agreement shall remain effective and in force.
18.3 No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.1 If any dispute or grievance arises between us out of this Agreement, before taking any further action (such as requiring us to remedy an alleged fault within a specific time), we each agree that it will be discussed by the staff member of each of us who are most closely involved with the running of the contract. If that does not produce a resolution, the problem will be escalated to the respective superiors of each staff member respectively until the problem is dealt with. Only if the respective CEOs of each party cannot reach agreement on the dispute will the matter be taken to the next stage as set out below.
19.2 Should the escalation mechanism set out in Clause 19.1 above fail to be effective, before taking any other action, we will attempt in good faith to resolve the dispute or claim through an alternative dispute resolution (“ADR”) procedure as recommended to us by the Centre for Dispute Resolution Group or other recognised mediation authority. Unless we agree otherwise, the costs of the mediation shall be borne equally by each of us.
19.3 If the matter has not been resolved by an ADR procedure within 30 days of the initiation of such procedure (or such other period as we may agree in writing) or if either or us will not or ceases to participate in an ADR procedure the dispute shall be referred to the English Courts.
20. Governing Law and Jurisdiction
20.1 The Agreement shall be governed by, and construed in accordance with, the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.
21. Data Protection
21.1 Each Party to this Agreement agrees to comply at all times with their respective obligations under the Data Protection Act 2018 (and the GDPR) in relation to all Personal Data that is Processed.
21.2 You agree that we may process Personal Data on your behalf solely for the legitimate reasons of the provision of Services to you under this Agreement.
21.3 We shall, when acting as a data processor, Process Personal Data in accordance with the principles of the Data Protection Act 2018 (and the GDPR).
21.4 We shall comply with all instructions given by you from time to time in relation to such Processing providing that your instructions comply with each parties’ obligations under the Data Protection Act 2018 (and the GDPR).
21.5 We agree that at all times when Processing Personal Data we will implement appropriate technical and organisational security measures (which we shall promptly provide to you upon request) governing the Processing of the Personal Data to be carried out. These measures shall ensure an appropriate level of security so as to avoid unauthorised or unlawful processing or accidental loss, destruction or damage of Personal Data including but not limited to taking all reasonable steps to ensure the reliability of staff having access to Personal Data.
21.6 We will provide you with your questionnaire response data (including Personal Data, if required) in connection with the Services we provide to you.
21.7 We will not disclose any Personal Data to any third parties without your prior written consent.
21.8 You agree that we may share with the sub processor companies with whom we work closely, the questionnaire response data, on the condition that they operate in compliance with Data protection Act 2018 (and the GDPR) and we have appropriate Data Processing Addendums in place between ourselves and these third parties.
21.9 The parties to this agreement agree that all disclosure and use of Response Data (defined below) will comply with the terms and conditions and privacy policies under which it was collected and all applicable laws, statutes, rules or regulations relating to such Response Data and the persons from whom it is collected. “Response Data” means data obtained from persons responding to and/or having received surveys or invitations to respond to appraisal from Customer. Customer further agrees and warrants that its collection, use and processing of Response Data from those persons complies with its stated privacy policies and complies with all applicable data protection laws. In particular, Customer will ensure that its privacy policies are clearly drawn to its users’ attention in a manner compliant with EU requirements. Customer is responsible for all actions with respect to personal data of persons that respond to Customer’s surveys or appraisals to whom Customer sends invitations. Title to and ownership of all intellectual property rights of the Response Data shall remain exclusively with Customer.
Utegra may from time to time, in its sole discretion, change the terms and conditions of this Agreement. If any such change is material, as determined in Utegra’s sole discretion, Utegra will update the terms and conditions on their website. By continuing to access and use the Software after those changes become effective, Customer agrees to be bound by the revised Agreement.
Valid from: 25th May 2018
Last Updated: 10th November 2020