eFlow terms and conditions of access and use
1.1. These eFlow terms and conditions of access and use (together with any terms in the engagement letter and/or proposal with Efficio (the “Proposal”) shall constitute the entire agreement relating to the content, access and use of eFlow (“Agreement”) between Efficio Limited incorporated and registered in England with company number 4010379 whose registered office is at 33 Regent Street, London SW1Y 4NE (“Efficio”) and the Client named in the Proposal. If there is any conflict between the Proposal and these terms and conditions of access and use, save where expressly stated otherwise, these terms and conditions of access and use shall prevail in respect of eFlow.
1.2. This Agreement shall apply in relation to eFlow and shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s correspondence, request for proposal, prior proposal, purchase order or other document of the Client. The Client’s signed acceptance of the Proposal or the Client’s use of eFlow, whichever occurs earlier, shall constitute the Client’s acceptance of this Agreement.
2. Access to eFlow
2.1. In consideration of any payments agreed between Efficio and the Client either in this Agreement or under another contract in return for which Efficio agrees to allow access and use of eFlow, and subject to the Client’s continued compliance with the same, Efficio grants to the Client a non-exclusive, non-transferable right to permit those employees, agents, bidders, potential suppliers and independent contractors of the Client who are authorised by the Client (“Authorised Users”) to use eFlow during this Agreement solely for the Client’s internal business operations and subject to the terms in this Agreement.
2.2. The Client undertakes that:
2.2.1. the maximum number of Authorised Users that it authorises to access and use eFlow shall not exceed the number of user accounts identified in the Proposal;
2.2.2. it will not allow or suffer any 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, in which case the prior Authorised User shall no longer have any right to access or use eFlow;
2.2.3. it shall permit Efficio to audit the Client’s use of eFlow with reasonable prior notice;
2.2.4. it shall procure the compliance by the Authorised Users with the relevant provisions of this Agreement and any appropriate end user licence agreement;
2.2.5. each Authorised User shall keep a secure password for his use of eFlow, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;
2.2.6. it shall maintain a written, up to date list of current Authorised Users and provide such list to Efficio within 10 days of Efficio's written request at any time.
2.3. If an audit reveals or Efficio reasonably suspects that any password/ID is being used by someone who is not an Authorised User, that password/ID may be cancelled.
2.4. Efficio warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
2.5. Efficio shall use all reasonable commercial endeavours to ensure full continuity and functionality of eFlow save for:
2.5.1. planned maintenance carried out during the maintenance window as set out in the proposal or otherwise notified to the Client; and
2.5.2. unscheduled maintenance provided that Efficio has used reasonable endeavours to give the Client at least 6 hours' notice in advance.
2.6. Materials and features may be added to or withdrawn from eFlow and eFlow otherwise changed without notice to the Client provided they do not materially adversely affect the performance of eFlow.
2.7. Efficio shall use all reasonable skill and care in providing eFlow in accordance with its specification. If eFlow does not conform with its specification and such non-conformance materially and adversely affects Client’s use of eFlow, Efficio will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Otherwise, Efficio shall address such non-conformance as part of its overall maintenance roadmap for eFlow. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of this clause 2.7.
2.8. Notwithstanding the foregoing:
2.8.1. all warranties, conditions and other terms implied by statute of common law are, to the fullest extent permitted by law, excluded from this Agreement. Efficio makes no representation or warranty, express or implied, regarding suitability, originality, fitness for a particular use or purpose, or results to be derived from the use of any materials, eFlow or materials, research, reports, indices, qualitative assessments, data and content that Efficio has created prior to this Agreement or may thereafter create or acquire (the “Efficio Data”) provided under this Agreement;
2.8.2. the obligation in clause 2.7 shall not apply to the extent of any non-conformance which is caused by inappropriate use of eFlow, or modification or alteration of eFlow by any party other than Efficio or its authorised contractors or agents;
2.8.3. Efficio does not warrant that the Client’s access to or use of eFlow will be uninterrupted or error-free;
2.8.4. Efficio does not warrant the accuracy of any Efficio Data or that the use of eFlow will produce any specific results; and
2.8.5. Efficio is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that eFlow may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3. Client’s obligations and acknowledgements
3.1. The Client agrees to:
3.1.1. co-operate with Efficio in all matters relating to eFlow and, where reasonably required, provide access in a timely manner to the Client’s systems and any information and materials that may be made available or provided by or via the Client (including all inputs listed in the Proposal as the Client’s responsibility) or any of its affiliates, employees, agents or advisors (“Client Data”).
3.1.2. comply with all applicable laws and regulations with respect to its activities under this agreement;
3.1.3. ensure that the Authorised Users use eFlow and relevant documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this Agreement;
3.1.4. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the internet, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet; and
3.1.5. obtain and maintain all necessary licences, consents, and permissions necessary for Efficio, its contractors and agents to perform their obligations under this agreement, including without limitation, access to and use of eFlow.
3.2. The Client acknowledges that Efficio may, in providing eFlow, use publicly available information and information contained in reports and other materials provided by third parties, including, without limitation, information provided by or on behalf of the Client and that Efficio does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information. The Client agrees to furnish or cause to be furnished to Efficio all necessary and appropriate information for use in providing access to and use of eFlow under the Terms of Engagement and hereby warrants that any information relating to the Client that is provided to Efficio by or behalf of the Client will be true and accurate in all material respects and not misleading.
3.3. The Client agrees that any information or data rendered by Efficio and made available via eFlow is for the confidential use of the Client only subject always to these eFlow terms and conditions of access and use and the Client will not, and will not permit any third party to, access or use eFlow or any data or information contained there, without the prior written consent of Efficio such consent not to be unreasonably withheld.
3.4. The Client acknowledges that Efficio uses third party proprietary software and/or open source software in the provision of eFlow and the Client agrees to comply with all reasonable requests of Efficio as may be required to ensure Efficio’s compliance with its legal obligations to the third party software owner and/or open source licence.
3.5. The Client shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement or as otherwise agreed by the parties:
3.5.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of eFlow in any form or media or by any means; or
3.5.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of eFlow; or
3.5.3. access all or any part of eFlow in order to build a product or service which competes with eFlow; or
3.5.4. use eFlow to provide services to third parties; or
3.5.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make eFlow and/or relevant documentation available to any third party except the Authorised Users, or
3.5.6. attempt to obtain, or assist third parties in obtaining, access to eFlow and/or relevant documentation, other than as provided under this clause 3; and
3.6. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, eFlow and, in the event of any such unauthorised access or use, promptly notify Efficio.
3.7. The rights provided under this clause 3 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
3.8. The Client shall not (and shall procure that Authorised Users shall not) access, store, distribute or transmit any viruses, malware, or any material during the course of its use of eFlow that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) in a manner that is otherwise illegal or causes damage or injury to any person or property.
3.9. Efficio reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause.
4. Licence in relation to Efficio Data
4.1. Subject always to payment of Efficio’s fees and expenses in connection with the provision of eFlow, the Client shall have:
4.1.1. an irrevocable, perpetual, non-exclusive, royalty-free right and licence to use the materials, research, reports, indices, qualitative assessments, data and content that Efficio has created prior to this Agreement or may thereafter create or acquire the Efficio Data that is accessible via eFlow; and
4.1.2. a non-exclusive right and licence during this Agreement to access and use eFlow.
4.2. Except with the prior written authority of Efficio, the Client may not use, reproduce or display any Efficio Data or eFlow or prepare any works derived from Efficio Data or eFlow for the benefit of any person or entity other than the Client.
4.3. The access to and use of eFlow is personal to the Client and intended to be used solely and exclusively for the Client’s material business use, otherwise the Client agrees that it shall not download, store, reproduce, transmit, display, print, copy, distribute or use any of eFlow or materials from eFlow. All access to and use of eFlow via mechanical, robotic or any other automated means not provided as part of eFlow is strictly prohibited. Use of eFlow is permitted only via manually conducted activities.
4.4. Efficio Data, outputs from eFlow and any forecasts and analysis made by Efficio to the Client shall not be used or relied upon by any third party. Save as with the prior written authorisation of Efficio, the Client may not publish, disclose or refer to any Efficio Data or any forecasts or analysis that Efficio may make via eFlow.
4.5. If Efficio makes any adaptations to eFlow to accommodate the objectives of or any request by the Client and/or any deliverables from Efficio are adaptations or additional modules to or derivative works of eFlow, Efficio shall own all rights in the same. Efficio shall grant the Client a licence to use the same in accordance with this clause 4.
4.6. The Client shall not remove or obscure the copyright notice or other notices contained in any materials retrieved from eFlow.
5. Confidential Information
5.1. Each party agrees that it may be provided or granted access to the other’s data, third party data supplied by the other, systems and other materials of the other that may be considered to be confidential or proprietary (“Confidential Information”) and such use is only permitted in the exercise of its rights and performance of its obligations under this Agreement. Each party shall not disclose the other party’s Confidential information.
5.2. Notwithstanding clause 5.1, each party may disclose the other party’s Confidential information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential information in order to exercise the disclosing party’s rights or perform its obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential information is disclosed is aware of its confidential nature and complies with this clause 5 as if it were a party.
5.3. The Client Data shall, at all times, be and remain the exclusive property of the Client. Except as provided in this Agreement, Efficio shall not have or acquire any title or interest in or to any Client Data.
5.4. Efficio may use the Client’s Confidential Information for any proper purpose related to operation of eFlow. Efficio may anonymise the Client’s Confidential Information and Client Data and/or combine it with other information in a way that it is no longer associated with the Client and therefore not the Client Data and use that anonymised and/or aggregated information for benchmarking purposes or otherwise in the course of its business ("Benchmarking Data").
6. Charges and Payment
6.1. The charges payable for eFlow and the timing of payments shall be set out in the Proposal. If no timings are specified, Efficio shall invoice the Client annually in advance for access to and use of eFlow and the Client shall pay each invoice submitted to it by Efficio, in full and in cleared funds, within 30 days of receipt.
6.2. All charges are exclusive of applicable sales tax which the Client shall also pay.
6.3. Without prejudice to any other right or remedy that Efficio may have, if the Client fails to pay Efficio on the due date, Efficio may:
6.3.1. charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate from time to time of Barclays Bank Plc; and
6.3.2. suspend access to and use of eFlow until payment has been made in full.
6.4. Efficio shall be entitled to increase the charges on the second and each subsequent (if any) anniversary upon 90 days' prior notice to the Client and the Proposal shall be deemed to have been amended accordingly.
7. Limitation of Liability
7.1. This clause 7 sets out the entire financial liability of Efficio (including any liability for the acts or omissions of its employees, agents and sub-contractors) arising out of or in connection with this Agreement including without limitation in respect of: (a) any breach of this Agreement; (b) any use made by the Client of eFlow, Efficio Data or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.2. Nothing in this clause limits or excludes the liability of Efficio: (a) for death or personal injury resulting from negligence; or (b) for fraud or fraudulent misrepresentation by Efficio.
7.3. Subject to clauses 7.1 and 7.2, Efficio shall not be liable, whether in tort (including fraud, negligence or breach of statutory duty), contract, misrepresentation or otherwise for: (a) loss of profit; or (b) loss of business; or (c) depletion of goodwill and/or similar losses; or (d) loss of anticipated savings; or (e) loss of use or interruption of business; or (f) loss or corruption of data or information; (g) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
7.4. Efficio’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the fees paid (excluding payments for taxes and expenses by the Client to Efficio for eFlow) during the 12 months immediately preceding the date on which the claim arose.
7.5. Efficio shall indemnify the Client against all liabilities, costs, expenses, damages and losses and reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any claim that the Client’s access to or use of eFlow infringes a third party's intellectual property rights. Efficio’s liability under this indemnity is conditional on the Client discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against the Client that may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), the Client shall: (a) as soon as reasonably practicable, give written notice of the Claim to Efficio, specifying the nature of the Claim in reasonable detail; (b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Efficio; (c) give Efficio and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Client, to enable Efficio and its professional advisers to examine them and to take copies (at Efficio's expense to assess the Claim); and (d) be deemed to have given Efficio sole authority to avoid, dispute, compromise or defend the Claim.
8. Duration & Suspension/Termination
8.1. This Agreement shall be effective for the minimum period specified in the Proposal and shall be renewable and terminable as specified in the Proposal. If the Proposal does not specify a minimum period, renewal or termination provisions, this Agreement shall continue until terminated by either party by three months’ notice in writing.
8.2. Subject to anything to the contrary in the Proposal, either party may terminate this Agreement by giving not less than 30 days written notice to the other.
8.3. Subject to anything to the contrary in the Proposal, either party may terminate this Agreement immediately on giving notice to the other if:
8.3.1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
8.3.2. the other party commits a material breach of any of the terms of this Agreement and (if such breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing of the breach; or
8.3.3. the other party is unable to pay its debts, or takes any action (or any action is taken against it) as a prelude to administration or insolvency, the other party ceases, or threatens to cease, to trade.
8.4. Instead of terminating this Agreement, Efficio may suspend the Client’s access to eFlow in the circumstances in clause 8.3.
8.5. Upon termination of this Agreement for any reason:
8.5.1. the Client shall pay all expenditure incurred by Efficio or unavoidable at time of termination;
8.5.2. all sums payable to Efficio under this Agreement shall become due immediately and the Client shall immediately pay to Efficio all such sums together with interest;
8.5.3. each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
8.5.4. Efficio may destroy or otherwise dispose of any of the Client Data in its possession unless Efficio receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Efficio shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Efficio in returning or disposing of Client Data; and
8.5.5. the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
8.6. For the avoidance of doubt destruction or disposal under clause 8.5.4 shall not affect the Benchmarking Data.
9. Data Protection
9.1. In this clause 9: (i) “Data Protection Legislation” means the General Data Protection Regulation ((EU) 2016/679) and any other applicable regulation relating to data protection and/or privacy in any jurisdiction; (ii) (for so long as and to the extent that they apply to the Provider) the law of the European Union, the law of any member state of the European Union and/or the UK Data Protection Acts of 1998 or 2018 and any other law that applies in the UK; and (iii) “data controller”, “data processor”, “personal data” have the meanings as defined in the Data Protection Legislation)
9.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
9.3. The parties acknowledge that, the primary purpose of the access to and use of eFlow is not the processing of personal data and the primary content of the Client Data is not personal data. To the extent the Client Data contains personal data, the Client will be considered the data controller for the purposes of the Data Protection Legislation in respect of the use of eFlow, the Client is the data controller and Efficio is the data processor.
9.4. Without prejudice to the generality of clause 9.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Provider for the duration and purposes of this agreement.
9.5. Without prejudice to the generality of clause 9.2, Efficio shall, in relation to any personal data processed in connection with the performance by Efficio of its obligations under this agreement:
9.5.1. process that Personal Data only on the written instructions of the Client unless Efficio is required by Applicable Law to otherwise process that personal data;
9.5.2. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
9.5.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
9.5.4. not transfer any personal data outside of the European Economic Area to a country without adequate protection for personal data unless the following conditions are fulfilled: (a) the Client or Efficio has provided appropriate safeguards in relation to the transfer; (b) the data subject has enforceable rights and effective legal remedies; and (c) Efficio complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
9.5.5. assist the Client, at the Client's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.5.6. notify the Client without undue delay on becoming aware of a personal data breach;
9.5.7. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and
9.5.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the Customer or the Customer's designated auditor.
9.6. The Client consents to Efficio appointing third party processors of personal data under this Agreement for the purposes of assisting with the provision of eFlow. Efficio will inform the Client of the identify of such third parties from time to time and Efficio confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this agreement. As between the Client and Efficio, Efficio shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 9.6.
10.1. Force Majeure. Efficio shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
10.2. Variation. This Agreement may only be varied with the written agreement of Efficio. Efficio reserves the right in its sole discretion to change the terms of this Agreement from time to time. Where such changes do not materially or adversely affect the performance of eFlow, such changes shall take effect immediately by Efficio posting the new terms online. Otherwise, Efficio shall use reasonable endeavours to provide 30 days written notice of such changes. If, during this period, the Client gives written notice to Efficio objecting to the changes, the parties shall meet to discuss the changes in good faith. Otherwise, the Client shall be deemed to have accepted such changes.
10.3. Waiver. A waiver of any right of this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
10.4. Severance. If any provision (or part of a provision) or this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force.
10.5. Status of pre-contractual statements. Each of the parties acknowledges in entering into this Agreement that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
10.6. Assignment. The Client shall not, without the prior written consent of Efficio, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights (including the licences to use eFlow and access Efficio Data) or obligations under this Agreement. Efficio 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.
10.7. Rights of Third Parties. No one other than a party to this Agreement shall have any right to enforce any of its provisions.
10.8. Governing Law & Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the English law and the parties submit to the exclusive jurisdiction of the English courts.