In the Agreement, unless the context requires otherwise:
“Agreement” means an Order Document together with these Terms. If and to the extent we allow you access to the Platform without a current Subscription or after your Subscription has expired, the Agreement consists solely of these Terms.
“Affiliate” of a party means any entity controlled by, controlling, or under common control with that party, whether directly or through a chain of one or more entities where each successive entity in the chain controls the next. For this purpose, “control” of an entity means: (i) the ownership of more than 50% of the voting shares or equivalent interests in the entity; (ii) the right or power, directly or indirectly, to elect or remove directors of that entity; or (iii) the right or power to control the management of that entity.
“Approved Affiliates” means those of your Affiliates identified in the Order Document as being permitted to use the Subscribed Products, but only while they are your Affiliate.
“Associates” of an entity means that entity’s Affiliates, together with all Suppliers, Contractors, and Personnel of that entity and/or its Affiliates.
“Claims Costs and Liabilities” in relation to any investigation or enforcement action by a regulator or any third party claim or proceeding (in each case, an “Action”) means:
- out-of-pocket costs reasonably incurred in responding to, defending, and/or settling the Action, including reasonable legal fees and court costs;
- the amount of any settlement payments and/or reasonable direct costs of complying with any settlement undertakings, except the extent these are manifestly excessive in light of the circumstances, including the merits and likely costs of defending the Action;
- amounts awarded in relation to the Action by way of damages, restitution, or other compensation by an arbitrator, court, or other tribunal of competent jurisdiction; and
- any fines and penalties lawfully imposed as a result of the Action.
“Confidential Information” of a party (“Owner”) means any information in the possession or control of the other party (“Holder”) or its Associates that was first disclosed to the Holder or its Associates by or on behalf of the Owner, or was first acquired by the Holder or its Associates through an inspection or evaluation of any premises, facilities, documents, systems or other assets owned or controlled by the Owner, or is derived from any of the foregoing. However:
- each Order Document is the Confidential Information of both parties;
- our Platform and Documentation are our Confidential Information, not yours;
- your Data is your Confidential Information, not ours; and
- despite the above, Confidential Information excludes anything the Holder can show:
- has become public other than through a breach of the Agreement by the Holder;
- was lawfully acquired by the Holder or its Associates, entirely independently of their activities in connection with the Agreement; and/or
- has been independently developed by the Holder or its Associates without reference to the Owner’s Confidential Information and without breaching any other obligation of confidence owed to the Owner or its Associates.
“Contractor” referring to your Contractors, means any service provider or supplier engaged, either directly by you or through a chain of service providers or suppliers ending with you, to provide you with services that make use of the Platform.
“Contract Year” means each successive period of 12 months, commencing at the start of the first Subscription Term and each 12-month anniversary thereafter.
“Data” or “Your Data” means data that you or your Authorized Users have uploaded to the Platform, together with any outputs generated by the Platform from that uploaded data.
“Data Breach” means any incident involving unauthorized Processing of your Data.
“Device” means an IKE hardware device loaned to you as part of your Subscription.
“Documentation” means the standard user documentation and technical documentation for the Platform, as updated by us from time to time and made available for viewing or download on the Platform.
“Feedback” means details of proposed changes or additions to the Platform or Documentation, whether in the form of suggestions, designs, or otherwise.
“Information Security Breach” means a breach of Section 10 or Section 11.
“Insolvency Event” in relation to an entity means that the entity: ceases or threatens to cease all or substantially all of its business; is, or is deemed to be, insolvent or bankrupt; has a receiver, liquidator, administrator, bankruptcy trustee, statutory manager or similar officer appointed over all or any substantial portion of its property; makes an assignment for the benefit of, or makes any arrangement or composition with, its creditors; passes any resolution or is the subject of proceedings, for its amalgamation with any other entity, except for the purposes of bona fide solvent restructuring; and/or is subject to anything analogous to one or more of the foregoing under the laws of any jurisdiction.
“Law” means all applicable statutes, regulations, and bylaws and all mandatory codes, rules, and orders promulgated under them in each relevant jurisdiction.
“Order Document” means a document that: (i) sets out the details of a subscription to one or more components of the Platform, and/or any one-off services that we are to provide to you to facilitate your use of the Platform; (ii) includes or references these Terms; and (iii) has been accepted by you in accordance with clause 1.4 of these Terms.
“Personnel” means, in respect of an entity, any individual who is a director, officer, employee, contracted staff member, or other worker of that entity or of that entity’s Contractors, Suppliers, or agents. This does not mean your Personnel are also our Personnel or vice versa.
“Platform” means the software services that we host and make available for customers to use over the internet, including any mobile apps or other installed software that we provide as a means for customers to access those hosted services. The Platform also includes any Devices leased to you as part of your Subscription.
“Processing” includes storing, using, copying, modifying, transmitting, distributing, and deleting, and “Process” has a corresponding meaning.
“Seat” means an entitlement to a single active user profile in the Platform. For example, if your Subscription provides for 20 users, that means 20 Seats. A user profile is ‘active’ if at can be used to log in to a Subscribed Product, regardless of whether anyone is actually logged in at any give time.
“Services Engagement” means an engagement outlined in an Order Document, requiring us to provide you with one-off services relating to a Subscribed Product, including any professional services, consulting services and/or technical services.
“Subscribed Products” means those components of our Platform covered by your Subscription, as stated in the Order Document.
“Subscription” means the subscription purchased under the Order Document.
“Subscription Term” means the term of your Subscription, as determined in accordance with Section 2 and the relevant Order Document.
“Supplier” referring to our Suppliers, means any service provider or supplier engaged, either directly by us or through a chain of service providers or suppliers ending with us, to provide services that are used to develop, host, support, maintain or manage the Platform.
“Third Party IP Claim” means a claim by a third party (excluding any of your Associates) alleging that your use of the Platform or Documentation infringes intellectual property rights that the third party is entitled to enforce.
“User” means any person using an account or user profile that you have created in the Platform or an account or user profile that we have created in the Platform at your request.
“Website” means our company website, which as at the date of these Terms, is located at www.ikegps.com. To avoid doubt, this includes any page on that website accessible through a series of hyperlinks starting at the home page and not only the home page itself.
“Willful Default” means a breach of the Agreement committed by a party knowing it to be a breach or being reckless as to whether that is the case.