Terms and Conditions

Purpose

This agreement is for the provision of PCS from Performance Climate Systems Ltd to an End User or Practitioner.  Practitioners, providing services based on PCS, are to ensure that their onward terms comply with this agreement

Headline details

This licence agreement (Licence) is a legal agreement between you  (Licensee or you) and PERFORMANCE CLIMATE SYSTEMS LIMITED a company registered in England and Wales under number 10866303 whose registered office is at South Croft Studio, Town Lane, Woodbury, Devon, EX5 1NH (Licensor, user we) for:

• The Performance Climate System and the data supplied with the System (System); and
• User guides, printed materials and online or electronic documentation (Documentation).

This agreement covers the onward provision of PCS to end users.

1. Introduction

#ItsThatEasy  PCS is provided as a service for the specified and purchased number of measures only

We Licence the use of the System and Documentation to you on the basis of this Licence. We do not sell the System or Documentation to you. This Licence only provides a right, on the terms and conditions set out in this Licence, for a single user to access and / or use the System for each use that is paid for in accordance with this Licence. 

By entering into this licence you are agreeing, on your own behalf and on behalf of any legal entity that you represent, to the terms and conditions of this licence. To that end, in this licence agreement, the term “you” and “your” and all similar words refer to the user of the system and this licence agreement is enforceable against you and any legal entity that obtained the system and on whose behalf it is used. 

This is an important legal agreement. By continuing with this registration and clicking the “i agree” button below or by your first use or activation of all or any portion of the system, you are accepting the terms and conditions of this licence agreement in their entirety and you are agreeing to be legally bound by this licence agreement.

If you do not agree to all of the terms and conditions of this licence agreement, you may not use the system and must immediately cease any such use.

2. Compatibility information

#ItsThatEasy   We support most common and current operating systems and platforms

PCS has browser compatibility with current mobile operating systems including apple ios and android. PCS supports chrome, internet explorer version 9.0 upwards, mozilla firefox, safari.

Exceptions:

• PCS has limited compatibility with blackberry handsets, but it works on many of them if the screen is large enough.  
• PCS does not support Windows xp and by association ie Windows 7 or 8.  
• PCS does not support lotus notes and their associate browser

3. Grant and scope of licence

#ItsThatEasy   Tell us if you become aware of PCS being used my anyone outside the terms of spirit of this argreement

#ItsThatEasy   In the future, if we provide password access to PCS, change the password monthly and do not share with anyone else

In consideration of you agreeing to abide by the terms of this Licence, the Licensor hereby grants to you a non-exclusive, non-transferable licence to use the System and the Documentation [in the Territory] on the terms of this Licence for one use of the System to complete a campaign (“Use”).

You may:

• use the System for one Use only; and
• use any Documentation in support of the Use.

We may update and upgrade the System from time to time.

If you learn that a third party is infringing, potentially infringing or misappropriating any of the System you agree to promptly notify the Licensor.

In relation to the Use, you undertake that where applicable: 

• you shall keep a secure password for your use of the System and Documentation, that such password shall be changed no less frequently than monthly and that you shall keep your password confidential;
• it shall permit the Licensor to audit the System in order to establish the name and password of each user.  Such audit may be conducted no more than once per quarter, at the Licensor’s expense, and this right shall be exercised with reasonable prior notice; and
• if any of the audits referred to above reveal that any password has been provided to any individual who is not authorised, then without prejudice to the Licensor’s other rights, the Licensor shall promptly disable such passwords and shall not issue any new passwords to you.

4. Fees

#ItsThatEasy   You will be charged only for a specific number of PCS measures requested

You will pay a per Use licence fee for each Use of the System. The Licensor will provide you with details of all licence fees and, if applicable, support fees payable prior to your Use of the System and the payment terms.

5. Restrictions

#ItsThatEasy   We own the copyright for all elements of PCS: software and documentation

#ItsThatEasy   Do not copy or alter the PCS software or documentation​

Ownership of System and Licensor. 

• The System contains and/or embodies copyrighted material, trade secrets, inventions and/or other proprietary material and intellectual property of Licensor, its affiliates and/or its licensors. You acknowledge that the System was developed, coordinated, arranged, compiled, prepared and maintained by the Licensor or its licensors through the application of methods and standards of judgment used and developed through the expenditure of considerable work, time and money, and constitutes valuable property and trade secrets of Licensor and its licensors. You shall not disclose or provide the System to any other entity or use the System or permit the System to be used for any purpose other than the purpose expressly authorised in this Licence. 
• Except as expressly provided by this Licence, no licenses or rights (including rights to maintenance or updates) are granted, expressly, or by implication, or estoppel or otherwise to you, and Licensor reserves all rights with respect to the System and the Licensor not expressly granted in this Licence.
• The Licensor does not sell any rights in the System, but rather grants to you the right to use the System in accordance with the terms and conditions hereof. 
• The System is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. 

Except as expressly set out in this Licence or as permitted by any local law, you undertake: 

• not to copy the System or Documentation, except where such copying is incidental to normal use of the System or where it is necessary for the purpose of back-up or operational security;
• not to rent, lease, sub-Licence, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the System or Documentation nor permit the System or any part of it to be combined with, or become incorporated in, any other programs;
• not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the System nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the System to obtain the information necessary to create an independent program that can be operated with the System or with another program (Permitted Objective), and provided that the information obtained by you during such activities:
  • is used only for the Permitted Objective;
  • is not disclosed or communicated without the Licensor’s prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
  • is not used to create any System that is substantially similar in its expression to the System;
• to keep all copies of the System secure and to maintain accurate and up-to-date records of the number and locations of all copies of the System;
• to include our copyright notice on all entire and partial copies of the System in any form;
• not to provide, or otherwise make available, the System in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person without prior written consent from us;
• not to use the System via any communications network or by means of remote access.
• to comply with all applicable technology control or export laws and regulations.

6. Intellectual Property Rights

#ItsThatEasy   We own the Intellectual Property for PCS software and branding​

• You acknowledge that all intellectual property rights in the System and the Documentation throughout the world belong to us, that rights in the System are licensed (not sold) to you, and that you have no intellectual property rights in, or to, the System or the Documentation other than the right to use the System and the Documentation in accordance with the terms of this Licence.
• You acknowledge that you have no right to have access to the System in source code form other than as expressly provided in this Licence.

THE FOLLOWING NOTICES ARE IN RESPECT OF SYSTEM THAT IS PROPRIETARY TO PERFORMANCE CLIMATE SYSTEMS LIMITED:

• Name of System: Performance Climate System 
• Copyright Notice: all documentation, images and working is copyright © Performance Climate System Limited 2017-2019
• Trademark Notice:  PCS and OPD are registered under the Trade Marks Act 1994 references: UK00003225524 and UK UK00003225537
• The PCS 6 segment logo is registered under the EUIPO ref 017934710.

7. System Support

#ItsThatEasy   Our support team is available during working hours to help you 

#ItsThatEasy   We might, from time to time, make changes to the software.  We will always try to notify you beforehand

• The Licensor will make available its telephone technical support Monday to Friday 9:00 a.m. – 5:00 p.m., excluding statutory holidays applicable to Licensor’s operations. These services, terms of service and service hours are subject to change without notice. 
• The Licensor reserves the right to do any of the following, at any time, with or without notice: (a) to modify, suspend or terminate operation of or access to the System or any component thereof, for any reason; (b) to modify or change the System or any component of either of same, and any applicable policies or terms; and (c) to interrupt the operation of the System, or any component thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

8. Data protection

#ItsThatEasy   We take the protection of data very seriously and expect you to do likewise

#ItsThatEasy   We are GDPR compliant in how we process data and user requests​

#ItsThatEasy   By sending us data to input into PCS, you become the ‘data controller’ and must comply with GDPR guidelines

#ItsThatEasy   End users own their data and are responsible for its accuracy 

#ItsThatEasy   We have robust back up processes and systems.  We will do everything we can to restore data if we experience an issue

#ItsThatEasy   We will not be responsible for data loss caused by a 3rd party

#ItsThatEasy   Our data protection and privacy policies are all available on our website

#ItsThatEasy   You are responsible for the management of data into and out from PCS while supporting your client / users

#ItsThatEasy   We only provide access to staff with a specific role in managing the system

#ItsThatEasy   We will only transfer data outside of the European Economic Area (EEA) at the request of a Practitioner or End Users

#ItsThatEasy   We strive to ensure that our systems and hardware are protected from unlawful access or damage

#ItsThatEasy   We anonymise all personal data (i.e. remove all personal identifying data) after 5-years unless you and your client request us not to so that campaigns can be re-run with the same team members.

“End User Data” means the data inputted by the you for the purpose of using the System            

“Data Protection Legislation” means:

• up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter: 
• unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
• any successor legislation to the GDPR or the Data Protection Act 1998.

The End User shall own all right, title and interest in and to all of the End User Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such End User Data. 

The Licensor shall follow its archiving procedures for End User Data.  In the event of any loss or damage to End User Data, the sole and exclusive remedy against the Licensor shall be for the Licensor to use reasonable commercial endeavours to restore the lost or damaged End User Data from the latest back-up of such End User Data maintained by the Licensor in accordance with the archiving procedure described in its Back-Up Policy. The Licensor shall not be responsible for any loss, destruction, alteration or disclosure of End User Data caused by any third party.

The Licensor shall, in providing the System, comply with its Privacy and Security Policy relating to the privacy and security of the End User Data.

Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

The parties acknowledge that:

• if the Licensor processes any personal data on the your behalf when performing its obligations under this Licence, the Licensor is the data controller and the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). 
• you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where the Licensor is located in order to provide the System.

Without prejudice to the generality of this Data Protection section, the Licensor shall, in relation to any End User Data processed in connection with the performance by the Licensor of its obligations under this Licence:

• process that End User Data only on the written instructions of you unless the Licensor is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Licensor to process End User Data (Applicable Laws). Where the Licensor is relying on laws of a member of the European Union or European Union law as the basis for processing End User Data, the Licensor shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Licensor from so notifying you;
• ensure that all personnel who have access to and/or process End User Data are obliged to keep the End User Data confidential; and
• not transfer any End User Data outside of the EEA unless the following conditions are fulfilled:
  • the Licensor has provided appropriate safeguards in relation to the transfer;
  • you have enforceable rights and effective legal remedies;
  • the Licensor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any End User Data that is transferred; and
  • the Licensor complies with reasonable instructions notified to it in advance by the Licensor with respect to the processing of the End User Data;
• maintain complete and accurate records and information to demonstrate its compliance with this clause.

The Licensor shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of End User Data and against accidental loss or destruction of, or damage to, End User Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting End User Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to End User Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). 

The Licensor, at any time on not less than 30 days’ notice, revise this Data Protection Section by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Licence).

9. Termination

#ItsThatEasy   Your rights of access to PCS cease if you do not comply with the terms of this agreement  

#ItsThatEasy   You can request fresh copies of PCS reports at any time beyond purchase

This Licence Agreement and your Licence to use the System commence upon the earlier of (a) your acceptance of this Licence Agreement by clicking on the “I Agree” button, or (b) your first Use of the System, as applicable, and will continue until you fail to be in compliance with the terms and conditions of this Licence Agreement, or this Licence Agreement is terminated or your campaign is complete. 

We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so. 

Upon termination for any reason:

• all rights granted to you under this Licence shall cease;
• you must cease all activities authorised by this Licence; and
• you shall no further access to the System.

Upon the termination of this Licence Agreement, you shall immediately cease using the System and shall permanently destroy and/or delete all copies of Documentation.

10. System Availability

#ItsThatEasy   We try to keep PCS live and accessible 24/7. Planned maintenance will only be carried out on Sundays between 10:00 and 17:00 UK time 

The Licensor shall use commercially reasonable endeavours to make the System available 24 hours a day, seven days a week, except for: 

• planned maintenance carried out during the maintenance window of 10.00 am to 17.00 am UK time Sundays; and
• unscheduled maintenance performed outside normal business hours, provided that the Licensor has used reasonable endeavours to give you notice in advance

11. System Output

#ItsThatEasy   We will always endeavour to provide accurate information in a timely manner

#ItsThatEasy   You are responsible for the presentation and interpretation of PCS results

The Licensor:

• does not warrant that the Use of the System will be uninterrupted or error-free; or that the System, Documentation and/or the information obtained by you through the System will meet your requirements; and
• 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 you acknowledge that the System and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

All other warranties including any implied warranties of merchantability, satisfactory quality or fitness for purpose or ability to achieve a particular result are hereby excluded. In the absence of fraud, no oral or written information or advice given by the Licensor or its agents or licensees shall create a warranty or give rise to any other liability other than is given in this Licence.  

You assume sole responsibility for results obtained from the use of the System and the Documentation, and for conclusions drawn from such use. The Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to you in connection with the System, or any actions taken by you at the Licensor’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 Licence; and
• the System and the Documentation are provided to you on an “as is” basis.

12. Our responsibility for loss or damage suffered by you

#ItsThatEasy   We will always operate within the law and will never seek to limit our liability for unlawful acts

#ItsThatEasy   Unless specified otherwise, the PCS software and documentation is not tailored for individual use

We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.

You acknowledge that the System has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the System as described in the Documentation meet your requirements.

13. Communication between us

#ItsThatEasy   If you need to contact us, use our info@performanceclimatesystem.com email

If you wish to contact us in writing, or if any condition in this Licence requires you to give us notice in writing, you can send this to us by email to info@performanceclimatesystem.com. We will confirm receipt of this by contacting you in writing, normally by email.

If we have to contact you or give you notice in writing, we will do so by email or by pre-paid post to the address you provide or confirm to us.

14. Other important terms

We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract. 

You may only transfer your rights or your obligations under this Licence to another person if we agree in writing

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts.

The Licensor may from time to time, with reasonable notice to you, amend, modify, or supplement this Licence.