Terms of use

The R-Cloud (version 5) portal – terms of use

1 Introduction

1.1 This User Agreement between the Authority and the Supplier governs the Supplier’s access and use of the Portal.

1.2 The individual accepting this User Agreement warrants that, where they are acting on behalf of an organisation, they have authority to accept this User Agreement and bind that organisation to its terms.

2 Definitions and Interpretation

2.1 For the purposes of this User Agreement the following capitalised terms shall have the following meanings:

(a) Authority: the Secretary of State for Defence of the United Kingdom of Great Britain and Northern Ireland;

(b) Business Day: any day excluding:

(i) Saturdays, Sundays and any statutory or public holiday in England and Wales; and/or

(ii) any privilege day.

(c) Confidential: that any material and/or information, either in its entirety or in the precise configuration or assembly of its components, is/are not made publicly available;

(d) Confidential Information:

(i) any user IDs and password(s) required to access the Portal and issued in connection with such access; and

(ii) any secret, confidential, commercial, financial, marketing, technical or other information, know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the date of this User Agreement, together with any reproductions of such information in any form or medium or any parties of this information;

(iii) information maintained within Supplier Profiles and Skills Mapping records; and

(iv) any information identified by the Authority as confidential.

(e) Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;

(f) Force Majeure: any circumstance not within the Authority’s reasonable control and/or the reasonable control of any person(s) operating and maintaining the Portal on behalf of the Authority, including, without limitation:

(i) any act of God, flood, drought, earthquake or other natural disaster;

(ii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(iii) nuclear, chemical or biological contamination or sonic boom;

(iv) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

(v) collapse of buildings, fire, explosion or accident;

(vi) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); and

(vii) interruption or failure of any utility service;

(g) Intellectual Property: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

(h) Losses: damages, losses, liabilities, costs, expenses (including legal and other professional charges and expenses) and charges whether arising under statute, contract or at common law, or in connection with judgments, proceedings, internal costs or demands;

(i) Malicious Software: any software program or code intended to destroy, interfere with, corrupt or have a disruptive effect on program files, data or other information, executable code or application software macros, whether or not its operation is immediate or delayed, and whether such software program or code is introduced wilfully, negligently or without knowledge of its existence;

(j) Portal: the R-Cloud (version 5) Portal provided by or on behalf of the Authority for suppliers to apply for, access and participate in R-Cloud (version 5).

(k) Supplier: the individual or organisation that accepts this User Agreement.

(l) Supplier User: any individual authorised by the Supplier to access and use the Portal on its behalf.

(m) UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), as amended; and

(n) Supplier Profile: the supplier profile maintained by the Supplier on the Portal;

(o) Skills Mapping: capability, service, product or skills information maintained by the Supplier on the Portal.

2.2 The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of this User Agreement.

2.3 Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership.

2.4 The expressions “Controller”, “Joint Controller” “Data Subject”, “Personal Data”, “Personal Data Breach” and “Processor” shall each have the meanings given to them in the Data Protection Legislation.

2.5 The words and phrases “other”, “without limitation”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.

2.6 References to any statute or statutory provision shall include:

(a) any subordinate legislation made under it;

(b) any provision which it has modified or re-enacted (whether with or without modification); and

2.7 All references in this User Agreement to “Clauses” are to the clauses of this User Agreement.

3 Access

3.1 Subject to the Supplier complying with this User Agreement and ensuring that Supplier Users comply with it, the Authority hereby grants to the Supplier, free of charge, and each Supplier User access to the Portal solely for the purposes of:

(a) preparing and submitting an application to participate in R-Cloud (version 5);

(b) participating in R-Cloud (version 5);

(d) administering Supplier User access to the Portal.

3.2 The Supplier shall comply with this User Agreement and shall ensure that all Supplier Users comply with this User Agreement.

3.3 The Supplier shall ensure that only the Supplier and authorised Supplier Users have access to the Portal.

3.4 Access to certain functionality of the Portal, including the ability to authorise or administer Supplier Users, may be restricted by the Authority unless and until the Supplier has submitted an application to participate in R-Cloud and that application has been approved by the Authority.

3.5 Without prejudice to any of the Authority's other rights, the Authority may immediately and without incurring liability to the Supplier and/or any Supplier User(s) suspend access to the Portal by the Supplier and/or any or all Supplier Users by giving notice in writing to the Supplier of the Authority's intention to effect such suspension if the Supplier or any Supplier User fails to comply with this User Agreement.

3.6 If the Authority exercises its right to suspend access, the Authority may require the Supplier to implement such remedial measures as the Authority reasonably considers necessary to address the relevant breach, failure or risk.

3.7 The Supplier shall implement such measures within any timeframe specified by the Authority.

3.8 The Authority may require evidence that a breach, risk or issue has been satisfactorily resolved before restoring access to the Portal. The Authority shall not be obliged to restore access merely because corrective action has been undertaken. The decision as to whether access shall be restored shall be at the Authority's sole discretion.

3.9 Without prejudice to any of the Authority's other rights, the Authority reserves the right (without incurring liability to the Supplier and/or any Supplier User(s)) to suspend access to the Portal by giving notice in writing to the Supplier of the Authority’s intention to effect such suspension for technical or legal reasons and/or where the Portal’s performance is affected by the occurrence of one or more events of Force Majeure.

4 Supplier's Portal Access Obligations

4.1 The Supplier shall and shall procure that each of the Supplier Users shall use the Portal for lawful and proper purposes only and shall, in any event, comply with all relevant laws and regulations applicable to such use when accessing and using the Portal.

4.2 The Supplier shall:

(a) create and maintain its Portal account and administer Supplier Users in accordance with the Portal and associated guidance;

(b) obtain on behalf of, and provide all Supplier Users with, user IDs and passwords and equipment and software required to access and use the Portal;

(d) ensure that all software used by or on behalf of the Supplier to gain access to the Portal shall be currently supported versions of that software;

(e) (with regard to anti-virus software) use and procure the use of the latest versions of anti-virus software available from an industry accepted anti-virus software vendor to check for and delete any and all Malicious Software during any period of access and use by or on behalf of the Supplier;

(f) promptly notify the Authority upon becoming aware of:

(i) any actual or suspected compromise of user credentials or unauthorised access to the Portal;

(ii) any cyber security incident, including malware infection; or

(iii) any security vulnerability,

which may affect the Portal or information accessed through it; and

(g) ensure access rights remain appropriate to each Supplier User's role and are removed promptly where access is no longer required.

4.3 In particular the Supplier agrees that it shall not (and shall procure that each of the Supplier Users shall not):

(a) manipulate any information supplied on the Portal in a manner that would lead to inaccurate, misleading or discriminating presentation of information being displayed;

(b) post, transmit or disseminate any information on or via the Portal, which is or may be harmful, obscene, defamatory or otherwise illegal;

(c) use the Portal in a manner which causes or may cause an infringement of the rights (including any Intellectual Property right(s)) of the Authority and/or any other;

(d) use any software, routine or device to interfere or attempt to interfere electronically or manually with the operation or functionality of the Portal;

(e) attempt to gain access to any part of the Portal, account or information for which authorisation has not been granted;

(f) attempt to bypass, test or circumvent any security control or access restriction; or

(g) use automated scripts, bots, crawlers, scraping tools or similar technologies without the Authority's prior written approval.

4.4 The Supplier agrees that the Supplier Users shall act as authorised agents for and on behalf of the Supplier in taking any step on or via the Portal.

4.5 Any submission, acceptance, declaration, communication, acknowledgement, confirmation or other action undertaken by a Supplier User through the Portal shall be deemed to have been undertaken by the Supplier.

4.6 The Supplier acknowledges that use of the Portal may be monitored, logged, recorded and audited by the Authority for security, operational, support, compliance and investigatory purposes.

4.7 The Authority may access, review, administer, recover, modify, suspend, disable or remove Supplier accounts where reasonably necessary for:

(a) security or operational purposes, including business continuity, audits and investigations; or

(b) technical support.

4.8 The Authority may amend permissions, reset credentials, transfer administrative rights and undertake other reasonable account management actions where necessary.

4.9 Where the Authority reasonably identifies a security, operational, compliance or other risk associated with use of the Portal, the Authority may require the Supplier to implement remedial measures. Such measures may include:

(a) additional security controls, including the removal of, or restriction of access for, the Supplier and/or Supplier Users; and

(b) other mitigation or corrective actions.

The Supplier shall implement such measures within any reasonable timeframe specified by the Authority.

5 Participation in R-Cloud (version 5)

5.1 The terms of this User Agreement shall not operate to waive or limit any rights or obligations arising under any agreement entered into between the Authority and the Supplier relating to participation in R-Cloud (version 5).

5.2 Where the Supplier has entered into an agreement with the Authority governing participation in R-Cloud (version 5), that agreement shall prevail over this User Agreement to the extent of any inconsistency.

5.3 The Supplier is solely responsible for ensuring that all documents, responses, submissions, messages and supporting information are uploaded correctly through the Portal and before any applicable deadline. The Authority shall not be responsible for failed uploads, transmission failures, corrupted files, incomplete submissions or late submissions, regardless of cause.

5.4 Submission of information through the Portal does not guarantee receipt unless the Supplier has complied with the relevant processes and confirmation is generated by the Portal.

5.5 The Authority may implement alternative arrangements for any activity ordinarily conducted through the Portal. Any such alternative arrangements shall have the same effect as if the activity had been conducted through the Portal.

6 Data Protection

6.1 The parties acknowledge and agree that the incidental exchange of Personal Data in connection with this User Agreement shall not be considered processing of Personal Data by either party on behalf of the other.

6.2 If either party reasonably considers that any step, direction or instruction given by or on behalf of the other party in connection with this User Agreement would require either party to act as a Processor or Joint Controller under the Data Protection Legislation, that party may notify the other accordingly, and the parties shall agree appropriate arrangements, including in relation to Personal Data Breaches and Data Subject requests, to enable each party to comply with its obligations under the Data Protection Legislation.

6.3 Notwithstanding clauses 6.1 and 6.2, each party undertakes to comply with its obligations as Controller under the Data Protection Legislation.

7 Intellectual Property Rights

7.1 All Intellectual Property rights in the Portal are owned by, or are under licence or subscription use to, the Authority.

7.2 The Supplier acknowledges for itself and each Supplier User that:

(a) the Supplier and the Supplier Users shall have no Intellectual Property rights in the Portal, nor shall it or they have any rights to copy, adapt, modify, reverse engineer or interfere with the Portal.

(b) Neither the Supplier nor any Supplier User may (without the pri or consent of the Authority in writing) copy, use, or mask any feature(s), including any trade or service mark, which appear(s) on the Portal and which are the Intellectual Property of the Authority and/or any third party.

8 Liability

8.1 Neither the Authority nor the Supplier excludes or limits liability to the other under or in connection with this User Agreement for (a) death or personal injury or (b) any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or (c) Section 2 of the Supply of Goods a nd Services Act 1982 or (d) fraud or fraudulent misrepresentation.

8.2 The Supplier hereby accepts for and on behalf of itself and each Supplier User that in no event shall the Authority be liable to the Supplier or any Supplier User(s) for any Losses incurred by the Supplier arising from the use of the Portal caused by:

(a) an event of Force Majeure that affects the availability and/or performance of the Portal;

(b) incorrect or unauthorised use of the Portal by the Supplier and/or any Supplier User(s);

(d) connectivity failures in respect of the equipment used by the Supplier and/or any Supplier User(s); or

(e) any failed, incomplete, corrupted or late submission made through the Portal.

8.3 The Supplier acknowledges and accepts that the Authority provides the Portal on an 'as is' basis and 'as available' basis without any warranty of any kind.

8.4 The Authority does not accept any liability for any information or links on the Portal that may refer to external sources outside of the Authority's reasonable control.

8.5 The Supplier shall indemnify the Authority in full against any and all Losses arising out of or in connection with:

(a) the Supplier's breach of its obligations under this User Agreement; and/or

(b) the infringement of any Intellectual Property right(s) belonging to the Authority and/or any third party; and/or

9 Confidentiality

9.1 Each party shall:

(a) treat all Confidential Information as Confidential and safeguard it accordingly;

(b) not disclose any Confidential Information to any third party without the prior written consent of the other party, except to such persons and to such extent as may be necessary for the performance of this User Agreement: and

9.2 The Supplier shall take all necessary precautions to ensure that all Confidential Information obtained from the Authority under or in connection with this User Agreement:

(a) is given only to such Supplier User(s) as is strictly necessary for the performance of this User Agreement and then only to the extent necessary for such user’s(s’) activities in the performance of this User Agreement;

(b) is treated as Confidential and not disclosed (without prior written approval of the Authority) or used otherwise than for the purposes of this User Agreement.

9.3 The provisions of clauses 9.1 and 9.2 shall not apply to any information:

(a) which is or becomes public knowledge (otherwise than by breach of the obligations of confidentiality under this User Agreement);

(b) which is in the possession of the party concerned, without restriction as to its disclosure, before receiving it from the disclosing party;

(c) which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or

(d) is independently developed without access to any Confidential Information.

9.4 Nothing in this User Agreement shall prevent:

(a) either party disclosing any Confidential Information obtained from the other party insofar as such information is required to be disclosed by an order of court or other tribunal or required to be disclosed in accordance with any law, statute, proclamation, by-law, directive, decision, regulation, rule, order, notice, rule of court, delegated or subordinate legislation parliamentary obligation; or

(b) the Authority disclosing any information obtained from the Supplier:

(i) to any other department, office or agency of the Crown; or

(ii) to any person engaged in providing any services to the Authority for any purpose relating to or ancillary to this User Agreement,

provided that in disclosing information under this clause 9.4(b) the Authority discloses only the information which is necessary for the purpose concerned and requires that the information is treated in confidence and that a confidentiality undertaking is given where appropriate.

9.5 Nothing in this User Agreement shall prevent either party from using any techniques, ideas or know-how gained during the performance of this User Agreement in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of Intellectual Property rights.

9.6 Without limitation to clause 6, the Supplier acknowledges that the Authority is subject to the requirements of the Data Protection Legislation, the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 and shall assist and cooperate with the Authority in meeting its obligations thereunder.

9.7 The obligations of this clause 9 shall survive the expiry of this User Agreement.

10 Rights of Third Parties

10.1 This User Agreement shall not create any rights that shall be enforceable by anyone other than the Authority and the Supplier.

11 Amendments to User Agreement

11.1 The Authority may amend this User Agreement from time to time by publishing an updated version on the Portal or otherwise notifying the Supplier.

11.2 Any amendment shall take effect from the date specified by the Authority.

11.3 Continued access to or use of the Portal following publication or notification of an amendment constitutes acceptance of that amendment.

12 Entire Agreement

12.1 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 (subject to clause 5) the Supplier’s access and use of the Portal.

12.2 Each party agrees that in relation to (subject to clause 5) the Supplier’s access and use of the Portal it 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

13 No Disposal of Rights

13.1 The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this User Agreement without the prior written consent of the Authority.

14 General

14.1 The waiver by either party of any breach of this User Agreement shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.

14.2 If at any time any part of this User Agreement is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from this User Agreement and the validity and/or enforceability of the remaining provisions of this User Agreement shall not in any way be affected or impaired as a result of that omission.

14.3 The Authority shall not be committed to any course of action as a result of permitting access to the Portal or receiving, assessing or approving an application to participate in R-Cloud.

15 Notices

15.1 All communications given under this User Agreement shall be in writing and shall be:

(a) served to the Supplier, via e-mail, to the e-mail address the Supplier has given upon registration or otherwise updated via its Supplier Profile; or

(b) served to the Authority, via e-mail to dstlrcloud@dstl.gov.uk; and

(i) addressor using the addressee's correct e-mail address; and

(ii) addressee, on receipt of such an e-mail, e-mailing an acknowledgement of receipt to the addressor as soon as is practicable and in any event not later than 17:00 of the following Business Day after the addressee received such e-mail.

16 Law and Jurisdiction

16.1 This User Agreement and any dispute or claim arising out of or in connection with them shall be governed by, and construed in accordance with, the laws of England and Wales and shall be subject to the exclusive jurisdiction of the Courts of England and Wales to which the parties irrevocably submit.