Scottish Enterprise Customer Portal Terms
Please read these terms and conditions carefully:
This agreement is a legal agreement between the business entity or business person creating the customer portal (“Customer”) and Scottish Enterprise, established by the Enterprise and New Towns (Scotland) Act 1990 and having its principal place of business at Atrium Court, 50 Waterloo Street, Glasgow, G2 6HQ (“SE”) and governs the Customer’s access to and use of the Portal (“Agreement”). Each of SE and Customer are a “party” and together SE and Customer are the “parties”.
The Portal is intended for use by businesses and persons that are conducting business. It is not suitable for use by consumers and these terms have been drafted on that basis.
When the Customer Representative clicks the “accept” button on the ”Create an Account” page of the Portal, the Customer shall be bound by the terms of this Agreement.
Contents
1. Definitions and interpretation
1.1 In this Agreement:
“Authorised Users” means the employees and contractors of the Customer who are authorised by the Customer to use the Portal;
“Business Day” means a day other than a Saturday, Sunday or bank or public holiday in the United Kingdom;
“Confidential Information” means information that is either clearly labelled as confidential, is of a confidential nature or would appear to a reasonable person to be confidential, and shall include all (i) know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind and the terms of this Agreement, (ii) all information produced or developed in the performance of this Agreement; (iii) Customer Data; and (iv) the Portal, the and the results of any performance tests in relation to the Portal;
“Controller”, “Personal Data”, shall have the respective meanings given to them in applicable Data Protection Laws
“Customer Data” means all data in any form (including Customer Personal Data) that is provided to SE or uploaded or hosted on any part of the Portal by the Customer or by any Authorised User;
“Customer Personal Data” means Personal Data received from or on behalf of the Customer in connection with the performance of SE’s obligations under this Agreement;
“Customer Representative” mean the person that accepts this Agreement on behalf of the Customer by clicking the “accept” button on the “Create an Account” page of the Portal;
“Data Protection Law” means
(a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated, or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including
(i) the Data Protection Act 2018;
(ii) the UK GDPR;
(iii) the EU GDPR; and
(b) any code of practice or guidance published by the UK Information Commissioner’s Office (or equivalent regulatory body) from time to time;
“Effective Date” means the date the Customer enters in to this Agreement;
“EU GDPR” means the GDPR and any other European Union legislation which relates to the protection of individuals with regards to the processing of personal data to which a party is subject and the guidance and codes of practice issued by the relevant data protection or supervisory authority in the European Union and applicable to a party;
“Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation
(a) acts of God, flood, drought, earthquake or other natural disasters;
(b) epidemic or pandemic;
(c) 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;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) 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;
(f) collapse of buildings, fire, explosion or accident; and
(g) interruption or failure of utility service;
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679;
“Insolvency Event” means, where
(i) a party becomes insolvent or unable to pay its debts as and when they become due;
(ii) an order is made or a resolution is passed for the winding up of a party (other than voluntarily for the purpose of solvent amalgamation or reconstruction);
(iii) a liquidator, administrator, administrative receiver, receiver, or trustee is appointed in respect of the whole or any part of a party’s assets or business;
(iv) a party makes any composition with its creditors;
(v) a party ceases to continue its business; or (vi) as a result of debt or maladministration a party takes or suffers any similar or analogous action in any jurisdiction;
“Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing;
“Portal” means the SE portal which is a main application hosted and maintained by SE ,which is available to businesses operating in Scotland or with intent to operate in Scotland, where businesses can create an account which enables a bidirectional digital channel of communication between SE and the business and shall include any Upgrade and/or Update;
“Term” has the meaning given in clause 11.1 of this Agreement;
“UK GDPR” means the GDPR, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time).
“Update” means a hotfix, patch or minor version update to the Portal; and
“Upgrade” means a major version upgrade to the Portal.
1.2 In this Agreement, unless otherwise stated:
1.2.1 words in the singular include the plural and vice versa;
1.2.2 any words that follow “include”, “includes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and
1.2.3 a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time.
2. Rights of use
2.1 Subject to the terms of this Agreement, SE hereby grants to Customer a non-exclusive, non-transferrable right (without the right to grant sub-licences) to allow Customer and Authorised Users to access and use the Portal (and any Updates and Upgrades) during the Term in order for Customer to:
2.1.1 register and maintain the Customer account on the Portal;
2.1.2 review, submit and complete applications for grant funding to SE through the Portal (“Application”) and to receive and accept offers of SE grant funding and making claims for payment under those offers; and
2.1.3 upload business documents, business plans, data and/or other business information relating to any Applications (including any documents that may be required and/or requested by SE in order to consider an Application).
3. Use of the portal
3.1 The Customer shall, and shall procure all Authorised Users shall, at all times, comply with all provisions of this Agreement.
3.2 The Customer shall comply with any limits on the number of permitted Authorised Users that may be notified to the Customer by SE from time to time and the Customer shall not permit any additional users to have access to the Portal in excess of the number of permitted Authorised Users.
3.3 The Customer shall not knowingly access, store, distribute or transmit any viruses, or any material during the course of its use of the Portal that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 infringes any rights of third parties;
3.3.3 facilitates illegal activity;
3.3.4 depicts sexually explicit images;
3.3.5 promotes unlawful violence;
3.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.7 is otherwise illegal or causes damage or injury to any person or property.
3.4 The Customer 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:
3.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Portal in any form or media or by any means; or
3.4.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Portal; or
3.4.3 access all or any part of the Portal in order to build a product or service which competes with the Portal; or
3.4.4 use the Portal to provide services to third parties; or
3.4.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Portal available to any third party except the Authorised Users; or
3.4.6 attempt to obtain, or assist third parties in obtaining, access to the Portal, other than as provided under this Agreement.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Portal and, in the event of any such unauthorised access or use, shall promptly notify SE.
4. SE obligations and support services
4.1 In consideration of the Customer creating an account to access and use the Portal, SE shall, subject to clauses 4.2 and 4.3, make available the Portal to the Customer during the Term on and subject to the terms of this Agreement at no cost to the Customer.
4.2 SE may, at its sole discretion, cease the provision of access to the Portal or disable the Portal for any reason and at any time. Where SE intends to cease the provision of the Portal or disable the Portal, SE shall provide the Customer with reasonable notice (which may be provided by email).
4.3 SE may suspend access to the Portal to the Customer and its Authorised Users if SE suspects that there has been any breach of security, misuse of the Portal or a breach of this Agreement by the Customer. Where SE suspends the Customer’s access to the Portal pursuant to this clause 4.3, SE will take such steps as it considers appropriate to investigate the issue and may restore or continue to suspend access to the Portal at its discretion. The Customer shall provide all such information and/or assistance to SE as part of any investigation under this clause 4.3.
4.4 Any support services in relation to the Portal will be provided to the Customer at SE’s sole discretion.
4.5 The Portal may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledge that such risks are inherent in the use of such communications facilities and that SE shall have no liability for any such delays, interruptions, errors or other problems.
5. Updates and upgrades
5.1 The Customer acknowledges that SE shall be entitled to modify the features and functionality of the Portal by means of an Update or Upgrade.
6. Warranties
6.1 Each party warrants and undertakes that:
6.1.1 it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and
6.1.2 it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of the its obligations under this Agreement.
6.2 The Customer warrants and undertakes that the Customer Representative is duly authorised by the Customer to:
6.2.1 create an account on the Portal on behalf of the Customer; and
6.2.2 accept the terms of this Agreement on behalf of the Customer and bind the Customer to the terms of this Agreement.
7. Customer's responsibilities
7.1 The Customer shall (and shall ensure all its Authorised Users shall):
7.1.1 at all times comply with all applicable laws relating to:
(a) the use or receipt of the Portal and any support services; and
(b) its obligations under this Agreement;
7.1.2 provide SE with all necessary co-operation in relation to this Agreement and access to such information as may be required by SE in order to meet its obligations under this Agreement;
7.1.3 ensure that the Authorised Users use the Portal and the Support Services in accordance with the terms of this Agreement; and
7.1.4 be, to the extent permitted by applicable law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Portal and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. Intellectual property
8.1 All Intellectual Property Rights in and to the Portal (including any source code), and the support services belong to and shall remain vested in SE or the relevant third-party owner.
8.2 Subject to clause 8.5, all Intellectual Property Rights in and to the information (including Customer Data) that is uploaded to the Portal by the Customer (excluding any Intellectual Property Rights contained in any documents, reports, forms and/or templates produced or provided by SE that are available on the Portal) shall remain vested in the Customer and the Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for SE to use, disclose, modify, copy and other otherwise utilise such information and the Customer Data to the extent necessary to:
8.2.1 provide the Customer with access to the Portal and to provide any support services (where applicable);
8.2.2 maintain and administer the Customer’s account on the Portal;
8.2.3 consider, review and make decisions in respect of any Applications submitted through the Portal and in respect of any grant awarded by SE pursuant to an Application; and/or
8.2.4 exercise or perform SE’s rights, remedies and obligations under this Agreement.
8.3 Except for the rights expressly granted in this Agreement, the Customer and any Authorised Users and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Portal or the support services (as applicable) and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
8.4 SE may use any feedback and suggestions for improvement relating to the Portal or the support services (as applicable) provided by the Customer, or any Authorised User without charge or limitation (“Feedback”). The Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to SE at the time such Feedback is first provided to SE.
8.5 Customer agrees that SE may collect, use, and disclose quantitative data derived from the use of the Portal for its business purposes, including industry analysis, benchmarking and analytics. Any data collected, used, and disclosed will be in aggregate and anonymised form only and will not identify Customer or its Authorised Users.
8.6 This clause 8 shall survive the termination or expiry of this Agreement.
9. Data protection
SE as a Controller
9.1 SE may process Customer Personal Data (i) to administer and maintain the Customer’s account on the Portal or (ii) for such other purposes as set out in the “Funding and Support” section of SE’s privacy policy, and in each case SE shall process such Customer Personal Data as a Controller for these purposes; (“Controller Purposes”). SE shall process Customer Personal Data for the Controller Purposes in accordance with Data Protection Law and the terms of SE’s privacy notice
10. Confidential information
10.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other party, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under this Agreement.
10.2 Each party undertakes to:
10.2.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (and in the case of SE, its public sector partners) to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and:
(a) shall procure that such persons are made aware of and agree in writing to observe the obligations in this clause 10; and
(b) shall be responsible for the acts and omissions of such third parties as if they were that party’s own acts or omissions.
10.3 The provisions of this clause 10 shall not apply to information which:
10.3.1 is or comes into the public domain through no fault of the receiving party, its officers, employees, agents or contractors;
10.3.2 is lawfully received by the receiving party from a third party free of any obligation of confidence at the time of its disclosure;
10.3.3 is independently developed by the receiving party, without access to or use of the disclosing party’s Confidential Information; or
10.3.4 is required by law, by court or governmental or regulatory order to be disclosed.
10.4 This clause 10 shall survive the termination or expiry of this Agreement.
11. Limitation of liability
11.1 Notwithstanding any other provision of this Agreement, neither party’s liability shall be limited in any way in respect of the following:
11.1.1 death or personal injury caused by negligence;
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 in respect of Customer only, for any liability which may arise as a result of inaccurate, misleading or fraudulent information being provided to SE by the Customer in relation to an Application and the granting of funding by SE; or
11.1.4 any other liability which cannot be excluded or limited by applicable law.
11.2 Subject to clause 11.1, neither party shall be liable to the other party whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for an special, indirect or consequential loss.
11.3 Subject to clauses 11.1 and 11.2, SE’s total aggregate liability howsoever arising under or in connection with this Agreement shall not exceed an amount equal to ten thousand pounds sterling (£10,000).
11.4 Except as expressly and specifically provided in this Agreement:
11.4.1 the Customer assumes sole responsibility for results obtained from the use of the Portal by the Customer, and for conclusions drawn from such use. SE shall have no liability for any damage caused by errors or omissions in any information, data, reports, instructions or scripts provided to SE by the Customer in connection with the Portal, or any actions taken by SE at the Customer’s direction;
11.4.2 SE shall have full discretion in considering each Application and determining whether such Application has been successful (including the grant of funding to the Customer);
11.4.3 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 Agreement; and
11.4.4 the Portal and the support services (as applicable) are provided to the Customer on an “as is” basis.
12. Term and termination
12.1 This Agreement shall come into force on the Effective Date and shall continue until terminated in accordance with the terms of this Agreement (“Term”).
12.2 Either party may terminate this Agreement immediately at any time by giving notice in writing to the other party if:
12.2.1 the other party commits a material breach of this Agreement and such breach is not remediable;
12.2.2 the other party commits a material breach of this Agreement which is not remedied within fifteen (15) days of receiving written notice of such breach;
12.2.3 the other party is subject to an Insolvency Event; or
12.2.4 any Force Majeure Event prevents the other party from performing its obligations under this Agreement for any continuous period of one (1) month.
12.3 Either party may terminate this Agreement at any time by providing the other party with thirty (30) days prior written notice.
12.4 This Agreement shall automatically terminate in the event that the Customer’s account on the Portal is deleted for any reason.
13. Consequences of termination
13.1 On termination or expiry of this Agreement (for any reason):
13.1.1 the Customer shall, and shall procure that each Authorised User shall stop using the Portal and the support services (as applicable);
13.1.2 each party shall destroy and delete any copies of the other party’s Confidential Information in its possession or control (or in the possession or control of any person acting on its behalf) (except, in respect of SE, where such Customer Confidential Information is required to be kept by SE for audit or fraud prevention purposes); and
13.1.3 any Applications that are in progress as at the date of termination of this Agreement shall not be processed and/or considered by SE.
13.2 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.
14. Force majeure
14.1 Provided that it has complied with clause 14.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.
14.2 The Affected Party shall:
14.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of such Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of such Force Majeure Event on its ability to perform any of its obligations under this Agreement; and
14.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15. Anti-bribery and corruption
15.1 SE shall comply with all applicable laws, statutes, regulations, relating to modern slavery, anti-bribery and anti-corruption including the Bribery Act 2010.
16. Entire agreement
16.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
16.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.
17. Notices
17.1 Any notice given by a party under this Agreement shall be:
17.1.1 in writing and in English; and
17.1.2 sent to the relevant party either:
(a) by hand to its registered company address; or
(b) by pre-paid first-class post or other next working day delivery service to its registered company address; or
(c) by email to
(i) SE at: LegalServices@scotent.co.uk; or
(ii) the Customer at the email address provided by the Customer at the point of acceptance of this Agreement.
17.2 Any notice shall be deemed to have been delivered:
17.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the registered address of the other party; or
17.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the third Business Day after posting or at the time recorded by the delivery service; or
17.2.3 if sent by email, at the point of delivery provided confirmation of receipt has been provided by the other party.
17.3 Any change to the contact details of a party shall be effective:
17.3.1 on the date specified in the notice as being the date of such change; or
17.3.2 if no date is so specified five (5) Business Days after the notice is deemed to be received.
18. Variation
18.1 SE may amend the terms of this Agreement by notifying Customer of the updated terms through the Portal (“Amended Terms”) and the Amended Terms shall be deemed to be accepted by Customer and shall take effect at the point the Customer first accesses the Portal following such notification (“Amendment Date”). If Customer does not wish to accept the Amended Terms, Customer may terminate this Agreement immediately by providing SE with written notice in accordance with clause 18 of this Agreement.
18.2 Except as set out in clause 18.1, no variation of this Agreement shall be effective unless it is in writing and signed by an SE authorised representative.
19. Assignation and subcontracting
19.1 SE shall have the right to assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without the Customer’s consent.
19.2 The Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part.
20. No partnership or agency
The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
21. Severance
21.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
21.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
22. Waiver
22.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
22.2 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
23. Third party rights
This Agreement does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of this Agreement.
24. Dispute resolution
24.1 Any dispute between the parties that is not resolved informally between the parties must be referred in writing by either party to a representative of the other party. If upon expiry of ten (10) Business Days following referral to the representative, the dispute remains unresolved, the dispute may be referred to a director of each party to attempt to resolve.
24.2 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 24.1 have been completed.
25. Governing law and jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).