The definitions and rules of interpretation in this clause 1 apply in these terms:
Acquirer: either the bank or (as the case may be) the provider of bank processing services on behalf of that bank, with whom you have a contract for the provision of your bank account.
API: means the application programming interface via which the Services may be integrated into an Integration Partner System, or through which the Integration Partner Services may be integrated into the Software, as applicable.
API Integrations: has the meaning given in clause 6.2.
API Integration Purpose: has the meaning given in clause 6.2.
Authorised Users: those of your employees, agents, independent contractors, pupils’ parents and/or guardians and other persons who are authorised by you to use the Subscription Services and the Documentation as described in, and subject to the undertakings set out at, clause 3.2.
AWS: Amazon Web Services, Inc. and its affiliates
AWS’s Acceptable Use Policy: the AWS acceptable use policy described in clause 14.3.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Change Control Procedure: the procedure for making changes to the Subscription Services which you can find in clause 18 of the terms.
CCN: change control notification as part of the Change Control Procedure.
Company or We: SF Software Limited (t/a Pebble), a company incorporated and registered in England & Wales with company number 05580540 (VAT number 873 5186 95) whose registered office is at Spaceworks, Benton Park Road, Newcastle upon Tyne, NE7 7LX and “us” and “our” will have their corresponding meanings.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.
Content: software (including machine images), data, text, audio, video, images or other content and “your Content” means content of yours or of any of your Authorised Users.
Contract: the contract between you and the Company for the Subscription Services incorporating the Order Form and these terms.
Customer Data: the data (including any personal data) input by you, Authorised Users, or input or received by the Company on your behalf for the purpose of using the Subscription Services or facilitating your use of the Subscription Services.
Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time, as applicable to either party and/or to the rights, responsibilities and/or obligations of either party in connection with these terms, including the following laws to the extent applicable in the circumstances:
in the United Kingdom:
(i) the Data Protection Act 2018; and
(ii) the General Data Protection Regulation, (EU) 2016/679, (GDPR), and/or any corresponding or equivalent national laws or regulations;
in member states of the European Union (EU) and/or European Economic Area (EEA): the GDPR and all relevant EU and EEA member state laws or regulations giving effect to or corresponding with the GDPR; and
any applicable laws replacing, amending, extending re-enacting or consolidating any of the above Data Protection Legislation from time to time (including, where applicable under laws in the United Kingdom, the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 as modified by applicable domestic law from time to time).
Documentation: the documents made available to you on the Support Website and/or by such other method as the Company may from time to time deem appropriate which set out a description of the Services and the user instructions for the Services.
Effective Date: the date of the relevant Contract.
Fees: the fees payable by you to the Company for the Subscription, which you can find on the Order Form as amended from time to time in accordance with clause 9.5.
Initial Subscription Term: the initial period of a Contract, which you can find on the Order Form.
Integration Data: has the meaning given in clause 6.3(a).
Integration Partner: a company providing Integration Partner Services using its Integration Partner System, which is integrated with the Software via the API. The current list of our Integration Partners is available in our Data Protection Statement.
Integration Partner Account: your account with an Integration Partner on their Integration Partner System, which enables you to access their Integration Partner Services.
Integration Partner Services: the services provided to you by an Integration Partner using their Integration Partner System.
Integration Partner System: the system used by an Integration Partner to provide their Integration Partner Services to you.
Normal Business Hours: 8.30 am to 5.30 pm local UK time, each Business Day.
Order: your order for Services, as set out on the Order Form.
Order Form: the Company's order form for the Services which is provided with or attached to or which otherwise refers to or incorporates these terms.
Password Policy: The Company's policy from time to time for Authorised Users’ passwords.
Payment Card Scheme Rules: the industry standard rules relating to the use of debit and credit cards.
Pebble Account: your account with us on our Software which enables you to access our Subscription Services.
Processing: in relation to personal data, has the meaning given in the applicable Data Protection Legislation from time to time, and related expressions, including process, processed and processes, shall be construed accordingly;
Prohibited Content: the type of Content described in clause 14.5.
Renewal Period: the period described in clause 16.1.
Services: the subscription services provided by the Company to you under these terms, as more particularly described in the Documentation available on the Support Website, including the Subscription Services.
Software: the Pebble online software applications provided by the Company as part of the Services.
Sub-processor: in relation to personal data, means any agent, subcontractor or other third party engaged by a processor (or by any other sub-processor) for carrying out any processing activities in respect of that personal data.
Subscription: the subscription bought by you under clause 9.1 which entitles Authorised Users to access and use the Subscription Services and the Documentation in accordance with these terms.
Subscription Services: has the meaning given to it at clause 2.1
Subscription Term: has the meaning given to it at clause 16.1.
Support Services Policy: The Company's policy for supporting your use of the Software (as updated by the Company from time to time) which the Company will advise you of when purchasing a licence for the Software.
Support Website: The Company's support websites, which on the date of these terms are at intercom.help/pebble-support or any other website address the Company tells you about from time to time.
Transaction: a financial transaction conducted on the Internet using a debit or credit card or other payment token.
Transaction Data: the data relating to authorisation and settlement transaction messages in relation to a Transaction conducted using the Software on the Internet.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the GDPR; 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.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Website: the website for the Software Services at https://apps.mypebble.co.uk, or any other website address the Company tells you about from time to time.
You: the organisation specified on the Order Form as the customer, including any organisation to which you assign the Contract with the Company's prior written consent under clause 22.1.
Appropriate technical and organisational measures, controller, data subject, international organisation, personal data, processor and personal data breach shall have the meanings given to them in the Data Protection Legislation.
A reference to a specific provision of the GDPR, means:
(a) that provision of the GDPR; or
(b) from the point in time when the GDPR ceases to be directly applicable in the United Kingdom, the equivalent provision of the GDPR as if forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018, as modified by applicable domestic law from time to time.
Clause, schedule and paragraph headings shall not affect the interpretation of these terms.
The schedules form part of these terms and shall have effect as set out in full in the body of these terms. Any reference to these terms includes the schedules.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Words in the singular shall include the plural and vice versa.
Any reference to any gender is a reference to all genders.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
Where the words include(s), including or in particular are used in this agreement, they are considered to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them
A reference to writing or written includes emails or messaging (but not faxes).
References to clauses and schedules are to the clauses and schedules of these terms, and references to paragraphs are to paragraphs of the relevant schedule.
In case of any ambiguity between any provision contained in the body of these terms and any provision contained in the schedules, the provision in the body of these terms shall take precedence.
Subject to you buying the Subscription in accordance with clause 9.1, the restrictions set out in this clause 3 and the other terms of the Contract, the Company hereby grants you a non-exclusive, non-transferable right to permit the Authorised Users to use the Subscription Services and the Documentation during the Subscription Term solely for your internal operations.
In relation to the Authorised Users, you undertake that:
(a) they will comply with the Company's Password Policy, which includes a requirement that:
(i) each Authorised User will use a password which is unique to the Subscription Services and is not used by that Authorised User for any other systems or purposes); and
(ii) each Authorised User will ensure that they change their passwords frequently and keep their password confidential;
(b) you will remain responsible for all use of the Subscription Services by Authorised Users, regardless of whether or not their use of them is with your permission.
(c) each Authorised User will lock their workstation when away from their desk even for short periods of time and will not log in to the Company's Website other than from your premises or from a remote location in the UK which has been authorised by you;
(d) you will permit the Company to audit the Subscription Services so the Company can establish the name of each Authorised User. The audit may be conducted no more than once per quarter, at the Company's expense, and the Company shall exercise this right with reasonable prior notice and in a way that does not substantially interfere with your normal operations; and
(e) if any of the audits referred to in clause (d) above reveal that any registration code or password has been provided to any individual who is not an Authorised User, then in addition to the Company's other rights, you will promptly disable that registration code or password and deregister the individual as a user of the Services and the Company will not issue any new registration code or password to that individual.
You will not, and will ensure that the Authorised Users will not, access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services 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 any other illegal activity; or
(f) causes damage or injury to any person or property and the Company reserves the right, without responsibility to you, to disable your access to any material that breaches this clause.
You shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between us:
(i) and except to the extent expressly permitted under these terms, attempt to copy, modify, alter, tamper with, repair, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or apply any other process or procedure to derive the source code of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or
(f) access or use the Services and/or Documentation in a way intended to avoid incurring fees or exceeding usage limits or quotas.
You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any unauthorised access or use, promptly notify us.
The rights provided under this clause 3 are granted to you only, and shall not be considered granted to any related or federated organisation or to any local education authority or to any subsidiary or holding company of yours or theirs unless covered by a separate contract.
The Company shall, during the Subscription Term, provide the Subscription Services and make available the Documentation to you on and subject to these terms.
The Company shall use commercially reasonable endeavours to make the Subscription Services available 24 (twenty-four) hours a day, 7 (seven) days a week, except for:
(a) planned maintenance; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Company has used reasonable endeavours to give you as much advance notice as we can.
The Company will, as part of the Subscription Services and at no additional cost to you, provide you with the Company's standard customer support services during Normal Business Hours in accordance with the Company's Support Services Policy in effect at the time that the Subscription Services are provided. You may buy enhanced support services separately at the Company's then current rates.
The Company is entitled, at any time and in the Company's absolute discretion, to amend the Services, or to amend the terms of this Contract by posting them on the Website in amended form or providing them in amended form to you with a note of the date on which the relevant document was last amended and the date when such amendment shall take effect. By continuing to use the Services and/or Documentation after the effective date of any modifications to the Services and/or the Contract, you agree to be bound by the amended terms. It is your responsibility to check the Website regularly for amendments to the Services and/or the Contract.
The Company and you both acknowledge that for the purposes of the Data Protection Legislation, you are the controller and we are a processor in respect of:
(together the Protected Data).
The Company and you will both comply with all applicable requirements of the Data Protection Legislation. This clause 5.2 is in addition to, and does not relieve, remove or replace, your or the Company's obligations or rights under the Data Protection Legislation.
If, notwithstanding the intentions set out at clause 5.2, the Company processes the Protected Data as a controller, the Company will comply with the provisions of the Data Protection Legislation imposed on a controller.
Without prejudice to the generality of clause 5.2, you:
(a) will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Protected Data to the Company and/or lawful collection of the Protected Data by the Company on your behalf for the duration and purposes of each Contract;
(b) acknowledge and agree that if you or your Authorised Users are located outside the UK or EEA then the Company cannot provide the Subscription Services and carry out the Company's other obligations under the Contract unless the Company transfers the Protected Data to your location, where those data may also be stored;
(c) acknowledge and agree that, save as provided in clause (b) above, AWS will store the Protected Data in its data centre in London and will not move data from there without notifying us, unless required to comply with law or requests of government entities; if the Company is notified of a move by AWS, the Company will post that notice on the Website and, in this event, you consent to the Protected Data being moved to such data centre as AWS has determined shall be used to store the Protected Data, provided always that such transfer is undertaken in compliance with the relevant Data Protection Legislation.
As between you and us, you will own all rights, title and interest in and to all of your Customer Data (including Integration Data), and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of that Customer Data.
If you choose to export the Protected Data from the Software to another system (for example, in order to keep backups), it is your responsibility to handle this in accordance with the Data Protection Legislation.
Without prejudice to the generality of clause 5.2, the Company will, in relation to any Protected Data processed in connection with a Contract:
(a) process that Protected Data only on your lawful and documented written instructions, unless the Company is required by the Data Protection Legislation to otherwise process that Protected Data. Where the Company is relying on the Data Protection Legislation as the basis for processing the Protected Data, the Company will promptly notify you of this before performing the processing required by the Data Protection Legislation unless those Applicable Laws prohibit the Company from so notifying you;
(b) ensure that the Company has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Protected Data and against accidental loss or destruction of, or damage to, the Protected 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 the Protected Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to the Protected 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 us);
(c) ensure that all our personnel who have access to and/or process any Protected Data are obliged to keep the Protected Data confidential; and
(d) not transfer or allow for any onward transfers of the Protected Data to any country outside the United Kingdom or to any international organisation unless such transfer is undertaken in compliance with the relevant Data Protection Legislation;
(e) assist you, at your cost, in responding to any request from a data subject of the Protected Data, and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify you without undue delay on becoming aware of a personal data breach affecting the Protected Data; and
(h) maintain complete and accurate records and information to demonstrate the Company's compliance with clauses 5.8 and 5.9.
In relation to our sub-processors engaged by us in connection with activities which may involve processing of the Protected Data:
(a) you acknowledge and hereby authorise the Company to engage the sub-processors listed in schedule 1 to these terms (Approved Sub-processors);
(b) you agree that we may from time to time appoint new sub-processors or cease to use one or more of the Approved Sub-processors by providing written notice to you of any proposed new sub-processor. You may notify the Company promptly in writing within ten (10) Business Days after receipt of the Company's notice, if you have a reasonable basis for objecting to a new sub-processor. The Company will not appoint (or disclose any Protected Data to) that proposed sub- processor until reasonable steps have been taken to address the objections raised by you and you have been provided with a reasonable written explanation of the steps taken; and
(c) prior to giving any sub-processor access to the Protected Data, the Company will ensure that such sub-processor has entered into a written agreement with the Company including terms which are substantially the same as those set out in this clause 5 and the requirements of article 28(3) of the GDPR; and the Company will remain fully liable to you for any failure by a sub-processor to fulfil its obligations in relation to the processing of any Customer Data under the relevant Contract.
Insofar as the Company processes the Protected Data on your behalf, as a processor, the Company will promptly inform you if the Company becomes aware that your instructions in respect of the processing of Protected Data infringe the Data Protection Legislation, provided that:
(a) this shall be without prejudice to clauses 5.2, 5.4(a), and 5.10; and
(b) to the maximum extent permitted by law, the Company will have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses arising from and in connection with any processing in accordance with your instructions following receipt by you of that information.
Subject to clause 5.9 you acknowledge that the Company is reliant on you as the controller of the Protected Data for direction as to the extent to which the Company is entitled to use and process that Protected Data. Consequently, to the maximum extent permitted by law, the Company will not be liable for any unauthorised or accidental loss, access or other processing of the Protected Data or any claim brought by a data subject of the Protected Data arising from any action or omission by us, to the extent that such action or omission resulted directly from your instructions or your failure to provide instructions. Notwithstanding anything to the contrary in these terms or in any Contract, your liability in relation to this clause 5.10 shall be unlimited.
This clause 6 applies, if you use one or more API Integrations as part of the Services.
The API Integrations are solutions which make it possible for you to connect your Pebble Account to one or more Integration Partner Systems using the API, or to connect one or more of your Integrated Partner Accounts to the Software (API Integrations), to make it possible for you to benefit from interoperability of the Software and the Integration Partner Systems (API Integration Purpose).
When you use an API Integration by connecting your Pebble Account to an Integration Partner System, or by connecting your Integration System Account with that Integration Partner to the Software:
(a) you acknowledge that you give us access to certain personal data within that Integration System Account, and you give that Integration Partner access to certain personal data within your Pebble Account (together Integration Data);
(b) we both acknowledge that for the purposes of the Data Protection Legislation, as between you and us, you are the controller and we are a processor in respect of the Integration Data from the point of instruction of the transfer onwards;
(c) you acknowledge and hereby instruct and authorise us to share the Integration Data with that Integration Partner for the API Purpose;
(d) you acknowledge that for the purposes of the Data Protection Legislation, you have a direct contractual relationship with that Integration Partner (acting as a controller, your processor or sub-processor, as the case may be) and that they are not our sub-processor;
(e) you acknowledge and agree that it is your responsibility to establish whether you are required under the Data Protection Legislation to enter into a written agreement with that Integration Partner, and, if so, to enter into such agreement;
(f) you warrant and represent to us that that Integration Partner has your authority to share the Integration Data with us for the API Integration Purpose;
(g) we both agree to comply with the provisions of clause 5 in respect of the Integration Data;
(h) without limiting the generality of the preceding clause (f), you will ensure that you have all necessary appropriate consents and notice in place to enable lawful sharing of the Integration Data between us and that Integration Partner; and
(i) we will ensure that that Integration Partner has entered into a written data sharing agreement with us, which shall determine our respective responsibilities for compliance with the obligations of the Data Protection Legislation in respect of the Integration Data.
We may terminate, suspend or apply certain limits to your right (including the Authorised Users’ right) to access or use any API Integration if we determine that you are in breach of any of the provisions of this clause 6.
The contractual relationship between you and us is separate from your contractual relationships with the Integration Partners and from our contract relationships with the Integration Partners. Consequently, both of us acknowledge and agree that:
(a) you will have no liability to us under any agreement between us and any Integration Partner;
(b) we will have no liability to you under any agreement between you and any Integration Partner; and
(c) without limiting the generality of the foregoing clause (b), we are not involved in and shall have no liability to you in respect of the supply of any goods and/or services (including the Integration Partner Services) or the provision of support and assistance in relation to such goods and/or services by any Integration Partner to you.
The Company undertakes that the Subscription Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Company's instructions, or modification or alteration of the Services by any party other than the Company or the Company's duly authorised contractors or agents. If the Subscription Services do not conform to the undertaking, the Company will, at the Company's expense, use reasonable commercial endeavours to correct any non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. That correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, we:
(a) do not warrant that your use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements; and
(b) are 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of those communications facilities; and
(c) do not warrant that the Services are compatible with all Internet browsers for all devices. You can check the Support Website to see the list of compatible browsers in the article, ‘Configuring Browsers’.
These terms shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
The Company warrants that the Company has and will maintain all necessary licences, consents, and permissions necessary for the performance of the Company's obligations under the Contract.
(a) provide the Company with:
(i) all necessary cooperation in relation to the Contract; and
(ii) all necessary access to information the Company may require in order to provide the Subscription Services, including Customer Data, security access information and configuration services;
(b) provide information or other materials related to your Content as reasonably requested by the Company to verify your compliance with the Contract. The Company may monitor the external interfaces of your Content to verify your compliance with the Contract. You shall not block or interfere with the Company's monitoring, but you may use encryption technology or firewalls to help keep your Content confidential. You shall cooperate with the Company to identify the cause of any problem with the Services that the Company reasonably believes may be attributable to your Content or any Authorised User materials that you control;
(c) comply with all applicable laws and regulations with respect to your activities under the Contract;
(d) carry out all other customer responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in your provision of assistance, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the Contract terms and shall be responsible for any Authorised User’s breach of these terms;
(f) ensure that the terms of your agreement with each Authorised User are consistent with this Contract. If you become aware of any breach of your obligations under this Contract by an Authorised User, you will immediately terminate that Authorised User’s access to the Subscription Services and Website;
(g) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, the Company's contractors and agents to perform their obligations under these terms;
(h) ensure that your network and systems comply with the relevant specifications provided by the Company from time to time; and
(i) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the Company's data centres, and all problems, clauses, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
You acknowledge and accept that the collation and accuracy of any Transaction Data submitted to the Company and/or the Payment Processor is your exclusive responsibility and you will procure that the Transaction Data provided by Authorised Users is accurate.
You shall pay the Company the Fees for the Subscription in accordance with this clause 9.
You shall by the Effective Date provide the Company with approved purchase order information acceptable to the Company and any other relevant valid, up-to-date and complete contact and billing details and the Company shall invoice you:
(a) on or after the Effective Date for the Fees payable in respect of the Initial Subscription Term; and
(b) subject to clause 16.1, at least 30 (thirty) days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period, and you shall pay each invoice within 30 (thirty) days after the date of that invoice.
If the Company has not received payment within 30 (thirty) days after the due date, and in addition to any of the Company's other rights and remedies:
(a) the Company may, without liability to you, disable your password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on due amounts at an annual rate equal to 4% (four percent) over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, starting on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in these terms:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Company's invoice(s) at the appropriate rate.
The Company shall be entitled to increase the Fees at the start of each Renewal Period on 90 (ninety) days’ prior notice to you.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other’s Confidential Information in confidence and unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the performance of the Contract.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of these terms.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party
You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute the Company's Confidential Information.
The Company acknowledges that your Customer Data is your Confidential Information.
This clause 11 shall survive termination of the Contract, however arising.
You shall indemnify and keep us indemnified against all claims, actions, proceedings, losses, damages, expenses and costs (including court costs and legal and other professional fees) arising out of or in connection with
(i) breach of a Contract or breach of applicable law by you or any Authorised User,
(ii) your or any Authorised User’s use of the Services and/or Documentation,
(iii) a dispute between you and any Authorised User (including in cases where we are also joined into the relevant dispute),
(iv) your Content or the combination of your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third party rights by your Content, or by the use, development, design, production, advertising or marketing of your Content (together Claims and each a Claim).
(a) give us sole authority to defend or settle all Claims;
(b) shall notify us in writing as soon as reasonably practicable of any Claim (unless we have notified you in writing first of the relevant Claim);
(c) shall allow us to conduct all negotiations and proceedings and provide us with such reasonable assistance as is required by us, each at your cost, regarding the relevant Claim(s); and
(d) shall not, without prior consultation with us, make any admission relating to any Claim or attempt to settle any of them.
(a) consider, defend and (at our sole election) settle all Claims diligently, using competent counsel and in such a way as not to bring your reputation into disrepute; and
(b) provide you with reasonable cooperation in the defence and settlement of each Claim, at your expense.
We shall, subject to clause 12.5 - 12.8 inclusive, defend you, your officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent which is valid and effective as at the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify you against any amounts awarded against you in judgment or settlement of those claims, provided that:
(a) you give the Company prompt notice of any claim;
(b) you provide the Company with reasonable cooperation in the defence and settlement of the claim, at the Company's expense; and
(c) you give us sole authority to defend or settle the claim.
In the defence or settlement of any claim, the Company may obtain the right for you to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if those remedies are not reasonably available, terminate any Contract on 2 (two) Business Days’ notice to you without any additional responsibility, liability or obligation to pay liquidated damages or other additional costs or damages to you.
In no event shall we, the Company, its employees, agents and subcontractors be responsible or liable to you to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than us; or
(b) your use of the Services or Documentation in a manner not authorised by us, or contrary to the instructions the Company has given to you; or
(c) any matter described in clause 12.1; or
(d) your use of the Services or Documentation after notice of the alleged or actual infringement from the Company or any appropriate person or authority.
Clauses 12.4 - 12.6 state your sole and exclusive rights and remedies, and the Company's (including Company employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
Our liability to you under this clause 12 shall in no circumstances exceed the sum of the Fees paid under the Contract during the preceding six (6) months immediately prior to the act or omission giving rise to the loss (or, if the event giving rise to the loss occurs during the first six (6) months of the Contract, the amount of Fees paid by you under the Contract during that period).
(a) The Company may suspend your right to access or use any portion or all of the Services and/or Website immediately upon notice to you if the Company (or AWS) determine your (or an Authorised User’s) use of the Services or Website:
(i) poses a security risk to the Services, Website or any third party,
(ii) may adversely impact the services or the systems or Content of any customer of AWS,
(iii) may subject AWS, its affiliates, or any third party to liability, or
(iv) may be fraudulent.
(b) If the Company suspends your right to access or use any portion or all of the Services and/or Website, you remain responsible for all fees and charges you have incurred prior to the date of suspension and you remain responsible for any applicable fees and charges for any portion of the Services and/or Website to which you continue to have access, as well as applicable charges and fees and charges for in-process tasks completed after the date of suspension.
(a) any breach of a Contract;
(b) any use made by you of the Services and Documentation or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with a Contract.
(a) you assume sole responsibility for results obtained from your use of the Services and the Documentation, and for conclusions drawn from your use of them. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts the Company has provided to you in connection with the Services, or any actions the Company has taken at your direction;
(b) 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 each Contract; and
(c) the Services and the Documentation are provided to you on an “as is” basis.
(a) for death or personal injury caused by the Company's negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) any matter for which it would be unlawful for the Parties to exclude or limit liability (including under Article 82 of the GDPR).
(a) the Company and the Company's subcontractors, affiliates or licensors shall not be responsible or liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under any Contract;
(b) the Company and the Company's subcontractors, affiliates or licensors shall not be responsible for any compensation, reimbursement or damages arising in connection with:
(i) your or any Authorised User’s inability to use the Services and/or the Documentation including as a result of any:
(i) termination or suspension of a Contract or your use of or access to the Services,
(ii) our subcontractor’s discontinuation of any or all of the Services, or
(iii) any unanticipated or unscheduled downtime of all or a portion of the Services for any reason, including as a result of power outages, system failures or other interruptions;
(ii) the cost of procurement of substitute services;
(c) any investments, expenditures or commitments by you in connection with a Contract or your use of or access to the Services and/or Documentation; or
(d) any unauthorised access to, alteration of or the deletion, destruction, damage, loss or failure to store any of your or any Authorised User’s Content or other data; and
(e) the Company's total aggregate 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 a Contract shall be limited to the total Fees paid for the Subscription under that Contract during the 24 (twenty four) months immediately preceding the date on which the claim arose or £1,000 (one thousand pounds), whichever is the lower sum. This is separate from, and in addition to, the Company's respective liability under clause 12.
(a) either party notifies the other party of termination, in writing, at least 60 (sixty) days before the end of the Initial Subscription Term or any Renewal Period, in which case the relevant Contract shall terminate on the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the Contract and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
(a) the other party commits a material breach of any of the terms of the Contract and (if the breach is remediable) fails to remedy that breach within 30 (thirty) days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
(a) all licences granted under the Contract shall immediately terminate;
(b) unless otherwise agreed in writing, 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;
(c) the Company may destroy or otherwise dispose of any of your Customer Data in the Company's possession and relating to that Contract unless you renew your Subscription, no later than 30 (thirty) days after the effective date of the termination of the Contract (Grace Period). During the Grace Period, you will continue to have a view only access to the Customer Data and the option to use the data export feature of the Software to download a copy of the data. If you do not renew your Subscription within the Grace Period, we will anonymise the data and will not be obliged to provide you with access to or copies of that data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
(a) the parties shall discuss any material change to the agreement proposed by the other and that discussion shall result in either:
(i) a written request for a Change by you; or
(ii) a written recommendation for a Change by us.
If neither of us wishes to submit a request or recommendation, the proposal for the Change will not proceed.
(a) the title of the change;
(b) the originator and the date of the request or recommendation for the change;
(c) the reason for the change;
(d) the full details of the change, including any specifications and user facilities;
(e) the price, if any, of or associated with the change;
(f) a timetable for implementation, together with any proposals for acceptance of the change;
(g) the impact, if any, of the change on other aspects of the agreement, including:
(i) the Fees;
(ii) the contractual documentation; and
(iii) staff resources;
(h) the date of expiry of validity of the CCN (which must be 10 (ten) Business Days or more from its date); and
(i) provision for signature of the CCN by the parties.
(a) allocate a sequential number to the CCN;
(b) evaluate the CCN, and as appropriate either:
(i) request further information; or
(ii) approve the CCN; or
(iii) notify us of the rejection of the CCN; and
(c) if approved, arrange for two copies of the approved CCN to be signed for and on behalf of you and us.
The signing of the CCN shall signify acceptance of a change by both parties.
Nothing in these terms or in any Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Neither these terms nor any Contract confer any rights on any person or party (other than the parties to the relevant Contract and, where applicable, their successors and permitted assigns) under the Contracts (Rights of Third Parties) Act 1999.
(a) delivered by hand or sent by prepaid first-class post or other next working day delivery service at its address set out in the relevant Order Form (or to such updated address as may have been notified by one party to the other for such purposes in accordance with this clause 25); or
(b) sent by email to the address specified in the relevant Order Form (or such updated email address as may have been notified by one party to the other for such purposes in accordance with this clause 25).
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at 09:00 on the second Business Day after posting or (if earlier) at the time recorded by the delivery service; and
(c) if sent by email, on the earlier of:
(i) the time a delivery receipt is generated automatically by the recipient’s email server; or
(ii) the time the recipient acknowledges receipt; or
(iii) twenty four (24) hours after transmission (unless the sender receives notification that the email has not been successfully delivered, in which case delivery shall be considered not to have occurred at all).
The processing under these terms applies to the Protected Data, as defined in clause 5.1 of these terms.
We may process the Protected Data in order to:
(a) enable you to use our Tali, Trac and Till systems for the integrated financial management of your funds, for example, to reconcile and report upon transactional information, as further described in the Documentation; and
(b) if clause 6 applies, enable you to benefit from interoperability of Tali, Trac and Till systems with software solutions of our Integration Partners.
We will process the Customer Personal Data in order to provide the Subscription Services to you (including, where clause 6 applies, enabling you to use the API Integrations).
You may require certain personal data within Tali, Trac and Till systems to be held for seven years in order to comply with your financial audit obligations. We can facilitate such storage, if you request so and continue to pay us our subscription charges. If you do not renew your service subscription, we will first contact you to inform you of our intention to anonymise the personal data 30 days after the expiry or termination of your subscription. During that 30 days' grace period, you will continue to have a view only access to the data and the option to use the data export feature of Tali, Trac and Till systems to download a copy of the data. Most of the data can be exported in CSV format which might be migrated into third party applications if required, depending on the functionality of the system of the relevant third party. If you do not renew your subscription before the end of the 30 days' period, we will anonymise the personal data on its expiry.
You acknowledge that:
(a) we may continue to process information derived from the Protected Data for our own purposes in anonymised, aggregated reports during the term of our Contract with you and following its termination; and
(b) if, for the purposes of the Data Protection Legislation, you are considered to be an individual, we may process your personal data, as a controller, in accordance with our privacy notice published on our Website.
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