Service terms
Last updated on 9 April, 2024.
The Conditions
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.- Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in 2.2(d).
- Business Day: a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.
- Charges: the fees payable by the Customer to the Supplier for the Services.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in 11.1.
- Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
- Data Protection Legislation: to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Provider is subject, which relates to the protection of personal data.
- Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
- Personal Data:
- Renewal Period: the period described in 14.1.
- Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
- Services: the services provided by the Supplier to the Customer under this agreement, as defined in the Contract Details.
- Software: the online software applications provided by the Supplier as part of the Services.
- Term: has the meaning given in 14.1 (being the Initial Term together with any subsequent Renewal Periods).
- Virus: any thing or device (including any software, code, file or programme) 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 programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme 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.
2. Users
2.1 The Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Term solely for the Customer's internal business operations. 2.2 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep their password confidential. 2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during its use of the Services that:- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
- 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:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services in order to build a product or service which competes with the Services; or
- use the Services to provide services to third parties; or
- subject to 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this 2; or
- introduce or permit the introduction of any Virus into the Supplier's network and information systems.
3. Non-Solicitation
3.1 You must not attempt to procure services that are competitive with the Services from any of our directors, employees or coaches, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Contract.4. Services
4.1 The Supplier shall, during the Term, provide the Services to the Customer on and subject to the terms of this agreement. 4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned maintenance, or unscheduled maintenance performed outside Normal Business Hours. 4.3 The Supplier will, as part of the Services, provide the Customer with the Supplier's standard customer support services during Normal Business Hours.5. Data protection
5.1 Controller, Processor, and Personal Data are as defined in the Data Protection Legislation.5.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove, or replace, a party's obligations or rights under the Data Protection Legislation. 5.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller, and the Supplier is the Processor. 5.4 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of this agreement. 5.5 The Supplier will ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal 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. 5.6 The Supplier will ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential and will comply with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data.6. Third party providers
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into, and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.7. Supplier's obligations
7.1 The Supplier undertakes that the Services will be performed with reasonable skill and care. 7.2 The undertaking at 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in 7.1. 7.3 The Supplier:- does not warrant that:
- the Customer's use of the Services will be uninterrupted or error-free; or
- the Software or the Services will be free from Viruses.
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
8. Customer's obligations
8.1 The Customer shall:- provide the Supplier with:
- all necessary co-operation in relation to this agreement; and
- all necessary access to such information as may be required by the Supplier;
- in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
- carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
- be, to the extent permitted by 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 Supplier's data centres, 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.
9. Charges and payment
9.1 The Customer shall pay the Charges to the Supplier for the Services. 9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date, and complete credit card details, direct debit details, or approved purchase order information (as applicable) acceptable to the Supplier. If the Customer provides its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card. If the Customer provides a direct debit mandate, the Supplier will collect payment by direct debit. If the Customer provides Supplier approved purchase order information, the Supplier shall invoice the Customer and the Customer shall pay each invoice within 30 days of the date of such invoice. 9.3 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:- the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- interest shall accrue daily on such due amounts at an annual rate equal to 5% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- shall be payable in pounds sterling;
- are, subject to 13.3(b), non-cancellable and non-refundable; and
- are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.11. Confidentiality
11.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives whether before or after the date of this agreement in connection with the Services, including but not limited to:- the terms of this agreement;
- any information that would be regarded as confidential by a reasonable business person relating to:
- the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party; and
- the operations, processes, product information, know-how, designs, trade secrets or software of the Supplier;
- any information developed by the parties in the course of carrying out this agreement and the parties agree that:
- details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and
- Customer Data shall constitute Customer Confidential Information;
- is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
- was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
- was, is or becomes available to the receiving party on a non-confidential basis from a person who is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
- the parties agree in writing is not confidential or may be disclosed.
- use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
- disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
- it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
- at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
- destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
- erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
- certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating, or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
12. Third Party Claims
12.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, provided that:- the Supplier is given prompt notice of any such claim;
- the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
- the Supplier is given sole authority to defend or settle the claim.
- a modification of the Services by anyone other than the Supplier; or
- the Customer's use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer's use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13. Limitation of liability
13.1 Except as expressly and specifically provided in this agreement:- the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, or instructions provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
- all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
- the Services are provided to the Customer on an "as is" basis.
- for death or personal injury caused by the Supplier's negligence; or
- for fraud or fraudulent misrepresentation.
- the Supplier shall not be 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, wasted expenditure, 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 this agreement; and
- the Supplier'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 this agreement shall be limited to £12,000 or the total Charges paid for the Services during the 12 months immediately preceding the date on which the claim arose; whichever is higher.
14. Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:- either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
- otherwise terminated in accordance with the provisions of this agreement;
- the other party fails to pay any Charges due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 14.2(c) to clause 14.2(j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
- there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
- all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
- each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
- any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations (excluding obligations to pay the Charges) if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.16. Conflict
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.17. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).18. Waiver
18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 18.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.19. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.20. Severance
20.1 If any provision or part-provision of this agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. 20.2 If any provision or part-provision of this agreement is deemed deleted under 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.21. Entire agreement
21.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. 21.2 Each party acknowledges that in entering into this agreement it does not rely on, and 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. 21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. 21.4 Nothing in this clause shall limit or exclude any liability for fraud.22. Assignment
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement. 22.2 The Supplier may at any time assign, 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 agreement.23. No partnership or agency
Nothing in this agreement 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, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).24. Third party rights
1.1 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.25. Counterparts
2.1 This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.26. Notices
3.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email. 3.2 Any notice shall be deemed to have been received:- if delivered by hand, at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
- if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.