Last updated December 16, 2020

Terms and Conditions

These are the terms and conditions (Conditions) of Norton Five Limited, a company registered in England and Wales with company number 11101338 whose registered office is at 43 Shakespeare Way, Warfield, Bracknell, Berkshire, United Kingdom, RG42 3AQ (Supplier). They govern the Contract (as defined below) between the Supplier and the Customer (as defined below) for the supply of the Services (as defined below).

1 Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

Authorised Usersthose employees, agents, independent contractors or Clients (if applicable) of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3.2.5.
Business Daya day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Clientsthose clients (and employees, agents or independent contractors of such clients) of the Customer, solely if the Customer is a consultant providing human resources, accounting or other similar services.
Confidential Informationinformation that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 or clause 12.6.
Contractthe contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measuresas defined in the Data Protection Legislation.
Customerthe person, company or other legal entity who subscribes for the Services and agrees to abide by these Conditions.
Customer Datathe 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 Legislationthe UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Documentationthe document made available to the Customer by the Supplier online via the Supplier’s Website which sets out a description of the Services and the user instructions for the Services, including the Terms of Use.
Effective Datethe date on which the Contract comes into existence as described in clause 2.5.
Heightened Cybersecurity Requirementsany laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Subscription Term1 (one) month or 12 (twelve) months from the Effective Date as set out in the Order Confirmation.
Normal Business Hours8.00 am to 6.00 pm local UK time, each Business Day.
Order Confirmationhas the meaning given in clause 2.5.
Renewal Periodthe period described in clause 15.1.
Renewal Period Datethe date on which each Renewal Period commences.
Servicesthe subscription services provided by the Supplier to the Customer under the Contract via the Supplier’s Website and / or the Supplier’s “Leave Dates” mobile application, as more particularly described in the Documentation.
Softwarethe Supplier’s “Leave Dates” web and mobile software application to help plan and track staff leave and any other web or mobile software applications provided by the Supplier as part of the Services.
Sub-Processorshas the meaning given in clause 6.9.
Subscription Feesthe subscription fees payable by the Customer to the Supplier for the User Subscriptions in accordance with the Supplier’s current price list at the time of the Order Confirmation as available at the Supplier’s Website.
Subscription Termhas the meaning given in clause 15.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Terms of Usethe Supplier’s standard terms of use in force from time to time which shall govern the use of the Services and Documentation by the Authorised Users as available at the Supplier’s Website.
UK Data Protection Legislationall applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426); all as amended from time to time.
User Subscriptionsthe user subscriptions purchased by the Customer pursuant to clause 10.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Contract.
Virusany 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.
Vulnerabilitya weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
Websitehttps://www.leavedates.com/ or any other website or mobile application notified to the Customer by the Supplier from time to time.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Contract.

1.3 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.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.9 Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020.

1.10 A reference to writing or written includes email (provided it is supported by a valid server log) but not fax.

1.11 References to clauses and schedules are to the clauses and schedules of the Contract; references to paragraphs are to paragraphs of the relevant schedule to the Contract.

1.12 Any words following the terms includingincludein particularfor example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2 Basis of contract

2.1 These Conditions shall apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Customer may only submit an order using the method and following the onscreen prompts set out on the Supplier’s Website. Each order is an offer by the Customer to buy the Services specified in the order subject to these Conditions.

2.3 The Customer shall be responsible for checking the order carefully before confirming it and for ensuring that the order is complete and accurate.

2.4 After placing its order, the Customer may receive an email from the Supplier acknowledging that it has received it, but this shall not mean that the order has been accepted. The Supplier’s acceptance of the order will take place as described in clause 2.5 below.

2.5 The Supplier’s acceptance of the order takes place when the Supplier accepts it either by sending an email to the Customer or by way of pop-up on the Supplier’s Website (Order Confirmation), at which point and on which date (Effective Date) the Contract between the Supplier and the Customer shall come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation.

2.6 Any descriptions or illustrations contained in the Supplier’s websites or mobile applications are published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

3 User Subscriptions

3.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 4.3 and clause 10.1, the restrictions set out in this clause 3, the other terms and conditions of the Contract and the Supplier’s Terms of Use, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the internal business operations of the Customer or its Clients (if applicable).

3.2 In relation to the Authorised Users, the Customer undertakes that:

3.2.1 it shall ensure that the Authorised Users comply with the Terms of Use and only use the Services and the Documentation in accordance thereto. The Customer acknowledges that the Supplier shall not be responsible for the use of the Services and Documentation by the Authorised Users and agrees that it shall be responsible for any Authorised User’s breach of the Terms of Use;  

3.2.2 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

3.2.3 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and the Documentation;

3.2.4 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed at reasonably frequent intervals and that each Authorised User shall keep his password confidential;

3.2.5 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 (five) Business Days of the Supplier’s written request at any time or times.

3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

3.3.2 facilitates illegal activity;

3.3.3 depicts sexually explicit images;

3.3.4 promotes unlawful violence;

3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

3.3.6 is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

3.4 The Customer shall not:

3.4.1 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 the Contract:

3.4.1.1 attempt to copy, modify, 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

3.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

3.4.2 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

3.4.3 use the Services and/or Documentation to provide services to any third party except the Clients (if applicable); or

3.4.4 subject to clause 23.1, 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

3.4.5 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

3.4.6 introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.

3.5 The Customer 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 such unauthorised access or use, promptly notify the Supplier.

3.6 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

4 Additional User Subscriptions

4.1 Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Confirmation and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Contract.

4.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall use the method and follow the onscreen prompts set out on the Supplier’s Website. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer by email with approval or rejection of the request. Where the Supplier approves the request, the additional User Subscriptions shall be activated automatically.

4.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer hereby authorises the Supplier and / or Stripe to immediately bill the payment card provided by the Customer in accordance with clause 10.2 for the relevant fees for such additional User Subscriptions in accordance with the Supplier’s then current price list as available at the Supplier’s Website and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or the then current Renewal Period (as applicable).

5 Services

5.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Contract.

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

5.2.1 planned maintenance carried out during the maintenance window of 2.00 am to 6.00 am UK time; and

5.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 (six) Normal Business Hours’ notice in advance.

5.3 The Supplier may in its absolute discretion, as part of the Services, provide the Customer with customer support during Normal Business Hours.

6 Customer Data

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

6.2 The Supplier shall use reasonable endeavours to archive the Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 6.9).

6.3 The Supplier shall, in providing the Services, comply with its privacy and security policy(ies) relating to the privacy and security of the Customer Data available at the Supplier’s Website, as such document(s) may be amended from time to time by the Supplier in its sole discretion.

6.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

6.5 The parties acknowledge that:

6.5.1 if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation;

6.5.2 Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject; and

6.5.3 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under the Contract.

6.6 Without prejudice to the generality of clause 6.4, 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 for the duration and purposes of the Contract so that the Supplier may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf.

6.7 Without prejudice to the generality of clause 6.4, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

6.7.1 process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

6.7.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

6.7.2.1 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer; and

6.7.2.2 the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;

6.7.3 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

6.7.4 notify the Customer without undue delay on becoming aware of a personal data breach;

6.7.5 on termination of the Contract and at the written direction of the Customer or upon the Customer’s deletion of its account, delete or return personal data and copies thereof to the Customer unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and

6.7.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

6.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, 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, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

6.9 The Customer consents to the Supplier appointing Amazon, Stripe, Feefo, Capterra, Rollbar, Zendesk and Mailchimp as third-party processors of personal data under the Contract (Sub-Processors). The Supplier confirms that it has entered or (as the case may be) will enter into, with each Sub-Processor, a written agreement which is substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 6 and in either case which reflects and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any Sub-Processor appointed by it pursuant to this clause 6.

6.10 The Supplier may at any time amend the list of approved Sub-Processors from time to time upon serving notice in writing to the Customer and if the Customer disagrees with the amendment then it shall be entitled to object to it and serve notice on the Supplier in accordance with clause 15.2.2.

6.11 Either party may, at any time on not less than 30 (thirty) days’ notice, revise this clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

7 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.

8 Supplier’s Obligations

8.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

8.2 The undertaking at clause 8.1 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, the 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 clause 8.1.

8.3 The Supplier:

8.3.1 does not warrant that:

8.3.1.1 the Customer’s use of the Services will be uninterrupted or error-free; or

8.3.1.2 the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or

8.3.1.3 the Software or the Services will be free from Vulnerabilities; or

8.3.1.4 the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.

8.3.2 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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.4 The Contract shall not prevent the Supplier 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.

8.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.

9 Customer’s Obligations

9.1 The Customer shall:

9.1.1 provide the Supplier with:

9.1.1.1 all necessary co-operation in relation to the Contract; and

9.1.1.2 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;

9.1.2 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;

9.1.3 carry out all other Customer responsibilities set out in the Contract 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;

9.1.4 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Contract, including the Services;

9.1.5 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and

9.1.6 be, to the extent permitted by law and except as otherwise expressly provided in the Contract, 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.

10 Charges and Payment

10.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 10.

10.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete payment card details acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and the Customer hereby authorises the Supplier and / or Stripe to bill such payment card:

10.2.1.1 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

10.2.1.2 subject to clause 15.1, on each Renewal Period Date for the Subscription Fees payable in respect of the next Renewal Period.

10.3 If the Supplier has not received payment on the due date, and without prejudice to any other rights and remedies of the Supplier:

10.3.1 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 due amount(s) concerned remain unpaid; and

10.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% (four percent) over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10.4 All amounts and fees stated or referred to in the Contract:

10.4.1 shall be payable in the currency set out in the Order Confirmation;

10.4.2 are, subject to clause 14.3.2, non-cancellable and non-refundable;

10.4.3 are exclusive of value added tax, which shall be added to the Supplier’s amount(s) at the appropriate rate.

10.5 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 4.3 and / or  any support fees payable pursuant to clause 5.3 at the start of each Renewal Period upon 7 (seven) days’ prior notice to the Customer and the Contract shall be deemed to have been amended accordingly.

11 Proprietary Rights

11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

11.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.

12 Confidentiality

12.1 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 be deemed to include information that:

12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

12.1.2 was in the other party’s lawful possession before the disclosure;

12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.

12.2 Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and 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 implementation of the Contract.

12.3 Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.

12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by applicable law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

12.5 The Customer acknowledges that details of the Services, and the results of any tests relating to the Services, constitute the Supplier’s Confidential Information.

12.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by applicable law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.8 The above provisions of this clause 12 shall survive termination of the Contract, however arising.

13 Indemnity

13.1 The Customer shall defend, indemnify and hold harmless the Supplier, its officers, directors and employees against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:

13.1.1 the Customer is given prompt notice of any such claim;

13.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

13.1.3 the Customer is given sole authority to defend or settle the claim.

13.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with the Contract infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

13.2.1 the Supplier is given prompt notice of any such claim;

13.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

13.2.3 the Supplier is given sole authority to defend or settle the claim.

13.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 (two) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

13.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

13.4.1 a modification of the Services or Documentation by anyone other than the Supplier; or

13.4.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

13.4.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

13.5 The foregoing and clause 14.3.2 state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14 Limitation of Liability

14.1 Except as expressly and specifically provided in the Contract:

14.1.1 the Customer assumes sole responsibility for any damage or loss arising under or in connection with results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from and advice given based on such use;

14.1.2 the Supplier shall have no liability for any damage or loss caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

14.1.3 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 the Contract; and

14.1.4 the Services and the Documentation are provided to the Customer on an “as is” basis.

14.2 Nothing in the Contract excludes the liability of the Supplier:

14.2.1 for death or personal injury caused by the Supplier’s negligence; or

14.2.2 for fraud or fraudulent misrepresentation.

14.3 Subject to clause 14.1 and clause 14.2:

14.3.1 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, 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 the Contract; and

14.3.2 the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 (twelve) months immediately preceding the date on which the claim arose.

15 Term and Termination

15.1 The Contract shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for successive periods of:

15.1.1 1 (one) month if the Initial Subscription Term is 1 (one) month; or

15.1.2 12 (twelve) months if the Initial Subscription Term is 12 (twelve) months;

(each a Renewal Period), unless:

15.1.2.1 either party notifies the other party of termination, in writing, at least 1 (one) day before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

15.1.2.2 otherwise terminated in accordance with the provisions of the Contract;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

15.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

15.2.1 the other party fails to pay any amount due under the Contract on the due date for payment;

15.2.2 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so;

15.2.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

15.2.4 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 the Contract is in jeopardy;

15.2.5 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 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 Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

15.2.6 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 (being a company) 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;

15.2.7 the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

15.2.8 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 (being a company) 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;

15.2.9 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;

15.2.10 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

15.2.11 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;

15.2.12 the other party (being an individual) is the subject of a bankruptcy petition, application or order;

15.2.13 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 (fourteen) days;

15.2.14 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 clause 15.2.5 to clause 15.2.13 (inclusive);

15.2.15 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

15.2.16 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.

15.3 On termination of the Contract for any reason:

15.3.1 all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

15.3.2 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;

15.3.3 the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 6.7.5, unless the Supplier receives, no later than 1 (one) day after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 (thirty) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data;

15.3.4 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and

15.3.5 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.

16 Force Majeure

The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, lockdown, COVID-19 related matters, the ending of the transition period for the UK’s departure from the EU, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

17 Conflict

If there is an inconsistency between any of the provisions in the main body of the Contract and the Schedules, the provisions in the main body of the Contract shall prevail.

18 Variation

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19 Waiver

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

20 Rights and Remedies

Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

21 Severance

21.1 If any provision or part-provision of the Contract 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 the Contract.

21.2 If any provision or part-provision of the Contract is deemed deleted under clause 21.1 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.

22 Entire Agreement

22.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

22.2 Each party acknowledges that in entering into the Contract 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 the Contract.

22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

22.4 Nothing in this clause shall limit or exclude any liability for fraud.

23 Assignment

23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

23.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract, save as provided under clause 6.10.

24 No Partnership or Agency

Nothing in the 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, 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).

25 Third Party Rights

The Contract does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

26 Notices

26.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be sent by email to the other party’s email address as set out in the Order Confirmation.

26.2 A notice or other communication sent by email shall be deemed to have been received at the time of transmission (as shown by the timed log on the sender’s server).

26.3 This clause does not apply to the service of any proceedings or other documents in any legal action.

27 Governing Law

The Contract 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 England and Wales.

28 Jurisdiction

Each party irrevocably agrees, for the sole benefit of the Supplier that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. Nothing in this clause shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

Schedule 1 – Processing, Personal Data and Data Subjects

1 Processing by the Supplier

1.1 Scope: the provision of the Services by the Supplier to the Customer.  

1.2 Nature and Purpose of Processing: the use of or facilitating the use of the Services by the Customer.

1.3 Duration of the Processing: the Subscription Term.  

2 Types of Personal Data

Name, username or similar identifier, date of birth, gender, email address, postal address, telephone number, bank account and payment card details, details about payments, information about holiday allowance, information about staff leave, information about working schedules, email tracking, internet protocol (IP) addresses, details of products and services purchased, preferences, feedback and survey responses.

3 Categories of Data Subject

The Customer and the Authorised Users.  

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