Standard Terms of Service

Software as a Service Terms – Kids Club HQ

The Supplier is Joined-Up Solutions Ltd (company number 05335754) and which trades as Kids Club HQ for the purposes of the Services. The following agreement and any additional terms on https://www.kidsclubhq.com/ or otherwise provided about payment arrangements or payment facilities or user rules for https://www.kidsclubhq.com/ are together referred to as “this Agreement” and which Agreement governs the legal relationship between the Customer and the Supplier in relation to the Customer’s use of certain software applications and platforms (accessible at https://www.kidsclubhq.com/) and any updates to those.

Background

(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of its Kids Club HQ platform which enables the organisers of after school clubs, holiday clubs, camps, playschemes, sports clubs and providers of leisure activities to arrange and invoice their services and so that the Customer’s users are able to book and pay for clubs and events and any other functionality currently existing or added in future.

(B) The Customer wishes to use the Supplier's service.

(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this Agreement.

It is hereby agreed

Acceptance of this Agreement & Interpretation

1.1. By clicking on the “I accept” button below, the Customer is deemed to have read and accepted this Agreement prior to using our Services and it hereby represents and warrants to us that: (i) the Customer’s administrator who accepts this Agreement for and on behalf of the Customer has the requisite authority to do so and to bind the Customer fully to the terms of this Agreement, including without limitation, the provisions around payment to the Supplier, and its continued use of the Services is confirmation of that; (ii) the Customer’s access and use of the Services will be in accordance with this Agreement and with all applicable laws, rules and regulations of the United Kingdom and any other relevant jurisdictions; (iii) the information which the Customer provides to the Supplier is true and accurate and it will update such information when necessary.

1.2. The Customer acknowledges and agrees that this Agreement applies from the date on which the Customer first clicks the “I accept” button below through its authorised representative. Further, the Customer acknowledges and agrees that this Agreement forms a legally binding contract between it and the Supplier. If the Customer disagrees with any terms of this Agreement, it must not click “I accept” below.

1.3. In order to use the Services, the Customer must register as a user of the Services and accept the terms of this Agreement.

1.4. The definitions and rules of interpretation in this clause apply in this Agreement.

"Business Day"; a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

"Change of Control"; the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

"Confidential Information"; information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6.

"Customer Data"; the data inputted by the Customer or the Supplier or the Participant on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

"Documentation"; the documentation made available to the Customer by the Supplier via the Kids Club HQ Support System (which includes documentation available at https://www.kidsclubhq.com/ or such other web address notified by or other documentation separately provided by the Supplier to the Customer from time to time) and which sets out a description of the Services and the user instructions for the Services.

"Effective Date"; the date this Agreement is entered into as referred to above in clause 1.2.

"Initial Subscription Term"; the initial term of this Agreement as set out in Schedule 1.

"Normal Business Hours"; 9.00 am to 5.30 pm local UK time, each Business Day.

"Participant"; the attendee or parent (or guardian) of the attendee of the Customer’s club or event and who use the platform provided by the Supplier for the Customer pursuant to this Agreement to book and pay for attendance at such clubs and events.

"Participant Data"; the data relating to Participants (including personal information such as names, contact details, medical information, dietary requirements, emergency contact information, attendance records, booking details, and payment information) that is inputted by the Participant, the Customer, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

"Renewal Period"; the period described in clause 13.1.

"Services"; the subscription services provided by the Supplier to the Customer under this Agreement via https://www.kidsclubhq.com/ website notified to the Customer by the Supplier from time to time, as or any other more particularly described in the Documentation.

"Software"; the online software applications provided by the Supplier as part of the Services.

"Subscription Fees"; the subscription fees payable by the Customer to the Supplier for the Services, as set out in on https://www.kidsclubhq.com/ or in other documentation provided to the Customer by the Supplier prior to the Customer clicking the “I accept” button.

"Subscription Term"; has the meaning given in clause 13.1 (being the Initial Subscription 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.

"Vulnerability"; a 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.

1.5. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.6. 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.

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

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

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

1.10. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.11. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.12. A reference to writing or written includes faxes but not e-mail.

1.13. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
Services

2.1. 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 this Agreement.

2.2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: <ol type="a" start="a"> <li>planned maintenance carried out during the maintenance window of 10.00 pm to 5.00 am UK time; and</li> <li>unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 3 Normal Business Hours' notice in advance.</li> </ol>

2.3. The Supplier will, as part of the Services provide the Customer with the Supplier's standard customer support services during Normal Business Hours.

2.4. Subject to the Customer paying the required fee and complying with the terms of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Customer to use the Services and the Documentation (including allowing Participants to use the Services to the extent applicable) during the Subscription Term solely for the Customer's business and operational purposes.

2.5. The Customer shall not (and undertakes to agree separate terms of use with Participants so that they shall not) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: <ol type="a" start="a"> <li>is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;</li> <li>facilitates illegal activity;</li> <li>depicts sexually explicit images;</li> <li>promotes unlawful violence;</li> <li>is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or</li> <li>is otherwise illegal or causes damage or injury to any person or property;</li> </ol> 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.

2.6. The Customer shall not: a. 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: i. 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 ii. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part 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 other than Participants; or d. 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 other than Participants to the extent envisaged by and appropriate under this Agreement; 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 2; or f. introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems and the Customer undertakes to agree separate terms of use with Participants so that they shall not do the same.

2.7. 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. The Customer’s authorised users (of which there is no limit) must also comply with any general user terms provided by the Supplier whether on https://www.kidsclubhq.com or otherwise.
Participants

The Customer acknowledges that the Services enable and assist it to separately provide services to Participants and it acknowledges that it does so 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 of any terms agreed between, or correspondence between, the Customer and any Participant and the Customer acknowledges that the Supplier owes no liability whatsoever to any Participant by making available the Services and Documentation to the Customer. The Customer acknowledges and agrees that the Services are provided to it on a business to business basis and so the Supplier is not providing its services to any consumer (whether any Participant or otherwise). The Customer acknowledges that it is for the Customer to take its own legal advice when agreeing separate terms with any Participant, and on whether or not it is providing services or goods to consumers and so how to draft its terms with Participants accordingly. This clause is subject to any prevailing law.
Third party providers

The Customer acknowledges that the Services may enable or assist it or any applicable Participant to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites (including, without limitation, payment services providers) and that it and any Participant does so solely at their 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 or applicable Participant, with any such third party. Any contract entered into and any transaction completed via any third-party website or provider is between the Customer and the relevant third party or the Participant 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, terms and conditions of service 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.
Data protection

Scope and Applicability

5.1. Clause 5 shall apply where and only to the extent that the Supplier processes Participant Data that originates from the UK and/or that is otherwise subject to UK Data Protection Law on behalf of the Customer as Data Processor in the course of providing Services pursuant to the Agreement.

Roles and Scope of Processing

5.2. Roles of the Parties. As between the Customer and the Supplier, the Customer is the Data Controller of Participant Data and the Supplier shall process Participant Data only as a Data Processor acting on behalf of the Customer.

5.3. The Customer processing of Participant Data. The Customer agrees that (i) It shall comply with its obligations as a Data Controller under Data Protection Laws in respect of its processing of Participant Data and any processing instructions it issues to the Supplier and (ii) it has provided notice and obtained (or shall obtain) all consent and rights necessary under Data Protection Laws for the Supplier to process Participant Data and provide the Services pursuant to the Agreement.

5.4. The Supplier Processing of Participant Data. The Supplier shall process Participant Data only for the purposes described in this Agreement and only in accordance with the Customer’s documented lawful instructions. The parties agree that this Agreement sets out the Customer’s complete and final instructions to the Supplier in relation to the processing of Participant Data and processing outside the scope of these instructions (if any) shall require prior written agreement between the Customer and the Supplier.

5.5. Details of Data Processing.

(a) Subject matter: The subject matter of the data processing under this Agreement is the Customer’s Participant Data.

(b) Duration: As between the Customer and the Supplier, the duration of the data processing under this Agreement is until the termination of the Agreement in accordance with its terms.

(c) Purpose: The purpose of the data processing under this Agreement is the provision of the Services to the Customer and the Customer’s users; the performance of the Supplier’s obligations under the Agreement or as otherwise agreed by the parties.

(d) Nature of processing. The Supplier provides automated scheduling, billing and reporting services for Clubs, schools and other groups providing in-person services to children. Parents and Guardians may additionally book sessions, review attendance and pay for services via the parent portal.

(e) Categories of data subjects: Any individual whose Personal Information is supplied by the Customer or direct from the Participant for delivery of the Services. This includes Participant data, as identified in Annex 1.

(f) Types of Participant Data: The Participant Data Processed by the Supplier on behalf of the Customer is listed in Annex 1 to this DPA.

5.6. Notwithstanding anything to the contrary in the Agreement, the Customer acknowledges that the Supplier shall have a right to use and disclose the Customer information relating to the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered Personal Data under Data Protection Laws, the Supplier is the Data Controller of such data and accordingly shall process such data in accordance with the Supplier Privacy Policy and Data Protection Laws. For the avoidance of doubt this does not include the Customer or its affiliates’ Participant Data.

Sub-processing

5.7. Authorized Sub-processors. The Customer agrees that the Supplier may engage Sub-processors to process Participant Data on Customers behalf. The Customer requires that they are notified of any Sub-Processors currently engaged by the Supplier (See Annex 2 listing) and are kept up to date with new Sub-processors as they are engaged.

5.8. Sub-processors Obligations. The Supplier shall (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Participant Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this Agreement and for any acts or omissions of the Sub-processor that cause the Supplier to breach any of its obligations under this Agreement.

Changes to Sub-Processors

5.9. The Supplier shall (i) provide an up-to-date list of the Sub-processors it has appointed upon written request from the Customer; and (ii) notify the Customer (for which email shall suffice) if it adds or removes Sub-processors at least 10 days prior to any such changes.

5.10. The Customer may object in writing to the Supplier ‘s appointment of new Sub-processor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, the Customer may suspend or terminate the Agreement (without prejudice to any fees incurred by the Customer prior to suspension or termination). []{.mark}

Security

5.11. Security Measures. The Supplier shall implement and maintain appropriate technical and organisational security measures to protect Participant Data from Security Incidents and to preserve the security and confidentiality of the Participant Data. This security will be appropriate for the level of sensitivity of the Processed data, which includes child Data.

5.12. Updates to Security Measures. The Customer has the right to review the information made available to the Supplier relating to data security and making an independent determination as to whether the Services meet the Customer’s requirements and legal obligations under Data Protection Laws. The Customer acknowledges that the Security Measures are subject to technical progress and development and that the Supplier may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services utilised by the Customer or its users.

5.13. The Customer’s Responsibilities. Notwithstanding the above, the Customer agrees that except as provided by this Agreement, the Customer is responsible for its secure use of the Services, including securing its account authentication credentials. The Customer is also responsible for informing Participants of their obligations to keep data secured and, where input by the Participants, accurate.

Additional Security

5.14. Confidentiality of Processing. The Supplier shall ensure that any person who is authorised by the Supplier to process Participant Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

5.15. Security Incident Response. Upon becoming aware of a Security Incident, the Supplier shall notify the Customer without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by the Customer.

Return or Deletion of Data

5.16. Upon termination or expiration of the Agreement, the Supplier shall (at the Customer’s election) delete or return to the Customer all Participant Data (including copies) in its possession or control, save that this requirement shall not apply to the extent the Supplier is required by applicable law to retain some or all of the Participant Data, or to Participant Data it has archived on back-up systems, which Participant Data the Supplier shall securely isolate and protect from any further processing, except to the extent required by applicable law.

Cooperation

5.17. To the extent that the Customer is unable to independently access the relevant Participant Data within the Services, the Supplier shall provide reasonable cooperation to assist the Customer to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to the Supplier, the Supplier shall not respond to such communication directly without the Customer’s prior authorisation, unless legally compelled to do so. If the Supplier is required to respond to such a request, the Supplier shall promptly notify the Customer and provide it with a copy of the request unless legally prohibited from doing so.
Supplier's obligations

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

6.2. The undertaking at clause 6.1 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 clause 6.1.

6.3. The Supplier: a. does not warrant that: i. the Customer's use of the Services will be uninterrupted or error-free; or ii. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's exact requirements; or iii. the Software or the Services will be free from Vulnerabilities or Viruses. b. 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.

6.4. This Agreement 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 this Agreement.

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

6.6. The Supplier shall follow its archiving procedures for Customer Data as provided by its current Amazon service for short term data recovery. However, it does not store or archive data on a long term basis for Customers. The Customer is provided with an export facility to export Customer Data to its own systems for its own purposes and compliance requirements, at its sole discretion. Customer Data which is not exported and particularly after its account is closed will not be retained by the Supplier other than in the immediate term. 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).
Customer's obligations

7.1. The Customer shall: a. provide the Supplier with: i. all necessary co-operation in relation to this Agreement; and ii. 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;

b. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

c. 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;

d. ensure that the Customer’s staff use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for their breach of this Agreement;

e. 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;

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

g. 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.

7.2. 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.
Charges and payment

8.1. The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 8 and any separate charges information provided to the Customer by the Supplier. That separate charges information will provide options for payment to the Supplier. Where the Supplier provides an invoice to the Customer, that invoice is payable within 30 days after the date of such invoice.

8.2. If the Supplier has not received payment within after the due date (which may depend on the payment method used by the Customer), and without prejudice to any other rights and remedies of the Supplier: a. 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 b. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% 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.

8.3. All amounts and fees stated or referred to in this Agreement: a. shall be payable in pounds sterling; b. are, subject to clause 12.3(b), non-cancellable and non-refundable; c. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.

8.4. The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 90 days' prior notice to the Customer and any previous agreed charges terms shall be deemed to have been amended accordingly.
Proprietary rights

9.1. 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, this Agreement 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.

9.2. 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 this Agreement.
Confidentiality

10.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to 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; or d. is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2. Subject to clause 10.4, 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 this Agreement.

10.3. 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 violation of the terms of this Agreement.

10.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by 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 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

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

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

10.8. The above provisions of this clause 10 shall survive termination of this Agreement, however arising.
Indemnity

11.1. The Customer shall defend, indemnify and hold harmless the Supplier 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 or any Participant’s use of the Services and/or Documentation, provided that: a. the Customer is given prompt notice of any such claim; b. the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and c. the Customer is given sole authority to defend or settle the claim.

11.2. 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 this Agreement 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: a. the Supplier is given prompt notice of any such claim; b. 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 c. the Supplier is given sole authority to defend or settle the claim.

11.3. 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 this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4. 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: a. a modification of the Services or Documentation by anyone other than the Supplier; or b. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or c. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

11.5. The foregoing and clause 12.3(b) 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.
Limitation of liability

12.1. Except as expressly and specifically provided in this Agreement: a. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer and any Participant, and for conclusions drawn from such use. The Supplier shall have no liability for any damage 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; 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 this Agreement; and c. the Services and the Documentation are provided to the Customer on an "as is" basis.

12.2. Nothing in this Agreement excludes the liability of the Supplier: a. for death or personal injury caused by the Supplier's negligence; or b. for fraud or fraudulent misrepresentation.

12.3. Subject to clause 12.1 and clause 12.2: a. 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 this Agreement; and b. the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 11.2), 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 the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.

12.4. Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
Term and termination

13.1. This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for either successive monthly periods or periods of 12 months depending on the subscription period chosen by the Customer (each a Renewal Period), unless: a. either party notifies the other party of termination, in writing, at least 28 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or b. otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

13.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: a. the other party fails to pay any amount 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; b. 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 14 days after being notified in writing to do so; c. 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; d. 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; e. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; f. 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; g. 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); h. 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; i. 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; j. 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; k. 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 clauses 13.2(c) to 13.2(j) (inclusive); l. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; m. 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 n. there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

13.3. On termination of this Agreement for any reason: a. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation; b. 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 Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than the effective date of the termination of this Agreement, a written request for the Supplier to give the Customer a reasonable period of time (no more than 28 days) to export its Customer Data to the Customer’s systems; d. 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.
Force majeure

The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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, 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.
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.
Variation

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

No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
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.
Severance

19.1. 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.

19.2. If any provision or part-provision of this Agreement is deemed deleted under clause 19.1 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.
Entire agreement

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

20.2. 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.

20.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

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

21.1. 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 this Agreement.

21.2. 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 this Agreement.
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).
Third party rights

This Agreement 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.
Counterparts

24.1. This Agreement may be executed in any number of counterparts exchanged by email or otherwise digitally, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

24.2. No counterpart shall be effective until each party has delivered to the other at least one executed counterpart.
Notices

25.1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's usual email address used for business between the parties.

25.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time it is validly sent.
Governing law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

This has been entered into on the date stated at the beginning of it.

Schedule 1. - Subscription Term 1. Initial Subscription Term: is either a rolling monthly subscription or an annual subscription, and which the Customer chooses as part of registering as a paying user of the Services.