Last Updated: 27.04.2022
These Terms of Subscription, along with the Front Sheet together form a legally binding contract between us from the Effective Date and govern the use of the Software.
BACKGROUND
The Supplier has developed certain software applications and platforms (Extended Relationship Management System (the ‘ServiceOS’) and the Apps which it makes available to subscribers via the internet on a monthly subscription basis for the purpose of, but not limited to, managing customer relationships, creating, managing, and tracking bookings of services and operatives’ performance.
The Customer wishes to use the Supplier’s service in its business operations.
The Supplier has agreed to make the software available to the Customer, and the Customer has agreed to receive and pay for the Supplier’s services subject to the terms and conditions of this agreement.
Active Personnel Account: any Back-Office Account and/or any Personnel Account of an independent contractor, sub-contractor, franchisee, partner, Affiliate, on-field operative and/or any other person or entity connected or affiliated to the Customer, which provides services and which has provided such service(s) during a particular month.
Affiliate: in relation to a person or a company, any company or other entity, whether or not with legal personality, which directly or indirectly controls, is controlled by or is under joint control with that person or company, and/or any of its franchisees. For this purpose, a person or a company is deemed to control a company or entity if it (a) owns, directly or indirectly, at least 50 percent of the capital of the other company, or (b) in the absence of such ownership interest, substantially has the power to direct or cause the direction of the management and set the policies of such company or entity.
Apps: the mobile applications, which can exchange information with the ServiceOS and which allows consumers to make bookings for services, the mobile application, which can exchange information with ServiceOS and which allows independent contractor, sub-contractor, franchisee, partner, Affiliate, on-field operative and/or any other person or entity connected or affiliated to the Customer to manage the bookings for services and the web based application, which can exchange information with the ServiceOS and which allows consumers to make bookings for services from a web browser (the “Web Booking Form”).
Authorised Users: those employees, agents, independent contractors, sub-contractors, franchisee partners, Affiliates, operatives and/or any other person or entity connected or affiliated to the Customer, who are authorised by the Customer to use the Services as further described in clause 3. Clients and customers (recipients of the services provided by the business network of the Customer) shall be excluded from the Authorised Users.
Back-Office Account: a Personnel Account which has been assigned to any employee, representative, agent, contractor, sub-contractor or operative of the Customer, who does not himself provide services to end clients. The Back-Office Accounts shall be communicated to the Supplier. The Customer shall inform the Supplier of any changes in the assignment of Back Office Accounts without undue delay.
Business Day: a day other than a Saturday, Sunday or public holiday in England, on which ordinary banks in London are open for their full range of normal 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: any information which would reasonably be perceived to be confidential, disclosed on or before the date of this agreement, by either party, in relation to their respective businesses or in connection with this Agreement and the subject matter herein and any information that is marked or identified as Confidential Information in clause 10.6 or clause 10.7.
Commencement Date: day of the last signature of the Front Sheet.
Customer Data: the data inputted by the Customer, Authorised Users, the Supplier on the Customer’s behalf, or the Clients and customers of the Customer, for the purpose of using the Services or facilitating the Customer’s use of the Services.
Customer Materials: the designs, pictures, information and other materials provided to the Supplier by the Customer from time to time for the purposes of the development or use with during the development of the bespoke changes in ServiceOS and the Apps. For avoidance of any doubt, the bespoke features and the results from the development shall not be considered the Customer Materials under this agreement.
Effective Date: the date noted in the Front Sheet.
Mandatory Policies: the Supplier’s business policies listed in Schedule 1, as amended by notification to the Supplier from time to time.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Personnel Account: an account used by an Authorised User.
Services: the subscription services provided by the Supplier to the Customer under this agreement via any website notified to the Customer by the Supplier from time to time.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the Basic Subscription Fees and Additional Subscription Fees, as described in the Front Sheet, payable by the Customer to the Supplier for the User Subscriptions, as set out in Front Sheet.
Subscription Term: the subscription term of this agreement shall commence on the Effective Date and shall end upon expiry or termination of this Agreement.
Support Services Policy: the Supplier’s policy for providing support in relation to the Services as made available at such website address as may be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause Error: Reference source not found which entitle Authorised Users to access and use the Services in accordance with this agreement.
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.
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;
each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than every 30 days and that each Authorised User shall keep his password confidential;
it shall maintain a written, up to date list of current Authorised Users and provide such lists and records to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User and the accuracy of the record of booked services. Such audit may be conducted no more than once per six months, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
if any of the audits referred to in clause Error: Reference source not found reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
if any of the audits referred to in clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Front Sheet within 20 Business Days of being notified by the Supplier that such an underpayment has been identified.
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, unless urgent, following a discussion in good faith with the Customer and reasonable notice, to disable the Customer’s access to any material that breaches the provisions of this clause. For avoidance of any doubt, the Customer acknowledges that certain potentially harmful events might reasonably require immediate disable of access and in such an occasion immediate notice will be given to the Customer of same.
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
access all or any part of the Services in order to build a product or service which competes with the Services; or
use the Services to provide similar or identical Services to third parties; or
subject to the terms and conditions of this agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or
attempt to obtain, or assist third parties in obtaining, access to the Services, other than as permitted under this agreement.; and
planned maintenance carried out during a maintenance window notified to the Customer from time to time; and
unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 1 Normal Business Hour’s notice in advance.
the Customer acknowledges and agrees that 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 this agreement;
the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
The Customer shall:
provide the Supplier with:
all necessary co-operation in relation to this agreement; and
all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
comply with all applicable laws and regulations with respect to its activities under this agreement;
carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
be solely responsible for procuring and maintaining 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; and
immediately notify the Supplier if it receives an offer that may lead to change of control of the Customer.
its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card on the 1st day of each month for the Subscription Fees payable in respect of the same month; and
its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
by the 5th day of each month for the Subscription Fees payable in respect of the preceding month; and
the Customer shall pay each invoice within 5 days after the date of such invoice.
the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
shall be payable in the currency stated in the Front Sheet;
are, subject to clause Error: Reference source not found, non-cancellable and non-refundable;
are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party’s lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence.
a modification of the Services by anyone other than the Supplier; or
the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, 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;
all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
the Services are provided to the Customer on an “as is” basis.
for death or personal injury caused by negligence; or
for fraud or fraudulent misrepresentation;
for unauthorised granting of right to use or licensing of software.
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
the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11), 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 for the User Subscriptions during the 3 /three/ months immediately preceding the date on which the claim arose.
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 15 days after being notified in writing of its default and requested to make such payment;
the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the other party repeatedly breaches any of the terms of this agreement 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 this agreement;
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;
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;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
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;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause Error: Reference source not found to clause Error: Reference source not found (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, 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 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; and
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.
The Mandatory Policies are:
Data and Privacy Policy
Ethics and Anti-Bribery Policy
