TERMS AND CONDITIONS
During the term of this contract as set out forth in 3.1 (“Term”), Community Brands UK Holdings Ltd and any subsidiary or holding company and their respective successors (hereinafter referred to as the “Company”) agrees:
To provide to the receiving school or organisation identified on the contract as school or customer (referred to as the “Customer”) use of the licensed software and support set forth herein (collectively known as the “Services”). These Terms and Conditions are for the standard Services as set out at Schedule 1 of the written agreement between the Customer and the Company for the provision of services (referred to as the “Contract)” and excludes any services which may be agreed or developed specifically on behalf of the Customer or specially requested software development or customisation.
To keep confidential all matters relating to the use of the Services in accordance with clause 4.
A “Party” or the “Parties” refer to the parties listed who enter into the signed Contract and these Terms and Conditions.
Customers will use the Services solely for the purpose of carrying on its educational and administrative day-to-day operations.
Subject to these Terms and Conditions, the Company grants to Customer a limited, non-exclusive, revocable, non-transferable, non-sublicensable right during the Initial Term and any Renewal Term to use the Services in accordance with the scope of use specified in the Contract.
The Company retains all right, title, and interest to all Services provided hereunder, including all intellectual property rights contained therein. In addition, the Company owns all right, title, and interest in and to all modifications, reversions or derivatives of, and improvements to the Services, created by either party.
Subject to these Terms and Conditions, the Company grants to Customer a limited, non-exclusive, revocable, non-transferable, non-sublicensable right during the Term to use the Services in accordance with the scope of use specified in the Contract.
Customer shall not: use the Services to store or transmit malicious code; interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; attempt to gain unauthorised access to the Services or their related systems or networks; or attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Services or underlying software in any form or media or by any means; or attempt to decompile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services or underlying software for any purpose. In the event of violation of any of the restrictions set forth in this clause 1.6 by Customer or by any person gaining access to the Services via Customer’s computer network or systems, Company may suspend or terminate the Services upon notice to Customer.
2 MAINTENANCE SERVICES
Company may provide scheduled and unscheduled maintenance services in support of the Services as Company deems necessary. Company will provide Customer with prior notice of all scheduled maintenance services, and will use commercially reasonable efforts to provide Customer with prior notice of all unscheduled maintenance services that are likely to affect the availability of the Services or are likely to have a material negative impact upon the Services.
Company shall provide phone, email and remote desktop connection support for the Services from 9am – 5pm (GMT / BST) Monday to Friday.
Customer shall comply with any security update to the Services.
“Confidential Information” in the context of these Terms and Conditions means business or technical information that one Party discloses to the other party under the Contract, and which may or may not be marked by the disclosing party as “confidential” or “proprietary” but should be reasonably deemed confidential.
Each party may disclose Confidential Information to the other party in connection with the Contract.
The terms of the Contract, including any exhibits attached hereto, shall be treated as Confidential Information and shall not be disclosed by the Customer or any person or entity having access to it. The existence but not any of the terms of the Contract may be disclosed by either party without the prior written consent of the other. Each of the parties may reveal the terms of the Contract to its own officers, directors, shareholders, employees, agents, investors or prospective investors who have a need to know the terms of the Contract, and who are subject to prior confidentiality agreements or confidentiality requirements in terms of employment which are themselves no less onerous than the requirements of the terms or who otherwise agree in writing to maintain the confidentiality of the Contract.
The Customer acknowledges that the Services provided under the Contract and all documentation contains the proprietary and Confidential Information of the Company. Customer agrees to hold the Services and all related documentation in confidence and to take all reasonable precautions to ensure that no unauthorised persons have access to the Services and that no unauthorised copies are made. Breach of this provision shall be grounds for immediate termination of the Contract without further obligation to Customer and grounds for recovery of all damages resulting from breach of these confidentiality obligations.
Confidential Information shall not include information that: (a) is known to the recipient prior to its first receipt of such information from the discloser; (b) is or becomes generally known to the public other than as a result of an unauthorized disclosure by recipient; (c) is independently developed by the recipient without access to or use of the Confidential Information; or (d) is approved for release by the discloser.
Each party agrees that it will not, during or after the Term of the Contract, or for a period of five (5) years following the date of disclosure, or in the instance of trade secret information, for such period as the information remains confidential, permit the duplication or disclosure of any Confidential Information to any unauthorised person or entity. Each party shall ensure that a non-disclosure agreement is executed with outside agents including consultants or contractors who will be exposed to such Confidential Information with provisions at least as protective as those contained herein.
Each party shall use the same degree of care in protecting the Confidential Information of the other party that it uses to protect its own Confidential Information, and in no event less than a reasonable standard of care. Each party shall limit access to the other’s Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with the Contract and who have signed confidentiality agreements containing restrictions no less onerous than those set forth in this clause 3.
Each party may disclose Confidential Information of the other party if compelled by applicable law or proper legal or governmental authority, provided that the receiving party shall give prompt written notice to the disclosing party of any such legal or governmental requirement in order to permit the disclosing party to seek a protective order or other appropriate relief.
Except as provided herein, the Parties agree to return all Confidential Information obtained from the other party upon the termination or expiration of the Contract or certify in writing that all such Confidential Information and copies thereof have been destroyed.
Notwithstanding the foregoing, the Company reserves the right to use Customer’s name in promoting its services on any of the Company product-related websites, the corporate website, or in any marketing materials for the duration of the Contract subject to Customer’s prior approval to any such promotion or marketing material, such approval not to be unreasonably withheld or delayed.
4 DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
Except as expressly provided in these Terms and Conditions, or as prohibited by law (and without limiting liability for personal injury or death arising from the Company’s negligence) the Services are provided “as is” and no warranty, undertaking or term, express or implied, statutory or otherwise; and all such warranties, undertakings and terms are hereby excluded.
The aggregate liability of each party arising out of or related to the Contract, whether in contract, tort or any other theory of liability, shall not exceed the amount of annual subscription or fee paid (or payable, as applicable) for the Services by Customer hereunder in the 12 months preceding the circumstances cited as the cause for claim giving rise to such liability. In no event will the Company be liable for: (i) any damages arising out of or related to Customer’s breach of the Contract or these Terms and Conditions; (ii) any claims or demands of third parties other than as specifically set forth in Section 5.1; or (iii) any lost profits, loss of business, loss of data, loss of use, lost savings or other consequential, special, incidental or indirect loss even if the Company has been advised of the possibility of such damages.
The Company agrees to indemnify, defend and hold Customer and their governors and employees (“Customer Indemnitees”) harmless for any third-party claim including reasonable costs of instructing external counsel, that the Services directly infringe any UK copyright or intellectual property rights of any third party recognised under UK law, subject to the overall limitation of damages hereunder.
Customer shall give the Company sole control of the defence thereof and any related settlement negotiations, and Customer shall reasonably cooperate with the Company in such defence, including, without limitation, by making available to the Company all documents and information in Customer’s possession or control that are relevant to infringement claims.
The indemnification obligations in this section shall be effective only if (1) at the time of the alleged infringement, Customer was using the most recent version of the Services, (2) Customer gives the Company prompt written notice of the claim and provides the Company with a copy of all notices received by Customer with respect to any claim or allegation and permits the Company to defend, and (3) Customer reasonably cooperates in the defence of the claim.
To reduce or mitigate damages, the Company may at its own expense, either (a) procure the Customer the right to continue using the Services, (b) replace or modify the Services to prevent further infringement, or (c) after having utilised commercially reasonable efforts to accomplish (a) or (b), terminate Customer’s right to use the Services and give Customer a refund or credit for the Annual Fee actually paid by Customer for the infringing components of the Services less a reasonable allowance for the period of time Customer has used the Services. If the Company deploys a non-infringing release of the Services, Customer shall promptly install it on its computer system, and shall prevent further use of earlier releases of the Services.
Notwithstanding the foregoing, the Company will have no obligation with respect to any infringement claim based upon (a) any use of the Services which is not in accordance with the Contract or these Terms and Conditions, (b) any use of the Services configuration program Services in combination with other products, equipment, software or data not supplied by the Company, (c) any use of any release of the Services (including Services configuration programs) other than the most current release made available to Customer, (d) the Company’s design or modification of the Services in compliance with specifications provided by Customer, or (e) any unauthorised modification of the Services (including configuration programs). The remedies set forth in this Section are Customer’s exclusive remedies and the Company’s sole obligation with respect to any claim arising from or relating to any third-party claims of infringement.
6 PAYMENT TERMS
Customer shall pay all invoices within thirty (30) calendar days from the date of invoice. Customer shall notify Company in writing within ten (10) days of the invoice date if it disputes any charge appearing in the invoice. Unless otherwise provided in the Contract: (a) fees shall be paid in Pound Sterling (£); and (b) fees are exclusive of all taxes, duties, and assessments.
Value Added Tax (VAT) shall be added to each invoice and paid by the Customer at the rate and in the manner for the time being prescribed by law.
In the event that Customer fails to pay any invoiced amounts within thirty (30) days of the invoice date, the Company may, at its discretion, impose late payment interest charges equal to the higher of one and one-half percent (1.5%) per month against the outstanding balance, or the maximum rate allowed by law.
If any undisputed invoiced amount is more than forty-five (45) days overdue the Company may, without limiting its rights and other remedies, suspend Service to the Customer until such amounts are paid in full, provided however that the Company shall provide Customer with written notice of such pending suspension of Service to the Customer.
The Company shall not exercise its rights to overdue charges and suspension of service if the Customer has notified the Company pursuant to clause 6.1 and is cooperating diligently and in good faith to resolve dispute. The Customer shall not withhold payment on undisputed sums invoiced as part of any invoice it in parts disputes.
The Customer agrees to be invoiced by a subsidiary of Community Brands UK Holdings Ltd.
7 TERM AND TERMINATION
Unless otherwise agreed to by the parties, the Contract and these Terms and Conditions shall become effective as of the date of Customer signature, or acceptance of these Terms and Conditions, whichever comes first, (the “Start Date”) and continue for 12 months (“Initial Term”) and thereafter shall be renewed automatically for successive periods of 12 months (each 12 month period being a “Renewal Term”) on each anniversary of the Start Date which follows.
The Initial Term and any Renewal Term shall be collectively referred to as the “Term”). Either party may provide notice of non-renewal by giving the other party no less than ninety (90) days prior written notice of its intent not to renew at the end of the Initial Term or the end of any Renewal Term.
Either party may terminate the Contract immediately upon written notice to the other party if the other party:
Materially breaches any of its obligations under any provision of the Contract or these Terms and Conditions, which breach is not remedied within thirty (30) days after written notice thereof by the non-breaching party to the breaching party;
Becomes insolvent or makes an assignment for the benefit of its creditors;
Files or has filed against it any petition or any other proceeding relating to bankruptcy, insolvency, reorganisation (excluding an orderly reorganisation as part of a business acquisition or corporate restructuring) or similar debtor relief law which is not discharged within thirty (30) days of said filing; or requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets.
8 DATA PROTECTION
The Company warrants and represents that at all times during the Term it shall maintain an active registration to compliantly process personal data at the Information Commissioner’s Office.
Each party shall comply with the applicable data protection legislation which shall include any data protection legislation from time to time in force in the UK including the retained EU law version of General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and the Data Protection Act 2018 or any successor legislation, as well as (ii) the GDPR itself and any other directly applicable European Union regulation relating to data protection and privacy.
The Company agrees to comply with any Data Processing Agreement entered into by the parties.
The Company shall take all reasonable steps to ensure the reliability of any employees who may have access to personal data and ensure that all employees have received relevant training in data protection and in the care and handling of Customer Data and understand how this relates to the Company’s contractual obligations.
The Company shall ensure that only those employees who may assist in carrying out its obligations under the contract shall have access to Customer Data.
Upon termination or expiration of the Contract, the Company will immediately cease all processing of personal data and destroy such personal data as the Customer may instruct. For avoidance of doubt, the Company shall maintain Customer Data for a period of up to thirty (30) days following expiration or termination of the Contract, and after a further thirty (30) days all Customer Data shall be deleted.
Customer shall not assign its rights or delegate its obligations under the Contract or these Terms and Conditions without the prior written consent of the Company, except that Customer may assign any right or obligation set forth in the Contract or these Terms and Conditions to a successor entity in the event of a merger, consolidation or sale of Customer’s business or all or substantially all of Customer’s stock or assets, provided the assignee agrees in writing to assume all of Customer’s obligations and obligations under the Contract and these Terms and Conditions. Any attempted assignment in violation hereof shall be void and of no force or effect.
The Company may assign or delegate its duties hereunder at any time without the consent of Customer. When duly assigned in accordance herewith, the Contract and these Terms and Conditions shall be binding on and inure to the benefit of each party’s successors and assignees.
10 FORCE MAJEURE
The Company shall not be liable for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond its reasonable control.
Should any circumstances pursuant to clause 10.1 prevent the Company from performing the Contract or these Terms and Conditions for any period in excess of ninety (90) days then either party shall be entitled to terminate the Contract with immediate effect upon provision of notice in writing to the other party.
11 CHANGE OF TERMS
The Company may change the terms of the Contract or these Terms and Conditions at any time. Notice will be provided, as applicable, not least thirty (30) days before the effective date. The Customer may refuse to accept such change and terminate the Contract by notifying the Company in writing at least one (1) working day prior to the effective date of the change and paying any sum invoiced which remains unpaid under the existing terms of the Contract or Terms and Conditions, calculated against the Initial Term or Renewal Term.
The following clauses shall survive termination or expiration of the Contract and these Terms and Conditions: Payment Terms, Confidentiality, Disclaimer of Warranty, Indemnification, Limitation of Liability, Data Protection, Termination, and General shall survive termination of the contract.
Any representative working on behalf of the Customer who confirms acceptance of these Terms and Conditions does so on behalf of the entire Customer organisation and its respective users.
No part of the Contract or these Terms and Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract or these Terms and Conditions.
The waiver by either party of any default or breach of the Contract or these Terms and Conditions shall not constitute a waiver of any other or subsequent default or breach.
All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given if:
Delivered by hand and signed for, upon receipt;
Or during normal business hours by receipted email transmission to any number from time to time provided for service of notices, upon receipt of a report of successful transmission; or
On the second day following the day notice was posted by first class post to the address first applied to the Contract or any address from time to time provided to one party by the other in substitution thereof.
In the event any provision of the Contract or these Terms and Conditions is held to be invalid or unenforceable, the affected provision shall be deemed amended to the extent necessary to render it enforceable; unaffected provisions of the Contract or these Terms and Conditions will remain in full force and effect.
The Contract is governed by the laws of England and Wales.
Disputes and claims shall be brought in the English or Welsh courts. A Customer domiciled in Scotland can raise disputes and bring claims in either the Scottish or the English courts. A Customer domiciled in Northern Ireland can raise disputes and bring claims in either the Northern Irish or the English courts.