These Terms and Conditions ("Conditions") apply between the individual, firm or company named in your order for Services (the "Customer" or "you") and Useyourlocal Limited, a company registered under the laws of Scotland with registration number SC349564 (referred to as "us/we/our").
These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.1. The definitions and rules of interpretation in this condition apply in these Conditions.
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"Authorised User" |
the individual who is authorised by you to log in via our Website, and who acts as an administrator of your account, whose name and contact details are inputted at the time of registration or added pursuant to these Conditions; |
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"Business Day" |
a day other than a Saturday, Sunday or public holiday in England when banks in the City of London are open for business; |
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"Confidential Information" |
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in condition 16.1; |
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"Contract" |
means the contract between you and us for the provision of the Services, which consists of our Order Confirmation and these Conditions; |
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"control" |
shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression "change of control" shall be construed accordingly; |
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"Customer Content" |
means all materials, data and information created by you or your Authorised Users, or on your behalf (asides from by us), which is uploaded to any of the Websites, including photographs, food and bar related content (for example menus), and your trademarks and branding, but in all cases excluding the Paid For Content and Our Content. |
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"Data Controller" |
means the natural or legal person which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data; |
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"Data Processor" |
means the natural or legal person, which Processes personal data on behalf of the Controller; |
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"Data Protection Laws" |
means (i) the GDPR, the LED and any applicable national implementing Laws as amended from time to time (ii) the DPA 2018; and (iii) all applicable Law relating to the processing of personal data and privacy; |
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"Data Subject" |
means the individual to whom Personal Data relates; |
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Data Subject Request" |
means a Data Subject's request to access, rectify, amend, transfer or erase that Data Subject's Personal Data consistent with that Data Subject’s rights under Data Protection Laws (including those set out in Chapter 3 of the GDPR); |
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Deliverables" |
means any marketing materials, point of sale kits, reports, analyses, statistics, templates, benchmarking reports and data reviews provided by us as part of the Services, as described in the Documentation; |
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"Documentation" |
the description of our service tiers, made available to you through the Website which sets out a description of the Services that we will provide to you, as updated by us from time to time; |
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uropean Economic Area (the “EEA”) |
means those countries in the European Union together with Iceland, Liechtenstein and Norway; |
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Fees" |
the fees payable by you to us in accordance with condition 15; |
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"GDPR" |
means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation), as amended from time to time; |
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"Identified or Identifiable Natural Person" |
means a natural person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the physical, physiological, mental, economic, cultural or social identity of that natural person; |
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"Initial Subscription Term" |
means the initial subscription term as set out in the Order Confirmation; |
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"Intellectual Property Rights" |
means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; |
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"LED" |
means the Law Enforcement Directive (Directive (EU) 2016/680); |
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"Normal Business Hours" |
8.00 am to 6.00 pm local UK time, each Business Day; |
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"Order Confirmation" |
our written confirmation of your order; |
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"Our Content" |
means all of our content which is not developed specifically for you, including all content and designs of your Website, and our own trademarks, get-up and branding; |
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"outlet" |
means the business outlet that you register with us in respect of the Services; |
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"Outlet Domain" |
means your standalone domain address for your business, which may be pointed to your Website pursuant to condition 6; |
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"Paid for Content" |
means all content that is provided by us or our employees, agents or contractors to you in relation to the Outlet; |
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"Personal Data" |
means any information relating to an Identified or Identifiable Natural Person provided by or on behalf of the Customer to the Supplier so that the Supplier can perform the Services; |
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"Personal Data Breach" |
means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data, transmitted, stored or otherwise Processed; |
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"Processing" or "Process" |
means any operation or set of operations which is performed by the Supplier as part of, or in connection with, the Services on Personal Data, whether or not by automatic means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; |
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"Renewal Period" |
the renewal period as set out in the Order Confirmation; |
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"Services" |
the subscription services provided by us to you via our Website, as more particularly described in the Documentation; |
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"Standard Contractual Clauses" |
means the agreement in the form annexed to the European Commission's decision of 5 February 2010 on Standard Contractual Clauses for the transfer of personal data to Processors established outside of the EEA; |
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"Sub-processor" |
means a sub-contractor engaged by us that will Process Personal Data as part of the performance of the Services; |
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"Subscription Term" |
has the meaning given in condition 18.1 (being the Initial Subscription Term together with any subsequent Renewal Periods); |
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"Supervisory Authority" |
means the Information Commissioner’s Office or any other supervisory authority that may be applicable under the Data Protection Laws from time to time. |
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"Trade Marks" |
means our registered trade marks, trade mark applications and unregistered trade marks and logos; |
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"Visitor" |
means a visitor to any of the Websites; |
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"Visitor Content" |
means all content inputted by a visitor, including any registered user, via any of the Websites; |
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"Visitor Data" |
means all data inputted by a Visitor to any of the Websites. |
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"Websites" |
means our Website and your Website; |
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"your Website" |
means the web pages hosted by us dedicated to your outlet and provided by us to you as part of the Services, which are accessible at a sub-domain of our Website, and which may be accessible (subject condition 6 of this Contract) on the Outlet Domain. |
1.2. Condition headings shall not affect the interpretation of these Conditions.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders. Any words following the term "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative only and shall not limit the sense of the words, description, phrase or term preceding those terms.
1.5. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract and shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.
1.6. A reference to "writing" or "written" excludes both faxes and e-mail.
2.1. By registering your outlet as a participating outlet via www.useyourlocal.com ("our Website"), and by agreeing to pay the Fees, you are agreeing to enter into a contract with us subject to and in accordance with these Conditions. You are responsible for reading and ensuring you understand these Conditions before you agree to register your outlet. If you do not agree to these Conditions, you should not register.
2.2. Your subscription may be initiated by a third party provider to your outlet who is acting at that time as our agent for the referral of business to us (for example a supplier of your outlet). In those circumstances, following this introduction by the agent, we will make contact with you and ask if you would like to register to use our Services. In some circumstances, the third party provider may reach a separate agreement with you to pay for our Services. Any such agreement is between you and that third party, and you acknowledge and understand that by registering to use our Services, you are responsible to us for all Fees, including for any Renewal Period.
2.3. The Contract between us relates to the outlet that you register only, and is not transferable to other outlets, and cannot be used across multiple sites of the same business. In each case you would need to register a further outlet with us, should you wish to use the Services for additional or replacement outlets.
2.4. You may, with acceptance of that Authorised User, transfer the registered outlet to another Authorised User.
2.5. When you register your outlet through our Website, we will send an Order Confirmation to you. The Contract between us and your registration is only effective once we have sent you this Order Confirmation.
2.6. You warrant that the individual who registers the participating outlet is authorised to bind you into a contract with us, and we will not agree to cancel the Contract and/or issue any refunds of Fees if such person is not so authorised by you.
2.7. When you register your outlet via our Website, you will be required to give us the name and contact details of your Authorised User. Please ensure these are accurate. Any Authorised User whom you allow to access our services and use the subscription must be aged 18 or over. In relation to the Authorised User: (i) you shall only allow the named Authorised User to access and use our Website; and (ii) you shall not allow any individual other than the named Authorised User to use any user subscription, unless further subscriptions are purchased pursuant to condition 2.6.
2.8. You may, from time to time during any Subscription Term, purchase additional user subscriptions in excess of the initial Authorised User. If you want to purchase additional user subscriptions, you will notify us and we will evaluate such request and respond to you with approval or rejection of the request. If we approve your request you shall, upon receipt of our invoice, pay us the relevant Fees for such additional Authorised Users as in force under this Contract at the time of purchase.
3.1. The content of the Services that we provide may change from time to time. We may change the scope of Services provided to you, on giving you reasonable notice. This will only happen in the event that we make a change to the tier of Services to which you have subscribed (for example by adding or changing functionality of that tier).
3.2. We undertake that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
3.3. We shall not be responsible for any failure to perform the Services in accordance with the Contract to the extent of any non-conformance which is caused by your breach or failure to perform this Contract, or by you failing to provide or delaying the provision of information, materials and access as we deem necessary to perform the Services, or by your use of the Services or Deliverables contrary to our instructions. If the Services do not conform to our undertaking at condition 3.2, we will, at our expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in condition 3.2. Notwithstanding the foregoing, we:
3.3.1. do not warrant that your use of the Services will be uninterrupted or error-free; or that the Services, Documentation, Deliverables and/or the information obtained by you through the Services and the Deliverables will meet your requirements; and
3.3.2. are 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 you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.1. You will, in addition to the other obligations set out in these Conditions:
4.1.1. comply with all applicable laws and regulations with respect to your activities under the Contract, including all licensing laws;
4.1.2. ensure that the Authorised Users use the Websites, Services and the Documentation in accordance with the Conditions and shall be responsible for any Authorised User's breach of these Conditions;
4.1.3. you will ensure that each Authorised User shall keep a secure password for access to the Websites (which must not be a password that it used anywhere else by you or him), that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
4.1.4. you are responsible for all use of the Services using an Authorised Users' login details, whether or not the use is with your or their permission.
5.1. Your Website is created in accordance with our template for outlet websites already in existence, and you acknowledge and agree that your Website and all content in the same save for Customer Content and Paid For Content, is not prepared for you on an exclusive basis, and is owned by us.
5.2. The specification of your Website to be obtained is as set out in the Documentation, and the pages are not developed specifically to meet your requirements.
5.3. We will deliver your Website in a reasonable period of time, subject to receiving all Customer Content from you, and being able to provide all Services necessary to deliver your Website on time, including where required all assistance needed from you in order to finalise your Website. Time of provision of your Website is not of the essence of the Contract.
5.4. We will host your Website, on a sub-domain of our Website in accordance with condition 10.
6.1. We may, if agreed with you, allow you to make your Website accessible at the Outlet Domain. This right shall cease to apply in the event that this Contract is terminated or expires, in which case your Website and all of its content must be removed from the Outlet Domain with immediate effect.
6.2. Where we allow you to reproduce your Website on the Outlet Domain, you must at all times include the statement "Powered by useyourlocal.com" on the home page of the Outlet Domain.
6.3. Where you do not have an active Outlet Domain, we may, at your request, purchase a domain name. Any domain name so registered shall be owned by us and registered under our name, and we agree that whilst we remain owners of that domain name, and whilst you remain a customer of ours under this Contract for the applicable Services, we will allow you to make your Website available at that purchased domain name. On termination or expiry of this Contract, we shall, upon your request and provided that we still own the domain name, transfer the domain name to you or any incoming service provider, for a fee of £100 plus VAT.
Various content is used and developed pursuant to this Contract. As between us, the position on ownership and use of this content is as follows:
7.1. Our content. All of our Content and Intellectual Property Rights therein are owned by us exclusively. You shall not obtain any rights in our Content, save for the limited rights of use set out elsewhere in these Conditions, and in the event of termination or expiry of this Contract you shall cease to use all of our Content with immediate effect;
7.2. Paid for Content.All Paid for Content and Intellectual Property Rights therein are owned by us exclusively, provided that you are hereby granted an irrevocable, perpetual, worldwide license to use the Paid for Content in relation to the operation of the outlet. This licence survives expiry or termination of this Contract.
7.3. Customer Content.
7.3.1. All Customer Content and Intellectual Property Rights therein are owned by you, provided that you hereby grant to us an irrevocable, perpetual, worldwide license to use the Customer Content in the operation of our business for such purposes as we see fit, including but not limited to by accessing, viewing and manipulating the Customer Content for the purpose of providing other users of our services and other third parties with anonymised data, benchmarking reports and analyses. This licence survives expiry or termination of this Contract.
7.3.2. You shall defend, indemnify and hold us harmless against all claims, actions, proceedings, losses, fines, damages, expenses and costs (including all court costs and legal fees) arising out of or in connection with any claim from a third party that any of the Customer Content infringes the Intellectual Property Rights of any third party.
7.3.3. You have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Content.
7.4. Visitor Content. All Visitor Content and Intellectual Property Rights therein are owned by us, and in the event of termination or expiry of this Contract you shall cease to use all Visitor Content with immediate effect.
7.5. Unless otherwise agreed under condition 7.1 above, no permission is given by us in respect of the reproduction or use for commercial purposes of any of our Intellectual Property Rights, or those of our licensees, including but not limited to brand names, product names, designs and other materials shown in which intellectual property rights subsist.
8.1. You are responsible for all content of your Website.
8.2. You are responsible for updating your Website via your login to our Website through the Authorised Users. You will be responsible via this login for:
8.2.1. reviewing, authorising, declining and modifying all Visitor Content that is submitted to your Website, whether the same is submitted via our Website or your Website; and
8.2.2. for submitting your own Customer Content to your Website and/or our Website.
8.3. You acknowledge that, save for our Content and Paid for Content, we have no control over any content related to or concerning your outlet, whether uploaded via our Website, or your Website and we do not purport to monitor the content of the same. We do however reserve the right to remove content from our Website and your Website where we reasonably suspect such content is Inappropriate Content (as defined in paragraph 8.5 below).
8.4. You will indemnify us against all damages, losses and expenses arising as a result of any action or claim that content submitted related to or concerning your outlet via our Website or your Website, whether uploaded by you or by Visitors constitutes Inappropriate Content.
8.5. Save for our Content and Paid for Content, you are responsible for ensuring that all material and content uploaded related to or concerning your outlet whether by you or Visitors to your Website or our Website do not infringe any applicable laws, regulations or third party rights and that none of the same is inappropriate by virtue of falling into any category with the following list ("Inappropriate Content") :
8.5.1. is in breach of any third party Intellectual Property Rights;
8.5.2. is false or contains misrepresentations that could damage us or any third party;
8.5.3. submit material that is unlawful, obscene, defamatory, threatening, indecent, seditious, offensive, abusive, pornographic, harassing, hateful, discriminatory, scandalous, inflammatory, blasphemous, racially or ethnically offensive, or encourages conduct that would be considered a criminal offence, give rise to civil liability, violate any law, or is otherwise inappropriate;
8.5.4. could promote the excessive, irresponsible or underage consumption of alcohol;
8.5.5. is technically harmful (including without limitation computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data); or
8.5.6. where the same relates to information, promotions or advertising uploaded by you, it breaches any applicable laws regarding marketing and/or advertising in the territory to which it relates, including the UK Code of Non Broadcast Advertising, Sales Promotion and Direct Marketing.
8.6. We reserve the right to take down with immediate effect any information on our Website, or your Website which we believe to be in breach of this condition, or to withdraw or suspend access and/or viewing rights in your Website page altogether, or to terminate this Contract with immediate effect.
9.1. We may from time to time and as part of the Services described, provide you with Deliverables.
9.2. We hereby grant you a limited, non-exclusive, non-transferable, irrevocable licence to use the Deliverables in accordance with this Contract strictly for the purposes of the business of the outlet, during the term of the Contract.
9.3. Nothing in this Contract shall give you any rights to use the Deliverables following termination or expiry of the Contract, and on such expiry or termination you shall be required to return all Deliverables to us, or at our discretion remove them from the outlet and destroy the Deliverables.
9.4. You acknowledge that you will not gain any right, title or interest in any Trade Marks or associated goodwill, which shall accrue automatically to us. All goodwill arising in relation to the use of the Trade Marks shall accrue to us. Upon request, you shall execute all documents requested by us in order to confirm this.
9.5. You shall ensure that all relevant Trade Marks and acknowledgements of our rights in and to the Trade Marks and authorship of the Deliverables are not removed from any of the Deliverables.
10.1. We will, as part of the Services and at no additional cost to you, provide you with customer support services during Normal Business Hours in accordance with the Documentation. The amount of support you are entitled to is set out in the Documentation in respect of the level of service for which you subscribe.
10.2. In the event that we offer any enhanced support services from time to time, you may purchase such enhanced support services separately at our standard rates at the time of purchase.
10.3. We will offer website support and maintenance as set out in the Documentation.
10.4. To the extent that we are hosting the same, we will use commercially reasonable endeavours to make our Website and your Website available 24 hours a day, seven days a week, except for:
10.4.1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
10.4.2. unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give you at least 6 (six) Normal Business Hours' notice in advance.
11.1. In the event that you receive any complaints from Visitors regarding the useyourlocal.com service or website, you will inform us immediately and will allow us to handle all ongoing conduct relating to such complaint, provided that we shall liaise with you throughout the complaint resolution process.
11.2. Subscribers to our service shall be entitled to "follow" your outlet. This will allow you to contact these individual users directly via the Websites. You will not obtain the email addresses for these individuals for direct contact. In contacting such users directly, you shall comply with this condition 11, and our privacy policy.
11.3. Direct contact with our subscribers is subject to such subscribers having consented to receive direct communication from you. We will notify you if this permission is withdrawn at any time, and you shall thereafter refrain from any direct contract with those subscribers. You will indemnify us against all damages, losses and expenses arising as a result of any action or claim that relates to or concerns your contact with subscribers: (i) following the time from which we have notified you that permission has been withdrawn; or (ii) where such contact does not accord with the terms of our privacy policy.
11.4. In all contact with Visitors and subscribers, whether directly or through material created and posted by you or on your behalf through the Websites, you shall be responsible for compliance with all applicable laws in regard to all marketing and advertising communications, and condition 8.5.6 and 8.4 apply in these circumstances.
12.1. We will obtain all necessary consents and permissions that we need from Visitors in respect of Visitor Data. We will provide you with a template privacy policy and website terms and conditions which must be used for your Website and the Outlet Website.
12.2. However, you acknowledge that you are responsible for ensuring that you use our template privacy policy and website terms and conditions on your Website so as to procure the ability for us to use visitor data in accordance with these Conditions and our privacy policy. You shall not make any modification to or incorporate any privacy policy or website terms and conditions other than our templates on your Website, and you shall defend, indemnify and hold us harmless against all claims, actions, proceedings, losses, fines, damages, expenses and costs (including all court costs and legal fees) arising out of or in connection with your breach of this clause 12.2.
12.3. We shall, in providing the Services, comply with our privacy policy relating to the privacy and security of data available here or such other website address as may be notified to you from time to time, as such document may be amended from time to time by us in our sole discretion.
13.1. The terms of our privacy policy apply in relation to all data and information that we obtain from you in the course of providing the Services.
13.2. You acknowledge that we may act as a Data Controller for any Personal Data inputted by you or on your behalf when performing our obligations under the Contract or using your data, and in any such case:
13.2.1. the Personal Data may be transferred or stored outside the EEA (in accordance with the Data Protection Laws);
13.2.2. you shall ensure that you are entitled to transfer the relevant Personal Data to us so that we may lawfully use, process and transfer the Personal Data in accordance with the Contract on your behalf;
13.2.3. you 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 Data Protection Laws; and
13.2.4. we shall both take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
13.3. To the extent that we act as a Data Processor in respect of any Personal Data inputted by you on you or on your behalf when performing our obligations under the Contract, we will:
13.3.1. only Process Personal Data on documented instructions from you (including with regard to transfers of any Personal Data to a third country or an international organisation outside of the EEA) unless we are required by law to Process the Personal Data, in which case we must inform you of the relevant legal requirement before Processing the Personal Data in such a way (unless the legal requirement prohibits us from providing such information to you on public interest grounds);
13.3.2. inform you if we reasonably consider that any of your instructions infringe any Data Protection Laws;
13.3.3. ensure that any person authorised by us to process the Personal Data has committed themselves to confidentiality or is under an appropriate statutory obligation of confidentiality in respect of that personal data;
13.3.4. not disclose Personal Data to any third parties without your prior consent, except as required by law or permitted by the Contract. Without limiting the generality of the foregoing, we may disclose Personal Data to Sub-processors that we engage in accordance with condition 13.3.12;
13.3.5. taking into account the nature of the Processing, assist you by using appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligations to respond to Data Subject Requests. In particular, we will:
13.3.5.1. notify you without undue delay of receipt of a Data Subject Request;
13.3.5.2. following receipt of a Data Subject Request, contact the relevant Data Subject to acknowledge receipt of the Data Subject Request and to notify the Data Subject that we have referred the Data Subject Request to you. We shall not respond to any Data Subject Request without your prior written instructions; and
13.3.5.3. provide such assistance as you may reasonably request to help you fulfil your obligations under the Data Protection Laws to respond to Data Subject Requests. described in condition 13.3.7) relating to (i) your obligations under the Data Protection Laws; or (ii) Personal Data and we will provide such assistance as you may reasonably request in relation to such complaint or request;
13.3.7. notify you of all enquiries received from the Supervisory Authority which relate to the Processing of Personal Data, the provision or receipt of the Services or either party's obligations under the Contract. Unless (i) the Supervisory Authority requests in writing to engage directly with us; or (ii) we jointly agree (acting reasonably and taking into account the subject matter of the Supervisory Authority’s enquiry) that we shall handle such a request ourselves, you shall be responsible for all communications or correspondence with the Supervisory Authority in relation to the Processing of Personal Data and the provision of the Services;
13.3.8. implement all appropriate technical and organisational measures in order to protect the confidentiality, integrity, availability and resilience of our systems which are involved in the Processing of Personal Data and have assessed the level of security appropriate to the Processing in the context of our obligations under the Data Protection Laws;
13.3.9. notify you without undue delay and, in any event, within 24 hours of becoming aware of the occurrence of a Personal Data Breach and provide you with the following information as soon as it becomes available:
13.3.9.1. a description of the nature of the Personal Data Breach, including the categories and approximate number of Data Subjects concerned and the approximate number of Personal Data records concerned;
13.3.9.2. the name and contact details of our representative from whom more information can be obtained;
13.3.9.3. a description of the likely consequences of the Personal Data Breach;
13.3.9.4. a description of the measures the Supplier has taken or proposes to take to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects; and
13.3.10. co-ordinate in good faith with you in the preparation of any public statements relating to a Personal Data Breach and any required notices to the affected Data Subjects and/or the Supervisory Authority in connection with a Personal Data Breach.
13.3.11. on termination of the Contract for any reason or upon written request from you at any time, we shall cease Processing any Personal Data and return to you or delete any Personal Data in our possession or control, except as required by law or as we may require in order to defend any actual or possible legal claims;
13.3.12. not engage Sub-processors in connection with the provision of the Services without your prior specific written authorisation and we will inform you of any intended changes concerning the addition or replacement of Sub-processors and give you the opportunity to object to any such changes. If we engage a Sub-processor to Process any of your Personal Data we:
13.3.12.1. will not do so without your prior specific authorisation;
13.3.12.2. shall ensure that we enter into a written contract with that Sub-processor which imposes on the Sub-processor obligations that are equivalent to the obligations to which we are subject under this Contract; and
13.3.12.3. will remain fully liable to you for the performance of that Sub-processor's obligations;
13.3.13. be responsible and liable for the acts, omissions or defaults of our Sub-processors in the performance of our obligations under this Contract or otherwise as if they were our own acts, omissions or defaults;
13.3.14. permit you to audit our compliance with our obligations under this condition 13.3, subject to the following:
13.3.14.1. you may perform such audits once per year or more frequently if required by the Data Protection Laws, provided that the audit is conducted during usual business hours;
13.3.14.2. you may use a third party to perform such an audit on your behalf, provided that you provide us with reasonable notice of the identity of the third party prior to the audit;
13.3.14.3. nothing in this condition 13.3.13 shall require us to breach any duties of confidentiality owed to any of our employees, other clients or customers; and
13.3.14.4. the audit will be conducted at your expense;
13.3.15. where requested by you, provide you with such assistance and information as may be reasonably required in order for you to comply with any obligation to (i) carry out a data protection impact assessment pursuant to Article 35 of the GDPR; or (ii) consult with the Supervisory Authority pursuant to Article 36 of the GDPR; and
13.3.16. not transfer Personal Data to a recipient located outside of the EEA in a country not recognised by the European Commission as providing an adequate level of protection for Personal Data without your prior written consent and, in the event that you consent to us transferring Personal Data outside of the EEA, we will only do so as is permitted by Data Protection Laws.
13.4. Notwithstanding any other liability provisions in these Conditions, we will:
13.4.1. only be liable to you for any breach of our obligations set out in Condition 13 or the Data Protection Laws and any liability to a Data Subject that may arise as a result if:
13.4.1.1. we have not complied with our applicable obligations under the Data Protection Laws specifically directed to data processors; or
13.4.1.2. we have acted outside or contrary to any of your lawful instructions.
13.5. In the event that you and us are both involved and responsible for any breach of Condition 13 or the Data Protection Laws and any liability to a Data Subject that may arise as a result, we shall be entitled to claim from you that part of the compensation payable to a Data Subject which corresponds to your part of responsibility for the damage to the Data Subject.
13.6. We shall be exempt from liability to you if we prove that we are not in any way responsible for the event under this Condition 13 or the Data Protection Laws giving rise to the damage.
13.7. The purposes of Processing of the Personal Data by us is:
13.7.1. for the performance of the Services;
13.7.2. to comply with any statutory and regulatory obligations placed upon us;
13.7.3. to maintain our records and accounts; and
13.7.4. to collect, store, analyse and disclose, where appropriate, the Personal Data in accordance with the Contract.
13.8. The types of Personal Data and categories of Data Subjects Processed by us under the Contract are:
13.8.1. Names;
13.8.2. Addresses;
13.8.3. Email addresses; and
13.8.4. Telephone numbers,
of the Customer and its employees.
You acknowledge that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. We make no representation 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 you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us. We recommend that you refer to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
15.1. You will pay the Fees to us in accordance with this condition 15.
15.2. If you choose to pay the Fees via direct debit, our payment provider is GoCardless. In the event that your direct debit payment is refused for any reason, we may, without liability to you, disable your passwords, accounts and access to all or part of the Services.
15.3. The Fees for the Initial Subscription Term shall be payable by you via our Website. The Website may allow you to pay the Fees for the Initial Subscription Term upfront at the time of order via a valid credit or debit card, or to set up a standing order or direct debit for instalment payments (for example ongoing monthly payments). The cards we accept are set out on our Website.
15.4. The Fees for any Renewal Term may be taken by direct debit instalments. Even if you have paid for the Initial Subscription Term upfront, you will be required to set up a direct debit for the fees for the Renewal Term (whether for a one off payment, or instalments during that Renewal Term).
15.5. If we have not received payment within 30 days after the date on which any amount of the Fees become due, and without prejudice to any of our other rights and remedies, we may, without liability to you, disable your passwords, accounts and access to all or part of the Services and 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 Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
15.6. All amounts and fees stated or referred to in these conditions: (i) shall be payable in pounds sterling; (ii) are, subject to condition 17.4.2, non-cancellable and non-refundable; and (iii) are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
16.1. Each of us ("recipient") may be given access to Confidential Information from the other ("discloser") in order to perform our obligations under the Contract. A party's Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the recipient; (ii) was in the recipient's lawful possession before the disclosure; (iii) is lawfully disclosed to the recipient by a third party without restriction on disclosure; (iv) is independently developed by the recipient, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
16.2. Save where use and disclosure is otherwise permitted in accordance with these Conditions: (i) the recipient shall hold the discloser's Confidential Information in confidence and, unless required by law or required or permitted by the Contract, not make the discloser's Confidential Information available to any third party, or use the discloser's Confidential Information for any purpose other than the implementation of this Contract; and (ii) the recipient shall take all reasonable steps to ensure that the discloser's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Conditions.
16.3. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
16.4. This condition 16 shall survive termination of the Contract, however arising.
16.5. You will not make, or permit any person to make, any public announcement concerning the Contract without our prior written consent, 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.
17.1. This condition 17 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
17.1.1. arising under or in connection with the Contract;
17.1.2. in respect of any use made by you of the Services, the Deliverables and Documentation or any part of them; and
17.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
17.2. Except as expressly and specifically provided in this Contract:
17.2.1. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
17.2.2. the Services, Deliverables and the Documentation are provided to you on an "as is" basis.
17.3. Nothing in these Conditions excludes our liability: (i) for death or personal injury caused by our negligence; or (ii) for fraud or fraudulent misrepresentation.
17.4. Subject to condition 17.2 and condition 17.3:
17.4.1. we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
17.4.2. our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to an aggregate amount in equal to the Fees paid in respect of the Services during the 12 month subscription term to which the claim relates.
8.1. The Contract shall, unless otherwise terminated as provided in accordance with the Conditions, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
8.1.1. either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
8.1.2. otherwise terminated in accordance with the provisions of these Conditions; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
8.2. Without affecting any other right or remedy available to it we may suspend the Services or any part of them, or terminate the Contract with immediate effect by giving written notice to you if:
8.2.1. you cease to operate the outlet (including where the outlet is sold to a third party);
8.2.2. you fail to pay any amount due under this Contract on the due date for payment;
8.2.3. you commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) if you fail to remedy that breach within a period of 10 days after being notified in writing to do so;
8.2.4. you repeatedly breach any of the Conditions in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to the Conditions;
8.2.5. you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business;
8.2.6. you suspend, or threatens to suspend, payment of your debts or are unable to pay debts as they fall due or you admit inability to pay your debts or are deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
8.2.7. you commence negotiations with all or any class of creditors with a view to rescheduling debts, or make a proposal for or enter into any compromise or arrangement with creditors;
8.2.8. a petition is filed, a notice is given, a resolution is passed, or an application or order is made, for or in connection with your winding up, administration, or receivership;
8.2.9. the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
8.2.10. a creditor or encumbrancer 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 your assets;
8.2.11. any event occurs, or proceeding is taken in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 18.2.5 to condition 18.2.10 (inclusive).
8.3. We will be entitled to terminate the Contract if you suffer a change of control.
8.4. On termination of this Contract for any reason:
8.4.1. You shall not be entitled to any refund of Fees paid in respect of Services not provided or delivered (including, for the avoidance of doubt, any unused subscription time);
8.4.2. your rights of access to our Website and your Website shall cease with immediate effect;
8.4.3. 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;
8.4.4. we may destroy or otherwise dispose of any of Customer Content in our possession unless we receive, no later than ten days after the effective date of the termination of this Contract, a written request for the delivery to you of the then most recent back-up of the Customer Content. We shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Content; and
8.4.5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of Contract which existed at or before the date of termination shall not be affected or prejudiced.
8.5. On expiry or termination of this Contract we shall supply you with an electronic copy of the Customer Content.
19.1. Force Majeure. We will have no liability to you under the Contract if we are prevented from or delayed in performing our obligations, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce, or the workforce of any other party), failure of a utility service or transport or telecommunications network, hack or attack on the Websites including a distributed denial of service attack or man in the middle attack, 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.
19.2. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.3. Publicity. You shall not be entitled to make any releases, public announcements and public disclosures relating to this Contract or its subject matter, including promotional or marketing material.
19.4. Waiver. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.5. Rights and remedies. Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
19.6. Severance. If any provision (or part of a provision) of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19.7. Entire Agreement. The Contract constitutes the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us relating to the subject matter it covers. We both acknowledge and agree that in entering into the Contract neither of us relies on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in this Contract.
19.8. Assignment. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any your rights or obligations under the Contract. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.9. No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between us, or authorise either of us to act as agent for the other, and neither of us 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).
19.10. Third party rights. Subject to any third party rights that may be granted to Data Subjects under Standard Contractual Clauses that may be put in place by us in accordance with Condition 13.3.6, the Contract does not confer any rights on any person or party (other than each of us and, where applicable, each of our successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.11. Non Solicitation. You shall not, for the duration of the Contract, and for a period of six months following termination or expiry of the Contract, directly or indirectly induce or attempt to induce any of our employees who have been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Contract to leave our employment.
19.12. Notices. Any notice required to be given under this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the addresses set out for each of us in the Order Confirmation, or such other address as may have been notified for such purposes in accordance with this condition. 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.
19.13. Governing law and Jurisdiction. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. We both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).