Last updated: November 2022
Introduction
Spaze Ltd is a company registered in England and Wales under company number 12962620 with its registered office at Broadway Court, Brighton Road, Lancing, West Sussex, United Kingdom, BN15 8JT (“Spaze”, “we”, “us”, or “our”).
We have developed an application called “Spaze”, a web-based application for Community Service Organisations ("App") which enables Community Service Organisations to: (i) log the transactional data about their community services (“Client Services” shall refer to those services) and Service User's personal data (“Service Users” shall refer to individuals procuring the Client Services), which is required for the provision of Client Services; (ii) source and aggregate transactional data and Service User’s historic data for the purpose of monitoring and reporting on the operations of the Community Service Organisation. ("Purpose").
These terms (together with the documents and materials referred to in them) set out the terms and conditions (“Terms of Use”) upon which our clients (“Client”, “you” or “your”) may use the App and any services which relate to the App (excluding any improvements or additional functionality which we may develop from time to time), and “Services” shall refer to the App and those services.
Please read these Terms of Use carefully together with all documents and materials mentioned in them before placing an Order for the Services. If you do not accept these Terms of Use, you will not be able to Order the Services. Each Order once accepted by us in writing in accordance with Clause 3, together with the Terms of Use, forms a legally binding agreement between us (“Agreement”).
1. Definitions
1.1 These Terms of Use include capitalised terms with special meanings. These capitalised terms and their respective meanings are set out in the Glossary in Schedule 1.
2. Ordering, Configuration and Access to the Services
2.1 When placing an Order (for example by submitting the registration form on our website) you shall enter into these Terms of Use. Except for your End Users, you may not authorise any third party to access and/or use any of the Services.
2.2 Before we provide access to the Services, you agree to follow the on-boarding and registration process ("On-Boarding”) as detailed in the Set-Up Instructions and otherwise instructed by us, which may include:
2.2.1 provision by you of appropriate user details;
2.2.2 procuring such branding materials, access, personnel, cooperation and other information as reasonably required by us to configure the App and supply the Services; and
2.2.3 payment of such Fees and expenses (if any) as may be agreed between us to be due in advance, whether as part of the Order or otherwise.
2.3 You may start using the Services as soon as we give you access to them. You can continue to use the Services as long as you Subscribe to the relevant Services. Time shall be material but not of the essence with respect to our supply of the Services.
2.4 It is your responsibility to determine that the Services meet your business requirements and, to the fullest extent permissible by law and without limitation, we give no warranties that the Services will be fit for purpose, of satisfactory quality, uninterrupted or error free save where expressly set out in the Agreement.
2.5 You agree that we may process and store any Client Data you or your End Users submit through the App. By making available, posting or transmitting Client Data, you are granting us a non-exclusive, transferrable, sub-licensable, royalty-free, irrevocable, perpetual worldwide licence to use Client Data to make the Services available to you.
2.6 You warrant we are entitled to make available, post or transmit Client Data through the App.
3. Formation of Contract
3.1 All Orders are subject to our receipt of any applicable Fees (for example if you have Subscribed), and acceptance by us by notifying you in writing that we have accepted your Order whereupon a legally binding agreement will be formed between you and us.
3.2 Where the terms of an Order and these Terms of Use conflict, these Terms of Use shall take precedence save for provisions labelled as “Special Conditions” in the Order (if any).
4. Price, Payment and Data
4.1 Our Fees (if any are applicable) for the Services will be calculated as set out in the Order or otherwise agreed between the parties.
4.2 You will be charged your Subscription fee (if any) (plus VAT or other applicable taxes) for the Services from the Commencement Date set out in the Order, payable monthly in advance, by such method as we shall require from time to time, or as otherwise agreed in the Order.
4.3 Failure to pay Fees when due shall be a material breach of these Terms of Use which entitles us to suspend the Services or terminate this Agreement. This, in turn, will affect your access to the Services. Fees remain chargeable at our standard rates during the suspension.
4.4 If you fail to pay in cleared funds any amount due under these Terms of Use, we may charge you interest on a day to day basis on the overdue amount, payable by you on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 2% per annum above the base rate for the time being of Barclays Bank. Such interest shall accrue on a daily basis and be compounded quarterly.
4.5 The App may allow you to keep track of certain information, for example records of how many Service Users you have during certain periods. In consideration for providing the Services, you agree that you will provide to us, or we may collect, through the App or otherwise, this data and you grant us a licence to use it as part of our Service Data on the terms of Clause 9.4 to enable us to improve and deliver our products and services.
5. Warranties
5.1 You warrant, represent and undertake that you shall:
5.1.1 comply with all laws, regulations, regulatory policies, guidelines or industry codes (and shall be responsible for obtaining all licences, clearances and consents) which apply to your use of the Services, and acknowledge that we are merely a provider of access to the App and accept no responsibility for your use thereof, or compliance with applicable law or regulation, or to any End User (other than to the extent we are required by statutory law);
5.1.2 not use the Services for any unlawful purposes;
5.1.3 not use the Services for any purpose other than the Purpose;
5.1.4 not do, or omit to do, anything which disparages, defames or puts into disrepute us, our trade marks, goodwill and/or the Services; and
5.1.5 be and are fully entitled to enter into and grant all rights granted under this Agreement and that entering into this Agreement shall not in any way conflict with any of your existing obligations, now and/or throughout the Term.
5.2 Subject to the remaining provisions in this Clause, we warrant that:
5.2.1 during the Term we will provide the Services with reasonable due care and skill in accordance with these Terms of Use, and in compliance with English law and regulation as is applicable to our supply of the Services;
5.2.2 subject to completion of On-Boarding, the Services and the App will perform substantially in accordance with their Specification.
5.3 The warranties in Clause 5.2 do not apply to failures caused by, arising out of or due to:
5.3.1 your or any End User’s connection to the Internet;
5.3.2 patents of which we are not aware; or
5.3.3 accident, abuse or use of the Services in a manner inconsistent with these Terms of Use or resulting from events beyond our reasonable control.
5.4 Subject to Clause 5.3, if the Services do not meet the warranties in Clause 5.2, we will, at our sole option, either:
5.4.1 modify, improve or update the Services to make them conform; or
5.4.2 obtain such clearances, licences and consents at our cost as may be necessary to enable you to use the Services; or
5.4.3 return Subscriptions (if any) paid for such Services for the period that they failed to conform; and
5.4.4 this shall be your exclusive remedy for any breach of such warranties under this Agreement.
5.5 We shall have no liability under this Agreement for any breach of this Agreement, if any claim relates to:
5.5.1 a modification of the Services, or use of the Services in combination with any Third Party Software or third party data by you, End Users or your agents; or
5.5.2 your use (or use by your End Users) of the Services in a manner contrary to the instructions given to you by us or any claim relating to Client Data; or
5.5.3 your use (or use by your End Users) of the Services after notice of an alleged or actual infringement has been given to you by us or by any appropriate authority.
5.6 We will use reasonable endeavours to maintain the Services free of viruses but we do not warrant or represent that no viruses or other contaminating or destructive materials or elements will be transmitted to you or that your computer system will not be damaged or that defects will be corrected. Accordingly, we recommend you have your own local anti-virus, anti-spam and anti-spyware programs, that they are of good quality and that they are kept up to date.
6. Liability
6.1 This Clause 6 sets out our entire financial liability (including any liability for the acts or omissions of our officers, employees, agents and sub-contractors) to you in respect of:
6.1.1 any breach of this Agreement; and
6.1.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Use or the Services.
6.2 Except as expressly and specifically provided in these Terms of Use, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
6.3 Nothing in this Agreement excludes our liability:
6.3.1 for death or personal injury caused by our negligence;
6.3.2 for fraud or fraudulent misrepresentation; or
6.3.3 any other liability which cannot be excluded by law.
6.4 We shall accept liability for reasonably foreseeable losses arising as a direct result of breach by us of our statutory duty. However we shall not be liable where the causes or potential causes of the loss:
6.4.1 arose from the use of the Services for purposes other than for the Purpose;
6.4.2 were reasonably foreseeable and preventable by you such as those arising from, but not limited to:
6.4.2.1 loss of data due to your failure to keep back-ups; or
6.4.2.2 user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing or orally by one of our technicians.
6.5 In claiming against us for any such losses you are expected to avoid losses occurring and take reasonable precautions to avoid loss (such as contacting us promptly upon becoming aware of an issue).
6.6 Our total aggregate liability arising under or in connection with this Agreement or otherwise (whether in contract, tort, including negligence or otherwise, or for breach of statutory duty), whether foreseeable or not will not exceed a sum equal to the greater of £100 and 100% of the amount actually paid by you to us in connection with the provision of the Services to you in the 12 month period preceding the date upon which the claim arose.
6.7 We will not be liable under this Agreement for:
6.7.1 use not consistent with our applicable description of the Services in question; or
6.7.2 indirect, special or consequential losses or loss of profits, data, revenue, business, goodwill, reputation, wasted management operation or other time or anticipated savings. In the event of any breach of the warranties we give in Clause 5.2 your exclusive remedy and our only obligation and liability to you shall be as set out in Clause 5.4.
6.8 In the event of any breach of the warranties we give in Clause 5.2 your exclusive remedy and our only obligation and liability to you shall be as set out in Clause 5.4.
6.9 If our performance of our obligations under this Agreement is prevented or delayed by any act or omission of you, your Affiliates, agents, subcontractors, consultants or employees, or End Users we shall not be liable for any costs, liabilities, charges or losses sustained or incurred by you or your Affiliates that arise directly or indirectly from such prevention or delay.
7. Confidentiality and Audit
7.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall be deemed not to include information that:
7.1.1 is or becomes publicly known other than through any act or omission of the receiving party; or
7.1.2 was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or
7.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
7.1.4 is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
7.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than for the purposes of the Agreement.
7.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, sub-contractors or agents in violation of these Terms of Use or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
7.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party without the participation and/or knowledge of a party hereto.
7.5 Clause 7 shall survive termination of these Terms of Use, however arising, for a period of five (5) years.
8. Client Data
8.1 You shall comply with all applicable law and regulation in connection with your use of the Services and the processing of personal data and Client Data. Each of you and us will comply with the DPA.
8.2 Where we collect personal data from you or on your behalf, you shall clearly inform the data subjects to whom personal data relates of such collection, provide them with a prominent link to our privacy policy and secure and maintain all consents, permissions and licenses and provide all notices, required for us to lawfully: (i) transfer Client Data to or from us, and (ii) process Client Data as reasonably necessary to provide the Services, and otherwise as described in these Terms of Use and our privacy policy as amended from time to time.
8.3 We shall use our reasonable commercial endeavours to safeguard Client Data from unauthorised or unlawful processing, or accidental loss, destruction or damage by complying with our own internal information security policies.
9. Intellectual Property Rights
9.1 We grant to you a personal, non-exclusive, non-transferable right for End Users to access and use the Services solely in connection with the Purpose upon and subject to the terms of these Terms of Use. You may not use the Services for any other purpose without our prior written consent.
9.2 The Services are provided subject to the following:
9.2.1 you undertake you shall not (and shall not permit any End User or third party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Services in whole or in part, except to the extent permitted by law or with our prior written consent; and
9.2.2 payment of the applicable Fees (if any).
9.3 We and/or our licensors own all intellectual property rights in and to the Services and the App. Except as expressly stated herein, these Terms of Use do not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, designs, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or any related documentation.
9.4 You or, where applicable, the relevant third party licensor own all intellectual property rights in and to the Client Data. Except as expressly stated herein, these Terms of Use do not grant us any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Client Data and all such rights are expressly reserved to you. You grant us a non-exclusive, perpetual, irrevocable, royalty-free licence to use and reproduce the Client Data for the purposes of providing the Services to you, and as part of Service Data to develop, deliver and improve the Services.
10. Indemnity
10.1 You shall defend, indemnify and hold us, our Affiliates and their (and our) respective directors and employees harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with: (a) your use (or that of your End Users) of the Services; (b) claims from a third party that the Client Data infringes the rights of a third party; (c) any breach of your warranties or representations under these Terms of Use; and/or (d) any breach by you of applicable Data Protection Laws (as defined in the DPA), or consumer or other law or regulation.
11. Term and Termination
11.1 The Agreement will come into effect on the Commencement Date and shall remain in effect for the initial term specified in the Order (or, for 12 months where no such period is specified in the Order) (“Initial Term”) and shall automatically renew for a period equal to the Initial Term upon the expiry of any Subscription Period (where each of the Initial Period and any such renewal period shall constitute a “Subscription Period”) unless and until terminated in accordance with its terms.
11.2 Unless agreed otherwise in writing between you and us (for example where an alternative “Notice Period” is agreed in the Order), the Agreement may be terminated for convenience by either party giving notice at least one (1) month prior to the expiry of any Subscription Period, provided that such notice shall not expire earlier than the expiry of the then current Subscription Period. Where you are not paying us a Subscription fee for use of the Services, we may terminate the Agreement immediately at any time by written notice to you (which may include notice through the App) without further liability to you. You may terminate the Agreement at any time by written notice to us, subject always to payment in full of Subscription fees due (if any) for the remainder of the then-current Subscription Period.
11.3 Notwithstanding anything else contained in these Terms of Use, we may terminate (or, at our option, suspend) the Agreement, Services or part thereof:
11.3.1 immediately on giving notice in writing to you if you fail to pay any sum due under the Agreement (otherwise than as a consequence of any default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid;
11.3.2 immediately on giving notice in writing to you if you are in material breach of any term of the Agreement (other than any failure by you to make any payment hereunder, in which event the provisions of Clause 11.3.1 shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring you to do so; or
11.3.3 immediately on giving written notice if you have a change in your management and/or control.
11.4 If you choose to cancel your Subscription pursuant to the terms of Clause 11.2, you are not entitled to a refund in respect of the remainder of any period in respect of which your Subscription or other fee was paid in advance (if applicable). If we terminate without cause (which we may do on 90 days’ written notice), then we will refund to you (to the extent you have already paid it to us), on a pro-rata basis, the amount of unused Subscription remaining right before the cancellation.
11.5 Notwithstanding the above, we may suspend access to any part of the Services immediately without notice if: (a) you are in breach of this Agreement; (b) your use of the Services has or is likely to have an adverse impact on us, our clients, or any other third party. Suspension in accordance with the foregoing shall not relieve you of any of your liabilities or obligations under this Agreement.
11.6 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving written notice to the other if:
11.6.1 the other party commits a material or persistent breach of any of its obligations under these Terms of Use and (in the case of a breach capable of being remedied) does not remedy such breach within 30 days of receiving from the other party written notice of the breach and a request to remedy the breach; or
11.6.2 the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
11.6.3 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; or
11.6.4 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 11.6.1 to 11.6.3(inclusive).
11.7 Any termination of the Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12. Force Majeure
12.1 Provided we have complied with the provisions of Clause 12.3, we shall not be in breach of the Agreement nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under the Agreement that is caused by epidemic, failure of telecommunications network, or any other events outside our reasonable control (“Force Majeure Event”).
12.2 Our performance under the Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.
12.3 We will use our reasonable commercial endeavours to mitigate the effect of any Force Majeure Event and to carry out our obligations under the Agreement in any way that is reasonably practicable despite the Force Majeure Event and to resume the performance of our obligations as soon as reasonably possible.
13. Variations
13.1 Subject to Clause 13.2, we may revise and amend these Terms of Use from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in the options available in relation to the Services, changes in relevant laws and regulatory requirements, changes in our capabilities and changes in what we are able to obtain from our third party licensors, contractors and other suppliers.
13.2 We may amend these Terms of Use from time to time after giving to you as much as advance written notice as reasonably possible of such amendment and the date upon which it is to be effective. If such amendment materially prejudices your interests under these Terms of Use, you may notify us that you wish to terminate these Terms of Use, and such termination shall be effective on the date upon which such amendment to these Terms of Use would otherwise be effective between you and us, unless we notify you before that date that such amendment shall not be effective between you and us.
13.3 In addition, you acknowledge that from time to time during the Term we may apply upgrades to the App, and that such upgrades may, subject to Clause 13.4, result in changes to the appearance and/or functionality of the App.
13.4 No upgrade shall disable, delete or significantly impair the existing functionality of the App.
13.5 You shall not be subject to any additional charges arising out of the application of the upgrade, save where:
13.5.1 the upgrade introduces new functionality to the App;
13.5.2 you are given the opportunity whether or not to accept such new functionality and any additional changes associated with such functionality (after, if applicable, any free trial period); and
13.5.3 any decision by you not to pay the charges for the new functionality will not prejudice your access to and use of the rest of the App.
14. General
14.1 You may not assign or sub-contract the Agreement or any rights and obligations thereunder without our prior written consent. We may assign the Agreement to our Affiliates.
14.2 Except as set out in the Order:
14.2.1 Any notice under the Agreement must be in writing and must be delivered by hand or sent by recorded delivery to the address specified in the Order, or by email to the email address notified by a party for such purposes or to such other address as may have been notified by a party for such purposes.
14.2.2 A notice delivered by hand or by recorded delivery will be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9am on the first Business Day following delivery). A notice sent by e-mail will be deemed to have been received when sent (or, if despatch is not in Business Hours, at 9am on the first Business Day following despatch), unless the sender receives a response to the effect that the e-mail has not been received or the recipient is not available.
14.2 No failure by either party to enforce any rights under the Agreement shall constitute a waiver of such right then or in the future. Any waiver must be in writing and signed by an authorised representative of the waiving party.
14.3 If for any reason a court of competent jurisdiction finds any provision of the Order or these Terms of Use, or portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of these Terms of Use and the Order will continue in full force and effect.
14.4 Other than our Affiliates, a person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.5 These Terms of Use, including the Schedules, and the Order constitute the sole and entire understanding of the parties in relation to the subject matter of the Agreement and supersede all previous agreements, representations and arrangements between the parties (either oral or written) with regard to the subject matter of the Agreement. The parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated in these Terms of Use or the Order. Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind the Agreement for any misrepresentation in relation to the subject matter of the Agreement whether or not contained in these Terms of Use or the Order or for breach of warranty not contained in these Terms of Use or the Order unless such misrepresentation or warranty was made fraudulently. The Agreement may only be amended or supplemented in writing and signed by an authorised representative of both parties.
14.6 We are an independent contractor and neither we nor any of our personnel assigned to provide Services to you under this Agreement will be, or be deemed to be for any purpose, an employee or agent of yours.
14.7 We may use subcontractors to provide the Services provided that we remain solely responsible for the Services of such subcontractors.
15. Governing Law, Disputes and Jurisdiction
15.1 These Terms of Use are governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom, including both contractual and non-contractual disputes.
15.2 All disputes, differences or questions arising in relation to this Agreement shall be referred in the first instance to the account managers of you and us who shall meet together and attempt to settle the dispute (acting in good faith) within 10 Business Days.
15.3 If unable to resolve the dispute, it shall be referred to our Directors, and your appointed point of contact/relationship manager, head of IT or manager/Director responsible therefore who shall meet together and attempt to settle the dispute (acting in good faith) within 10 Business Days.
15.4 If still unable to resolve the dispute within 10 Business Days, the Parties shall have no further obligation to follow this dispute resolution procedure. However, neither party may initiate any legal proceedings until the procedure set out above has been completed except that in no event shall the provisions of this Clause 15 operate to prevent a Party seeking interim relief in respect of any dispute or differences.
SCHEDULE 1 - GLOSSARY
1. In these Terms of Use, unless the context otherwise requires, the following expressions have the following meanings:
Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;
App Data shall be as defined in Schedule 2 (Data Processing Addendum);
Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London;
Business Hours means 9.00am to 5.30pm local UK time, on a Business Day;
Client Data means any data, content, information and materials supplied, input or uploaded by you or your End Users in using the Services;
Client Services means services which you provide to Service Users;
Commencement Date has the meaning given to it in the Order, and otherwise, if not specified, means the date on which we make the Services or part thereof available to you;
Community Service Organisations means organisations which use the App (including food banks and other organisations which provide community support services);
Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services (including the Services), finances, personnel or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party);
DPA means Schedule 2 (Data Processing Addendum);
End User means those end users who are authorised by you to access and use the Services via the App in accordance with these Terms of Use (including your employees, contractors and volunteers);
Fees includes Subscription fees, together with any other on-boarding, support or similar fees (if any);
Order means an offer to us to Subscribe to any one or more of the Services by submitting a request for Services and “Ordered” shall be construed accordingly;
Referral and Analytics Data shall be as defined in Schedule 2 (Data Processing Addendum);
Service Data means metadata and other data derived from use of the Service (for example analytics data about how often people use the App to help us improve it, and anonymous data relating to the number or timing of enquiries or orders received by Service Users);
Service User means individuals who use the Client Services;
Set-Up Instructions means the instructions for setting up the Services as set out in the Order or otherwise notified by us to you;
Specification means the functional and technical specification in respect of the Services from time to time available upon request;
Subscribe means to pay a Subscription and “Subscribed”, “Subscribing” and “Subscriber” shall be construed accordingly, this includes, for the avoidance of doubt, where a Subscription is free, in which case a subscriber is the party who has applied for and been granted access to the Services by us;
Subscription means the relevant fee(s) (plus applicable taxes) payable to us by you, a Client, to access one or more of the Services (if any are applicable);
Subscription Period has the meaning ascribed to it in Clause 11;
Term means the duration the Agreement is in force in accordance with its terms;
Third Party Software means any software, material or applications provided as part of or used in connection with, the Service, the intellectual property rights in which are owned by a party other than us;
you/your/yours means the Client.
2. The headings in these Terms of Use do not affect their interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these Terms of Use.
3. Unless the context otherwise so requires:
a) References to statutory provisions include those statutory provisions as amended or re-enacted; and
b) References to any gender include all genders.
c) Words in the singular include the plural and in the plural include the singular.
d) The word, “including” shall be deemed to mean, “including, without limitation” and shall not limit the types or categories to the information or items following such types or categories.
SCHEDULE 2: DATA PROCESSING ADDENDUM
1. This DPA explains our respective responsibilities where we process:
1.1 App Data on your behalf in the course of operating the App or otherwise providing the Services, where you shall be the data controller and we shall be a data processor, pursuant to Data Protection Laws (where Part 1 of this DPA shall apply); and
1.2 personal data pursuant to our own purposes (including to refer Service Users to other to third party charities and organisations and to undertake analytics and impact reporting analysis on the provision of services by Community Service Organisations) (“Referral and Analytics Data”), in relation to which we shall be deemed an independent data controller, pursuant to Data Protection Laws (where Part 2 of this DPA shall apply).
2. For the purpose of this DPA “Data Protection Laws” means UK Data Protection Laws and the General Data Protection Regulation ((EU) 2016/679) (“GDPR” which includes the UK GDPR for the purposes of this DPA, and where there are inconsistencies in respect of obligations under the GDPR and UK GDPR, refers to the more extensive interpretation) and any other directly applicable European Union regulation relating to privacy; and “UK Data Protection Laws” means any data protection legislation from time to time in force in the UK including the UK GDPR, Data Protection Act 2018 or any successor legislation.
3. References in this DPA to “data processor”, “data controller”, “subprocessor”, “supervisory authority” and “personal data” shall have the meanings defined in the Data Protection Laws.
Part 1
4. Where we collect App Data from you or on your behalf, you shall clearly inform the data subjects to whom personal data relates of such collection, provide them with a prominent link to our privacy policy and any other terms we may specify from time to time, secure and maintain all consents, permissions and licenses required for us to lawfully: (i) transfer App Data to or from us, and (ii) process App Data as reasonably necessary to provide the Services, and otherwise as described in our privacy policy as amended from time to time.
5. You will comply with your obligations under Data Protection Laws.
6. You instruct us to process App Data as reasonably necessary for the provision of the App and Services. In particular, you instruct us to process App Data as set out in the table below:
Subject matter and duration of the processing of Personal Data: | App Data will be processed during the term of our Agreement. |
The nature and purpose of the processing of Personal Data: | App Data will be processed to enable you to use the App and the Services and make it available to your End Users for the Purpose. In particular:
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The types of Personal Data to be processed: | The App Data, which includes the following information relating to:
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The obligations and rights of data controller: | The obligations and rights of the data controller (you) are set out in this Agreement. |
7. In relation to any App Data processed in connection with the operation by us of the Services, to the extent we are a data processor, we shall:
7.1 only process App Data on your documented instructions (including those set out above in Clause 6 and otherwise in our Agreement), including in respect of transfers to a country outside of the European Economic Area (EEA), unless processing is required by applicable laws in which case we shall, to the extent permitted by applicable law, inform you of that legal requirement prior to the relevant processing;
7.2 take reasonable steps to ensure the reliability of staff who have access to App Data, ensuring all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
7.3 taking into account the nature, scope, context and purpose of the processing, implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR in order to protect against unauthorised or unlawful processing of any App Data, or any accidental loss, destruction or damage of such App Data;
7.4 taking into account the nature of the processing and the information available to us, we shall, to a reasonable extent, assist you (at your expense): (i) by implementing appropriate technical and organisational measures for the fulfilment of your obligations to respond to requests to exercise data subject rights under the Data Protection Laws, and in particular Chapter III of GDPR, as set out below, and (ii) in ensuring compliance with your obligations pursuant to Articles 32 to 36 of GDPR;
7.5 (to the extent permitted by law) notify you without undue delay on becoming aware of a Personal Data Breach (as defined in the Data Protection Laws) relating to the App Data.
8. We shall make available to you information reasonably necessary to demonstrate compliance with the obligations laid down in this DPA, and allow for and contribute to audits (at your cost), conducted by you or an auditor designated by you. We will maintain a record of any processing of App Data pursuant to Article 30(2) of GDPR.
9. You hereby grant a general authorisation to us to engage subprocessors. We shall inform you of any intended changes concerning the addition or replacement of subprocessors. We shall ensure that the arrangement between us and subprocessors is governed by a written agreement, including, to the extent required by applicable Data Protection Laws: terms which offer an equivalent level of protection for App Data as those set out in this DPA; and terms which meet the requirements of Article 28(3) of the GDPR.
10. Taking into account the nature of the processing, we shall assist you by implementing appropriate and commercially reasonable technical and organisational measures for the fulfilment of your obligations to respond to requests to exercise data subject rights under the Data Protection Laws, including by forwarding to you, within a reasonable amount of time, where appropriate, such requests if we receive them.
11. Our obligations pursuant to Clause 7 above shall include assisting you (at your expense), upon your documented instruction, without undue delay to respond to a data subject’s request to exercise their rights: of access; of rectification; of erasure; of data portability; to object to processing; to restriction of processing; and not to be subject to automated individual decision making; in each case as set out at Chapter III of the GDPR.
12. To the extent we are a data processor, we shall:
12.1 notify you within 3 (three) business days if we or any subprocessor receives a request from a data subject under any Data Protection Law in respect of App Data unless the data subject has forbidden the notification in which case we shall inform the data subject that we are only able to respond to such request on your instruction; and
12.2 ensure that neither us nor any subprocessor responds to that request except on your documented instructions or as required by applicable law.
13. You shall indemnify us and keep us indemnified against all costs, damages, expenses (including reasonable legal expenses) incurred by us arising out of your or any of your users’ breach of this DPA, or applicable law (including Data Protection Laws).
14. We shall not be liable for any claim brought by a data subject arising from any action or omission to the extent that such action or omission resulted from your instructions.
Part 2
15. We will comply with our obligations under Data Protection Laws when we process Referral and Analytics Personal Data pursuant to our own purposes (including ensuring that we have all necessary and appropriate consents and notices in place to enable lawful processing by of Referral and Analytics Personal Data).