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LEARNING ZONE TERMS OF BUSINESS

INTRODUCTION

These terms (together with the documents and materials referred to herein) set out the terms and conditions (“Terms of Business”) upon which you may use our web based Software as a Service (SaaS) coaching/learning platform for sales development (“Platform”). The Platform is provided by Impact Business Partners Limited, a company registered in the United Kingdom under company number 07694992 and whose registered office is at Rex House, 4th Floor, 4 – 12 Regent Street, London. SW1Y 4PE (“Impact”, "us", "we" or "our"). "You" and "your" means you as the Subscriber to the Platform.

Please read these Terms of Business carefully, together with all documents and materials mentioned in them, before accessing and using the Platform. If you do not accept these Terms of Business, you will not be able access and use the Platform.

  1. DEFINITIONS

1.1 These Terms of Business use some capitalised terms which have special meanings. These capitalised terms and their respective meanings are set out in Schedule 1 attached.

  1. REGISTRATION/ACCESS

2.1 To utilise the Platform, Users must follow and complete the registration process on the Platform as further detailed in the Terms of Use.

2.2 Users may start using the Platform as soon as we grant them access following registration. Users can continue to use the Platform for as long as you continue to Subscribe to the Platform.

 

  1. PRICE AND PAYMENT

3.1 In consideration of the provision of the Platform you shall pay us the Subscription Fee (exclusive of any applicable VAT or other sales tax, which where applicable is payable in addition to the Subscription Fee). Unless otherwise agreed in the applicable Term Sheet, the Subscription Fee shall be invoiced by us on a monthly basis in advance and shall be payable by you within 14 (fourteen) days of the date of the invoice. Should VAT be applicable we shall provide you with a valid VAT invoice. All communication and internet connection and use charges are your responsibility.

3.2 We may review and increase the Subscription Fee payable on each anniversary of the Commencement Date and we will give you no less than 30 (thirty) days’ prior notice before any increase. No fee change will be implemented in respect of any period for which you have already paid a Subscription Fee.

3.3 Unless expressly agreed otherwise in the Term Sheet, you will be charged the Subscription Fee from the first date we enable your Users to access the Platform.

3.4 Failure to pay the Subscription Fee when due shall be a material breach of these Terms of Business which may entitle us to suspend or terminate (pursuant to Clause 10.3(1)). This, in turn, will affect your access to the Platform. Subscription Fees remain chargeable at our standard rates during any period of suspension. If we terminate these Terms of Business for your material breach, we will require you to pay, without delay, all unpaid Subscription Fees and any other amounts you owe us under these Terms of Business.

3.5 Further, if you fail to pay any amount payable by you under these Terms of Business, we may charge you interest on the overdue amount, payable by you forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of Barclays Bank plc. Such interest shall accrue on a daily basis.

3.6 We may, at our discretion, appoint an outside debt collection agency to collect amounts owing to us. You agree to reimburse us for all costs that we incur in enforcing our collection of your unpaid amounts, including debt collection agency fees, reasonable legal fees and court costs.

3.7 All overcharges or billing disputes must be reported within 30 (thirty) days of receipt of invoice. Failure to do so will mean you have accepted our invoice.

3.8 Unless otherwise set out in the Term Sheet, the Subscription Fee is based on the number of Users stipulated in the Term Sheet. Should you wish to increase/decrease the number of Users at any time during the Term you shall notify us in writing and, if agreed by us, the Term Sheet (including the Subscription Fee) shall be amended accordingly in accordance with Clause 13.4. We are not obliged to agree any change in the number of Users. The number of Users can only be changed at the end of the then current calendar month.

 

  1. WARRANTIES

4.1 Subject to the remaining provisions in this Clause, we warrant that:

  • 4.1.1 during the Term we will provide the Platform with reasonable due care and skill in accordance with these Terms of Business;
  • 4.1.2 we have the authority and right to licence all rights in and to the Platform as set out in these Terms of Business.

4.2 The warranties contained in Clause 4.1 do not cover or apply to failures or shortcomings in the provision of the Platform caused by, arising out of or due to:

  • 4.2.1 your connection to the internet;
  • 4.2.2 the operational performance of the internet itself;
  • 4.2.3 private networks or VPNs or networked personal computers;
  • 4.2.4 leased lines;
  • 4.2.5 mobile service or airtime providers;
  • 4.2.6 failure of the computer or other equipment (including mobile equipment) you use to connect to the internet or to your mobile service or airtime provider, or to meet minimum system/equipment requirements notified to you by us in writing in advance;
  • 4.2.7 accident, abuse or use of the Platform in a manner inconsistent with these Terms of Business or resulting from Force Majeure Events (as set out in Clause 11); or
  • 4.2.8 any exclusions specifically identified in the SLA.

 

4.3 Subject to Clause 4.6, if you notify us during the Term that any of the Platform does not meet the warranties given in Clause 4.1, we may, at our sole option, either:

  • 4.3.1 modify, improve or update the Platform to make it conform; or
  • 4.3.2 return Subscription Fee paid for the period that it failed to conform.

 

4.4 We will use reasonable endeavours to maintain the Platform free of viruses but we do not warrant or represent that viruses or other contaminating or destructive materials or elements will not be transmitted to you or that your computer system will not be damaged or that defects will be corrected. Accordingly, we recommend that 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. You are therefore advised to implement and operate your own commercially reasonable and up-do-date virus prevention precautions and measures when accessing the Platform.

 

4.5 We cannot and do not warrant that the Platform will be uninterrupted, error-free or entirely secure. However, we will effect and maintain at all times reasonably prudent and commercial continuous and efficient security measures to safeguard Client Data from unauthorised access, disclosure or use and to minimise the risk of security breach (as such measures are commensurate with the sensitivity of such Client Data) as further described in our Privacy Policy. [Further, we shall use encryption techniques where available to protect Client Data when input].

 

4.6 Our response to and our liability for the unavailability of the Platform is as set out in our SLA. Our SLA forms part of these Terms of Business.

 

4.7 We do not give any other warranties, guarantees or representations concerning the operation or performance of the Platform. You are entirely responsible for deciding if the Platform suits your requirements and we accept no liability for any use to which you put any of the Platform.

 

4.8 Use of the Platform is subject to your computer and/or portable device complying with our minimum standard technical specification and compatibility notice (notified to you by us in writing in advance if applicable). You are advised to check this specification to ensure that your computer and/or portable device is compatible with the Platform and we shall not be liable for any failure arising from your use of the Platform which arises from incompatibility (including minimum storage and memory requirements from time to time).

 

4.9 We may suspend the provision of the Platform for any scheduled maintenance or planned outages as further set out in the SLA.

 

  1. LIABILITY

 

5.1 You acknowledge that you have accepted these Terms of Business in the knowledge that we need to limit our liability, and understand that the Subscription Fee has been set at a level that takes such limitation into account.

 

5.2 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:

  • 5.2.1 any breach of these Terms of Business; and
  • 5.2.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Business.

 

5.3 Except as expressly and specifically provided in these Terms of Business, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Business.

 

5.4 Nothing in these Terms of Business excludes our liability:

  • 5.4.1 for death or personal injury caused by our negligence; or
  • 5.4.2 for fraud or fraudulent misrepresentation; or
  • 5.4.3 deliberate personal repudiatiory breach; or
  • 5.4.4 any other liability which cannot be excluded by law.

 

5.5 We shall not, unless otherwise agreed between the parties in writing, back up (or restore if it is damaged) the Client Data. Therefore, you undertake to back up (and restore if it is damaged) the Client Data as often as would be considered reasonably prudent to limit the risk of any data loss and you agree to take sensible precautions to minimise your loss, especially if the data is important to you. This may include backing up any locally held data which is also Client Data.

5.6 You shall mitigate and take reasonable precautions to avoid any loss and contact us promptly upon becoming aware of an issue).

5.7 Our total liability arising under or in connection with these Terms of Business or otherwise (whether in contract, tort, or otherwise), whether foreseeable or not will not exceed a sum equal to 150% of the amount actually received by us from you in connection with the provision of the Platform to you under these Terms of Business in the 12 (twelve) months period preceding the date upon which the claim arose.

5.8 We will not be liable for any loss arising from:

 

  • 5.8.1 Client Data, data or information loss caused by your failure to keep backup copies of important data on separate media;
  • 5.8.2 virus damage;
  • 5.8.3 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;
  • 5.8.4 any breach of these Terms of Business and/or the Terms of Use by you and/or the Users;
  • 5.8.5 use not consistent with any applicable description of the Platform in question;
  • 5.8.6 any defect or deficiency in the Platform which we shall have remedied within a reasonable period; and
  • 5.8.7 any indirect, special, incidental or consequential losses such as loss of business profits, salary, revenue, or anticipated savings.

 

5.9 In the event of any breach of the warranties we give in Clause 4.1 your sole remedy and our only obligation and liability to you shall be as set out in Clause 4.3.

5.10 If our performance of our obligations under these Terms of Business is prevented or delayed by any act or omission of you, your Affiliates, agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you or your Affiliates that arise directly or indirectly from such prevention or delay.

 

  1. CONFIDENTIALITY

 

6.1 Each party may be given access to Confidential Information from the other party in order to perform our obligations under these Terms of Business. A party’s Confidential Information shall not be deemed to include information that:

  • 6.1.1 is or becomes publicly known other than through any act or omission of the receiving party; or
  • 6.1.2 was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or
  • 6.1.3 is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure; or
  • 6.1.4 is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
  • 6.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

 

6.2 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 these Terms of Business.

6.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms of Business 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.

6.4 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.

6.5 You acknowledge that damages alone would not be an adequate remedy for any breach of this Clause 6. Accordingly, without prejudice to any other rights and remedies we may have, we shall be entitled to the granting of equitable relief (including injunctive relief) concerning any threatened or actual breach by you of any of the provisions of this Clause 6.

6.6 This Clause shall survive termination of these Terms of Business, however arising.

  1. CLIENT DATA AND DATA PROTECTION

7.1 You shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of it. 

7.2 Where we collect any personal information from your Users we shall deal with this in accordance with our Privacy Policy.

7.3 Each party shall comply with any obligations it might have under the provisions of the Data Protection Act 1998 and references in this Clause 7 to “data processor”, “data controller” and “personal data” shall have the meanings defined in that Act.

7.4 If we process any personal data on your behalf when performing our obligations under these Terms of Business, the parties’ record their intention that you shall be the data controller and we shall be a data processor and in any such case:

  • 7.4.1 you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with these Terms of Business on your behalf;
  • 7.4.2we shall process the personal data only in accordance with these Terms of Business and the Privacy Policy and any lawful instructions reasonably given by you from time to time;
  • 7.4.3 we will not, except as agreed with you, or in accordance with your instructions, carry out any processing of personal data on equipment situated outside the European Economic Area (EEA) or transfer any personal data outside the EEA.
  • 7.4.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;
  • 7.4.5 each party shall immediately notify the other if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under these Terms of Business, and provide full co-operation and assistance in relation to any such complaint, notice or communication; and
  • 7.4.6 each party will comply with any specific guidance or instructions issued by the Information Commissioner.

 

  1. INTELLECTUAL PROPERTY RIGHTS

 

8.1 We grant to you a personal, non-exclusive, non-transferable right for Users to access and use the Platform solely in connection with the Purpose (and for no other purpose) upon and subject to the terms of these Terms of Business and you shall be responsible for procuring that the Users comply with the Terms of Use. “Purpose” shall mean your own internal sales development, education and training requirements. You may not use the Platform for any other purpose without our prior written consent and you acknowledge that additional fees may be payable on any change of use approved by us.

 

8.2 The above right to use the Platform is provided subject to the following:

 

  • 8.2.1 you undertake you shall not (and shall not permit any Third Party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Platform in whole or in part, except to the extent permitted by law or with our prior written consent; and
  • 8.2.2 payment of the applicable Subscription Fee.

 

8.3 We and/or our licensors own all intellectual property rights in and to the Platform and the Service Data. Except as expressly stated herein, these Terms of Business do not grant you 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 Platform or any related documentation. Where the Platform comprises materials and/or other features which are licensed from a Third Party, you shall comply with all applicable restrictions and limitations relating to use of such Third Party features and shall indemnify us against all losses, claims, damages and expenses suffered and/or incurred by us arising out of your failure to do so, provided we have brought the same to your attention.

8.4 You, or, where applicable, Users, own all intellectual property rights in and to the Client Data. Except as expressly stated herein, these Terms of Business 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 (or the applicable User). You grant us a non-exclusive, royalty free licence to use the Client Data for the purposes of providing the Platform, and as part of Service Data, to provide services to our other clients, subject always to the data protection and confidentiality provisions set out in these Terms of Business.

8.5 Subject to Clause 9.3 and Clause 9.4, we confirm that we have all the rights in relation to the Platform that are necessary to provide the Platform and to grant all the rights we purport to grant under, and in accordance with, these Terms of Business, and that, so far as we are aware, your use of the Platform in accordance with these Terms of Business shall not infringe upon the rights of any third party.

 

  1. Indemnities

 

9.1 You shall defend, indemnify and hold us, our directors and employees harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with: (a) any breach by User of the Terms of Use; (b) claims from a third party that the Client Data infringes the intellectual property rights or other rights of a third party; (c) any breach of Clauses 6, 7 and 8.

 

9.2 Subject to Clause 5.8 and Clause 9.3, we shall defend, hold harmless and indemnify you against all loss, damage, claims, liabilities, fees, costs and expenses arising out of any action brought against you based on a claim that the Platform infringes any intellectual property right of any Third Party provided that:

  • 9.2.1 we are notified promptly in writing of any such claim;
  • 9.2.2 you shall not (and/or you shall procure that no Affiliate make(s) any admission or settlement of such claim without our prior written consent;
  • 9.2.3 we have sole conduct and control of the defence and any negotiations for compromise; and
  • 9.2.4 you shall (and/or you shall procure that any Affiliate) provide(s), at our reasonable expense, such assistance as we may reasonably require in connection with such claim.

 

9.3 In the event of any intellectual property rights claim by a Third Party that our provision of the Platform infringes their intellectual property rights, we may obtain for you the right to continue using the Platform, replace or modify the Platform so that it becomes non-infringing or, if such remedies are not reasonably available, terminate these Terms of Business (which shall include termination of your access to the Platform) and our only liability is to repay any pre-paid Subscription Fee relating to a period after the date of termination. We shall have no liability if the alleged infringement is based on: 

  • 9.3.1 a modification of the Platform by you or your agents; or
  • 9.3.2 your use of the Platform in a manner contrary to the instructions given to you by us; or
  • 9.3.3 your use of the Platform after notice of the alleged or actual infringement has been given to you by us or by any appropriate authority.

 

9.4 Subject to these Terms of Business, the foregoing states your exclusive rights and remedies, and our entire obligations and liability for any patent, copyright, database or right of confidentiality infringement under these Terms of Business.

  1. TERM AND TERMINATION

10.1 Unless terminated in accordance with its terms, these Terms of Business will come into effect on the Commencement Date and shall remain in effect for the Initial Period. Following the expiry of the Initial Period, these Terms of Business shall automatically renew and remain in effect unless terminated in accordance with its terms. 

10.2 These Terms of Business may be terminated for convenience by either party giving notice in writing to the other in accordance with the Notice Period set out on the Term Sheet. Such notice not to be less than 3 months after the expiry of the Initial Period.

10.3 Notwithstanding anything else contained in these Terms of Business, we may terminate (or, at our option, suspend) these Terms of Business immediately on giving notice in writing to you if:

  • 10.3.1 you fail to pay any sum due under these Terms of Business (otherwise than as a consequence of any default on our part) and such sum remains unpaid for 7 (seven) days after written notice from us requiring such sum to be paid;
  • 10.3.2 we, in our reasonable opinion, consider you or any of your Users to be in any material breach of any of the Terms of Use.

 

10.4 If you choose to terminate your Subscription pursuant to the terms of Clause 10.2 you are not entitled to a refund in respect of the remainder of any period in respect of which your Subscription Fee was paid in advance.

 

10.5 Without prejudice to any other rights or remedies which the parties may have, either party may terminate these Terms of Business without liability to the other immediately on giving written notice to the other if:

  • 10.5.1 the other party commits a material or persistent breach of any of its obligations under these Terms of Business and (in the case of a breach capable of being remedied) does not remedy such breach within 30 (thirty) days of receiving from the other party written notice of the breach and a request to remedy the breach; or
  • 10.5.2 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 partnership) has any partner to whom any of the foregoing apply; or
  • 10.5.3 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
  • 10.5.4 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 10.5.2 to 10.5.3 (inclusive).

 

10.6 Any termination of these Terms of Business 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.

10.7 Upon expiration of these Terms of Business or termination for any reason, we will delete your stored Client Data within 6 months, or return any previously supplied data by the same means in which it was delivered, or such other means as the parties may agree upon.

 

  1. FORCE MAJEURE

 

11.1 Provided we have complied with the provisions of Clause 11.3, we shall not be in breach of these Terms of Business nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under these Terms of Business that is caused by events outside our reasonable control (“Force Majeure Event”), including the following:

 

  • 11.1.1 any labour dispute, including strikes, industrial action or lockouts;
  • 11.1.2 non-performance by suppliers or subcontractors;
  • 11.1.3 interruption or failure (in each case outside our reasonable control) of utility (including electric power, gas or water) or public or private telecommunication services or breakdown of plant or machinery;
  • 11.1.4 acts of God, including fire, flood, earthquake, subsidence, epidemic, pandemic, windstorm or other natural disaster;
  • 11.1.5 war, threat of or preparation for war or terrorist attack, armed conflict, civil war, civil commotion or riots; or
  • 11.1.6 voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law).

11.2 Our performance under these Terms of Business 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.

 11.3 We will use our reasonable commercial endeavours to mitigate the effect of any Force Majeure Event and to carry out our obligations under these Terms of Business 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.

 

  1. VARIATIONS

 

12.1 We have the right to revise and amend these Terms of Business 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 Platform, 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.

12.2 If we need to revise or amend these Terms of Business during the Term, we will notify you no fewer than 14 (fourteen) days in advance of the revision or amendment, and will have the right to assume that you have accepted such revision or amendment if you have not notified us to the contrary within 7 (seven) days of our notification to you.

12.3 In addition, you acknowledge that from time to time during the Term we may apply upgrades to the Platform, and that such upgrades may, subject to Clause 12.4, result in changes to the appearance and/or functionality of the Platform.

 12.4 No upgrade shall disable, delete or significantly impair the existing functionality of the Platform.

 12.5 We will give to you at least 30 (thirty) days' prior written notice of the application of any significant upgrade to the Platform. Such notice shall include details of the specific changes to the functionality of the Platform resulting from the application of the upgrade.

 12.6 You shall not be subject to any additional charges arising out of the application of the upgrade, save where:

 

(a)        the upgrade introduces new functionality to the Platform; and

 (b)        you are given the opportunity to indicate whether or not to accept such new functionality and any additional changes associated with such functionality (after, if applicable, any free trial period); and

 (c)        access to or use of the new functionality is chargeable to our customers using the Platform generally; and

 (d)        any decision by the you not to pay the charges for the new functionality will not prejudice your access to and use of the rest of the Platform.

 

  1. GENERAL

 

13.1 You agree that you will not assign, novate, sub-contract or transfer these Terms of Business or any rights and obligations hereunder without our prior written consent. We may assign, novate, sub-contract or transfer these Terms of Business or any rights and obligations hereunder without your prior written consent.

13.2 Notices

  • 13.2.1 Any notice under these Terms of Business must be in writing and must be delivered by hand or sent by recorded delivery to the address set out in the Term Sheet or to such other address as may have been notified by a party for such purposes.
  • 13.2.2 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).

 

13.3 No failure by either party to enforce any rights under these Terms of Business 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.

13.4 Subject to Clause 12, these Terms of Business shall not be varied or amended unless such variation or amendments agreed in writing and signed by both you and us.

13.5 If any provision of these Terms of Business is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect to the fullest extent possible as if these Terms of Business had been executed with the invalid provisions eliminated.

13.6 A person who is not a party to these Terms of Business has no right or benefit under or to enforce these Terms of Business whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

 13.7 These Terms of Business and the documents referred to herein constitute the sole and entire understanding of the parties in relation to the subject matter of these Terms of Business and supersede all previous agreements, representations and arrangements between the parties (either oral or written) with regard to the subject matter of these Terms of Business. The parties confirm that they have not entered into these Terms of Business on the basis of any representations that are not expressly incorporated in these Terms of Business. Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind these Terms of Business for any misrepresentation in relation to the subject matter of these Terms of Business whether or not contained in these Terms of Business or for breach of warranty not contained in these Terms of Business unless such misrepresentation or warranty was made fraudulently or relates to a fundamental matter.

13.8 Neither party shall without the prior written consent of the other, at any time from the date of the Term Sheet to the expiry of 12 (twelve) months after the termination or expiry of these Terms of Business, actively solicit or entice away from the other or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other in the provision of the Platform.

 

  1. GOVERNING LAW AND JURISDICTION

 

These Terms of Business and any non-contractual obligations arising out of or in connection with them shall be governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England in relation to any dispute arising therefrom.

 


SCHEDULE 1

  1. In these Terms of Business, 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;

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 data supplied, input or uploaded by you and/or your Users in using the Platform;

Commencement Date has the meaning given to it in the Term Sheet;

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, including the Client Data. The term “Confidential Information” shall also include any information not publicly available concerning the products, services (including the Services), finances or business of a party or its Affiliates or subcontractors (and/or, if either party is bound to protect the confidentiality of any Third Party’s information, of a Third Party);

Initial Period has the meaning given to it in the Term Sheet;

Privacy Policy means our privacy policy from time to time a copy of which can be found on the Platform which sets out the basis on which any personal data we collect from your Users or that your Users provide to us, will be processed by us;

Service Data means metadata and other data derived from your and other customers’ use of the Platform and data submitted by Users, but excluding Client Data;

Service Level Agreement (or SLA) means the document setting out the service levels relating to the Platform and forming part of the Terms of Business;

Subscribe means to pay a Subscription Fee to subscribe to, access and use the Platform and “Subscribed”, “Subscribing”, “Subscription” and “Subscriber” shall be construed accordingly;

Subscription Fee means the relevant fee(s) (plus applicable taxes) payable to us by to access the Platform as set out in the Term Sheet or as amended pursuant to Clause 3.2;

Term means the duration these Terms of Business are in force in accordance with Clause 10.1;

Term Sheet means the term sheet to be executed by you and us prior to you accessing and using the Platform;

Terms of Use means the document entitled Terms of Use governing access to and use of the Platform by Users which are available to view on the Platform, as updated from time to time;

Third Party means any legal person other than you and us;

User means those registered end users who are permitted or authorised by you to access and use the Platform.

  1. The headings in these Terms of Business do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these Terms of Business.
  2. Unless the context otherwise so requires:
  1. references to statutory provisions include those statutory provisions as amended or re-enacted;
  2. references to any gender include all genders;
  3. words in the singular include the plural and in the plural include the singular;
  4. any reference to "writing" or cognate expressions includes e-mail but not facsimile transmission;
  5. the words "include", "including" and "includes" shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding words;
  6. the words “party” or “parties” shall mean one or both of you and us respectively, as appropriate.

 



SERVICE LEVEL AGREEMENT

We have put together this Service Level Agreement (SLA) to ensure you know exactly what we promise to deliver as part of the Platform. This SLA forms part of our Terms of Business and in the event of any inconsistency between it and the Terms of Business, the document entitled Terms of Business shall prevail. All capitalised terms shall have the meanings given to them in Schedule 1 of the Terms of Business.

Uptime

We aim to ensure the Platform is Available [99.95%] of the time within any calendar month. “Available” and “Availability” mean that our servers, or the servers operated by a Third Party on our behalf, hosting the Platform are operational and accessible to you and our other customers.

If we fail to achieve such Availability, we will offer you credit on your fees, as set out below.

Availability

SLA Reparation

[99.50%-99.01%]

5% of monthly Subscription Fee

[99.00%-98.41%]

10% of monthly Subscription Fee

[98.40%-98.01%]

15% of monthly Subscription Fee

[<98.00%]

20% of monthly Subscription Fee

Exclusions

Impact will not be liable to pay credit on your Subscription Fee where Availability is affected as a result of:

  1. your network or system, or any part of it;
  2. a fault in, or any problem associated with, equipment connected on your side;
  3. your acts or omissions;
  4. your failure or delay in complying with our reasonable instructions;
  5. any refusal to allow us, our employees, agents or subcontractors to enter into your sites (if necessary);
  6. a Force Majeure Event;
  7. failure of the world wide web;
  8. a planned outage (as set out below);
  9. a need to carry out emergency maintenance;
  10. a suspension or termination of the Terms of Business in accordance with its terms.

 

Planned Outages

Except in an emergency or in circumstances beyond our control, we will use reasonable endeavours to give you notice of any maintenance or upgrade work on our network which will affect the Availability of the Platform at least 1 (one) working day in advance by posting a notice on the Platform and sending you an email.

Support

You will have free email support should any issues arise or should you have any queries relating to the Platform. Support is provided during Business Hours. Should you require any support, please email us at support@salecology.com

Subject to the terms of the Terms of Business, we aim to respond to your support requests within the parameters set out in the following table:

Problem Severity Level

Description

Response Times

Resolution Times

1

·  Platform is non-functional.

·  Unauthorized exposure of all or part of Client Data.

·  Loss or corruption of all or part of Client Data.

·  4 hours

·  24 Hours

2

·  Significant and / or ongoing interruption of a User’s use of a critical function of the Platform and for which no acceptable work-around is available.

·  8 Hours

·  24 Hours

3

·  Minor and / or limited interruption of a User’s use of a non-critical function (as determined by Subscriber) of the Platform.

·  Problems which are not included in Problem Severity Levels 1 or 2.

·  24 Hours

·  48 Hours

4

·  Any general questions and issues pertaining to the Platform.

·  24 Hours

·  72 Hours

If a problem cannot be corrected to your reasonable satisfaction within the parameters set out above, we will work continuously to resolve the problem and/or will mutually agree upon a schedule within which to resolve the problem.