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Service Agreement - UK

This agreement is dated the date the customer signs the online form 

 

Parties

(1)    Life on Time Limited incorporated and registered in England and Wales with company number 12002332 whose registered office is at Trade Fair House, 2 West Ct, Enterprise Rd, Maidstone ME15 6JD (Supplier)

(2)    Customer Details - as entered on the online form

 

(Customer) Agreed terms

1.              Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1           Definitions

 

Applicable Laws: all applicable laws, statutes, regulations from time to time in force.

Applicable Data Protection Laws: means:

a)  To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

 b)  To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

 

Applicable Local Data Protection Laws: means any laws concerning the use or protection of data about or relating to individuals, which apply to the Customer.

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Charges: the sums payable for the Services, as set out in Schedule 2.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

Customer's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, or consultants which is used directly or indirectly in the supply of the Services.

Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items provided pursuant to clause 5.1(d).

Customer Personal Data: the personal data relating to Students and staff or employees of the Customer, which is provided to the Supplier using (or for use with) the Software, which is to be processed by the Supplier on behalf of the Customer, further details of which are set out in Schedule 4 .

Deliverables: any output of the Services and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services.

EU GDPR: means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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.

 

Mandatory Policies: the Customer's business policies listed in Schedule 3, as amended by notification to the Supplier from time to time.

 

Services: the services as set out in Schedule 1.

                 

Software: any computer programs, applications, source code, database, technical information, hosting systems and documentation required to provide the Services, as may be amended by the Supplier from time to time during the term of this agreement.

                 

Students: the students of the school or other subjects referred by the Customer to the Supplier in order to receive the Services and listed in Schedule 1.

                 

Supplier Personal Data: any personal data which the Supplier processes in connection with this agreement, in the capacity of a controller.

 

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

                 

VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

1.2           Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3           The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules. References to clauses and Schedules are to the clauses and               Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.4           A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.5           A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6           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.

1.7           This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

1.8           A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.  A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.9           A reference to writing or written includes email.

1.10        Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.11        A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied from time to time.

1.12        Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.              Commencement and duration

2.1           This agreement shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with Clause 16 (Termination), for one year (Initial Term), when it shall terminate automatically without notice unless, no later than 30 days before the end of the Initial Term (or any Extended Term agreed under this clause), the parties agree in writing that the term of the agreement shall be extended for another year (Extended Term). Unless it is further extended under this clause or terminated earlier in accordance with clause 16 (Termination), the agreement shall terminate automatically without notice at the end of an Extended Term.

2.2           The Supplier shall provide the Services to the Customer in accordance with this agreement from the date of this agreement.

3.              Cancellation Period and Refunds

3.1           The Customer may terminate the Agreement for any reason within 30 days from the date of this Agreement (Cancellation Period) by giving the Supplier written notice of their intention to terminate the Agreement.

3.2           Termination under clause 3.1 above shall be deemed effective immediately upon receipt.

3.3           The parties may extend the Cancellation Period by written agreement.

3.4           The Supplier shall provide the Customer with a full refund of any sums paid under this Agreement in the event of termination under clause 3.1 above.

3.5           Where access to the Supplier’s Services or Software is being provided on a free trial basis, the Supplier reserves the right to terminate the Services or access to the Software without notice.

4.              Supplier's responsibilities

4.1           The Supplier shall use reasonable endeavours to supply the Services, and deliver the Deliverables to the Customer, in accordance with this agreement in all material respects.

4.2           The Supplier shall use reasonable endeavours to meet any agreed timescales but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.

4.3           The Supplier shall appoint a manager for the Services and shall use all reasonable endeavours to ensure that the same person acts as the Supplier's manager throughout the term of this agreement, but may replace that person from time to time where reasonably necessary in the interests of the Supplier's business.

5.              Customer's obligations

5.1           The Customer shall:

(a)        co-operate with the Supplier in all matters relating to the Services;

(b)        appoint a manager for the Services, such person as identified in Schedule 1. That person shall have the authority to contractually bind the Customer on matters relating to the Services;

(c)        ensure that any person appointed by the Customer to assist the Supplier on matters relating to the Services shall have the requisite skill, qualifications and experience to undertake the tasks assigned to them;

(d)        provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects;

(e)        ensure that all the Customer's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;

(f)         obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, the use of all Customer Materials and the use of the Customer's Equipment insofar as such licences, consents and legislation relate to the Customer's business, premises, staff and equipment, in all cases before the date on which the Services are to start;

(g)        comply with, and ensure that all Students and Customer employees and any other individuals working for or in connection with the Customer comply with, all relevant policies including data protection, acceptable use and privacy policies found on the Supplier’s website at https://www.youhq.co.uk/ .

5.2           If the Supplier's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.

5.3           The Customer shall indemnify the Supplier against the corruption of or damage to the Software as a result of any unauthorised use or access of the Software.

5.4           The Customer warrants that all the information provided to the Supplier is true and accurate to the best of their knowledge and shall keep the Supplier informed of any changes to the information provided for the purpose of entering into this Agreement.

6.              Use of Services and Software

6.1           The Customer shall only use the Services in accordance with this Agreement and shall not permit or attempt to modify, alter, reverse engineer, disassemble or decompile any part of the Software.

6.2           The Customer shall not permit any third party to use the Services without the prior written consent of the Supplier, such consent not to be unreasonably withheld or denied.

6.3           The Customer shall notify the Supplier immediately in writing if the Customer becomes aware of an unauthorised use or suspicion of unauthorised use of the whole or any part of the Services or Software by any person.

6.4           Notwithstanding clause 6.3 above, the Supplier may advise the Customer if it becomes aware of any unauthorised use of the Services by the Customer. Such notification shall not reduce or remove any obligation of the Customer under this Agreement.

6.5           The Supplier reserves the right to investigate any instances of security breaches of its Services or Software and the Customer agrees to provide any necessary support to the Supplier in such investigation, which may include supply of relevant logs or documentation to the Supplier.

6.6           The Customer, its representatives, employees and any other individuals working for or in connection with the Customer shall use the Services and Software in accordance with the Supplier’s privacy policy and terms of use detailed on https://www.youhq.co.uk , as amended from time to time.

6.7           The Customer shall ensure that all Students shall use the Services and Software in accordance with the Supplier’s privacy policy and terms of use detailed on https://www.youhq.co.uk , as amended from time to time. The Customer shall be responsible for any content shared through the Services and Software which do not comply with the Supplier’s privacy policy and terms of use detailed on https://www.youhq.co.uk.

6.8           The Customer acknowledges that the Supplier may need to change the Software required to provide the Services, which may result in changes to the appearance and or functionality of the Services or Software. Such changes will be implemented at no additional cost to the Customer unless otherwise agreed between the parties.

6.9           The Customer acknowledges that the Supplier may need to restrict access to some parts of the Software for maintenance reasons. If this is the case, the Supplier shall aim to restore access to the Software as soon as reasonably practicable after they verify that the maintenance has been carried out to their satisfaction. 

6.10        The Supplier shall not be liable for any loss of the Customer’s data (including the Customer Personal Data) as a result of backup processes, acts or omissions of third parties (including but not limited to hosting providers and internet providers), acts or omissions of the Customer, or any breach on the Customer’s part of their obligations or reasonable recommendations made by the Supplier, and the Customer shall take all reasonable steps to mitigate the risk of data loss associated with the use of the Services and Software.

6.11        The Customer acknowledges that the Software and Services may not be free of bugs or errors and agrees that the existence of any minor errors shall not constitute a breach of this Agreement.

6.12        The Customer agrees that any login information (being usernames, passwords or other information provided for the purpose of granting the Customer and Students access to the Software or Services) may only be used by the person it has been provided for and cannot be shared by multiple people.

6.13        The Supplier may remove or block access to any relevant Services if it becomes aware of or suspects any breach of Clause 6.11 above.

6.14        The Supplier shall be entitled, at its sole discretion, to suspend the Customer and Student’s access to the Services or Software either in whole or in part in the event that:

(a)        The Supplier or any third party providing equipment or services required for the provision of the Services needs to do so for the purpose of maintenance or upgrading the network, computer systems or other IT related considerations;

(b)        There is a cyber attack or other type of interference on the Customer’s Equipment or the Customer’s Equipment is accessed or manipulated by a third party without the Customer’s consent;

(c)        The Supplier or any third party providing equipment or services to the Supplier in connection with the provision of the Services are required by an order, instruction or request of government, regulatory authority, emergency services organisation, or other competent authority that suspension is required.

6.15        For the avoidance of doubt, the Supplier has no obligation to the Customer to monitor, and will have no liability for, the contents of any communications transmitted by virtue of the Services or Software.

7.              Charges and payment

7.1           In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.

7.2           The Supplier may increase the Charges on an annual basis with effect from each anniversary of the date of this agreement and shall use its best endeavours to give the Customer written notice of such increase at least 50 days prior to the starting date of the increased Charges.

7.3           The Supplier reserves the right to increase the Charges in the event that the Customer’s use of the Services results in a material increase in the level of storage and/or other hosting costs from those reasonably anticipated. Life on Time shall give the Customer fair and reasonable notice of seeking to rely on this clause 7.3 in order to provide an opportunity to the Customer to return usage to reasonable levels before any increase in Charges shall take effect.

7.4           The Supplier shall invoice the Customer for the Charges at the intervals specified in Schedule 2. If no intervals are so specified the Supplier shall invoice the Customer at the end of each month for Services performed during that month.

7.5           The Customer shall pay each invoice submitted to it by the Supplier within 14 days of receipt to a bank account nominated in writing by the Supplier from time to time.

7.6           Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:

(a)        the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6(a) will accrue each day at 3% a year above the base rate of Barclays Bank Plc compounded quarterly; and

(b)        the Supplier reserves the right to claim interest under section 8(2) of the Late Payment of Commercial Debts (Interest) Act 1998; and

(c)        the Supplier may suspend or terminate all or part of the Services until payment has been made in full.

7.7           All sums payable to the Supplier under this agreement:

(a)        are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

(b)        shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7.8           All financial transactions made in connection with the Services will be processed by a third party in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions and the Supplier shall not be responsible for the actions or inactions of any third party payment processor, including, but not limited to, system downtime or payment service outages.

7.9           The Customer authorises the Supplier to receive, store and encrypt the Customer’s payment information in relation to payment of the Charges.

8.              Intellectual property rights

8.1           In relation to the Deliverables:

(a)        the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;

(b)        the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables; and

(c)        the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.1(b):

(i)          to its Students; and

(ii)         to third parties for the purpose of the Customer's receipt of services similar to the Services.

8.2           In relation to the Customer Materials, the Customer:

(a)        and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and

(b)        grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services to the Customer.

8.3           The Supplier:

(a)        warrants that the receipt, use and onward supply of the Services and the Deliverables by the Customer shall not infringe any rights of third parties to the extent that infringement results from copying;

(b)        shall, subject to clause 11 (Limitation of liability), indemnify the Customer in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party's Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt, use or supply of the Services and the Deliverables; and

(c)        shall not be in breach of the warranty at clause 8.3(a), and the Customer shall have no claim under the indemnity at clause 8.3(b), to the extent the infringement arises from:

(i)          the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;

(ii)         any modification of the Deliverables or Services, other than by or on behalf of the Supplier; and

(iii)        compliance with the Customer's specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that the Supplier shall notify the Customer if it knows or suspects that compliance with such specification or instruction may result in infringement.

8.4           The Customer:

(a)        warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

(b)        shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the receipt or use in the performance of this agreement of the Customer Materials.

8.5           The Customer:

(a)        warrants that any content shared through the Services and/or Software by the Customer, Students, Customer employees and any other individuals working for or in connection with the Customer, through their use of the Software and/or Services shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

(b)        shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party's Intellectual Property Rights, arising out of, or in connection with, the use of the Services and/or Software by the Customer, Students, Customer employees and any other individuals working for or in connection with the Customer.

8.6           If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this clause 8, the Indemnified Party shall:

(a)        notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 8.3(b) or clause 8.4(b) (as applicable) (IPRs Claim);

(b)        allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;

(c)        provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and

(d)        not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

9.              Data protection

9.1           For the purposes of this clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

9.2           Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

9.3           The parties have determined that for the purposes of Applicable Data Protection Laws the Supplier shall process the Customer Personal Data as set out in Schedule 4 as processor on behalf of the Customer.

9.4           Should the determination in clause 9.3 change, the parties shall use all reasonable endeavours make any changes that are necessary to this clause 9.

9.5           Without prejudice to 9.2 the Customer will:

(a)        ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data and Customer Personal Data to the Supplier and lawful collection and processing (including transfer of Customer Data to third parties other than the Supplier’s sub-processors) of the same by the Supplier for the duration and purposes of this agreement;

(a)        respond to all requests from data subjects relating to the Customer Personal Data; and

(b)        provide all information to data subjects (including Students) required by Applicable Local Data Protection Laws relating to the processing by the Supplier of Customer Personal Data;

The Customer shall indemnify the Supplier against all costs, claims, damages, expenses, losses and liabilities and penalties incurred by the Supplier arising out of or in connection with any breach of the Customer’s foregoing obligations in this clause.

9.6           In relation to the Customer Personal Data,  Schedule 4 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

9.7           Without prejudice to 9.2, the Supplier shall, in relation to Customer Personal Data:

(a)        process that Customer Personal Data only on the documented instructions of the Customer and for the purposes set out in  Schedule 4, unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where the Supplier is relying on Applicable Laws as the basis for processing Customer Personal Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;

(b)        implement the technical and organisational measures set out in  Schedule 4 to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c)        ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d)        assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Local Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e)        notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

(f)         at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 9.3(f), Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier;

(g)        maintain records to demonstrate its compliance with this clause 9; and

(h)        allow for and contribute to audits, including inspections during normal working hours (no more than once per year), by the Customer (or an auditor nominated by the Customer) in relation to the processing of the Customer Personal Data by the Supplier or its subprocessors, provided the Supplier is given reasonable notice of such audits and inspections. The Customer shall (and shall ensure that any nominated auditor shall) avoid causing (or, if it cannot avoid, minimise) any damage, injury or disruption to the Supplier’s or its sub-contractors’ premises, equipment, personnel and business.

9.8       The Customer provides its prior, general authorisation for the Supplier to: 

 

(a) appoint sub-processors to process the Customer Personal Data, provided that the Supplier:

 

  • shall ensure that the terms on which it appoints such sub-processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 9;

  • shall remain responsible for the acts and omission of any such sub-processor as if they were the acts and omissions of the Supplier; and

  • shall provide details of the sub-processors appointed at the date of this agreement, on request; and

  • shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the a period of 7 days to object to such changes, provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection.

(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

9.9    The Supplier may, at any time on not less than 30 days' notice, revise this clause 9 (Data protection) by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

9.10   In the event that the Customer extracts any Customer Personal Data from the Software or any reports provided by the Supplier, the Customer shall be solely responsible and liable for the use and processing of that personal data, and the Supplier shall not be responsible for the processing of that personal data.


9.11    The Supplier will share Customer Personal Data with third parties where instructed to do so by the Customer.The Supplier is not responsible for ensuring that the relevant third party complies with Applicable Data Protection Laws, or that there is a lawful basis for transfer of the Personal Data to that third party. The Customer is responsible for ensuring that the Customer enters into a direct agreement with that third party regarding the use of the Customer Personal Data, and that the transfer of Customer Personal Data to a third party is in accordance with Applicable Data Protection Laws.


9.12    The Customer is solely responsible for the transfer of Customer Personal Data from the Customer to the Supplier, and the Supplier shall not be liable for any loss or corruption of or damage to any Customer Personal Data occurring in the course of transfer from the Customer to the Supplier. 


10.    Confidentiality


10.1    Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.


10.2    Each party may disclose the other party's confidential information:


(a)    to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10; and


(b)    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.


10.3    No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.


11.    Limitation of liability


11.1    The Supplier has obtained insurance cover in respect of its own legal liability for individual claims, including both professional liability and public and product liability, not exceeding £1 million and £5 million respectively per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.


11.2    References to liability in this clause 11 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.


11.3    Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.


11.4    Nothing in this clause 11 shall limit the Customer's payment obligations under this agreement. 


11.5    Nothing in this agreement shall limit the Customer's liability under Clause 8.4 (IPR indemnities) and Clause 5.3 (Customer’s indemnity against corruption or damage of the database or Software due to unauthorised use).


11.6    Nothing in this agreement limits any liability which cannot legally be limited, including liability for:


(a)    death or personal injury caused by negligence;
(b)    fraud or fraudulent misrepresentation; and
(c)    breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).


11.7    Subject to clause 11.3 (no limitations in respect of deliberate default) and clause 11.5 (liabilities which cannot legally be limited), the Supplier's total liability to the Customer for all other loss or damage shall not exceed £200 or the amount paid by the Customer to the Supplier in the previous 12 calendar months, whichever is greater. 


11.8    Subject to clause  11.3 (No limitations in respect of deliberate default), clause 11.4 (No limitation on the customer's payment obligations), clause 11.5 (liability under identified clauses) and clause 11.5 (Liabilities which cannot legally be limited), this clause 11.8 specifies the types of losses that are excluded:


(a)    loss of profits;
(b)    loss of sales or business;
(c)    loss of agreements or contracts;
(d)    loss of anticipated savings;
(e)    loss of use or corruption of software, data or information;
(f)    loss of or damage to goodwill; and
(g)    indirect or consequential loss.


11.9    The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 4 (Supplier's responsibilities). In view of these commitments, the terms implied by sections 3 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.


11.10    The Supplier will not be liable for any loss or damage arising directly or indirectly from viruses, distributed denial-of-service attacks, or other technologically harmful material or practice that may infect your computer equipment, computer programs, data or other proprietary material due to the Customer’s use of the Software, products or Services or to their downloading of any content on it, or on any website linked to it. The Customer acknowledges that it shall take all reasonable measures to protect itself from such material or practice.


11.11    Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.


12.    Termination


12.1    Without affecting any other right or remedy available to it, either party may terminate this agreement by giving a 90 day written notice to terminate the other party. 


12.2    Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:


(a)    the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b)    the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c)    the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(d)    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 any of its creditors;
(e)    the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(f)    a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
(g)    an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h)    the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i)    a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j)    a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k)    any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(c) to clause 12.2(j) (inclusive); 
(l)    the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m)    the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.


12.3    For the purposes of clause 12.2a material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:


(a)    a substantial portion of this agreement; or
(b)    any of the obligations set out in clauses 7 (Charges and Payment) and 9 (Data Protection),
over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.


12.4    Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:


(a)    the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment; 
(b)    there is a change of Control of the Customer; or
(c)    the Supplier reasonably believes that the Customer or Student’s use of the Services or Software may cause disruption or damage to the Supplier’s name, goodwill or business.


12.5    The Supplier may terminate this Agreement by giving written notice to the Customer if the United Kingdom Government announces or enacts any changes to any legislation or the withdrawal of proposed legislation which was required for the provision of the Services, such termination to be effective on the date on which such repeal, change or withdrawal takes effect.


13.    Obligations on termination and survival


13.1    Obligations on termination or expiry


On termination or expiry of this agreement:


(a)    the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; 
(b)    the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services.

 

13.2     Survival


(a)    On termination or expiry of this agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 8 (Intellectual property rights), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 17 (Waiver), clause 19 (Severance), clause 21 (Conflict), clause 26 (Governing law) and clause 27 (Jurisdiction).


(b)    Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.


14.    Force majeure


14.1    Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a)    acts of God, flood, drought, earthquake or other natural disaster;
(b)    epidemic or pandemic;
(c)    terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d)    nuclear, chemical or biological contamination or sonic boom;
(e)    any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f)    collapse of buildings, fire, explosion or accident; and
(g)    interruption or failure of utility service.


14.2    Provided it has complied with clause 14.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.


14.3    The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.


14.4    The Affected Party shall:


(a)    as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b)    use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.


14.5    If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than four weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 30 days’ written notice to the Affected Party.


15.    Assignment and other dealings


15.1    Neither party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without the written permission of the other.


16.    Variation
Subject to Clause 7 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).


17.    Waiver


17.1    A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.


17.2    A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.


18.    Rights and remedies


The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.


19.    Severance


19.1    If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.


19.2    If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.


20.    Entire agreement


20.1    This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2    Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.


21.    Conflict


If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.


22.    No partnership or agency


22.1    Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.


22.2    Each party confirms it is acting on its own behalf and not for the benefit of any other person.


23.    Third party rights


23.1    This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.


24.    Notices


24.1    Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:


(a)    delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or 
(b)    sent by email to:
(i)    Supplier: info@lifeontime.co.uk
(ii)    Customer email: as entered by the customer on sign up form.


24.2    Any notice or communication shall be deemed to have been received:
(a)    if delivered by hand, at the time the notice is left at the proper address;
(b)    if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c)    if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 24.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.


24.3    This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.


25.    Counterparts


25.1    This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.


26.    Governing law


This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.


27.    Jurisdiction


Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

This agreement has been entered into on the date stated at the time the online form was signed digitally.

 

Schedule 1    Services Details


1.    Services 

 

youHQ Wellbeing snapshot

 

To include:

•    Single Mood and wellbeing survey 
•    Tailored wellbeing snapshot report sent during call

 


2.    Customer's manager: As entered on sign up form

3.    Number of  users to receive services: As entered on sign up form 

Schedule 2    Charges, costs and payment


Charges

·    Service type: Wellbeing Snapshot
·    The total charges for the Services are: £99
·    The fixed price is calculated as follows: N/A
·    Payment terms – on invoice


Schedule 3    Mandatory Policies 


The Mandatory Policies are:


·    Modern Slavery and Human Trafficking Policy
·    Social Responsibility Policy
·    Data and Privacy Policy
·    Ethics and Anti-Bribery Policy
·    Security Policy
·    Wellbeing and Safeguarding Policy


Schedule 4    Processing, Personal Data and Data Subjects


1.    Particulars of processing conducted by the Supplier


1.1    Scope:
Collecting and collating information provided by Students and employees or staff within the Software, and reporting this to the Customer within the Software. 


1.2    Nature:
Processing automatically within the Supplier’s Software, using the Supplier’s information infrastructure. 
Sharing Customer Personal Data with third parties where instructed to do so by the Customer. 


1.3    Purpose of processing:


1.4    For providing the Services to the Customer. Duration of the processing:


For the duration of the Services.


1.5    Types of personal data: 


•    Identify data – name, age
•    Contact details – email address
•    Health data – information relating to mental health, including mood. 
•    School records – year group, class, achievements
•    Details of personal targets, ambitions and aspirations


1.6    Categories of data subject:  


Students, employees and staff of the Customer

2.    Technical and organisational measures


Network security: 


(a)    The Supplier will restrict access to the Customer Data to those of its employees and contractors who require access to provide the services. When an employee or contractor no longer has a business need for access to the Customer Data, that employee or contractor’s access is revoked.  
(b)    Customer Data is transferred to servers maintained by Amazon Web Services (AWS). AWS implements a range of network and physical security measures to protect data stored by its customers. The Supplier will maintain contractual commitments with AWS to protect the security of the Customer Data. 
(c)    Access to Customer Data from the Supplier’s network requires multi-factor authentication.  
(d)    Customer Data is stored in a Relational Database Service (RDS) database, allowing the database to be restored to any point within the previous 35 days (or such other period as determined by the Supplier from time-to-time). Additional copies of the database containing the Customer Data are taken daily and held for 3 days. 
(e)    The Supplier’s applications are operated using HTTPS and the database is encrypted using Secure Sockets Layer (SSL) technology.
(f)    The Supplier uses industry standard firewalls to protect against access to the Supplier’s network


Device and Physical Security 


(a)    The Supplier’s endpoint devices (laptops, servers and mobile devices) are protected by passwords. Passwords for user devices are changed every 6 months. 
(b)    The supplier’s endpoint devices are protected by industry standard anti-virus protection and firewalls. 
(c)    All endpoint devices are managed using an industry standard device management system, which allows the Supplier to remove endpoint devices from its network remotely. 

User security. 
(a)    User passwords are stored using the "bcrypt" algorithm and must be at least 10 characters long and must not include any part of the user's name. 

Continued Evaluation: 


(a)    The Supplier will conduct periodic reviews of the security of its network and infrastructure and adequacy of its information security program. The Supplier will periodically evaluate the security of its network to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews 
(b)    As part of its reviews, the Supplier will undertake periodic penetration testing of all youHQ mobile and web applications by qualified cyber security technicians.

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