Heka Terms & Conditions for Companies

GoSweat has developed a proprietary technology software as a service (SaaS) platform, comprising: (a) a web based employee benefits cloud application and (b) (if and when available) a corresponding mobile application for end user Employees (as defined below) whereby employers may offer employees certain credits (“Credits”) which may be redeemed against a variety of wellbeing, physical and/or mental activities and related exercise classes, products and services (“Activities”). A full list of the currently available Activities is viewable on the GoSweat website or corresponding mobile application (if and when available) (the “Purpose”). During the provision of these Services, the Platform may collect, store and process personal data and other information ("Employee Data”) from individual Employees (”Employees”), as well as personal data from enterprise users, such as systems administrators and managers, in your business ("Users"). Personal and other information submitted by Users shall be referred to as User Data.

These terms (together with the documents and materials referred to in them) (“Terms of Use”) together with the Order Form and (if and where applicable) the SLA set out the terms and conditions upon which you may use the Platform and any Outputs produced as a result of such use. This Platform is provided by GoSweat Limited, a company registered in England and Wales under number 10399802 and whose registered office is 65b Landor Road, London SW9 9RT (“GoSweat”, “we”, “us” or “our”).

Please read these Terms of Use carefully together with all documents and materials mentioned in them before placing an Order for access to the Platform. If you do not accept these Terms of Use, you will not be able to access and use the Platform.

1. DEFINITIONS

1) These Terms of Use use some capitalised terms which have special meanings. These capitalised terms and their respective meanings are set out in the Glossary available at https://www.gosweat.com/page/Partner-Terms-and-Conditions-glossary.

2) Where capitalised terms are used first in these Terms of Use, they are shown in bold to highlight they have a special meaning.

2. CONFIGURATION AND ACCESS TO THE SERVICES

1. Before we provide access to the Platform, you agree to follow the on-boarding and registration process as instructed by our accounts team (and which shall be conditional for our granting access to the Platform, failing which we may terminate this Agreement without liability), which may include:

1) us requiring you to use our nominated payment provider for payment processing (Stripe)

2) provision by you of appropriate financial due diligence information,

3) agreeing to complete a credit check through a reputable credit reference agency,

4) nomination of your chosen authorised users and provision of registration details, review,

5) integration of a mutually acceptable end user licence agreement (“EULA”) for Employees to accept, if applicable, and content standards,

6) setting up of any security application (e.g. two-tier authentication), and

any other information we may reasonably require from you), together the “On-boarding Process”.


2. Subject to your payment of the Software Fees pursuant to Clause 5 and completion of the On-boarding Process, the Platform, will become active and accessible to you, in accordance with the Service Levels, on the agreed Go Live Date as set out in the Order Form (“Service”).

3. In addition, we shall not be liable for any delay, failure or breach of these Terms of Use where you are do not provide such authority, information and co-operation or you fail, delay or omit to act in respect of any of your obligations under these Terms of Use.

4. Any access to the enterprise application shall be subject to your Employees executing the EULA.

5. Other than as expressly stated otherwise in these Terms of Use, you acknowledge that it is your sole responsibility to determine that the Service meets your business requirements and, to the fullest extent permissible by law and without limitation, we give no warranties that the Service will be fit for purpose. In particular, you (and/or the respective Employee(s)) is/are responsible for paying all taxes, fees and levies in connection with the provision of Services and any Credits (as employee benefits or otherwise).

6. You acknowledge that, as part of the Service, Employees may redeem certain Credits in return for the provision of Activities, chosen by each Employee, on condition that: (i) the provision of such Activities are only available to Employees who are eligible under their respective employment contract and benefits policy; (ii) the Activities are subject to the applicable third party provider’s (“Activity Provider”) terms and conditions (and any corresponding restrictions or limitations applicable to the Activity in question, e.g. some activities are not suitable for Employees with a particular medical condition).

3. FORMATION OF CONTRACT

1. All Orders are subject to both you and our e-signing or wet signing, of the corresponding Order Form, whereupon a legally binding agreement will be formed between you and us (“Agreement”).

2. In the event of a conflict between the terms set out in the body of these Terms of Use, the Schedules or the Order Form, the following descending order of precedence shall apply only to the extent of any such conflict: (i) terms in the Order Form identified as “Special Conditions”; (ii) the main body of these Terms of Use; (iii) the Schedules; (iv) the Order Form.

3. You hereby undertake to engage us exclusively to carry out any training, consultancy or customisation in connection with the Platform as agreed with you in advance (“Ancillary Services”). The provision of any Ancillary Services shall be provided upon and subject to our Service Terms and applicable Rate Card in force from time to time in relation to such services.

4. WARRANTIES

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

1) during the Term we will provide the Service with reasonable due care and skill in accordance with these Terms of Use;

2) the Platform will perform substantially in accordance with the Specification; and

3) the Indemnified Service shall not infringe any third party’s intellectual property rights (excluding patents which we are not aware of).

2. The warranties in Clause 4.1 do not cover or apply to failures or shortcomings in the provision of the Services caused by, arising out of or due to:

1) your or Users’ Internet connection;

2) actions, delays or omissions of caused by your or your agents or third party hosting providers which affect the Service; or

3) accident, abuse or use of the Services in a manner inconsistent with these Terms of Use or resulting from events beyond our reasonable control.

3. Subject to Clause 6.6, if we are in breach of the warranty in Clause 4.1, we will, at our sole discretion, either:

1) modify, improve or update the Service to make it conform; or

2)obtain such clearances, licences and consents at our cost as may be necessary to enable you to use the Services; or

3)terminate immediately on notice and refund you any Software fee in respect of the period after the effective date of termination;

and this shall, subject to Clause 6.4, be your exclusive remedy for breach of this warranty.

4. We accept no responsibility for unavailability of the Platform as a result of: (a) any act or omission of you and/or a User not authorised by us in writing; (b) a Force Majeure Event; or (c) any scheduled or emergency maintenance of the Service.

5. You warrant, represent and undertake you shall:

1) comply with all laws, regulations, regulatory policies, guidelines or industry codes (and shall be responsible for obtaining all licences, clearances and consents) which apply to your use of the Service in the Territory, and acknowledge that we are merely a provider of access to the Platform and accept no responsibility for your use thereof or compliance with applicable law or regulation or to any consumer or other User (other than to the extent we are required by applicable statutory law);

2) not use the Service for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Service;

3) use best endeavours to ensure that you shall not introduce any virus and/or any other contaminant that may be designed to have a material, adverse effect on the Service and/or the Platform;

4) not do, or omit to do, anything which disparages, defames or puts into disrepute us, our trade marks/trading names, goodwill and/or the Service; and

5) be and are fully entitled to enter into and grant all rights granted under these Terms of Use and that entering into these Terms of Use shall not in any way conflict with any of your existing obligations, either at the date hereof and/or throughout the Term.

5. Price and Payment

1. You shall pay us the Software Fees and all other applicable fees as set out in accordance with the Order Form in accordance with this Agreement, including the provisions of Schedule 2 (Payment Terms). We will provide you with an invoice itemising the amount of the VAT, if applicable.

2. The fees chargeable by GoSweat are stated exclusive of all taxes, tariffs, duties and levies imposed by any federal, state or local governmental entity which shall be payable in addition by you to us, and such taxes, tariffs, duties and levies are the responsibility of GoSweat. You shall notify us within 30 days of the start of the Licence Term whether any withholding tax is properly due and if so you undertake to take all necessary steps as soon as practicable thereafter to access reduced applicable treaty rates

3. Failure to pay fees when due shall be a material breach of these Terms of Use which entitles us to suspend or terminate (pursuant to Clause 11.3 of these Terms of Use). This, in turn, will affect your access to the Service and that of Users. Fees remain chargeable at our standard rates during the suspension. If we terminate the Agreement for your material breach, we will require you to pay, without delay, all Software Fees and all other fees and costs accruing before the termination date, and any other amounts you owe us under these Terms of Use in each case without prejudice to any other right or remedy we have in respect of such breach.

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

5. All overcharges or billing disputes must be reported within 14 days of date of invoice. Failure to do so will mean you have accepted our invoice.

6. LIABILITY

1. Subject always to Clauses 4.2, 4.3, 4.4, 6.4, 6.5 and 6.6, 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 arising out of and/or in connection with this Agreement or otherwise, including in respect of:

1) any breach of these Terms of Use; and

2) any representation, warranty, indemnity, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Use.

2. Except as expressly and specifically provided in these Terms of Use, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Terms of Use. We do not warrant that any data or Outputs which we provide as part of the Service will be accurate or true in any way and such data and the Platform are only provided on an AS IS basis and to the fullest extent permissible by law, we disclaim and exclude any and all warranties, representations, conditions, guarantees and terms which might otherwise be implied in relation to such data or the Platform.

3. Any third party data included as part of the Service shall be subject to any limitations and exclusions relating to such data and notified to you by us. In addition, the Services may consist of third party products, services and/or software (“Third Party Software”).

4. Nothing in this Agreement excludes our liability:

1) for death or personal injury caused by our negligence;

2) for fraud or fraudulent misrepresentation; or

3) any other liability which cannot be excluded or limited by law.

5. We shall back up Client Data and Outputs, subject to: (i) any applicable limitations and exclusions in relation to such back-up in the relevant back-up application employed by us and/or our hosting provider; and (ii) our having the right to increase the charges payable hereunder in respect of any such back-up services and/or applications employed in creating such back up. Where there is any loss of Client Data and Outputs, we shall only be bound to restore such Client Data and Outputs to the most recent back-up file created in respect of such data. In any event, therefore, you undertake (and we strongly advise you) to back up, and take all precautions and measures in respect of the Client Data or Outputs as often as would be considered reasonably prudent to limit the risk of any data loss, especially if the data is important to you. This may include backing up any locally held data which includes Client Data or Outputs. Upon request, we may provide you with a download facility and/or other means by which to provide you with a copy of your Client Data, Outputs and/or User Data, subject to our agreeing a mutually agreeable and reasonably secure file transfer facility and payment of any standard administration fees to provide such data. Subject to Clause 8, you may make such a request no more than once per calendar quarter unless agreed otherwise.

6. We shall have no liability under this Agreement if any claim relates to a modification of the Services by you or your agents; your use of the Services in a manner contrary to instructions given to you by us or any claim relating to Client Data; or your use of the Services after notice of an alleged or actual infringement has been given to you; or where a claim for infringement arises directly in respect of a feature which was specified by you.

7. We do not warrant that the Services will be uninterrupted, error-free, entirely secure or virus-free (though we will endeavour to implement appropriate measures to seek to prevent viruses).

8. Subject to Clause 6.6, we shall accept liability for reasonably foreseeable losses arising as a direct consequence of breach by us of our statutory duty. However we shall not be liable where the causes or potential causes of the loss;

1) arose from your use of the Services for purposes other than for your own internal business purposes; or

2) were reasonably foreseeable and preventable by you, such as those arising from, but not limited to:

 1. Client Data, data or information loss caused by your failure to keep backup copies of important data on separate media; or

 2. user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing.

9. In claiming against us for any such losses you shall take reasonable precautions to avoid and mitigate loss (such as contacting us promptly upon becoming aware of an issue).

10. Subject to Clauses 6.4 and 6.9, our total liability arising under or in connection with this Agreement or otherwise (whether in contract, tort (including negligence), or otherwise), whether foreseeable or not will not exceed the sum equal to the amount actually paid or payable by you in connection with the provision of the Service to you in the 12 month period preceding the date upon which the claim arose (or, if such period for which fees are payable is less than 12 months, the amount that would have been payable if the period were 12 months).

11. Subject to Clause 6.4, we will not be liable under or in connection with this Agreement for:

1) use not consistent with the rights granted hereunder or the applicable user instructions and manuals and guidance provided; or

2) indirect, special or consequential losses or loss of profits, revenue, goodwill, reputation, wasted management time or anticipated savings; or

3) any loss arising from any defects or bugs in the Services which arise generally in relation to all licensees and users of the Services, provided we act promptly to remedy such defects or bugs as soon as reasonably practicable; or

4) any liability arising from a virus or malicious code which is not caused by our default or a breach of this Agreement.

12. Without prejudice to Clause 12, if our performance of obligations under this Agreement is prevented or delayed by any act or omission by 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.

7. CONFIDENTIALITY

1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:


2.
1)  is or becomes publicly known other than through any act or omission of the receiving party;

2) was in the other party’s lawful possession before the disclosure without obligation of confidentiality;

3) is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure;

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

5) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

3. 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 Use.

4. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms of Use or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.

5. 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. This clause shall survive termination of these Terms of Use, however arising, for a period of 5 years.

7. Notwithstanding the foregoing, we may refer to you as a client who has engaged us to provide the Services when in discussions with prospective new clients and in proposals for new business (provided always such a disclosure is stated to be confidential). We will not, however, issue any public press release or statement disclosing that you have engaged us to provide the Service or that you or your Employees are using the Platform without your prior written consent.

8. CLIENT DATA AND DATA PROTECTION

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

2. Where we collect information from you we shall deal with this in accordance with our Privacy Policy (if applicable).

3. Each party shall comply with any obligations it might have under the Data Protection Laws (if any where applicable) and references in this Clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in GDPR (except that data controller and data processor shall correspond to the definitions of controller and processor in GDPR, respectively).

4. If we process any personal data on your behalf when performing our obligations under these Terms of Use, the parties record their intention that, in relation to Client Data, you shall be the data controller and we shall be a data processor and accordingly you and we agree to the data processing agreement to comply with the Data Protection Laws in substantially the same form as set out in Schedule 4.

9. INTELLECTUAL PROPERTY RIGHTS

1. Subject to receipt by us in cleared funds of the Software Fees and all other fees payable due hereunder, we grant you a personal, non-transferable licence (with no right to sub-licence) for the Licence Term to access and use the Platform and the Outputs solely for the Licensed Use and the Purpose in the Territory subject to these Terms of Use (or such other licence as is agreed by us in the Order Form). You may not use the Services and the Platform for any other purpose without our prior written and signed consent, nor share any of the Service Data with third parties, and you acknowledge that additional fees may be payable on any change of use approved by us.

2. The Service is provided subject to and on condition that you adhere to the following:

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 Service or Platform in whole or in part, except to the extent permitted by law or with our prior written consent;

2) payment of all applicable fees, including the Software Fee;

3) any use of the Platform by any additional Third Party we may permit to use the Platform pursuant to clause 9.1 is subject to that Third Party undertaking to comply with terms no less onerous than those contained herein.

3. We and/or our licensors own all intellectual property rights in and to the Service, the Platform, and the Outputs. Except as expressly stated herein, these Terms of Use do not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect to the Services or any related documentation. In particular but without limitation, you have no right to use our trade mark or trading name GoSweat or any associated logos, branding or devices, all rights in which are expressly reserved. Where the Service comprises Tools and/or other features which are licensed from a Third Party, including the Third Party Software, you shall comply with all applicable restrictions and limitations relating to use of such Third Party features and shall indemnify us and our Affiliates 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.

4. All intellectual property rights in and to the Client Data, Employee Data and User Data shall remain under your exclusive ownership and are reserved to you. You grant us a non-exclusive, royalty-free, irrevocable, licence to use the Client Data and Employee Data during the Term (and, in the case of the Employee Data, also after the Term, subject to applicable data protection law) for the purposes of providing or promoting the Service (including the publication of your business name, logo and other trade marks), and as part of Service Data and as Outputs, to provide services to other clients, subject always to the data protection provisions set out in these Terms of Use. In addition, you agree we may use the Employee Data after the end of the Term pursuant to Clause 9.5.

5. You will include (and we may insert, where reasonable) appropriate data capture wording and privacy policy language and/or icons, as we consider reasonably necessary to seek to obtain such consents as may be required to comply with existing and future data protection law so that we may market similar products and services to those available via the Service licensed hereunder after the Term. Upon expiry or termination of these Terms of Use, we may retain a copy of the Employee Data and, to the extent permitted by applicable data protection law and regulations, you grant us a non-exclusive, worldwide, irrevocable, perpetual, licence (including the right to sub-license) for us and/or our partners or agents to use such data for the purposes of marketing, and to offer to users contained in such Employee Data to provide similar products and/or services as were previously provided as part of the Service.

6. Save in respect of Users pursuant to the Purpose, you may not authorise any Third Party to access and/or use the Platform or Outputs on your behalf, except where we have given our prior written and signed consent.

10. INDEMNITY AND WAIVER

1. You shall defend, indemnify and hold us, our Affiliates and their respective directors and employees harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with: (a) your use of the Services other than in accordance with these 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 your warranties or representations under these Terms of Use; (d) any breach by you of applicable data protection, health and safety, industry regulation, consumer protection, competition, or other applicable laws, regulations or policies relating to or arising from your use of the Services; and/or (e) any claims arising from and/or in connection with the provision of goods or services by you to Employee.

11. TERM AND TERMINATION

1. These Terms of Use will come into effect pursuant to Clause 3.1 and shall remain in effect, unless and until terminated earlier in accordance with these Terms of Use, until the end of the Licence Term, whereupon it shall automatically terminate.

2. Notwithstanding anything else contained in these Terms of Use, we may terminate these Terms of Use (and/or, at our option, suspend access to the Service):

1) immediately on giving notice in writing to you if you fail to pay any sum due under these Terms of Use or any associated agreement between us or our Affiliates (otherwise than as a consequence of any default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid;

2) immediately on giving notice in writing to you if you are in material breach of any term of these Terms of Use (other than any failure by you to make any payment hereunder, in which event the provisions of Clause 11.2.1 shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring you to do so; or

3) immediately upon notice if you are subject to a Change of Control (and you undertake to notify us in writing upon becoming aware that a Change of Control may occur).

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

1) the other party commits a material or persistent breach of any of its obligations under these Terms of Use and (in the case of a breach capable of being remedied) does not remedy such breach within 30 days of receiving from the other party written notice of the breach and a request to remedy the breach;

2) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

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

4) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 11.3.2 to 11.3.3 (inclusive).

4. Any termination of these Terms of Use 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.

5. Upon termination or expiry of these Terms of Use:

1) you shall pay us all fees which remain outstanding and due under these Terms of Use within 7 days of its expiry or termination (except where we terminate for convenience or for Change of Control, in which case we shall refund to you any charges or fees paid in respect of the period after the effective date of termination);

2) all rights and licences granted to you in respect of the Platform and the Services shall cease and come to an end (and we may restrict and/or suspend access to the Service and all your allocated username(s) and password(s));

3) you shall destroy and/or return all know-how, training materials, guides and manuals relating to the Service or, if requested by us, provide a written certification signed by one of your directors that such information has been deleted;

4) we and you shall mutually agree a notice that shall be displayed to users via the mobile application (and/or by such other means, such as email) notifying users that the Service has come to an end; and

5) we and you shall each delete and destroy copies of each other's Confidential Information.

12. FORCE MAJEURE

1. Provided we have complied with the provisions of Clause 12.3, we shall not be in breach of these Terms of Use nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under these Terms of Use that is caused by events outside our reasonable control (“Force Majeure Event”).

2. Our performance under these Terms of Use 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.

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 Use 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.

4. Where a Force Majeure Event affects you and you are unable to perform your obligations under these Terms of Use for a period longer than 30 (thirty) consecutive days, we may terminate these Terms of Use immediately upon notice.

13. VARIATIONS

1. We may revise and amend these Terms of Use from time to time to reflect changes in: market conditions affecting our business, technology, payment methods, the options available in relation to the Services, relevant laws and regulatory requirements, our capabilities and what we are able to obtain from our Third Party licensors, contractors and other suppliers.

2. If we need to revise or amend these Terms of Use during the Licence Term, we will notify you no fewer than 20 Business 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 20 Business Days of our notification to you. If you do not accept such changes, you may terminate this Agreement upon 90 days’ written notice provided such notice is served within the above 20 Business Days period and, in such event, we shall reimburse you any fees which relate to the period after the effective date of termination.

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 13.4, result in changes to the appearance and/or functionality of the Platform, provided always that we shall use reasonable endeavours to consult with you where practicable and such changes apply universally to all similar licensees.

4. No upgrade shall disable, delete or impair the general purpose of the Platform, though we alter or amend its functionality from time to time.

14. GENERAL

1. You may not assign or sub-contract these Terms of Use or any rights and obligations hereunder without our prior written consent. We may assign or sub-contract these Terms of Use to our Affiliates.

2. Notices Except as set out in the Order Form:

3. Any notice under these Terms of Use must be in writing and must be delivered by hand or sent by recorded delivery to the address at the head of these Terms of Use, for notices to us, and to your address as set out in the Order Form, for notices to you.

4. 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).

5. No failure by either party to enforce any rights under these Terms of Use 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.

6. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision of these Terms of Use will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of these Terms of Use will continue in full force and effect.

7. Other than our Affiliates, a person who is not a party to these Terms of Use has no right or benefit under or to enforce these Terms of Use whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

8. These Terms of Use and the Schedules constitute the sole and entire understanding of the parties in relation to the subject matter of these Terms of Use 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 Use. The parties confirm that they have not entered into these Terms of Use on the basis of any representations that are not expressly incorporated in these Terms of Use. Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind these Terms of Use for any misrepresentation in relation to the subject matter of these Terms of Use whether or not contained in these Terms of Use or for breach of warranty not contained in these Terms of Use unless such misrepresentation or warranty was made fraudulently. Subject to Clause 13, these Terms of Use may only be amended or supplemented in writing and signed by an authorised representative of both parties.

15. DISPUTE RESOLUTION


1. It is the intent of both parties to resolve issues arising out of or relating to this Agreement (a “Dispute”) in a constructive and bona-fide way that reflects the concerns and commercial interests of each party at the appropriate levels of authority within each party by escalating issues in accordance with the dispute procedure set out in this clause.

2. Subject to the remaining provisions of this clause, the parties will attempt to resolve Disputes using the dispute procedure in this clause prior to the initiation of court proceedings. Either party may initiate the dispute procedure by giving written notice to the other party.

3. Disputes will be referred to the following representatives of the parties:

1) first, to the client manager assigned to you by us from time to time, and to the Managing Director or equivalent for you; and

2) if not resolved within five (5) Business Days following the date of the notice referred to above, the Dispute may be escalated by either party to The Managing Director for us and the Chairman or CEO for you.

4. The parties’ representatives will use all reasonable endeavours to discuss the Dispute and attempt to resolve the Dispute as soon as practicable and without the necessity of any formal proceeding.

5. Except as set out in clause 15.6, court proceedings for the resolution of a Dispute may not be commenced until the earlier of:

1) the parties’ representatives concluding in good faith that amicable resolution of the Dispute through continued negotiation of the matter does not appear likely; or

2) fifteen (15) Business Days from the date of the notice referred to above.

6. Nothing in this clause will restrict or delay either party’s freedom to initiate court proceedings to seek:

1) any interim relief; or

2) preserve a superior position with regard to other creditors of the other party.

16. GOVERNING LAW AND JURISDICTION

These Terms of Use are governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England in relation to any dispute arising therefrom.

Glossary

1. In these Terms of Use, unless the context otherwise requires, the following expressions have the following meanings:

Activities has the meaning given to it in the Introduction (and Activity shall be construed accordingly);

Activity Provider has the meaning given to it in Clause 2.6;

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 (as amended from time to time);

Ancillary Services has the meaning given to it in Clause 3.3

Available where servers, or the servers operated by a third party on our behalf, hosting the Service are found, after prompt investigation by us, to be operational and accessible to any User (the Service shall be deemed available where we can demonstrate the server(s) hosting the Service is/are operational and accessible even though a User cannot access them, whether as a result of a failure of the User's or the third party's computer system or third party communications network or the unavailability of the world wide web or otherwise and “unavailable” shall be interpreted accordingly) or, in respect of hosting, such definition of available (or similar concept) is defined or determined under the applicable hosting provider's terms of service;

Business Day(s) 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 5.00pm local UK time, on a Business Day;

Client Data means data supplied, input or uploaded by you or your Users on your behalf in using the Service and all data collected via the Platform, including any logo, trade name, trade mark, branding or biographical material which you may supply to us for inclusion on the Platform, or any testimonials, and the User Data, but excluding all Output Data and Employee Data;

Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services (including the Services), finances or business of a party (and/or, if either party is bound to protect the confidentiality of any Third Party’s information, of a Third Party);

Control means, in relation to a body corporate, the power of a person to secure that the affairs of that body corporate are conducted in accordance with the wishes of that person: (a) by means of the holding of shares, or the exercise of voting power, in or in relation to that or any other body corporate; or (b) by virtue of any powers conferred by the constitutional or corporate documents, regulating that or any other body corporate, or any other document, and a Change of Control, in relation to that body corporate, occurs if a person who Controls it ceases to do so or if another person acquires Control of it;

Credits has the meaning given to it in the Introduction;

Data Protection Laws means UK Data Protection Laws and (for so long as and to the extent that the law of the European Union has legal effect in the UK) GDPR and any other directly applicable European Union regulation relating to privacy;

Designated Use has the meaning given to it in the Order Form;

Dispute has the meaning given to it in Clause 15.1;

Employee has the meaning given to it in the Introduction;

Employee Data has the meaning given to it in the Introduction;

EULA has the meaning given to it in Clause 2.1.5;

Force Majeure Event has the meaning given to it in Clause 15.1;

GDPR means the General Data Protection Regulation ((EU) 2016/679);

Indemnified Service: the Service, excluding any Third Party Software or any Client Data;

Licensed Term has the meaning given to it in the Order Form;

Licensed Use has the meaning given to it in the Order Form;

On-boarding Process has the meaning given to it in Clause 2.1;

Order means an offer to us to purchase the Service by executing and submitting an Order Form to us and “Ordered” shall be construed accordingly;

Order Form means the order form to be submitted by you when placing an Order;

Outputs means those outputs which are created and supplied or made available to you as part of the Service provided as part of and/or in connection with the Platform, including all Service Data;

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

Purpose has the meaning given to it in the Introduction;

Rate Card means our rate card in force from time to time setting out details of those fees and charges payable in respect of any Ancillary Services;

Service has the meaning given to it at Clause 2.2;

Service Data means metadata and other data derived from (a) your and other permitted users’ use of the Service and (b) Client Data (and other data collected by or on behalf of other clients);

Service Levels means those service levels set out in the SLA and as defined in Schedule 3;

Service Terms means our standard terms and conditions which govern the Ancillary Services;

SLA means our standard service level agreement setting out the service levels and availability in respect of the Platform, available upon request;

Software Fee means the fee payable by you to us to use the Platform in accordance with this Agreement as set out in the Order Form;

Specification means the functional and technical specification in respect of the Platform from time to time available upon request and confirmed in writing by us as the official specification for the Platform;

Territory has the meaning given to it in the Order Form;

Term means the duration these Terms of Use are in force in accordance with its terms;

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

Third Party Software means any software, material or applications provided as part of the Service, the Intellectual Property Rights in which are owned by a party other than us, as further defined in clause 6.3;

Tools means those tools (if any) offered as part of the Platform comprising the Service;

UK Data Protection Laws means any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation;

User has the meaning given to it in the Introduction;

User Data has the meaning given to it in the Introduction;

you/your/yours or Client means you, a subscriber to the Service as defined in the Order Form;

2. The headings in these Terms of Use 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 Use.
3. Unless the context otherwise so requires:
4. references to statutory provisions include those statutory provisions as amended or re-enacted;
5. references to any gender include all genders;
6. words in the singular include the plural and in the plural include the singular; and
7. the word, “including” shall be deemed to mean, “including, without limitation,” and shall not limit the types or categories to the information or items following such types or categories.

SCHEDULE 2

PAYMENT TERMS

In this Schedule, the following capitalised terms shall have the meanings given to them at the end of this Schedule or as otherwise defined above:

1. You shall pay to us, if applicable and stated in the Order Form, payable under Clause 5, the Software Fee payable on the dates specified in the Order Form.
2. The Software Fee and any other fees and sums payable under these Terms of Use shall be paid in GP Pounds Sterling (or the currency stated otherwise in the Order Form) to the credit of a bank account to be designated in writing by us.
3. Unless otherwise stated, all payments made by you are exclusive of VAT or sales tax.  If any such payment constitutes the whole or any part of the consideration for a taxable or deemed taxable supply by you, you shall increase that payment by an amount equal to the VAT or sales tax which is chargeable in respect of the taxable or deemed taxable supply in question, provided that we shall have delivered a valid VAT or sales tax invoice in respect of such VAT to you. If you fail to comply with your obligations under this paragraph 3, you shall additionally pay all interest and penalties which thereby arise to us.  If any VAT invoice is delivered to you after the relevant payment has been made, you shall pay the VAT due within five (5) Business Days of our delivering a valid VAT invoice.
4. The Software Fee shall be paid free and clear of all deductions and withholdings unless the deduction or withholding is required by law.
5. Without prejudice to any other right or remedy which may be available to us, whether under these Terms of Use or otherwise, we reserve the right to set off against any monies due or becoming due to you, and/or deduct or withhold from payment of any such monies, any liability of us to you and/or your Affiliates whether under these Terms of Use or otherwise and howsoever arising (whether in contract, tort (including negligence), breach of statutory duty or otherwise and whether such liability is present or future, liquidated or unliquidated).
6. The provisions of this Schedule shall remain in effect notwithstanding termination or expiry of this Agreement until the settlement of all subsisting claims by us.

SCHEDULE 3

SERVICE LEVEL AGREEMENT

1. Other than as set out below, we shall provide first and second line support (only) in respect of the Service.
2. The maximum number of hours allocated to you (for the fees payable hereunder) in respect of support under this Schedule is 10 hours per calendar month (calculated from the time a support request is logged). Where you may require additional support over and above this standard support allocation, we may charge you support fees at our standard rates in force from time to time.
3. Any support incident or fault requested must be logged via our designated Employee support portal and all subsequent enquiries relating to an incident or fault must quote the support ticket number provided after logging the incident or fault to the Employee support portal to be valid. Any request for support shall only be deemed received on a Business Day. Upon receipt, we shall use our reasonable endeavours to respond to, remedy or provide a workaround to an incident or fault but do not guarantee any support response, fix or workaround within a specific timeframe.
4. We shall use reasonable endeavours to ensure the Service is Available for an uptime of 99.5% per month subject to the terms of this Schedule.
5. Downtime is measured from the time you give notice to our help desk via the designated contact details for support that the Service is not online and operational and until the time Service is once again available.
6. We accept no responsibility for unavailability as a result of: (a) any act or omission of you and/or any end user not authorised by us in writing; (b) a Force Majeure Event; (c) any scheduled or emergency maintenance of the Service.
7. Where you require technical or other support, outside the terms of our SLA, we may charge fees at our rates as per our Rate Card in force from time to time.
   
   
   

SCHEDULE 4 DATA PROCESSING AGREEMENT

18. DATA PROCESSING AGREEMENT

LICENSEE AGREED TERMS

1. INTERPRETATION

1. In addition to any defined terms in the main agreement to which this data processing agreement is attached (which shall also apply to this agreement), in this DPA the following capitalised terms shall have the meanings set out below:

Applicable Laws

the laws of England and Wales and the European Union and any other laws or regulatory policies, guidelines or industry codes which apply to Licensee Personal Data;

Licensee Personal Data

any Personal Data Processed by GoSweat (or Sub-processor) in connection with the provision of the Services under the Agreement including backups and archives;

Sub-processor

means any entity or person (including any third party and GoSweat affiliates but excluding an employee of GoSweat) appointed by or on behalf of GoSweat to Process Licensee Personal Data on behalf of the Licensee in connection with the Agreement.

2. The terms “controller”, “processor”, “Data Subject”, “Member State”, “Personal Data Breach” and “Processing” shall have the meanings given to them in the Data Protection Laws.
3. GENERAL
4. The terms of the Agreement shall remain in full force and effect unless specified otherwise.
5. This DPA shall only apply to the extent that GoSweat is Processing Licensee Personal Data. This DPA shall only apply to the extent that, in the course of GoSweat providing the Services to the Licensee, GoSweat is deemed a Data Processor pursuant to the Data Protection Laws (including, for the avoidance of doubt, where the Licensee is in fact a Data Processor for a third party principal Data Controller, and GoSweat is a subprocessor in respect of the Licensee).
6. The Licensee instructs GoSweat to process Licensee Personal Data as reasonably necessary for the provision of the Services.
   
   
   OBLIGATIONS OF THE PARTIES
7. The Parties acknowledge that the Licensee is acting as sole Data Controller in respect of Licensee Personal Data Processed in the provision of the Services and provided by or on behalf of the Licensee to GoSweat, and GoSweat will be acting as Data Processor in respect of the same
   
   
8. The Licensee instructs GoSweat to process Licensee Personal Data as reasonably necessary for the provision of the Services and consistent with the Agreement. In particular, Licensee instructs GoSweat to process the data set out in the Schedule.
9. Both Parties will comply with all applicable requirements of the Data Protection Laws.
10. Without prejudice to the generality of Clause 3.3, the Licensee will ensure that it has all necessary and appropriate consents and notices in place to enable lawful (i) transfer of the Licensee Personal Data to GoSweat; and (ii) Processing by GoSweat of the Licensee Personal Data, for the purposes of the Agreement.
11. In relation to any Licensee Personal Data Processed in connection with the performance by GoSweat of the Services, GoSweat shall:
12. only process Licensee Personal Data on the Licensee's documented instructions, including in respect to transfers of Licensee Personal Data to a country outside of the European Economic Area (EEA), unless Processing is required by Applicable Laws in which case GoSweat shall, to the extent permitted by Applicable Laws, inform Licensee of that legal requirement prior to the relevant Processing of the Licensee Personal Data;
13. take reasonable steps to ensure the reliability of its staff who have access to Licensee Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
14. taking into account the nature, scope, context and purpose of the Processing, implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR;
15. taking into account the nature of the Processing and the information available to GoSweat, GoSweat shall, to a commercially reasonable extent, assist the Licensee (i) by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Licensee’s obligations to respond to requests to exercise Data Subject rights laid down in Chapter III of the GDPR and (ii) in ensuring compliance with the Licensee’s obligations pursuant to Articles 32 to 36 of the GDPR; and
16. notify the Licensee without undue delay on becoming aware of a Personal Data Breach relating to the Licensee’s Personal Data
17. GoSweat shall carry out and adhere to the requirements of Article 28(3) of the GDPR in acting as a data processor of the Licensee Personal Data. GoSweat may charge the Licensee its reasonable costs for adhering to such requirements at its standard rates in force from time to time, provided that it obtains the Licensee’s consent to incur such costs (provided always that GoSweat shall not be required to fulfil such requirements where, in GoSweat's reasonable opinion, the Licensee is unreasonably withholding, delaying of conditioning its consent to such costs).
18. GoSweat shall make available to the Licensee information strictly necessary to demonstrate compliance with the obligations laid down in this DPA, including to allow for and contribute to reasonable audits (at the Licensee’s sole cost), conducted by the Licensee or an auditor designated by the Licensee.
    
    15. SUBPROCESSING OF LICENSEE PERSONAL DATA
    
    
19. Licensee hereby grants a general authorisation to GoSweat to engage Sub-processors. GoSweat shall inform Licensee of any intended changes concerning the addition or replacement of Sub-processors.
20. With respect to each proposed Sub-processor, GoSweat shall ensure that the arrangement between GoSweat and Sub-processor, is governed by a contract including:
21. terms which offer at least the same level of protection for Licensee Personal Data as those set out in this Agreement; and
22. terms which meet the requirements of Article 28(3) of the GDPR.
    
    LIABILITY
23. Each of the Parties liability under this DPA shall be limited in a manner consistent with any limitations of liability set out in the Agreement
    
    TERMINATION
24. This DPA shall automatically terminate on the later of the termination of the Agreement.
25. Termination of this DPA will not affect any rights or remedies of either Party which exist prior the termination.
26. Upon the cessation of all Services, GoSweat shall, at the written request of the Licensee, either:
28. delete all copies of Licensee Personal Data it holds; or
29. return a copy of all Licensee Personal Data it holds to the Licensee.
    
    
30. Notwithstanding Clause 6.3, GoSweat may retain Licensee Personal Data to the extent required by or permitted by the Applicable Laws, provided that GoSweat shall ensure the confidentiality of all such Licensee Personal Data and shall ensure that such GoSweat Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
31. Clauses 1, 5, 6.4, 7, 8, and 9, will survive termination.

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