Terms and Conditions

Introduction

This Agreement (“Agreement”) governs the purchase and use of our Services. By registering to join ScheduleLeave you accept this agreement and all references within this agreement, You hereby agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to do so on behalf of that company or entity and its Affiliates. In which case the terms “You” and “Your” shall refer to such company or entity and it's Affiliates. This Agreement is effective between You and Us as of the date of You accepting the Agreement. The definitions for this Agreement are detailed at the end of this document.

Services

We shall make the Services available to You on a non-exclusive basis pursuant to this Agreement and the Order Form. All new Accounts (whether a user, client plan or business plan) will be charged at the cumulative monthly tariff as detailed on the pricing page (£0.90 EXCL VAT per user per month) and detailed in this Agreement on a pro-rata basis for the remainder of the term stated. User Accounts are for designated Users only and cannot be shared or used by more than one User. You must inform us if a User leaves Your organisation. In these circumstances the User and all data relating to them can be deleted upon request, or the data returned to You if you so wish. We will aim to provide the Services 24 hours a day, 7 days a week. However, there will be times when it is necessary to improve and/or maintain the Services, which may result in an interruption. We shall endeavour to schedule such interruptions so as to minimise the impact on the Services and will notify You in advance of when this will take place and the likely duration. There may be circumstances beyond Our reasonable control which mean the Services can not be provided 24 hours a day / 7 days a week. If We become aware of an unscheduled interruption to the Services, We shall notify You as soon as possible and shall keep You informed as to when the Services will resume. The Services are subject to ‘fair usage’ limits on data storage, and we will discuss with you any additional data storage fees that may become applicable should Your usage approach those limits.

Your data

Your data shall remain at all times Your property. For the purposes of the Data Protection Act 1998, You are the Data Controller and We are the Data Processor of any Personal Data. We are registered under the Data Protection Act 1998 and will maintain such registrations and comply with the provisions of this legislation and with all applicable laws, regulations, orders and other similar instruments.
We shall process Personal Data only to the extent, and in such manner, as is necessary for the purpose of the provision of the Services and in accordance with Your instructions from time to time and shall not process Personal Data for any other purpose. We shall keep a record of any processing of Personal Data that We carry out on Your behalf and will comply with any request that You make to amend, transfer or delete the Personal Data. We shall not disclose Personal Data to any Data Subject or to a third party unless You have requested in writing that such a disclosure be made. We will not authorise any third party or sub-contractor to process the Personal Data.
We shall take all appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data. We shall notify You immediately if We become aware of any unauthorised processing, loss of, damage to or destruction of the Personal Data. We shall not transfer any Personal Data outside the European Economic Area without Your prior written consent.

Your responsibilities

You shall be responsible for Your User’s compliance with this Agreement and will ensure that the Services are used only for lawful purposes and in accordance with this Agreement. You will be responsible for the accuracy, quality and legality of Your data and how You acquire such data. You will be responsible for maintaining the confidentiality of User passwords and will use reasonable efforts to prevent unauthorised access to or use of the Services. You will notify us as soon as possible of any such unauthorised access or use. You will not make the Services available to anyone other than Users; sell, resell, rent or lease the Services; or interfere with or disrupt the integrity or performance of the Services or any third party data contained therein. If You request an interruption to the Service you must give Us at least 24 hours notice in writing on our Contact Form. If You become aware of any unscheduled interruption in the Services You must notify us on our Contact Form as soon as possible.

Your obligations & warranties 

You are required to maintain Your equipment used in connection with the provision of the Services in good working condition and provide all assistance, facilities and information to Us as we are reasonably required to carry out Our obligations under this Agreement. You warrant and undertake that You have validly entered into this Agreement, have the legal power to do so and that You will use the Services only for lawful purposes and in accordance with this Agreement. You represent, warrant and undertake that any software, data, equipment, client logos or other materials provided by You to Us or employed by You in Your use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or personal data interests of any third party; shall not be obscene or defamatory of any person; shall not include any price sensitive or market sensitive information; and shall not violate the laws or regulations of any state, which may have jurisdiction over such activity. In the event of any breach of any of the above representations or warranties, in addition to any other remedies available at law or in equity, We will have the right to suspend immediately any related Services if deemed reasonably necessary by Us to protect our interests or Our other customers. If practicable and depending on the nature of the breach, We may (in Our absolute discretion) give You an opportunity to cure such breach. In such case once the breach is cured, We will promptly restore the Service(s).

Our warranties & obligations

We warrant to and undertake with You that We will use Our reasonable efforts to provide the Services; to exercise reasonable care and skill in accordance with the terms of this Agreement; and that We have full right power and authority to provide the Services to You in accordance with the terms of this Agreement. Except as expressly provided in this Agreement, the Services are provided on an “as is” basis, and Your use of the Services is at your own risk. We do not make, and hereby disclaim, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. We do not warrant that the Services will be uninterrupted, error-free, or completely secure. We do not and cannot control the flow of data to or from Our network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although We will use commercially reasonable efforts to take all actions We deem appropriate to remedy and avoid such events, We cannot guarantee that such events will not occur. Accordingly, We disclaim any and all liability resulting from or related to such events.

Security

Each party recognises that it is impossible to maintain flawless security but We will take reasonable steps (where relevant) to prevent security breaches in Our hosting providers servers’ interaction with You and any security breaches in any interaction with resources or Users outside of any firewall that may be built into Our hosting providers servers. You are responsible for maintaining the confidentiality of any passwords that are required to access the Services and are solely responsible for damage caused by any unauthorised access.

Limitation of liability

Except as expressly stated, Our liability whether under this Agreement or any collateral contract, for loss of or damage to Your tangible property caused by Our negligence or the negligence of Our officers, employees, contractors or agents, shall not exceed the lesser of £100,000 or the amount paid by You under this Agreement in the 12 months preceding the incident. We shall have no liability for any losses or damages which may be suffered by You (or any person claiming under or through You), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise including special damage, even though We were aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; or loss of or damage to data. This shall not prevent claims for loss of or damage to Your tangible property as described above or any other claims for direct financial loss that are not excluded above. Our total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed in aggregate a sum equal to the lesser of £100,000 or the amount paid by You under this Agreement in the 12 months preceding the incident.      
You agree that, in entering into this Agreement, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if You did rely on any representations, whether written or oral, not expressly set out in this Agreement) that You shall have no remedy in respect of such representations and (in either case) We shall have no liability otherwise than pursuant to the express terms of this Agreement. The exclusions for liability above shall apply to the fullest extent permissible at law but We do not exclude liability for death or personal injury caused by Our negligence, or the negligence of our officers, employees, contractors or agents; fraud or fraudulent misrepresentation; breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or any other liability which cannot be excluded by law. We shall not be liable for any loss or damage of any nature suffered by You arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of You or arising from any cause beyond Our reasonable control.
You accept that We are not liable for any virus or other contaminants which enter Your email system or computer network via email and are not be liable for any interruptions to the Services or Outages arising directly or indirectly from interruptions to the flow of data to or from the internet changes, updates or repairs to the network or the Software subject to Us striving to minimise the interruptions/outages that may be caused by such change; the effects of the failure or interruption of services provided by third parties; any acts of Force Majeure; any actions or omissions of You (including, without limitation, breach of Your obligations set out in this Agreement); problems with Your equipment and/or third party equipment; or interruptions to the Services requested by You. You agree that you are in a better position to foresee and evaluate any loss You may suffer in connection with this Agreement and that the Service Fee has been calculated on the basis of the limitations and exclusions in this Agreement and that You will effect insurance as is suitable having regard to Your particular circumstances and the terms of this Agreement.

Fees

You agree to pay the Fees as detailed on the pricing page and accompanying invoices. The Fees are payable monthly, and within 30 days of the invoice issue date. All fees for the Services are expressed exclusive of VAT but will be subject to VAT, which will be payable by You. Interest will be charged on any late payments of fees on a daily basis at the rate of 5% per annum above the base rate from time-to-time of Barclays Bank plc from the due date until payment.

Intellectual property rights

Without prejudice to Your rights in Your materials, You shall not acquire any Intellectual Property Rights in respect of the Services, documentation and other materials used by Us in connection with or related to the provision of the Services under this Agreement. We warrant that We have all necessary right, title and interest to enable You to benefit from the Services in accordance with this Agreement. You grant to Us a non-exclusive, royalty-free, world-wide licence during the term of this Agreement to use, copy, reproduce, and manipulate data provided by You or resulting from the Services for the purposes of using the data for the provision of the Services; and a non-exclusive, royalty-free, world-wide licence during the term of this Agreement to use, reproduce and display Your trade marks for the purposes of using the data for the provision of the Services and for our own marketing purposes. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

Confidentiality

Confidential Information means any and all information of a confidential nature (including trade secrets and information of commercial value) disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that relates to the Disclosing Party or any of its Affiliates. Each party shall during the term of this Agreement and thereafter keep such information confidential and shall not use it for its own purposes or disclose it to any third party without prior written consent. We shall not without prior written consent disclose Your data to any person except those of Our employees, agents and sub contractors involved in the provision of the Services who have a need to know. All employees, agents and subcontractors will be made aware of their obligations in relation to Confidential Information. Confidential Information shall not include any information that is trivial or obvious; is already in the public domain; is already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party; or where the disclosure of such information may be required by any government agency or by operation of law. Both parties undertake to the other to make all relevant employees, agents, and sub-contractors aware of their duties in relation to Confidential Information. These provisions shall remain in force and effect notwithstanding termination of this Agreement.

Term & termination

This Agreement commences on the date the first account is added to the system via registration. A party may terminate this Agreement if any “acts of default” occur. An act of default would be; if You fail to pay moneys due under this Agreement within 30 days of the due date; if either party commits a material breach of any term of the Agreement (other than failure to pay moneys due described above) and this breach (if capable of being remedied) is not remedied within 30 days of a written request by the other party to remedy the same; if either party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding up, or dissolution (otherwise than for the purposes of a solvent amalgamation / reconstruction) or has an administrative or other receiver, manager, trustee, liquidator or administrator or similar officer appointed over all or any substantial part of its assets or enters into or proposes any composition or arrangement with its creditors generally. If you commit an act of default We may suspend the provision of the Services. This suspension will not be deemed to be a breach of any term of this Agreement. If either party commits an act of default the other party may terminate this Agreement by notice in writing. We have the right to terminate this Agreement if You undergo a change of control; sell all of Your assets or merge or reorganise where You are not the surviving entity; or if You dispute the ownership or validity of Our Intellectual Property rights. If You terminate this Agreement for an act of default, then We shall refund You any fees paid in advance for the Services after the effective date of termination. If We terminate this Agreement for an act of default You shall pay Us by way of agreed and liquidated damages any unpaid fees due up to the effective date of termination and a sum equal to the fees that would have been payable from the effective date of termination until the date on which this Agreement could have expired or been terminated by You on giving 90 days notice.
Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may have under this Agreement or at law and shall not affect any accrued rights or liabilities of either party or the coming into force or continuing in force of any provision which is (expressly or implied) intended to come into/continue in force on or after termination. In the event of termination, You will promptly pay all outstanding payments to Us; Your right to receive the Services will end; and each party will return immediately to the other all property and materials containing Confidential Information belonging to the other. Any termination of this Agreement shall not affect any accrued rights or liabilities of either party and shall not affect the coming into force or the continuance in force of any provision of this Agreement that is expressly or by implication intended to come into force or continue in force on or after termination.

Force majeure

Neither party shall be liable for any breach of its obligations in this Agreement, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub-contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure. If the default shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement, as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party. Each party will give notice (containing details of the circumstances) to the other upon becoming aware of an event of Force Majeure. If a default as a result of Force Majeure continues for more than 30 days the other party may terminate the Agreement and neither party shall have any liability to the other in respect of that termination (but this will not affect any pre-existing rights or obligations of either party).

Waiver

The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor, shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

Notices

Any notice request instruction or other document to be given under this Agreement shall be delivered or sent by first class post or email (such email notice to be confirmed by letter posted within 12 hours) to the address of the other party set out in the Agreement (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served if delivered at the time of delivery and if sent by post upon the expiration of 48 hours after posting and if sent by email upon the expiration of 12 hours after dispatch subject to confirmation by letter as set out above.

Invalidity and severability

If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision, shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

Entire terms

This Agreement, including the Registration Form and any other documents provided,constitutes the entire Agreement between the parties relating to the subject matter. Neither party is relieved of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or Third Party appointed may allow reliance on the same as being fair and reasonable. No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both parties hereto.

Successors

This Agreement shall be binding upon and endure for the benefit of the successors in title of the parties to these Terms.

Assignment

You are not entitled to assign this Agreement nor all or any of its rights and obligations.

Disputes

All disputes or differences which arise between You and Us in respect of the construction or effect of this Agreement, the rights, duties and liabilities of the parties under this Agreement, or any matter or event connected with or arising out of this Agreement shall be referred to an independent third party to be jointly nominated by You and Us. If we fail to jointly nominate a third party within 14 days then the third party will be nominated by the President of the British Computer Society at the request of either party. The third party shall act as an expert and not as an arbitrator whose decision (except in the case of manifest error) will be final and binding.

Law

This Agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

Third party rights

No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.

Definitions

“Account” means any individual user. “Affiliate” means each and any Subsidiary or Holding Company of a party and each and any Subsidiary of a Holding Company of a party.
“Fees” means the total amount payable for the Services comprising of the monthly subscription fee.
“Services” means the hosting and ongoing management of the software and services ordered by You and made available by Us.
“Users” means the individuals authorised by You to use the Services and all individuals for whom Accounts have been created and set up and have been supplied with user identifications and passwords by You/Your end users.
“We,” “Us,” or “Our” means Muss Consulting LTD - Hlw Devonshire House Wade Road, Aviary Court, Basingstoke, Hampshire RG24 8PE.
“You,” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all data or information submitted by You to the Services.

Service hours

Service levels

The target service level is that the Services will be available to each User 24 hours a day (subject only to the provisions of this Agreement in relation to interruptions to service in relation to maintenance etc.). We shall make the Services available to each user for 99.9% of the time during service hours, which are 09:00 to 18:00 hours on a weekday in the UK (excluding any public holiday in the UK) (the "Service Hours"). If there is a service interruption then the following procedure shall be followed: Affected Users shall use the self-help and FAQs on the ScheduleLeave help website to try and remedy the relevant problem. If this does not work then the User should contact our helpdesk by our Contact Form.

Help desk

Our help desk will use all reasonable endeavours to respond to service interruption issues within 24 hours of the notification to us by the customer (or, if the notification was made out of Service Hours, within 24 hours of the start of the next period of Service Hours).

Software & services

Software specification

The Provider shall provide the ScheduleLeave software as part of the SaaS solution in accordance with the following specification: A web-based application known as ScheduleLeave, which enables organisations to effectively manage and view leave for people within their organisation.

Additional professional services days

Professional Services Days can be purchased as and when required. The following, lists the costs for these services per day (excluding VAT and travel disbursements):
• Software Training - £600
• Consultancy - £1,200
• Data Importing / Migration - £1,200
• Feature Requests - £1,500

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