Terms and Conditions
Please read these terms and conditions carefully, as they will form the basis of your contract with us, Stuart Burge Partnership Ltd, a company incorporated under the Companies Acts (Registered Number SC393436) and having its registered office at 19 Bryden Road, Whins of Milton, Stirling, Scotland, FK7 8FJ, which trades as “Real Time Leisure”.
1. Definitions and interpretation
1.1 In the Terms and Conditions:-
“Application” means LeisureShield and/ or LeisureArms or any other Software application used in LeisureShield and/ or LeisureArms, as specified in the Schedule;
“Application Specification” means the functionality and performance specifications for the Application, as set out in the Schedule
“Bolt-On” means any further development or additional functionality which, if agreed between the Provider and the Customer, can be added to the Application by the Provider during the Term at the Customer’s expense;
“Business Day” means any week day (excluding a Saturday or Sunday), other than a bank or public holiday in Edinburgh
“Business Hours” means between 09:00 and 17:00 UK time on a Business Day;
“Cloud Access Fees” means the price payable by the Customer to the Provider for the use of the Application, the Hosting Services (if applicable) and the Support Services, payable on a monthly or annual basis, as specified in the Schedule;
“Completion” means completion of the Contract pursuant to clause 2.2;
“Confidential Information” means any information disclosed (whether disclosed in writing or otherwise) by one party to the other during the Term that is marked as “confidential”, described as “confidential” or should have been understood by the receiving party at the time of disclosure to be confidential;
“Contract” means the contract between the Provider and the Customer comprising the Terms and Conditions and the Schedule, and any valid amendments thereto from time to time;
“Customer” means the person, firm, partnership, limited liability partnership, company or other legal entity purchasing the Services from the Provider, as specified in the Schedule;
“Customer Data” means all Data inputted into the information fields of the Application during the Term by the Customer and by Users;
“Customer’s Premises” means the Customer’s primary address or registered or head office (as appropriate) as specified in the Schedule. For the avoidance of doubt, it is not necessary for the Provider to list in the Schedule each of the Customer’s sites or premises where the Application will be used if there are considerable numbers of sites or premises
“Data” means material, information and data;
“Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Application, excluding any defect, error or bug caused by or arising as a result of:-
(a) an act or omission of the Customer or a User, or an act or omission of one of the Customer’s employees, officers, agents, suppliers or sub-contractors; or
(b) an incompatibility between the Application and any other system, application, program or software not specified as compatible in the Schedule;
“Documentation” means the documentation produced by the Provider and made available from time to time to the Customer specifying how the Application should be used;
“End Date” means the date specified as such in the Schedule;
“Error” is defined in clause 3.3;
“Extras” means any products or services ordered by the Customer in addition to the purchase of the Services including, without limitation, Hand Held Devices, plastic bar codes, tills, touch screens, tablets, credit card readers and additional training on the Application, as specified in the Schedule;
“Fidelity” means Fidelity CRM Limited, a company incorporated under the Companies Acts (Registered Number03217771) and having its registered office at 410 Wincolmlee, Hull, North Humberside HU2 0QL. The contact details of Fidelity can be found on the Website, failing which they can be requested from the Provider directly;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected including without prejudice to the foregoing generality failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
“Hand Held Device” means a smartphone, tablet, personal digital assistant (PDA) or other hand held device;
“Hardware” means any tangible computer equipment, such as servers, terminals, keyboards or printers or other physical device, which works in association with the Software in LeisureArms and / or LeisureShield, including any hardware listed in the Extras;
“Hosting Services” means the provision of the Hosting System;
“Hosting System” means the combination of Hardware and Software such as to provide the Customer with access, via the internet, to LeisureShield including, without limitation, data centre systems, networking, server hardware, operating system, application server and database;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights including all copyrights and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;
“Initial Fee” means the price payable by the Customer to the Provider for the Set-up Services, the Initial Training and any Extras, as specified in the Schedule;
“Initial Training” means the one-off services to be provided to the Customer to initially train prospective Users (collectively as a group, as opposed to individual one to one training) on using the Application and any Hardware, as described in the Schedule;
“LeisureArms” means the application known as LeisureArms, comprising Hardware and Software made available over the internet and locally installed Hardware and Software, and including any error corrections and Upgrades thereto provided to the Customer under the Contract;
“LeisureShield” means the application known as LeisureShield, comprising Hardware and Software made available over the internet and locally installed Hardware and Software, and including any error corrections and Upgrades thereto provided to the Customer under the Contract;
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Provider” means Stuart Burge Partnership Ltd, a company incorporated under the Companies Acts (Registered Number SC393436) and having its registered office at 19 Bryden Road, Whins of Milton, Stirling, Scotland, FK7 8FJ, which trades as “Real Time Leisure”;
“Renewal Period” is defined in clause 2.3;
“Schedule” means the document prepared by the Provider which specifies the identity of the Customer, the Customer’s Premises, the End Date, the Initial Fee, the Initial Training, the Application, the Application Specification, the Cloud Access Fees, any Extras (if applicable), the Subsequent Term, the Set-up Services and the Timetable;
(a) the Set-up Services;
(b) the Initial Training;
(c) the use of the Application;
(c) the Hosting Services (if being purchased from the Provider); and
(d) the Support Services.
“Set-up Services” means the services to be provided to the Customer to the set up and configure the Application at the Customer’s Premises (or such other locations or sites as specified by the Customer), as described in the Schedule;
“Software” means any computer program or programs which work in association with the Hardware in LeisureArms and / or LeisureShield and all updates, upgrades, releases and versions thereof, including all other works or material recorded or embodied in the software, including the audio or visual content in any screen displays in the user interface, the source code and object code, and, where appropriate, associated documentation;
“Subsequent Term” means the period that the Contract shall continue after the End Date if not otherwise validly terminated, as specified in the Schedule;
“Support Hours” means 09:00 and 17:00 UK time, each Business Day;
“Support Services” is defined in clause 6.1(c);
“Term” means the period from Completion to the End Date together with any subsequent Renewal Periods;
“Terms and Conditions” means these terms and conditions, as amended by the Provider from time to time and so notified to the Customer;
“Third Party Provider” means any corporate person or organisation engaged by the Provider to provide the Services to the Customer, including every individual employed or engaged by such corporate person or organisation in delivering any part of the Services, whether as agents, consultants, employees, independent contractors or otherwise;
“Timetable” means the timetable for setting up the Application and providing the Initial Training, as set out in the Schedule;
“Upgrade” means new versions of, and updates to, the Application, whether for the purpose of fixing an error, bug or other issue in the Application or making any amendments or modifications to the functionality of the Application;
“Users” means any employee, officer, partner, member or independent contractor of the Customer who uses the Application through a user account and “User” shall be construed accordingly;
“VAT” means value added tax or any similar tax from time to time replacing it or performing a comparable fiscal function; and
“Website” means the Provider’s website at www.realtimeleisure.com.
1.2 In the Terms and Conditions, a reference to a statute or statutory provision includes a reference to that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and any subordinate legislation made under that statute or statutory provision.
1.3 The clause headings do not affect the interpretation of the Terms and Conditions.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Terms and Conditions.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to other genders.
1.7 Reference to a “clause” shall mean to a clause in the Terms and Conditions.
2. Agreement and Term
2.1 The advertising of the Application and the Services by the Provider constitutes an “invitation to treat”, and the Customer’s order for the Services constitutes a contractual offer. No contract will come into force between the Provider and the Customer unless and until the Provider accepts the Customer’s order in accordance with the procedure detailed in clause 2.2.
2.2 In order to enter into the Contract, the following steps must occur:-
(a) the Customer must place its order for the Services with the Provider by email, phone, mail or in person;
(b) on receipt of the Customer’s order, the Provider will complete the Schedule and deliver same, together with a copy of the Terms and Conditions, to the Customer by email or post;
(c) on receipt of the Schedule from the Provider, the Customer shall either:-
(i) execute the Schedule (in duplicate) (which execution will also be deemed to be an acceptance of the Terms and Conditions by the Customer) and then deliver the executed Schedules to the Provider, at which point (unless the Schedule had been previously withdrawn by the Provider) the Contract shall come into force (“Completion“); or
(ii) confirm to the Provider by email that it accepts the Schedule (which acceptance will also be deemed to be an acceptance of the Terms and Conditions by the Customer), at which point (unless the Schedule had been previously withdrawn by the Provider) the Contract shall come into force (“Completion“);
For the avoidance of doubt, from Completion, the Customer acknowledges and agrees that it is bound by the Terms and Conditions.
(d) in the event that the Customer carries out both clause 2.2 (c)(i) and clause 2.2 (c)(ii), Completion shall occur on the earliest of the Customer’s acceptance of the terms of the Schedule by email and the Customer’s delivery of the signed Schedule to the Provider; and
(e) in the event that the Customer carries out clause 2.2 (c)(i), the Provider shall also execute the Schedule (in duplicate) and deliver one of executed Schedules to the Customer.
2.3 The Contract will commence on Completion and shall continue until the End Date and shall automatically renew for successive periods of the Subsequent Term (each a “Renewal Period”) unless terminated as follows:
(a) either party can terminate the Contract at the End Date if it notifies the other party of such termination, in writing, at least 90 days before the End Date;
(b) either party can terminate the Contract at the end of the Renewal Period if it notifies the other party of such termination, in writing, at least 90 days before the end of such Renewal Period; or
(c) otherwise validly terminated in accordance with another provision of the Contract (including clause 13.1).
2.4 If the Customer does not accept the Schedule pursuant to clause 2.2 (c)(i) or clause 2.2 (c)(ii) within ten Business Days of the date on which the Provider delivers the completed Schedule to the Customer pursuant to clause 2.2 (b), the Provider’s offer to provide the Services to the Customer in terms of the Schedule shall, at the Provider’s discretion, be deemed to be withdrawn, and any acceptance of the Schedule by the Customer after the ten Business Days period shall not be effective to conclude the Contract.
3. The Service
3.1 In consideration for the Provider providing the Services to the Customer, the Customer shall pay the Initial Fee and the Cloud Access Fees to the Provider in accordance with clause 5.
3.2 Subject to the restrictions and limitations set out in this clause 3 and in clause 4, the Provider hereby grants to the Customer a non-exclusive, non-transferable licence to permit Users to use the Services and the Documentation during the Term solely for the purposes of the Customer’s internal business operations.
3.3 The Provider shall procure the provision of the Set-up Services so that the Application conforms to the Application Specification in all material respects, and, so far as possible, in accordance with the Timetable. The Provider shall use reasonable endeavours to meet the performance dates set out in the Timetable, but any such dates shall be estimates only, and time shall not be of the essence in respect of the Provider’s obligation to procure the provision of the Set-up Services.
3.4 The Customer acknowledges and agrees that provision of the Set-up Services shall be to no higher a level or specification than is agreed with the Provider. Unless otherwise agreed with the Provider, the provision of the Set-up Services will be to no higher a level, standard or specification than the Customer’s usual practice of equipment inspections normally carried out on paper immediately prior to the provision of the Set-up Services by the Provider. For the avoidance of doubt, the Set-up Services will put the Customer at the same working level that it operates at immediately prior to the provision of the Set-up Services. If the Customer wishes add to or improve their current practices (for example, by introducing new tests and/or audits), additions can be made during the provision of the Set-up Services and the Provider reserves the right to increase the Initial Fee for doing so accordingly.
3.5 The Provider, or the relevant Third Party Provider, shall notify the Customer once the Set-up Services are complete, at which time Users shall be entitled to access and use the Application. Within five Business Days of the Provider, or the relevant Third Party Provider, delivering the said notification to the Customer, the Customer shall review the Application to confirm that it functions in material conformance with the Application Specification. If the Application fails in any material respect to conform to the Application Specification, the Customer shall give the Provider a detailed description of any such non-conformance (“Error”) in writing, within the five Business Day review period. If the Customer does not provide any written comments in the said five Business Day review period, or if the Application is found to conform to the Application Specification in all material respects, the Application shall be deemed accepted by the Customer.
3.6 With regard to any Errors intimated to the Provider by the Customer pursuant to clause 3.5, provided that the Provider (acting reasonably) agrees there is an Error, the Provider shall use reasonable endeavours to correct such Error (or to notify the relevant Third Party Provider) within a reasonable time and, when the Application materially conforms to the Application Specification in the Provider’s opinion (acting reasonably), shall notify the Customer that the Error has been corrected so that at which time completion of the Set-Up Services shall occur.
3.7 The Provider shall procure the provision of the Initial Training. If the Customer requires any additional training services, such as one to one training for an individual User, this can be arranged with the Provider at an additional cost. The Customer should contact the Provider for further information and price lists in respect of such additional training services.
3.8 In the event that Hosting Services are being purchased by the Customer, the Provider shall procure the provision of the Hosting Services to the Customer from completion of the Set-up Services on and subject to the terms of the Contract.
3.9 The Provider shall procure the provision of the Support Services from completion of the Set-up Services on and subject to the terms of the Contract.
3.10 The Documentation shall be available on the Website or as otherwise made available by the Provider to the Customer and the Customer may make copies of the Documentation for the purpose of providing same to Users, provided that all such copies bear any proprietary notices of the Provider or the relevant Third Party Provider.
4 Conditions relative to the Services
4.1 The Customer acknowledges and agrees that the Provider shall engage Third Party Providers to procure the provision of the Services to the Customer. The Provider reserves the right to change any Third Party Provider engaged by it during the Term without notice to the Customer.
4.2 (a) In the event that the Customer purchases any Hardware, including (but not limited to) a Hand Held Device, from the Provider, the Provider shall deliver to the Customer as soon as reasonably practicable after Completion the manufacturer’s standard warranty in respect of such Hardware (if there is a warranty available or offered by the manufacturer in respect of the Hardware). If there is no warranty offered by the manufacturer of the Hardware, the Provider is under no further obligation under this clause.
(b) Notwithstanding any manufacturer’s warranty referred to in clause 4.2 (a), the Customer acknowledges and agrees that Hardware sold by the Provider is free of any warranty, condition or representation as to their condition or fitness for purpose by the Provider.
(c) In the event that the Hardware malfunctions or the Customer has some other complaint in respect of its performance or operation, the Customer may (i) if a manufacturer’s warranty has been given to the Customer in terms of clause 4.2(a), approach the manufacturer of the Hardware in accordance with the manufacturer’s warranty to rectify the malfunction or deal with the complaint; or (ii)approach Fidelity (or such other party as the Provider directs) to assist or attempt to assist with rectifying the malfunction or otherwise deal with the complaint. The Customer may be charged by the Provider, Fidelity or such other party directly for such a service. The Provider shall have no liability to the Customer in respect of the said malfunction or complaint or any fee charged by the manufacturer or Fidelity.
(d) The Initial Fee includes any standard warranty given by the manufacturer of the Hardware (if there is a warranty available or offered by the manufacturer in respect of the Hardware). The Cloud Access Fees do not include any warranties in respect of Hardware. If the Customer wishes to purchase any additional warranties for any Hardware, this can be supplied at an additional cost provided that the Customer intimates to the Purchaser that it wishes to make such a purchase within forty five days of Completion. The Customer should contact the Provider for further information and price lists in respect of such additional warranties.
(e) Under no circumstances does any warranty referred to in this clause 4.2 cover accidental or deliberate damage caused by the Customer.
4.3 The licence granted by the Provider to the Customer under clause 3.2 is subject to the following limitations:
(a) the Services may only be used by the Customer and Users;
(b) the Customer shall comply, and shall ensure that all Users comply, at all times with the Contract; and
(c) the Customer warrants to the Provider that each User shall keep a secure password for his or her use of the Application and that each User shall keep his or her password confidential.
4.4 Except to the extent mandated by applicable law or expressly permitted in the Contract, the licence granted by the Provider to the Customer under clause 3.2 is subject to the following restrictions:-
(a) the Customer must not redistribute, encumber, sell, rent, lease, sub-license, transfer, assign, disclose or otherwise transfer its right to use the Services or allow any unauthorised person to use the Services;
(b) the Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Application and use the Services;
(c) the Customer must not use the Services in any way that causes, or may cause, damage to the Application or impairment of the availability or accessibility of the Application, or any of the areas of, or services on, the Application;
(d) the Customer must not use the Services:-
(i) in any way that is unlawful, illegal, fraudulent or harmful; or
(ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
(f) the Customer must not alter or adapt or edit the Application save as expressly permitted by the Documentation;
(g) the Customer must not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, re-publish, download, display, transmit or distribute all or any portion of the Application or the Documentation in any form or media or by any means for any purpose whatsoever;
(h) the Customer shall ensure that its equipment and/ or software do not corrupt the Application;
(i) the Customer shall notify the Third Party Provider providing the Support Services as soon as (and in any case no later that two Business Days after) the Customer experiences any problems in accessing the Application or using the Services or becomes aware of any actual, threatened or suspected unauthorised access of the Application or use of the Services; and
(j) the Customer shall not decompile, disassemble, reverse engineer or otherwise attempt to discern the source code of the Application.
4.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Application, either during or after the Term.
4.6 All Intellectual Property Rights in the Application, the Documentation and the Services, including any Upgrades made to the Application in accordance with clause 6.3, belong and shall belong to either the Provider, the Provider’s licensors or the relevant Third Party Provider (as applicable).
4.7 The Provider confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
4.8 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
5. The Price
5.1 The price payable by the Customer to the Provider for the Services to be provided to the Customer under the Contract shall comprise:-
(a) the Initial Fee;
(b) the Cloud Access Fees; and
(c) any travel expenses incurred by any employees or agents of the Provider or by Third Party Providers engaged by the Provider for the purposes of the provision of the Services, which travel expenses shall be calculated as follows:-
(i) where travel is by car or other vehicle including hired cars, the cost of travel shall be the vehicle’s mileage for the journey at the cost of £0.55 per mile (unless otherwise agreed) and (if relevant) the cost of the hire to a maximum of £70 per day;
(ii) where travel is by aeroplane or train, the cost of travel shall be the ticket price of the journey; and
(iii) where overnight accommodation is required, the cost of the accommodation and any additional expenses for sustenance shall be the price incurred subject to a maximum cost of £115 per night per person (unless otherwise agreed).
5.2 All amounts and fees states or referred to in the Contract, the advertising of the Application by the Provider, the Provider’s invitation to treat and the Customer’s order for the Services (as referred to in clause 2.1) and any Documentation are exclusive of VAT unless expressly stated otherwise. Where applicable, VAT will be payable by the Customer to the Provider in addition to the principal amount.
5.3 The Provider shall be entitled to invoice the Customer for payment of the Initial Fee plus VAT thereon on or at any time after Completion.
5.4 The Provider shall be entitled to invoice the Customer for payment of the Cloud Access Fees plus VAT thereon on an annual basis in advance in respect of those Services to be provided during the following year. Such invoice will specify the payment terms arranged with the Customer (including whether payment by the Customer is to be made monthly or annually in advance), as may be specified in the Schedule.
5.5 Any increase or reduction to the number of locations or sites where the Application is used by the Customer (being the Customer’s Premises and any other locations or sites where the Application is used by the Customer) during the Term shall be expressly agreed in writing between the Provider and the Customer. Under no circumstances is the Provider obliged to agree to a reduction to the number of sites in respect of any Term outstanding. If such an increase or reduction is agreed, the following provisions shall apply wholly at the Provider’s discretion:
(a) If there is a reduction and the Customer has paid its Cloud Access Fees annually in advance, the Provider will apply a credit note, calculated pro rata reflecting the reduced number of the sites and the whole calendar months pertaining to such reduced number of sites, to the following year’s invoice. If the Services will not be provided to the Customer in the following year, the Provider is not obliged to refund the Customer;
(b) If there is an increase and the Customer has paid its Cloud Access Fees annually in advance, the Provider will issue a new invoice to reflect the increased number of sites;
(c) If there is either a reduction or an increase and the Customer has paid Cloud Access Fees monthly, the future monthly payments will be credited, reduced or increased accordingly.
5.6 The Provider shall invoice the Customer on a monthly basis for all travel expenses referred to in clause 5.1(c) incurred by or on behalf of the Provider during the one month period prior to the date of the invoice or at such other time as deemed appropriate by the Provider.
5.7 In the event that the Customer purchases any Bolt On or other additional products or services from the Provider during the Term, the Provider shall invoice the Customer for the price of same at the time the Customer makes its order for such Bolt On, products or services. The Provider shall be entitled to invoice the Customer for any Bolt On annually in advance (or, if ordered in the middle of a year, calculated pro rata in advance for the remaining period of the year). For the avoidance of doubt, the purchase by the Customer of any Bolt On or other additional products or services from the Provider shall be subject to the Terms and Conditions.
5.8 Notwithstanding the above, the Provider reserves the right to invoice the Customer for the fees referred to in clause 5.1 at any other time deemed appropriate or suitable to the Provider.
5.9 The Customer shall, within 30 days of the date of an invoice issued by the Provider to the Customer under this Contract, pay to the Provider all sums due in terms of that invoice.
5.10 If the Provider has not received payment in full of an invoice by the date on which it is due to be paid, and without prejudice to any other rights and remedies of the Provider:-
(a) the Provider may, without incurring any liability to the Customer, disable the Customer’s account (including any User’s account) and access to all or part of the Services and the Provider shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of Scotland plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after decree or judgement.
5.11 The Provider shall be entitled to increase the Cloud Access Fees at the start of each Renewal Period upon 90 days’ prior notice to the Customer of the increase.
6. Hosting Services, Support Services and Upgrade
6.1 Subject to the limitations provided in clauses 4.3 and 4.4, the Provider will, as part of the Services, procure the provision to the Customer of certain customer support services in respect of the Application during Support Hours throughout the Term, as follows:-
(a) such technical advice, by site visit, remote computer access (including screen sharing between the Customer and the Provider or Third Party Provider), email, telephone, fax, post or such other appropriate method as shall be reasonably necessary to resolve or attempt to resolve the Customer’s query in respect of how to use the Application;
(b) investigation of any Defect reported by the Customer in respect of the Application; and
(c) such action which is reasonably necessary to correct any Defect in respect of the Application to the extent that such Defect has occurred as a direct result of the Provider or the relevant Third Party Provider’s fault in installing the Application at the Customer’s Premises and any other locations or sites where the Application has been installed in accordance with the Customer’s instructions (the “Support Services”).
6.2 The contact details of the Third Party Provider that will be providing the Support Services to the Customer can be found on the Website or otherwise requested from the Provider. On receiving the Customer’s report or query referred to in clause 6.1, the Provider shall endeavour to forward the request or query to the relevant Third Party Provider or otherwise respond to the Customer as required under the Contract as soon as reasonably practicable.
6.3 The Provider or the relevant Third Party Provider may apply Upgrades to the Application as and when the Provider or the relevant Third Party Provider considers appropriate and without giving notice to, or obtaining the consent of, the Customer.
6.4 The Customer acknowledges and agrees that from time to time during the Term the Provider or the relevant Third Party Provider may apply Upgrades to the Application pursuant to clause 6.3, and that such Upgrades may result in changes of the appearance and/or functionality of the Application and the Services. The Provider will endeavour to provide the Customer with reasonable notice of such Upgrades but it is not obliged to do so.
6.5 With regard to the Hosting Services, as far as is reasonably possible, the Provider shall endeavour to provide at least a 95% uptime service level. This availability refers to an access point on the hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transmit the hosting provider’s backbone network, as the Customer is responsible for its own internet access at all times. Availability does not include a maintenance event as set out in clause 6.6 or Customer caused outages or disruptions, or outages or disruptions attributable in whole or in part to Force Majeure Events.
6.6 Maintenance of the Hosting System, or other aspects of the Hosting Services that may require interruption of the Hosting Services, will be provided and if this requires any downtime or unavailability of the Hosting System the Provider or the relevant Third Party Provider shall endeavour to give to the Customer at least 5 Business Days’ notice within a mutually agreeable maintenance window but the Customer acknowledges that this may not always be possible in the circumstances. If any emergency maintenance is required then the Provider will give as much notice as reasonably possible in the circumstances.
7. Customer Data
7.1 In no circumstances shall the Provider be responsible for the content, inputting or the accuracy of the Customer Data inserted, inputted or used in the Application, which responsibility is solely that of the Customer and its Users.
7.2 The Provider shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
7.3 The Customer will be able to use Customer Data to analyse its own performance through reporting. The Provider shall not be responsible for the accuracy or content of such reports, nor shall it be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by, or connected to, such reports prepared by the Customer.
7.4 Subject to clauses 7.5 and 7.6, all Intellectual Property Rights in the Customer Data will remain the property of the Customer and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.5 The Customer grants to the Provider a non-exclusive licence to store, copy and otherwise use the Customer Data for the purposes of providing the Services, fulfilling its other obligations under the Contract, exercising its rights under the Contract and for the purposes of clause 7.6 and the Customer acknowledges and agrees that the Provider may engage a Third Party Provider to store, copy and otherwise use the Customer Data for the purposes of providing the Services, fulfilling the Provider’s other obligations under the Contract and exercising the Provider’s rights under the Contract and for the purposes of clause 7.6.
7.6 The Provider shall be entitled to utilise such Customer Data which is raw Data and which is anonymous, for the purpose of analysing trends (including regional and national trends) and compiling surveys and reports in connection with such trends and the Customer acknowledges and agrees that all Intellectual Property Rights in the said analysis, surveys and reports belong and shall belong to the Provider and the Provider may do as it wishes (including make available to the public) said analysis, surveys and reports.
7.7 The Customer warrants and represents to the Provider that the Customer Data, and its use by the Provider in accordance with the terms of the Contract, will not:-
(a) breach any laws, statutes, regulations or legally-binding codes;
(b) infringe any User or other person’s Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Provider, the Customer, any User or any third party, in each case in any jurisdiction and under any applicable law.
7.8 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this clause 7, the Provider may:-
(a) delete or amend the relevant Customer Data; and/or
(b) suspend any or all of the Services and/or the Customer’s access to the Application while it investigates the matter.
7.9 Any breach by the Customer of this clause 7 will be deemed to be a material breach of the Contract for the purposes of clause 13.
7.10 The Provider or the relevant Third Party Provider shall develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall be as expressly agreed by the Provider and shall be as deemed reasonable by the Provider in all circumstances. In the event of loss of Customer Data, the Provider shall provide such recovery services as is deemed reasonable and appropriate to restore the most recent back-up.
8. Personal Data
8.1 If the Provider processes any Personal Data on the Customer’s behalf when performing its obligations under the Contract, the parties record their intention that the Customer shall be the data controller and the Provider shall be a data processor and in any such case:-
(a) the Customer acknowledges and agrees that the Personal Data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and the Provider’s other obligations under the Contract, and the Customer expressly consents to such transfer or storage and acknowledges that the eighth principle of the Data Protection Act 1998 does not apply;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to the Provider so that the Provider may lawfully use, process and transfer the Personal Data in accordance with the Contract on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
9.1 Subject to the terms of the Contract, the Provider undertakes that the Application will perform substantially in accordance with the Application Specification and that the Services will be provided, so far as possible, with reasonable skill and care.
9.2 If the Services do not conform to clause 9.1, the Provider will, at its expense, use all reasonable commercial endeavours to attempt to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.
9.3 The Contract shall not prevent the Provider from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
9.4 The Provider warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
9.5 The Application may rely on websites, services, bolt on applications or other appliances or applications which are owned or operated by an independent third party but are required by the Provider to ensure the functionality of the Application, including, without prejudice, maps and calendars. The Customer may also use mobile 3G technology to connect to the Application. The Provider makes no warranties in respect of any such third party services or in terms of their accuracy, suitability, effectiveness or reliability. The Customer acknowledges that the Provider does not accept any responsibility or liability for such third party services, nor will the Provider be responsible or liable for any loss or damage suffered by the Customer as a result of the failure or malfunction of such third party services.
9.6 The Customer acknowledges that:-
(a) complex Software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Application will be wholly free from such defects, errors and bugs;
(b) the provision of the Services entails the likelihood of some human and machine errors, delays, interruptions and losses, including the inadvertent loss of Customer Data;
(c) the Provider does not warrant or represent that the Application will be compatible with any application, programme or software not specifically identified as compatible in the Schedule;
(d) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under the Contract or in relation to the Application or the Services and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Application or the Services will not give rise to any civil or criminal legal liability on the part of the Customer or any other person; and
(e) the Provider will use its reasonable endeavours to scan the Application for the most commonly known viruses prior to delivery to the Customer. However, the Customer is solely responsible for virus scanning the Application and the Provider gives no warranty that the Application will be free from viruses.
10. Customer’s Obligations
10.1 The Customer shall:-
(a) provide the Provider and any Third Party Provider with:-
(i) all necessary co-operation in relation to the Contract; and
(ii) all necessary access to the Customer Premises and all necessary access to such information, systems, telecommunication facilities, security access information and assistance as may be required by the Provider,
in order to provide the Services;
(b) comply with all applicable laws and regulations with respect to its activities under the Contract;
(c) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Users use the Services and the Documentation in accordance with the terms of the Contract and shall be responsible for any User’s breach of the Contract;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Provider, its contractors and agents to perform their obligations under the Contract, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Provider from time to time;
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Provider or the relevant Third Party Provider’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
(h) in the event that any employee, agent or sub-contractor of the Provider or a Third Party Provider requires to access the Customer’s Premises (or any other locations or sites where the Application is used by the Customer) for the purpose of providing the Services, ensure, in the interests of health and safety, that such person is accompanied by an employee of the Customer who is familiar with the Customer Premises (or such other location or site) and the Customer’s safety procedures.
10.2 For the avoidance of doubt, the Customer acknowledges that the Application is a tool which assists the Customer in carrying out inspections, audits, checks, tests and other services and the purpose of the Application is solely to record Customer Data. The Customer acknowledges and agrees that the responsibility for carrying out all necessary inspections, audits, checks, tests and other services belongs to the Customer only. Should the Application and/or the Hardware fail or should the Customer be unable to use the Application and/or the Hardware for any reason whatsoever, the Customer agrees that it remains responsible for carrying out all equipment inspections, audits, checks, tests and other services that the Application and/or the Hardware would, if it was performing properly, ordinarily carry out. In the event of failure of the Application and/or the Hardware, the Customer should continue to record Customer Data whether on paper, computer or by using another suitable tool or recording device for Customer Data. This applies irrespective of the length of time for which the Application and/or the Hardware has failed or is unusable. In no circumstances will the Provider be responsible for the Customer failing to meet any timeframes or time limits in respect of any inspections, audits, checks, tests or other services or requirements while the Application and/or the Hardware is unable to be used by the Customer.
11.1 The Provider and the Customer will:-
(a) keep confidential and not disclose Confidential Information to any person save as expressly permitted by this clause 11; and
(b) protect Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
11.2 The Customer’s Confidential Information may be disclosed by the Provider to its officers and employees and to Third Party Providers for the purpose of providing the Services.
11.3 The obligations set out in this clause 11 shall not apply to:-
(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
(b) Confidential Information that is in a party’s possession prior to disclosure by the other party;
(c) Confidential Information that is received from an independent third party who has a right to disclose the relevant Confidential Information; or
(d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.
12. Limitation of Liability
12.1 This clause 12 sets out the entire financial liability of the Provider (including any liability for the acts or omissions of its employees and Third Party Providers) to the Customer:-
(a) arising under or in connection with the Contract;
(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Contract.
12.2 The Provider does not warrant that the Services, Documentation and/or the information obtained by the Customer through the Services or its use of the Application will meet the Customer’s requirements or conform to the Customer’s purposes and the Customer assumes sole responsibility for the use of the Services and the results obtained from a User’s use of the Services, the Application and the Documentation, and for conclusions drawn from such use. In particular:
(a) the manner in which the Customer uses the Application is at the Customer’s discretion and the Provider accepts no liability for how the Customer uses the Application, including how Users input Customer Data in to the Application;
(b) the Customer will be using the Application for the purpose of monitoring and recording Data for various purposes including, inter alia, its statutory and common law health and safety obligations and its audits of equipment (including temporary equipment), and the Customer acknowledges and confirms that it has satisfied itself that the Application as provided to the Customer in terms of this Contract is sufficient for all such purposes and that the Provider gives no warranties that the Application is suitable for the Customer’s purposes. The Provider shall have no liability to the Customer whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss the Customer shall incur, including any losses incurred as a result of the Customer not being in compliance with any heath and safety obligations.
(c) The Application has the capacity to produce basic style “Help Notes” and “Next Action Prompts” (which generally take the form of statements) which appear in the Hand Held Device to assist the Customer in using the Application. However, given that the same Application (or similar versions of it) is used by different customers who may have different purposes, the Customer acknowledges that the Provider does not provide “Help Notes” and “Next Action Prompts” for the Customer specifically and the Customer acknowledges that there are no “Help Notes” and “Next Action Prompts” for the majority of the questions contained in the Application.
Whether or not the Customer wishes to use the styles included in the Application by the Provider is entirely at the discretion and risk of the Customer. The Provider makes no representation or commitment that such styles will be sufficient for the Application to operate to the Customer’s requirements.
Whether the Customer uses the “Help Notes” and “Next Action Prompts” provided by the Provider or adds its own “Help Notes” and “Next Action Prompts” to the Application is entirely at the discretion and control of the Customer. The Customer is entitled to add its own management defined “Help Notes” or “Next Action Prompts” to assist its Users in using the Application but in doing so the Customer acknowledges that any “Help Notes” or “Next Action Prompts” will be management defined, that such use of them is at its own risk and the Provider accepts no responsibility for “Help Notes” or “Next Action Prompts” created by the Customer.
12.3 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
12.4 The Customer and the Provider acknowledge and agree that the Contract is not a consumer contract and that the statutory rights applicable to consumers do not apply to the Customer under the Contract.
12.5 In no event shall the Provider, its employees and officers, and Third Party Providers, be liable to the Customer to the extent that any alleged infringement is based on:-
(a) a modification of the Services or Documentation by anyone other than the Provider or a Third Party Provider;
(b) the Customer’s use of the Services or Documentation in a manner contrary to the Contract, the Documentation or the instructions given to the Customer by the Provider or a Third Party Provider;
(c) the Customer’s use of the Services or Documentation after notice of alleged or actual infringement of the Contract from the Provider, a Third Party Provider or any appropriate authority; or
(d) the breakdown or malfunction of any Hardware purchased from the Provider or Third Party Provider, including a Hand Held Device.
12.6 The Provider is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities which are out with the control of the Provider.
12.7 Save as provided for in clause 12.8:-
(a) the Provider shall not be liable whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
(b) the Provider’s total aggregate liability in contract, delict tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Initial Fee and Cloud Access Fees paid to the Provider for the Services during the 12 months immediately preceding the date on which the claim arose.
12.8 Nothing in the Contract excludes the liability of the Provider for death or personal injury caused by the Provider’s negligence or for fraud or fraudulent misrepresentation.
12.8 The Customer shall defend, indemnify and hold harmless the Provider against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:-
(a) the Customer is given prompt notice of any such claim;
(b) the Provider provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
13.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Contract without liability to the other if:-
(a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding- up order in relation to the other party;
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
(f) the other party ceases, or threatens to cease, to trade;
(g) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.2 On termination of the Contract for any reason:-
(a) all licences granted under the Contract shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Customer acknowledges that the Provider will not and is not obliged to provide paper versions of Customer Data (current or historic) to the Customer. The Provider may destroy or otherwise dispose of any of the Customer Data in its possession unless the Provider receives, no later than 30 Business Days after the effective date of the termination of the Contract, a written request for the Provider to continue hosting the then most recent back-up of the Customer Data (the “Additional Storage Services”). On receiving such a request, (i) the Provider and the Customer shall agree the terms upon which the Additional Storage Services will be provided; and (ii) the Customer shall pay to the Provider a fee from time to time for the Additional Storage Services on an annual basis in advance. The Customer should contact the Provider for further information in respect of its current fee for Additional Storage Services. In the event that the Provider has not received payment in full of an invoice for Additional Storage Services by the date on which it is due to be paid, and payment is not made by the Customer within ten Business Days of written demand by the Provider to the Customer, the Provider may cease providing the Additional Storage Services and destroy or otherwise dispose of any of the Customer Data in its possession; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced, and in particular, clause 5, clause 7.6, clause 11, clause 12, clause 13.2, clause 14, clause 16 and clause 17.
14. Force Majeure Event
14.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Contract (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
14.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Contract, will:-
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under this Contract are cumulative and do not exclude rights provided by law.
15.3 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.4 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.5 The Contract constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
15.6 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
15.7 Save as provided for in clause 15.8, neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.8 The Provider may at any time sub-contract all or any of its rights or obligations under the Contract.
15.9 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.1 Any notice given under the Contract must be in writing (whether or not described as “written notice” in the Contract) and must be delivered personally, sent by post, or sent by email, for the attention of the relevant person, and to the relevant address number or email address given below (or as notified by one party to the other in accordance with this clause 16).
Stuart Burge Partnership Ltd
t/a Real Time Leisure
19 Bryden Road
Whins of Milton
Email: [email protected]
Phone number: 0141 416 4000
The addressee, address, email specified in the Schedule.
16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by post, 48 hours after posting; and
(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
17. Governing Law
17.1 The Contract shall be governed by and construed in accordance with the Law of Scotland and shall be subject to the non-exclusive jurisdiction of the Scottish Courts.