We have granted to you a non-exclusive licence to use our licensed program materials subject to the terms and conditions contained in this letter. You agree to use the licensed program materials for processing your own data for your own internal business purposes only. You acknowledge that you are licensed to use the licensed program materials only in accordance with the express terms of this letter and not further or otherwise.
Payment / Fees
The licence fee (the initial amount of which has been previously notified to you by us), as time to time varied, shall be paid by you to us on the first day of each month by standing order. Any variation to the licence fee will be notified to you by us in writing at least one month before it becomes effective. The licence fee and other charges payable by you to us are exclusive of any applicable VAT which shall be payable by you at the rate and in the manner prescribed by law against submission of a valid tax invoice. Any charges payable by you to us in addition to the licence fee shall be paid within 10 working days after the receipt by you of our invoice. We shall have the right to charge you interest on overdue invoices at the rate of 4% per year above the base rate of Lloyds Bank plc calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment. - Downgrading or canceling your account may cause the loss of access, content or features of the Service. Pabau Ltd. does not accept any liability for such loss. - All monthly subscription fees must be paid monthly in advance. - Your payment will start the moment you have login access to Pabau (not when you decide to go live). - When not charged, account setups are assisted only. All training content is available online via written tutorials for you to create & configure your system yourself. - All monthly subscription fees must be paid monthly in advance. - All face to face, call out training or visit request's are chargeable. - There are no refunds for unused time. - There are no refunds for training. - Unless requested, your text bundles will renew once it has fallen low. You may request in writing for auto-topup to be switched off. - If you have any questions about charges made to your account, please contact us immediately. If there are charges made in error, we will credit your account or credit card account for the appropriate amount. - SMS reminders (an optional feature) are charged per SMS sent. You are responsible for ensuring you have sufficient credit for SMS reminders (these are charged separately from the monthly subscription). Refunds will not be issue for unused SMS reminder credits if you cancel your account.
Licensor’s Proprietary and Intellectual Property Rights
The licensed program materials and any and all intellectual property rights of whatever nature which now or in the future subsist in the licensed program materials are and shall remain our property.
We warrant that in fulfilling our obligations under the terms of this letter we will attain standards of care and skill commensurate with those currently prevailing in the software industry and that all our personnel will have qualifications and experience appropriate for the tasks to which they are allocated. The warranties above shall be subject to you complying with your obligations as set out in this letter and shall also be subject to any limits and exclusions of liability set out in this letter. In particular, the said warranties shall not apply to the extent that any defect in the licensed programs arose or was exacerbated as a result of: - Incorrect use, operation or corruption of the licensed programs;- Any unauthorised modification or alteration of the licensed programs; or - Use of the licensed programs with other software or on equipment with which it is incompatible. To the extent permitted by applicable law, we: - Disclaim all other warranties with respect to the licensed programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result; - Make no warranty that the licensed programs are error free or that the use thereof will be uninterrupted and the Licensee acknowledges and agrees that the existence of such errors shall not constitute a breach of the terms and conditions as set out in this letter;
We shall indemnify you for personal injury or death caused by the negligence of our employees in connection with the performance of their duties under the terms contained in this letter or by defects in any product supplied to you pursuant to the contents of this letter. Save in respect of claims for death or personal injury arising from our negligence, in no event will we be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission by us whether such damages were reasonably foreseeable or actually foreseen. We and you acknowledge and agree that the limitations contained in this letter are reasonable in the light of all the circumstances. All liability that is not expressly assumed in this letter is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, references to the “us” or “we” include our employees, sub- contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this letter shall exclude or limit liability for fraudulent misrepresentation.
Both we and you undertake that, except as provided under the terms of this letter or as authorised in writing by the other party, we and you shall at all times during the continuance of the licence term and after its termination: - keep confidential all confidential information; - not disclose any confidential information to any other party; - not use any confidential information for any purpose other than as contemplated by the terms of this letter; - not make any copies of, record in any way or part with possession of any confidential information. Either we or you may disclose any confidential information to: - any of our or your sub-contractors, substitutes, or suppliers; - any party appointed to maintain the equipment on which the licensed programs are being used (within the terms contained in this letter); - any governmental or other authority or regulatory body.
You are solely responsible for the cancellation of your account. You can cancel your account at any time through email, you may terminate the licence at any time by giving at least 30 day’s prior written notice, as well as confirming the date you wish to cancel. Upon cancelation, you acknowledge you will no longer be able to access your subsription. Upon completing your order, if you were to cancel mid-account setup, the 1st month subcription and setup fee will be due. We may terminate the licence forthwith on giving notice in writing to the you if you commit any serious breach of any term contained in this letter and (in the case of a breach capable of being remedied) shall have failed, within 10 working days after the receipt of a request in writing from us to do so, to remedy the breach. Any termination of the licence or the agreement as set out in this letter (howsoever occasioned) shall not affect any accrued rights or liabilities of either we or you nor shall it affect the coming into force or the continuance in force of any provision in the agreement set out in this letter which is expressly or by implication intended to come into or continue in force on or after such termination.
Both we and you undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations contained in this letter.
Forces Beyond Our Control
Neither we nor you shall be liable for any failure or delay in performing our respective obligations where such failure or delay results from any cause that is beyond the reasonable control of either you or we. Such causes include, but are not limited to: failure of one of our servers, power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If such circumstances continue for a continuous period of more than 14 days, either Party may terminate this Agreement by written notice to the other Party.
Accounts & Passwords
You must be a registered user to access the Service You must provide accurate, up-to-date and complete information when you register You are solely responsible for keeping your password secure You will be solely responsible and liable for any activity that occurs under your user name You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and you must notify us immediately in the event of any unauthorised access or use
This part of the agreement describes the acceptable use of the Service. It ensures that you do not use the Service for illegal or prohibited purposes. - You are solely responsible for your conduct and your data related to the Service - You warrant that you have all rights, licences, authorisations and consents required to use the Service, including without limitation in respect of your data - You agree to indemnify us from any and all loss, cost, liability, and expense arising from or related to your data or use by you or your employees, contractors or agents of the Service or violation of these Terms of Service - The Service, including any software that forms part of the Service, is made available to you for your personal use or internal business purposes, and such use must comply with all applicable laws, rules and regulations, including without limitation privacy laws, and must not infringe or violate third party rights - The Plan you purchase will limit the number of users that may use the Service. You must not allow any additional users to use the Service - We may assist in account imports, however hosting large amounts of files is a chargable service if the data is being migrated from a previous system - You are aware that some reports will not work on data that has been migrated from previous systems, and it is adviced that all reports to are to be run from your implementation date moving forward. - We reserve the right to audit your use of the Service, at our own cost and upon giving you reasonable notice, to determine whether your use is in accordance with these Terms of Service and any other terms that apply to the Service. If an audit reveals that you have exceeded the scope of use permitted, you may be required to immediately pay an additional service fee for such use - Any unauthorised use of the Service is a violation of these Terms of Service and may breach English law. Such violations may subject you or your staff to civil and criminal penalties - We will endeavour to make the Service available 24 hours a day, seven days a week. However, you acknowledge and agree that the Service may occasionally be unavailable during periods of planned or unscheduled maintenance. We may perform unscheduled maintenance at any time, but will do this outside of normal business hours where possible
We and you agree that, in the event that one or more of the provisions contained in this letter is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this provisions contained in this letter. The remainder of contents of this letter shall be valid and enforceable.
This Agreement shall be binding upon, and inure to the benefit of the Parties and their respective successors and permitted assignees, and references to a Party in this Agreement shall include its successors and permitted assignees. In this Agreement references to a Party include references to a person: - who for the time being is entitled (by assignment, novation or otherwise) to that Party's rights under this Agreement (or any interest in those rights); or - who, as administrator, liquidator or otherwise, is entitled to exercise those rights, and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party. For this purpose, references to a party's rights in this letter include any similar rights to which another person becomes entitled as a result of a novation of this agreement constituted by this letter.
Privacy And Data Protection
- 1. For the purposes of understanding roles in regard to the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) - Pabau Ltd is defined as the Data Processor and the Client is the Data Controller.
- 3. The Client, as Data Controller, appoints Pabau as a Processor to process the Personal Data as described on the Client’s behalf.
- 4. Pabau will only process the Personal Data to provide the Services or otherwise to comply with applicable laws or regulatory requirement.
- 5. Pabau will ensure that any person with access to or processing the Personal Data is subject to a duty of confidence.
- 6. Pabau will take appropriate technical and organisational security measures to ensure the security of processing and protect the Personal Data from accidental or unlawful destruction, loss, alteration, unauthorised access or disclosure or unlawful processing. (Some, but not all, of the steps we take are explained in our Data Security Article here).
- 7. The Client authorises Pabau to appoint subprocessors as they deem appropriate or necessary for the provision of the Services.
- 8. Pabau will assist the Client in providing subject access and allowing data subjects to exercise their rights under the GDPR.
- 9. Pabau will assist the Client in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments.
- 10. Pabau will provide mechanisms for the Client to download all Personal Data at any time, to delete the record of a single Data Subject, and to delete all Personal Data at the end of the contract.
- 11. The Client may exercise their right of Audit under GDPR legislation through Pabau providing an audit report not older than 18 months prepared by an independent external auditor demonstrating Pabau’s technical and organisational measures are sufficient to meet the obligations of a Data Processor under GDPR.
- 12. Pabau will submit to Client audits and inspections, provided the Client pays an applicable audit fee in full, and in advance of the commencement of such audit.
- 13. Pabau will immediately inform the Client if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.
- 14. Nothing within this contract relieves Pabau of its own direct responsibilities and liabilities under the GDPR.
Nature of Agreement
The agreement as set out in this letter is personal to us and you and neither party may assign, mortgage, or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the provisions above, either party may assign the agreement as contained in this letter to any acquirer of all or of substantially all of that party's equity securities, assets or business relating to the subject matter of this letter or to any entity controlled by, that controls, or is under common control with a party to this agreement set out in this letter. Any attempted assignment in violation of this provision will be void and without effect. This letter contains the entire agreement between the us and you with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of us and you. We and you acknowledge that, in entering into this agreement as set out in this letter, we did not rely on any representation, warranty or other provision except as expressly provided in this letter, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. No failure or delay by either we or you in exercising any of our or your rights respectively under this agreement as set out in this letter shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this agreement contained in this letter shall be deemed to be a waiver of any subsequent breach of the same or any other provision..
Agreement of Terms
Once it has been agreed, this letter and its contents will remain effective until it is replaced. We shall be grateful if you could confirm in writing your agreement to the terms of this letter by signing and returning the duplicate copy to us, or let us know if they are not in accordance with your understanding.