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Connect Foundations General Terms and Conditions

These general terms and conditions form the contract between Connect and the Client for the use of the Connect Foundations software services.  Together with the Contract Details they form the Agreement between us.  You should ensure that the Contract Details correctly record the Software Services you have contracted for and that you have read these terms and conditions.

1 Definitions and interpretation
1.1 In this Agreement the following terms shall have the following meanings:

Agreement: means the agreement between Connect and the Client for the provision of Software Services set out in the Contract Details (as varied from time to tome) and these General Terms and Conditions;

Authorised Representative: means a Director of a Party who is incorporated or a person fully authorised by the Party to bind it in any agreement;

Business Day: means: (i) in relation to any notice, between the hours of 09:00 to 17:00 during working days in England, not including public or statutory holidays; or (ii) in relation to the supply of works a day, other than a Saturday and Sunday, when banks are open for business in the city of London;

Business User: means any entity or business division associated with the Client permitted to use or benefit from the use of the Software under the terms of this Agreement;

Charges: means Connect’s charges for the Software Services as set out in the Contract Document and clause 6, as amended from time to time on agreement of the parties or as otherwise provided under this Agreement;

Client: means the customer contracting for the Software Services as set out in the Contract Details.

Client Data means all the data, information, text, drawings, diagrams, images or sound or any other items which are supplied or in respect of which access is specifically granted to Connect by the Client (and any Business User) pursuant to the Agreement.  For the avoidance of doubt Client Data includes any images uploaded on to the Site by the Client or by an End User including parents and other family members;

Client Materials: means all data, documentation, software, hardware and other materials which the Client or a Business User makes or may make available to Connect during the Term;

Client Systems: means telecommunication systems, computer programmes, software, computer and communications networks, hardware, cabling and related equipment and databases owned or operated by the Client;

Commencement Date: means the date the Client began using the Software Services as set out in the Contract Details;

Confidential Information: means any information relating to the business, affairs, clients or suppliers of a party, including, but not limited to, any Deliverables, products, data, source code, object code, know how, personnel, clients and suppliers (but shall not include any anonymised End User Data);

Connect: means Connect Software Solutions Limited t/a Connect Childcare (Company No 05162098) whose registered office is at Richard House, 9 Winckley Square, Preston, PR1 3HP.

Connect Documentation: means all proposals, specifications, reports, user documentation and other documentation (if any) supplied from time to time by Connect as required in an Agreement;

Connect Software means the software proprietary to Connect as part of the Software Services and supplied under this Agreement;

Contract Details: mean the details of the Software Services, Charges, Client and other matters relating to the terms on which Software Services are used specified in a contract schedule provided by Connect or recorded on the Platform by Connect for the Client.;

Data Controller: has the meaning given in the Data Protection Legislation;

Data Processor: has the meaning given in the Data Protection Legislation;

Data Protection Legislation: means the Data Protection Acts and all other laws relating to the processing of Personal Data applicable to the parties at the relevant time;

Documentation means information supplied with the Connect Software in printed or machine-readable form;

End User means any user of any Software as licensed to the Client by Connect under the terms of this Agreement;

End User Data means any and all data (including “personal data” as defined by the Data Protection Legislation) relating to or provided by any End User of any Software as licensed to the Client by Connect under the terms of this Agreement;
Execution means for any Agreement the checking of the tick box on the Platform by the authorised representative to agree to the commencement of the provision of Software Services on these terms or the issue of the schedule by Connect which shall confirm commencement;

General Terms: means these general terms;

Hosting Provider: has the meaning given in Clause 19.2;

IPR: Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.;

Licensed Materials means the Connect Software and the Documentation;
Licence means the licence to the Software Services granted to the Client in this Agreement (as set out in Clause 19);

Packages: means the Software Services set out in a Contract Details which are to be provided to the Client under the Agreement at the applicable time;

Personal Data: has the meaning given in the Data Protection Legislation;
Platform: means the website www.foundations.software;

RPI: means the United Kingdom retail prices index (all items) as published by the Office for National Statistics (or by any government department or other body upon which duties in connection with such index devolve) or such other index as replaces such index;

Software Services: means software provided as a service by Connect as set out in the Contract Details and this Agreement, including (without limitation and where relevant Support Services);

Site: means each Client site address set out in the Contract Document or such other address as the Client notifies to Connect and Connect agrees;

Support Services: means the support and maintenance services (if any) specified in and to be supplied on the basis set out in Clause 17;

Term: means the term and duration of an Agreement as provided for in Clause 11;

Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Headings of clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement. Words imparting the singular shall include the plural and vice versa. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. References to persons include to an individual, company, corporation, firm or partnership. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.4 References to clauses are to the clauses in these General Terms.
1.5 Any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6 The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.  References to in writing include by e-mail, fax and letter.  All references in these General Terms to clauses, paragraphs, Schedules and Appendices are to the clauses and paragraphs of and Schedules and Appendices to an Agreement.
2 Scope of Agreement
2.1 From the Execution of the Agreement, and provided that the Agreement has not terminated, Connect agrees to supply the Software Services in accordance with and subject to the terms of the Agreement. These General Terms shall be deemed incorporated as part of the Contract Details to form the Agreement.
2.2 Should there be a conflict or inconsistency between any provision in the Contract Details and/or the General Terms, the documents shall take precedence over each other in that order.
3 Supply Of Works
3.1 Connect shall supply the Software Services with all reasonable skill and care in accordance with these General Terms and the Contract Details.
3.2 All third-party software is licensed subject to the licence terms of the software licensor and Connect gives no warranty in respect of any third-party software which they supply.
3.3 Connect shall supply the Software Services in accordance with the provisions of these General Terms and any express terms set out in the Contract Details or signed by a Director of Connect from any date specified therein.
4 Client Responsibilities
4.1 To enable Connect to perform its obligations under this Agreement, the Client shall co-operate fully with Connect at all times and shall at its own cost:

provide all Client Materials, End User Data (or data on potential End Users) and other information that Connect requests and ensure that these Client Materials, End User Data and information are full and accurate and that all consents necessary for their use by Connect have been obtained (including in relation to any consent required for the processing of  End User Data as Personal Data to permit the processing
of their Personal Data by Connect for the purposes of this agreement within the EEA and the licence granted to Connect by the Client in respect of such data further to clause 5 below);
ensure that it has in place at all times an effective and detailed safeguarding programme to ensure the protection of children in its care at all time.
4.3 The Client shall ensure that any Software Services provided are used in accordance with the terms of this Agreement and that any data captured using the Software Services, processed using the Software Services or passed to Connect is managed in accordance with the Data Protection Legislation.
4.4 The Client acknowledges and agrees that Connect and/or its licensors own all intellectual property rights in the Software Services (including the Connect Software). Except as expressly stated herein, any Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software Services or any related documentation.
5 Intellectual Property, Client Data and End User Data
5.1 Connect and its licensors retain all right, title and interest in and to all IPR subsisting in and/or arising from the delivery of and/or performance of the Software Services.  The Client shall have no right to use such IPR (or grant any sub-license in respect of the same) save as licensed to the Client in accordance with the terms of an Agreement.
5.2 The Client and its licensors retain all right, title and interest in and to all IPR subsisting in the Client Materials.  The Client grants to Connect for the Term and the duration of any Agreement a non-exclusive, royalty-free licence for Connect to use the Client Materials in performing Connect’s obligations pursuant to an Agreement.
5.3 The Client represents that it has the right to give Connect access to the Client Materials and to permit Connect to use such Client Materials in the performance of an Agreement.  The Client hereby indemnifies and shall keep indemnified Connect against all and any claims, actions, damages, losses, costs and/or expenses (including reasonable legal fees) that it suffers or incurs as a result of any action or claim that the use of the Client Materials infringes the IPR of a third party.
5.4 The Client acknowledges and agrees that Connect gives no warranties and/or indemnities in respect of the Connect Software or the provision of any Software Services save as expressly set out in this Agreement.  In particular, Connect gives no warranty that the Software Services will not infringe the IPR of a third party.
5.5 The Client acknowledges and agrees that Connect supplies the Software Services subject to this Agreement and the respective terms and conditions of the any third party software licensor and that it is the Client’s sole responsibility to familiarise itself with any such terms and conditions.
5.6 The parties acknowledge and agree that in the course of providing the Software Services, Connect may develop experience, expertise, processes, procedures, know-how and methodologies (“Methodologies”) and that all such Methodologies shall be owned by Connect who shall be entitled, subject to the provisions of Clause 10, to use them for any purposes whatsoever, including in providing deliverables and services to its other clients.
5.7 Connect acknowledges that the Client Data is the property of the Client, its third-party licensors or any End Users of Connect Software as licensed to the Client under the terms of an Agreement and the Client, where applicable, hereby reserves all IPRs which may subsist in the Client Data.
5.8 The Client grants to Connect an unrestricted, worldwide, perpetual, non-exclusive, fully paid-up and royalty-free licence to use, disclose copy and otherwise deal with the Client Data and any End User Data for its own business purposes, including but not limited to monitoring system performance improvements and the production of research and reports (in which the identity of End Users is anonymised).
5.9 The Client agrees that where any claim is made against it for breach of any intellectual property right in relation to the Connect Software or Documentation the Client shall notify Connect and follow any instructions Connect gives in managing such claim.  Save where the claim relates to any change the Client has made to the Connect Software or Documentation Connect shall pay any reasonable legal expenses needed to meet its instructions in managing the claim.
6 Charges and Payment
6.1 In consideration of the supply of the Services and any Deliverables, the Client shall pay to Connect all Charges due in accordance with this Clause 6 and the terms of this Agreement.
6.2 Unless otherwise stated in the Contract Details, the Charges and all other fees and charges arising pursuant to this Agreement are exclusive of Value Added Tax and all other applicable sales taxes, levies and duties.  These are payable by the Client in addition to the Charges.
6.3 Charges shall be payable from the Commencement Date and shall be paid in full monthly in advance at the rate applicable on the payment date.  The payment date shall be the same date in the month as the Commencement date or the last day of the month if that day does not occur in a month (i.e. 31st of the month).  In the event the Software Service is altered in any month the revised charges shall commence in the next month.  If the Client fails to make payment of any Charges or other payments by the due date (unless disputed in accordance with Clause 6.4), Connect shall be entitled to suspend supply of all and any Software Services until it has received payment in full.
6.4 Connect reserves the right by giving notice to the Client at any time to increase the Charges to reflect any increase in cost to Connect of the provision of the Software Services due to a factor beyond the control of Connect including due to price increases of manufacturers and/or suppliers.
6.5 Connect may increase the Charges no more than once in any twelve (12) month period for this Agreement and Connect shall give the Client not less than three months’ notice of any such increase.
6.6 All amounts due under an Agreement shall be paid in full without any set-off, counterclaim deduction or withholding (other than any deduction or withholding of tax as required by law).
6.7 Any initial charge set out in the Contract Details may be invoiced on Execution and periodic charges shall be invoiced at the frequency specified in the Contract Details.
7 Warranties
7.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
7.2 Connect warrants to the Client that it shall provide the Software Services in a timely and professional manner with all due skill and care and in accordance with good industry practice.
7.3 The Client acknowledges that Connect does not manufacture or develop any of the third party software which may from time to time be included within the Software Services.  The Client further acknowledges that Connect gives no warranty, and expressly excludes all warranties, in respect of third party software.
7.4 Connect shall have no liability for any breach of contract and/or defects, faults or other shortcomings in the Software Services to the extent that any are caused by:

any delay, act, omission and/or default of the Client and/or any person under its control, including any failure of the Client to comply with its obligations pursuant to this Agreement;
the use of any software, hardware, services and/or system(s) which are not approved by Connect as being compatible with the Software Services;
any unauthorised and/or improper use, storage and/or operation of any Software Services.
7.5 Connect gives no warranty that the use of the Software Services will be uninterrupted or free of virus or bugs, but will use its reasonable endeavours to ensure that this is the case, as far as practicable.
7.6 Except as expressly set forth in this Agreement, all warranties, terms and conditions, whether oral or written, express or implied by statute, common law, or otherwise, including, but not limited to, any warranties, terms and conditions of fitness for purpose, description or quality, are hereby excluded to the maximum extent permitted by law.
8 Limitation of Liability
8.1 Nothing    in this Agreement shall exclude or restrict either party’s liability for death or personal injury resulting from that party’s negligence, for fraud, or for fraudulent misrepresentation, or for any other liability which cannot be excluded or limited under applicable law, including breach of the terms implied by section 2 of the Supply Of Goods And Services Act 1982 (title and quiet possession) or for breach under Clause 4.1(b), 10 or 16.
8.2 Subject to Clause 8.1, Connect shall not in any circumstances be liable to the Client for any loss of profit, savings and/or revenue, loss of business, loss of data and/or any indirect, special and/or consequential losses arising under or in connection with this Agreement.
8.3 Unless set out to the contrary in the Contract Details, the total aggregate liability of Connect under this Agreement whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to 100% of the Charges paid in the six months immediately prior to the event that gave rise to the liability.  For the avoidance of doubt, where no Charges are paid Connect shall have no liability.
8.4 The Client agrees that the limitation of liability contained in Clause 8.3 is reasonable in the circumstances.
8.5 Any advice or recommendation given by Connect or its personnel to the Client or its employees, contractors or agents about the storage, application and/or use of the Software Services which is not confirmed in writing by an authorised officer of Connect is followed or acted on entirely at the Client’s own risk.
8.6 This Clause 8 shall survive termination of any Agreement.
9 Personnel
9.1 The Client undertakes that during the Term, and for the period of twelve (12) months after its termination, it shall not without the prior written consent of Connect:

make any offer of employment or enter into any discussion or negotiations with a view to making any offer of employment to any personnel employed by Connect or sub-contractor, consultant or freelancer retained by Connect to provide Deliverables or Services to the Client; or
solicit or attempt to solicit services from any personnel employed (or sub-contractors retained to provide Services or Deliverables) by Connect on their own account and/or entice or attempt to entice any such personnel away from Connect or solicit the provision of Software Services or any similar software from them.
9.2 Neither party’s employees, contractors or sub-contractors shall be considered, by virtue of any clause of any Agreement, an employee or agent of the other party or be entitled to participate in any benefits or privileges provided by the other party to its employees or be deemed an employee of the other party for any purpose including payment of salary, benefits, contributions, levies and taxation.
9.3 In performing its obligations pursuant to an Agreement, Connect shall operate as, and have the status of, an independent contractor and shall not operate or have the status of agent, employee or representative of the Client.
10 Confidential Information
10.1 Except with the prior written consent of the party making any disclosure, each party shall keep and procure to be kept secret any and all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties or under any Agreement and shall not use nor disclose the same save to its employees, officers, representatives or advisers who need to know such information for the purposes of the proper performance of an Agreement or with the prior written consent of the other party. For the avoidance of doubt, no party shall use the other’s Confidential Information for any other purpose than to perform its obligations under an Agreement.
10.2 The obligations of confidentiality in this clause 10 shall not extend to any information which:

is in, or has become part of, the public domain and/or is disclosed to the receiving party by a third party other than as a result of a breach of the obligations of confidentiality under an Agreement; or
was in the lawful possession of the receiving party prior to disclosure under an Agreement or which is independently developed by the receiving party, without dependence on, or reference to, such Confidential Information; or
is required to be disclosed by law or final mandatory order of a court or other competent authority, or to any regulatory authority to which that party is subject, provided always that, the party whose Confidential Information is to be disclosed is promptly notified of such a requirement and afforded a reasonable opportunity to seek relief therefrom, where available.
10.3 Connect may advertise or publicly announce that the Client is a Client of Connect for the relevant Software Services with the written consent of the Client, which consent shall not be unreasonably refused.
10.4 Both parties agree to treat as Confidential Information the details of this Agreement and any and all dealings between the parties under the Agreement.  For the avoidance of doubt both parties agree that they shall not make detrimental comments about the other save in that nothing shall prevent either party from providing information on or comments in respect of their own actions, dealings and processes.
11 Term, Changes and Termination
11.1 The Client may amend the Software Services at any time to increase the level of the Software Services being provided or to reduce the level of the Software Services.  Changes may be made on the Platform and will take effect once the request has been processed by Connect.  Charges will be amended as specified in clause 6.
11.2 This Agreement shall commence on the Commencement Date and, unless otherwise terminated in accordance with the Agreement, shall continue until either Connect provides one months’ notice of termination or the Client updates the Platform to request termination.  Termination will take effect at the end of the then current payment period.
11.3 Without affecting any other right or remedy available to them, this Agreement may be terminated by either party on written notice to the other party if:

the other party commits a material breach of its obligations under this Agreement which is either incapable of remedy or is capable of remedy and the other party fails to remedy such material breach within thirty (30) days of receipt of a written notice specifying details of the breach and requesting that breach be remedied;
the other party fails to pay any undisputed sum due and payable to the terminating party within twenty-eight (28) days of its due date for payment in accordance with this Agreement; or
the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to discharge its obligations or give effect to the terms of this Agreement; or
In the case of the Client:

(i) the directors make an application for a moratorium under Schedule A1 of the Insolvency Act 1986 (“Act”), convene a meeting of creditors for the purpose of considering a voluntary arrangement under Part I of the Act, approve a scheme of arrangement or enter into negotiations with any creditor with a view to compromising its debts;
(ii) any step is taken by the Client, its directors or any creditor for the appointment of an administrator;
(iii) a receiver, receiver or manager, administrative receiver or an LPA Receiver, is appointed to or over any or all of the assets of the Client;
(iv) a resolution to wind-up is passed or a petition is presented for the winding up of the Client or a winding up order is made unless for the purpose of a solvent amalgamation or reconstruction;
(v) if it is struck off from the Register of Companies, or otherwise ceases to trade or exist;
(vi) if it is deemed to be unable to pay its debts within the meaning of section 123 of the Act save that all references to the ‘court’ in that section shall be replaced with Connect;
(vii) it is in breach of the requirements of any safeguarding policy and/or is subject to any adverse finding by any regulator of the childcare sector.
any analogous or equivalent event to these specified in paragraph (d) above occurs;
or in the case of a Client which is incorporated or has a centre of main interests outside England and Wales any event or circumstances occurs which under the laws of that jurisdiction has an analogous or equivalent effect to any of the events in paragraph (d) above occurs.
11.4 For the purposes of clause 11.3 (a) “material breach” means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of an Agreement over its term. In deciding whether any breach is material, no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
12 Consequences of Termination
12.1 Termination of this Agreement shall not affect any other agreement.
12.2 On the expiry or termination of this Agreement (for whatever reason) the Client shall immediately cease all use of the Confidential Information and IPR of Connect under the terminated contracts.
12.3 The expiry or termination of an Agreement shall not affect the continuation of any other Agreements and shall be without prejudice to any rights of either party in respect of any Agreements entered into before such expiry or termination.
12.4 The termination or expiry of an Agreement shall not affect the rights and remedies of the parties which are applicable at the date of termination or expiry.
12.5 The provisions of clauses1, 4, 5, 6, 7.5, 8, 9, 10, 12 and 13 and all other provisions intended by their nature to continue or to come into effect after termination or expiry, shall survive the termination or expiry of an Agreement and shall continue in full force and effect.
12.6 The parties agree and acknowledge that following termination of the Agreement Connect is entitled to and must maintain certain data and information from the provision of Software Services.  Where the Client requires that Connect provide any services after termination the parties shall agree the terms on which such services shall be provided, and any such services shall be provided on the terms of this Agreement (with the payment of the agreed additional fees) for the period that those exit services are required.  Save where Connect agrees to provide services under this clause it shall not be obliged to provide services after termination.
13 General
13.1 In the event of any dispute or difference between the parties arising out of an Agreement, the parties shall use their reasonable endeavours to seek a resolution to such dispute.
13.2 Neither party shall be in breach of any Agreement nor liable for delay in performing, or failure to perform, any of its obligations under any such contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.  In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations provided that if the period of delay or non-performance continues for 3 months, the party affected may terminate the Agreement by giving 30 days’ written notice to other party.
13.3 This Agreement is personal to the Client.  The Client may not assign, sub-contract or otherwise transfer the Agreement (or any part of such), to any third party, without the prior written consent of Connect, such consent not to be unreasonably withheld.  Connect may at any time assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under an Agreement, or any part thereof..
13.4 If any provision of this Agreement is or becomes invalid, illegal or unenforceable at law, then such provision shall be severed and the remainder of the Agreement shall continue in full force and effect.
13.5 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no party who is not a party to the Agreement shall have any right to enforce any term of the agreement.
13.6 Any purported variation or amendment to an Agreement shall be of no effect, unless either confirmed in writing by an Authorised Representative of Connect or is made by Connect may amending any term of an Agreement (other than the Charges) by the provision of 28 days’ notice.
13.7 The waiver by either party of any breach of an Agreement by the other party in a particular instance shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind.  No failure or delay by either party in exercising or enforcing any of its rights under any Agreement shall be deemed to be a waiver of such rights, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.8 Except as expressly provided in any Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13.9 Nothing in any Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.10 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:

13.10.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
13.10.2 sent by e-mail to its main e-mail address.
13.11 Any notice or communication shall be deemed to have been received:
13.11.1 If delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

13.11.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
13.11.3 if sent by e-mail, at 9.00 am on the next Business Day after transmission.
13.12 This Agreement and the documents referred to in them constitute the entire understanding between the parties and, save as expressly referred to or referenced therein, supersedes, replaces and extinguishes all prior representations, writings, negotiations or understandings oral or written relating to the subject-matter.  Each party acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in the Agreement and that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement not in the Agreement.
13.13 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with an agreement or its subject matter or formation (including non-contractual disputes or claims).
14. Training
14.1 This Clause 14 will apply where training is set out in the Contract Details.
14.2 Connect shall provide on line training resources for clients generally which the Client may access.  Connect is not generally bound to provide any training.  In the event Connect agrees to provide additional training it shall be the subject of a separate agreement.
15. Execution and Contract Registration
15.1 The Software Services are provided on a software as a services basis and require the Client to register on the Platform (or be permitted access as a Beta user), select the applicable Software Services and agree to the applicable Charges.
15.2 The Client shall execute the Agreement by registration on the Platform or accept the schedule provided.  The Client shall provide such information and detail as is required by Connect for the purposes of registration and for the ongoing use of the Software Service.
15.3 The Client shall be responsible for all passwords provided for the registration on the Platform and shall ensure that only those authorised to amend the terms of the Agreement are provided with access to the Platform.
16 Data Security
16.1 Connect and the Client shall each take reasonable precautions (having regard to the nature of their respective obligations under any Agreement) to preserve the integrity of the Client Data and/or the Software and to prevent any corruption or loss thereof.
16.2 Unless otherwise agreed Connect shall arrange for the back up of the Client Data in accordance with its standard processes.  The back up of Client Data shall be carried out by the Hosting Provider (as defined below) and be subject to the Hosting Providers terms and conditions.
16.3 In the event Client Data is corrupted or lost due to the default of Connect or the Hosting Provider, Connect shall use best endeavours to restore the Client Data from the back up provided by the Hosting Provider..
16.4 In relation to the parties rights and obligations under this Agreement, the parties agree that the Client is Data Controller and Connect is Data Processor for the personal data placed into the Software by the Client.
16.6 In respect of Client Data, including any Personal Data, the Client shall ensure that it obtains all consents or other basis for processing needed for Connect to process the data and both parties shall comply with the Data Protection Legislation.
16.7 Where Connect process data for the Client it shall

(a) do so on the basis of the Clients instructions and as intended in the working of the Software, which are set out in this Agreement;
(b) ensure that appropriate technical and organisational measures are in place to ensure an appropriate level of security is in place for the processing and data being processed;
(c) ensure that any requests to exercise a data subjects rights under the Data Processing Legislation are passed to the Client without undue delay;
(d) notify the Client promptly if it becomes aware that any instructions of the Client relating to the processing of personal data are unlawful;
(e) ensure that any persons (including sub-processors) used by it to process personal data are subject to legally binding obligations of confidentiality in relation to the personal data;
(f) be authorised to engage a sub-contractor to carry out any processing of personal data provided that such sub-contractor shall meet all obligations of Connect under the Agreement;
(g) assist the Client in ensuring compliance with its obligations under the Data Protection Legislation; and
(h) make available to the Client all information necessary to demonstrate compliance by Connect with the Data Protection Legislation and allow for and contribute to audits, including inspections, conducted by or on behalf of the Client (including a client of the Client) or by the Information Commissioners Office pursuant to Article 58(1) of the GDPR.
17 Support Services
17.1 This Clause 17 will apply where support is specified as being provided in the Contract Details.
17.2 Support shall only be provided for the Software Services specified as receiving support in, and in accordance with, the Contract Details.
17.3 Connect shall provide resolution of telephone incidents between the hours of 9:00am and 5:00pm (UK time) on Business Days (Support Services Hours) in accordance with the service level agreement set out in this Clause or otherwise set out in the Contract Details.  Unless specifically agreed otherwise, calls outside of these times will be resolved on a reasonable endeavours basis.
17.4 Service Level Agreement

Priority 1 (Very High) – Where the Client or Business User’s productive system is down, or the Client intends its Connect Software to go live within 24 hours and the problem will prevent the Client or a Business User from going live, target initial response time is 1 hour.

Priority 2 (High) – Where use of the Client or Business User’s productive system is hindered by severe loss of functionality but remains operational, target initial response time is 2 hours.

Priority 3 (Medium) – Where the Client or Business User has identified a program error, but processing can continue, or an individual function is not performing properly; target initial response time is 4 hours.
Priority 4 (Low) – For service or information requests, target initial response time is 8 hours.

Connect shall allocate a consultant to any reported error in Software (other than third party software).  Such consultant shall be responsible for contacting the Client or Business User and diagnosing and resolving the error.  The Client shall be responsible for implementing any error corrections provided by Connect.

All above target response times are times within Support Services Hours.  Problems arising in test or development systems will be allocated a priority level that is one less than a similar problem occurring in a productive system.

If any Support Services are provided outside Support Service Hours, Connect may make additional charges at its current rate.

17.5 Connect responsibility
17.5.1 Once a call is logged, Connect shall use its reasonable endeavours to respond to the Client’s/Business User’s request within the constraints of the service level agreement set out in 17.4 above.   Connect shall ensure that the main contact specified on the incident is kept up to date on progress.
17.6 Client responsibility
17.6.1 The Client will ensure that when the incident is logged as much information as possible about the incident is recorded, including error messages and any other related information.  The Client should also be available to enable Connect to respond to any incident in a timely fashion.
17.6.2 If an incident is logged and Connect requires access to equipment, for example a laptop, the Client must ensure that appropriate access is made available to ensure the successful resolution of the issue.
16.6.3 Where access cannot be granted, or the Client is not available within ten working days of the incident being logged, the incident will be closed, requiring the Client/Business User to open a new incident when they are more readily available.
17.7 Escalation
17.7.1 In the event that a Client reasonably believes the progress of the incident or level of service from Connect has not met the agreed service levels, the incident may be escalated to Connect’s senior management to enable prompt resolution of such issues to the satisfaction of the Client.
17.8 Support Services Charges
17.8.1 All Charges for Software Services (that include an element of charge for support) shall be subject on written notice from Connect to increase on significant change to volume of activity or on an annual basis, as agreed with the Client.
17.8.2 A significant change to volume of activity shall be determined by Connect in its sole discretion.  In exercising its discretion Connect shall consider whether any additional cost is incurred as a result of any changing activity.
17.8.3 The Client agrees that Software Services (that include an element of charge for support) provide support for new queries and issues which are raised by the Client to support its use of the Software Services.  These services are not intended to provide assistance for queries and issues which are a repeat of previous queries.  Where Connect reasonably determine that queries and issues are being repeated it shall consider whether any additional cost is incurred as a result of this activity and increase its Charges accordingly.
18 Software Services
18.1 The Software Services to be provided shall be more fully described in the Contract Details.  Connect shall host the Software Services and the Client shall have the right to use any specified Connect Software as part of the Software Services on the basis set out in this Agreement.
18.2 The Client shall be entitled to use the Software Services in accordance with the terms of the licence set out in Clause 19 below save where the Contract Details confirms the software is third party software.  In the case of third party software the Client agrees that it shall comply with the terms of any third-party licences and shall indemnify, and hold Connect harmless against any and all losses, damages, costs and expenses (including professionals’ fees) which Connect may incur as a result of the Client’s breach of the terms of any of those third party licences.
18.3 In the event that any licence fees are payable in respect of any third-party software (whether on a one-off or periodic basis) then the Client shall be liable to pay such fees, (unless payment of those fees has been included by Connect, and are not expressly set out as such, in the Contract Details), and Connect shall not be liable for any consequences of any failure of the Client to do so.
18.4 The Client acknowledges and agrees that Connect supplies the Software Services “as is” and gives no warranty as to its use.  Save as otherwise expressly provided for under this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
18.5 On providing access to any Software Services, the Client shall be able to access the Software Services online.
18.6 The Client expressly acknowledges that the Connect Software is not designed specifically for the Client and it is the Client’s responsibility to ensure that the facilities and functions of the Software Services meet the Client’s requirements.
18.7 The Client shall pay the Charges for Software Services set out in the Contract Details for the Software Services and the licence of the Connect Software.
18.8 Connect confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, any Agreement.
19 Software Licence
19.1 Subject to the Client paying the Charges specified in the Agreement, Connect grants to the Client a non-exclusive, non-sublicensable and non-transferable licence, for the Term to use Licensed Materials subject to the terms of this Agreement.  The Client acknowledges that it is licensed to use Licensed Materials under the express terms of the appropriate Agreement but not further or otherwise.  The Software Services and the licence permit only the use of the Software via the Platform.
19.2 The parties acknowledge and agree that Connect shall host the Software Services and it will be accessed remotely via the Platform from servers ascribed to Connect and hosted by a third-party provider (the “Hosting Provider”).  For the avoidance of doubt: (i) the Client shall benefit from the provision of the hosting services provided by the Hosting Provider and all rights, privileges, options and protections of Connect, to the extent that Connect benefits; and (ii) Connect shall be bound to the Client in respect of the services of the Hosting Provider as the Hosting Provider shall be bound to Connect and the liability of Connect shall be limited as the liability of the Hosting Provider shall be limited.
19.4 The Client shall use Licensed Materials for processing its own data for its own internal purposes only.  The Client shall not permit any third party to use the Licensed Materials in any way whatsoever nor use the Licensed Materials on behalf of or for the benefit of any third party in any way whatever.  In so far as any Licensed Materials are used by parents of children registered with the Client data provided by or to the parent and the access by the parent of the Licensed Material shall be deemed processing of the Clients data for its own internal purposes, subject to the compliance with paragraph 19.5 of this Licence.
19.5 Where any parent referred to in Clause 19.4 of this Licence accesses the Connect Software the Client shall ensure that they do so under the terms of use provided by Connect in the Connect Software, which shall include a requirement that parent may only use the Connect Software with respect to their own children.  Additionally, the Client shall ensure that it obtains appropriate consents for the use of all information, data and images that the parent may use or add to the Connect Software.  For the avoidance of doubt these provisions shall apply where the parent accesses the Connect Software via an app made available by Connect other than via the Client.
19.6 The Licence is limited to the use of the Licensed Materials for the number of children specified on the Contract Details.    The Client acknowledges that depending on the Software Support Services the Client may require a number of agreements for different Sites to support multiple nurseries.  An additional licence fee is payable for each additional child above the specified number.
19.7 The Licensed Materials and all IPRs therein (including IPRs in any modifications carried out by or on behalf of the Client) shall remain the property of Connect.  The Client shall notify Connect immediately if it becomes aware of any unauthorised use of the whole or any part of the Licensed Materials by any person.  The Client will permit Connect to check the use of the Licensed Materials by the Client at reasonable times and for that purpose Connect, its employees and agents shall be entitled to enter any of the Client’s premises.
19.9 Save to the extent and in the circumstances expressly permitted by law, the Client shall not alter, modify, adapt or translate the whole or any part of the Licensed Materials in any way whatever nor permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.
19.10 If a Client fails to pay any amount due under the Agreement on the due date for payment, Connect shall be entitled to suspend access to the Software Services used by a Client, until such time as any due amounts have been paid.
19.11 The Client shall ensure that each End User has a user name used only by that individual who keeps a secure password for their use of the Connect Software, that such password is changed no less frequently than twice in one calendar year and that each authorised user keeps his password confidential.
19.12 The Client shall ensure that any requirements for the use of the Parent Connect software by parents are complied with.  Connect shall provide details of the requirements including any user names and passwords as required from time to time.
19.13 Connect may audit the Connect Software regarding the name and password for each User. If such audit reveals that passwords have been provided to individuals who are not authorised users, and without prejudice to Connect’s other rights, the Client shall promptly disable such passwords and shall not issue any new passwords to such individuals.
19.14 In relation to the Connect Software the Client shall not:

(a) store, distribute or transmit any Virus, or any material through the hosting services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(b) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Connect Software except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Connect Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(d) access all or any part of the Connect Software or hosting services in order to build a product or service which competes with the Connect Software and/or the Software Services
(e) use the Connect Software or Software Services to provide services to third parties;

And shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Connect Software and notify Connect promptly of any such unauthorised access or use.

19.15 Each party shall indemnify the other and hold it harmless against any and all losses, damages, costs and expenses (including professional fees) which it may incur as a result of that party’s breach of the terms of any third-party hosting or licencing agreement applicable to it.
19.16 The Client agrees and acknowledges that the usage and performance of the Software Services will be impacted by a high number of users or a high volume of usage and Connect shall have no responsibility for any issues caused by a high level of usage of any Software.  The level of usage permitted is subject to restrictions that Connect shall notify to the Client either in the Contract Details or where the level of usage is high.  High usage is use which is above that expected from similar users at the time the Agreement is entered.  If the level of usage the Client requires is increased Connect may increase the Charges to reflect the additional hosting capacity required.
20 Photo Products
20.1 The Client warrants it is authorised to licence the use the Client Material and particularly of all photographs transmitted to, uploaded to the sites of or to which access is granted to Connect for use in accordance with this clause 20
20.2 Connect may make products available to users of the Connect Parent Zone App (“the App”) using the photographs and images available to those users on the App.
20.3 Connect shall set the terms and conditions applicable to any photo product it makes available including the pricing available.
20.4 Subject to the payment of any commission due to the Client Connect is entitled to all fees earned from the sale of photo products and no payments shall be due to any other party.
20.5 Connect shall notify the Client where any photo product is sold to a parent logged on to the App via the Client using any Client Materials.
20.6 Connect shall pay to the Client a commission for any photo product which is sold using Client Materials at the rate confirmed by Connect as being applicable from time to time.
20.7 The Client shall invoice Connect for any fee due under clause 20.6 which shall be payable 45 days from the end of the month in which Connect the amount payable is greater than £50. Connect will settle the amount in accordance with the payment terms when the amount outstanding is greater than £50 following which the amount payable shall be reset to the current sum due.
20.8 commission payment threshold of £50 is subject to review and may be increased in Connect’s absolute discretion on the provision of 14 days’ notice.
20.9 The Client warrants it is able to provide all licences and rights required for Connect to provide the photo products under the terms of this clause