OnePlan Business Solutions Ltd – Terms & Conditions

    1. These Terms
        1. These are the terms and conditions on which we supply our software and services to you.
        1. We are OnePlan Business Solutions Ltd, a company incorporated and registered in England and Wales with company number 10819245 and our registered office is at 4 Hattersley Court, Burscough Rd, Ormskirk, Lancs, L39 2AY.
        1. For the avoidance of doubt, references in these terms to “you” are to your business (the company or organisation with which we contract under these terms, as stated in the relevant Purchase Order) and not to any individual within your business. References to a party or parties are to you or us (or both), as the context requires.
    1. Definitions and Interpretation
        1. The definitions and rules of interpretation in this clause 2 apply to the Contract.
        1. Airtime Agreement means a contract between you and the Network Provider under which the Network Provider provides to you mobile telecommunications services, including mobile data services, and an Airtime Agreement may include any number of Connections.
        1. Authorised Users has the meaning given in clause 9.1.
        1. Base Specification means the base specification documents that we provide or make available to you prior to entering into the Contract, setting out the features and functionality of the OnePlan Suite.
        1. Business Day means a day other than a Saturday, Sunday or public holiday in England.
        1. Connection means the connection of any end user to a network or service provider under an Airtime Agreement.
        1. Contract means our contract with you, consisting of these terms and any Purchase Order accepted by us in accordance with clause 3.1.
        1. Contract Year means any period of 12 months starting on the date that the Contract begins (in accordance with clause 3.2) or on any anniversary of that date.
        1. Data Protection Legislation means the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any other data protection legislation applicable in the UK from time to time, and terms in clause 17 shall, unless the context otherwise requires, have the respective meanings given to them in the Data Protection Legislation.
        1. Insolvency Event means, in respect of a party, an order is made or a resolution passed for the winding up of the party, or the party goes into liquidation, or an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the party’s assets, or the party makes an assignment for the benefit of or composition with its creditors generally, or any event occurs or proceedings are taken with respect to the party which have an effect equivalent or similar to any of the foregoing matters, or the party suspends or threatens to suspend payments of its debts, or the party is unable to pay its debts as they fall due, or the party ceases or threatens to cease to carry on all or a substantial part of its business.
        1. Mobile Equipment means any mobile phone, handset or other device we agree to provide to you under the Contract.
        1. Mobile Purchase Order means a Purchase Order for any Mobile Equipment and/or any Mobile Services.
        1. Mobile Services has the meaning given in clause 11.1.
        1. Network Minimum Term means the minimum term of a Connection under an Airtime Agreement (and, where there is more than one Connection under an Airtime Agreement, the longest such minimum term), in accordance with the tariff for that Connection and as set out in the Mobile Purchase Order.
        1. Network Provider means the provider with which you enter into an Airtime Agreement for the provision of mobile telecommunications services (including mobile data services).
        1. OnePlan Suite means the OnePlan suite of software for the domiciliary care and care home sector, including the Android application for handset users (the OnePlan App) and the website service for office users (the OnePlan Software), and including any and all upgrades, versions, patches or other modifications of the same.
        1. Personal Data means any personal data (as defined in the Data Protection Legislation) processed by us on your behalf under or in connection with the Contract.
        1. Purchase Order means a Software Purchase Order or a Mobile Purchase Order, as the context
        1. Services means Software Services and/or Mobile Services, as the context requires.
        1. Software Documentation means any documentation or information that we provide to you in writing in connection with your use of the OnePlan Suite, including the Base Specification and any other specifications, instructions, manuals and user guides.
        1. Software Minimum Term means the period of 3 or 12 months (dependent on contract option) from and including the later of (a) the date that the Contract begins in accordance with clause 3.2 and (b) the date on which we deliver to you and/or install for your use the OnePlan Suite.
        1. Software Services has the meaning given in clause 10.1.
        1. Software Purchase Order means a Purchase Order for the OnePlan Suite and/or any Software Services.
        1. Subsidy means any cashback or subsidy that we may agree to pay to you (subject to these terms), whether in instalments or otherwise, as set out in the relevant Mobile Purchase Order.
        1. VAT means value added tax or any equivalent tax applicable in the UK from time to time.
        1. Clause headings shall not affect the interpretation of these terms.
        1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality.
        1. Unless the context otherwise requires:
            1. words in the singular shall include the plural and in the plural shall include the singular; and
            1. a reference to one gender shall include a reference to the other genders.
        2. The Contract shall be binding on, and enure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
        1. A 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. A reference to writing or written includes email.
        1. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
        1. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    1. Our Contract with you
        1. Following your initial enquiry we shall provide you with a non-binding quote for the requested products. By providing us with a Purchase Order in accordance with such a quote you make an offer to us to purchase the requested products on these terms (to the exclusion of any further or alternative terms notified by you to us or otherwise). The Contract shall only be formed between us once we have confirmed to you our acceptance of your offer either in writing or by commencing our performance under the Contract (such as by dispatching any products or commencing performance of any Services).
        1. The Contract shall begin on the date that we confirm to you our acceptance of your Purchase Order in accordance with clause 3.1 above, and shall continue unless and until terminated in accordance with clause 20.
        1. Where we provide any Services under the Contract, the provision of such Services shall commence on the date specified in the Purchase Order (if any) or, otherwise, on the date that the Contract begins in accordance with clause 3.2.
        1. We shall supply to you the products (including goods, services and/or digital content, as applicable) as set out in the Purchase Order that forms part of our Contract, and you shall take and pay for such products, in accordance with the Contract.
        1. Except where otherwise expressed in clauses 3.6 and 3.7 below, all of these terms shall apply to the Contract.
        1. Clauses 4 to 10 inclusive apply only in respect of any Software Purchase Order that we have accepted in accordance with clause 3.1 and:
            1. clauses 4 to 9 apply only where your Software Purchase Order include the provision of OnePlan Suite; and
            1. clause 10 applies only where your Software Purchase Order includes the provision of any Software Services (including any support services).
        2. Clauses 11 to 14 inclusive apply only in respect of any Mobile Purchase Order that we have accepted in accordance with clause 3.1, and clause 14 applies only where your Mobile Purchase Order includes the provision of any Mobile Equipment.
    1. OnePlan Suite Licence
        1. In consideration of and subject to your payment of the charges set out in the Software Purchase Order, we hereby grant to you a revocable, non-exclusive, non-transferable licence to use, and to permit your Authorised Users to use, the OnePlan Suite and Software Documentation for the duration of the term of the Contract, solely for your internal business operations, in accordance with the Contract.
        1. The licence granted under clause 4.1 is subject to you and your Authorised Users complying with your obligations under the Contract. You are solely responsible and liable for the use of the OnePlan Suite and Software Documentation by your Authorised Users.
        1. We may from time to time supply to you third party products and services in connection with the OnePlan Suite. Use of any third-party products and services is at your sole risk and may be subject to licences granted by the third party, which you must comply with. We make no representation or warranty and shall have no liability whatsoever in respect of the suitability, performance (or failure to perform), conformation to any specification or your use of any such third-party products or services.
        1. You acknowledge and agree that all title and rights, including all intellectual property rights, in the OnePlan Suite, Software Documentation and Software Services belong and shall belong to us or our partners or licensors (as the case may be) and you shall have no rights to, under or in the OnePlan Suite, Software Documentation or Software Services other than as expressly set out in the Contract.
        1. We confirm that we have all the rights in relation to the OnePlan Suite, Software Documentation and Software Services that are necessary to grant all the rights we purport to grant under, and in accordance with, the Contract.
    1. OnePlan Suite Acceptable Use
        1. The OnePlan Suite must always be used in accordance with the Software Documentation and the Contract.
      1. You shall:
          1. keep all passwords and login details confidential;
          1. use all reasonable endeavours to prevent any unauthorised access to, or use of, the OnePlan Suite or Software Services (and, in the event of any such unauthorised access or use, promptly notify us); and
          1. take and/or implement all reasonable security measures in connection with your use of the OnePlan Suite and Software Services, including in relation to information security.
      2. You shall not:
          1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract, attempt to:
              1. use, copy, modify, duplicate, adapt, vary or create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the OnePlan Suite, Software Documentation or Software Services in any form or media or by any means; or
              1. reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the OnePlan Suite, Software Documentation or the Software Services;
          2. access all or any part of the OnePlan Suite or the Software Services in order to build a product or service which competes with the OnePlan Suite or the Software Services;
          1. use the OnePlan Suite or the Software Services to provide services to third parties who are not Authorised Users;
          1. except to the extent expressly permitted under the Contract, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the OnePlan Suite, Software Documentation and/or the Software Services available to any third party except the Authorised Users;
          1. attempt to obtain, or assist third parties in obtaining, access to the OnePlan Suite, Software Documentation and/or the Software Services, other than as provided under the Contract; or
          1. attempt to use the OnePlan SuiteApp (or any Mobile Equipment on which it is installed) in an unsafe manner, such as while driving or otherwise operating a motor vehicle.
    1. OnePlan Suite warranties
        1. We warrant that the OnePlan Suite will perform substantially in accordance with the Contract and the Base Specification, provided that it is properly used on the recommended hardware configuration and always in accordance with the Software Documentation and with the Contract. We make no representation or warranty that the OnePlan Suite will conform with any specification not set out in the Contract or in the Base Specification.
        1. The warranty in clause 6.1 is void if the failure of the OnePlan Suite is the result of:
            1. any modification, variation, or addition (not performed by us);
            1. any accident, abuse, corruption or incorrect use of the OnePlan Suite or of any hardware device, including use of the OnePlan Suite in contravention of the Contract and use of any hardware device or equipment in contravention with the manufacturer’s instructions or guidance;
            1. use of the OnePlan Suite with or in conjunction with other equipment or software which is not supplied or supported by us;
            1. the installation or use of, or access to, any software, application or website which is not supplied or supported by us, on the same device that you use to access the OnePlan Suite; or
            1. improper, inadequate or unauthorised installation, maintenance or storage.
        2. If the OnePlan Suite does not conform with the warranty in clause 6.1, your sole exclusive remedy will be for us to, at our sole option:
            1. replace the OnePlan Suite with software which does conform with the warranty in clause 6.1; or
            1. refund the charges actually paid for the OnePlan Suite (as set out in the relevant Software Purchase Order) in respect of the period starting on the date that you notify us in writing that the OnePlan Suite did not conform with the warranty in clause and ending on the date of payment of the refund (pro-rated per day).
        3. We shall use reasonable endeavours to ensure that the OnePlan Suite is available to you at all times, except in the case of scheduled maintenance (provided that we will use reasonable endeavours to give you advance notice of scheduled maintenance and to minimise any disruption to your use of the OnePlan Suite).
        1. We make no representation or warranty that your use of the OnePlan Suite, Software Documentation or Software Services will be uninterrupted, error-free or completely secure, nor that the OnePlan Suite, Software Documentation or Software Services and/or the information or data obtained by the Customer through the OnePlan Suite or Services will meet any requirements not set out in the Contract or the Base Specification.
        1. In order to access the entire functionality of the OnePlan Suite, you must ensure that you have full internet access through a GPRS, 3G, 4G or Wi-Fi connected device. The warranty in clause 6.1 does not apply, and we will not be liable to you in any circumstances, in respect of any failure, non-performance or non-conformance of the OnePlan Suite on any device during any period where such device does not have full internet access.
    1. OnePlan App
        1. Where you use the OnePlan App on any mobile hardware device, you must:
            1. at your own expense and at all times keep such device in good condition and working order, properly serviced and maintained, and make no alteration or remove any existing components of the device; and
            1. use such device in a skilful and proper manner and in accordance with any operating instructions and/or guidelines issued to you by us and/or the manufacturer, and ensure that such device is only used by properly trained personnel.
        2. In order to ensure maximum functionality of the OnePlan App, we recommend that you use the OnePlan App on Mobile Equipment that we may supply to you. On request, and subject to payment of the relevant charges set out in the Purchase Order, we may approve you to use the OnePlan App on your own device. We give no warranty that the OnePlan App will be operable with any devices not approved by us. All devices must be registered with us before you may use the OnePlan App on them.
    1. Software Maintenance
        1. You acknowledge and agree that any part of the OnePlan Suite, Software Documentation and/or the Software Services may be amended from time to time during the term of the Contract, provided that where any such changes substantially adversely affect your use of the same, we will endeavour to give you reasonable notice of such change.
        1. We may at our sole discretion develop and issue patches, updates, upgrades, new versions and/or any other modifications of the OnePlan Suite from time to time. Details of any modifications, and instructions for using any modified features of the OnePlan Suite, will be made available upon release of the modification in the change log within the OnePlan Suite. Where necessary, we may issue updated versions of the Software Documentation to reflect such modifications. Unless otherwise expressed in the Contract, we reserve the right to charge additional fees for the use of any such modification.
        1. Where any modification of the OnePlan Suite is issued to you, you must install or otherwise implement such modification immediately, and you must read the information set out in the change log in the OnePlan Suite upon such installation or implementation. Your failure to do so will void any warranty given by us under the Contract in respect of the OnePlan Suite, Software Documentation and/or Software Services.
    1. Authorised Users
        1. You may permit any number of your employees (or, with our prior written consent, other individuals) (Authorised Users) to use the OnePlan Suite, Software Documentation and Software Services, under the licence granted in clause 4.1, in accordance with and subject to this clause 9.
        1. The number of Authorised Users using the OnePlan Software at any one time shall not exceed the number of licences for the OnePlan Software purchased under the relevant Software Purchase Order.
        1. The number of Authorised Users using the OnePlan App at any one time shall not exceed the number of licences for the OnePlan App purchased under the relevant Software Purchase Order.
        1. You shall ensure that the Authorised Users use the OnePlan Suite, Software Documentation and Software Services in accordance with the Contract and you shall be responsible for any Authorised User’s breach of the Contract. Where applicable, an obligation on you in the Contract includes an obligation to procure that your Authorised Users’ comply with such obligation.
        1. You shall ensure that Authorised Users are properly and fully trained in the use and operation of the OnePlan Suite (and any hardware devices on which it is operated) and the Software Services, and it is your responsibility to request and purchase from us appropriate training and support services to enable you and your Authorised Users to comply with this clause 9.5.
    1. Software Services
        1. We may agree under the Contract to provide you with services in connection with the OnePlan Suite, including installation, training, support services and bespoke modifications of the OnePlan Suite (the Software Services), in consideration of and subject to your payment of the relevant charges set out in the Software Purchase Order.
        1. We may, at our discretion, offer training services to new customers free of charge, but any further training requirements and other services will be subject to additional charges (as set out in the relevant Purchase Order for such services). For the avoidance of doubt, we will not provide any training, support, or other services that are not set out in the relevant Purchase Order.
        1. Please contact us for further information about the Software Services that we offer.
    1. Mobile Services
        1. We may agree under the Contract to provide you with the following services, subject to payment by you of any charges set out in the relevant Mobile Purchase Order:
            1. negotiating and arranging an Airtime Agreement that you will enter into with the Network Provider;
            1. mobile repair and replacement (MRR) services (please contact us for more information about our MRR services); and
            1. any other services associated with the Mobile Equipment or any Airtime Agreement.

          (the Mobile Services).

    1. Airtime Agreements
        1. Where your Mobile Purchase Order includes the provision of any Airtime Agreement, you agree and acknowledge that:
            1. we act as an agent of the Network Provider to negotiate and conclude the Airtime Agreement with you on the Network Provider’s behalf (and we warrant that we are duly authorised by the Network Provider to do so);
            1. by entering into the Contract with us, you agree and are bound to enter into the Airtime Agreement with the Network Provider on the terms stated in the Airtime Agreement and the Mobile Purchase Order (and we reserve the right to charge you for any costs and expenses that we may incur as a result of your failure to do so);
            1. the Airtime Agreement is a contract between you and the Network Provider, to which we are not a party, and it is entirely separate to the Contract between you and us. We have no control over, take no responsibility for and shall have no liability whatsoever in respect of the Network Provider’s performance under the Airtime Agreement; and
            1. you will at all times comply with the terms of the Airtime Agreement (and any other applicable terms notified or made available to you by the Network Provider or by us) including the payment of any bills and additional charges due to the Network Provider.
        2. For the avoidance of doubt, we shall have no liability whatsoever in connection with any Airtime Agreement, whether to you (in respect of any failure or breach by the Network Provider), to the Network Provider (in respect of any failure or breach by you, including any bills, costs, charges, fines or other sums payable under any Airtime Agreement), or otherwise.
        1. Where your Mobile Purchase Order also includes Mobile Equipment, there may be a delay between the commencement date of the Airtime Agreement and the delivery of such Mobile Equipment. For the avoidance of doubt, you are required to pay all bills and charges under the Airtime Agreement whether or not you have taken delivery of such Mobile Equipment.
        1. You agree to indemnify us against all liabilities, charges, fees, claims, expenses and any other costs we may incur arising out of or in connection with the Airtime Agreement. Such charges include, for the avoidance of doubt, late payment charges, additional or excessive usage charges, roaming charges and any charges arising out of a variation of the terms (or tariff) of the Airtime Agreement or early cancellation of the Airtime Agreement.
        1. You shall not, at any time after entering into the Contract:
            1. fail or refuse to enter into the Airtime Agreement with the Network Provider;
            1. cancel the Airtime Agreement (or any Connection associated with it) before the end of the Network Minimum Term; or
            1. vary the Airtime Agreement (or any Connection associated with it) in any way which results in a reduction of the amounts that you pay or are due to pay to the Network Provider in respect of the Airtime Agreement.
        2. If you fail to comply with clause 12.5, we reserve the right to charge you an administration fee of £150.00 in respect of each and every Connection under the Airtime Agreement (and, in the case of clause 12.5.1, in respect of each and every Connection that would have existed but for your failure or refusal to enter into the Airtime Agreement).
    1. Cashback and subsidies
        1. We may, at our sole discretion, offer to pay you a Subsidy in connection with your Airtime Agreement. If we do, this will be a payment or payments that we make to you as set out in the relevant Mobile Purchase Order and in accordance with the Contract, and it will not affect the amounts that you pay or are due to pay to the Network Provider under any Airtime Agreement.
        1. Our payment of any Subsidy is subject to the provisions of this clause 13 and conditional upon:
            1. your compliance with the terms of, and payment to us of any amounts due under, any Contract between us (including but not limited to the Contract which includes such cashback or subsidy);
            1. without prejudice to the generality of clause 13.2.1, your compliance with clause 12.5 above;
            1. your compliance with the terms of, and payment to the Network Provider of any amounts due under, any Airtime Agreement (including but not limited to the Airtime Agreement in respect of which we offer such Subsidy); and
            1. you submitting to us an appropriate invoice in accordance with clause 13.3.
        2. In order to claim and receive any Subsidy, you must submit to us an appropriate invoice in such form and on such date or dates (or within such period) as we notify to you in writing, and in any event no later than 6 months after the commencement date of the relevant Airtime Agreement. We shall have no obligation to pay to you any Subsidy where you fail to submit an appropriate invoice on such date or dates (or within such period).
        1. Subject to you submitting an appropriate invoice in accordance with clause 13.3 and to clause 13.5, we shall pay to you any agreed Subsidy on such date or dates as we notify to you in writing.
      1. In respect of any Subsidy amounts due and payable by us to you under the Contract, we reserve the right to (at our sole discretion):
          1. deduct such amounts from any payment due by you to us under any Contract between us; or
          1. in lieu of payment directly to you, use such amounts to settle or discharge any amounts due by you to the Network Provider which remain unpaid after the due date for payment.
      2. We reserve the right to reclaim from you, and you shall pay to us, an amount equal to any Subsidy that we have paid to you under the Contract in the event that:
          1. you fail to comply with clause 12.5 above; and/or
          1. as a result of any act or omission by you, the Network Provider withholds or reclaims (in full or in part) from us any commission or other payment paid or payable (or which may become payable) by the Network Provider to us in respect of the Airtime Agreement and/or the relevant Connection.
    1. Mobile Equipment
        1. We shall use reasonable endeavours to deliver the Mobile Equipment to you on the date agreed between us, but time is not of the essence in respect of delivery.
        1. We make no representation or warranty regarding the quality, fitness for purpose, functionality or performance of any Mobile Equipment, but we will use reasonable endeavours to make available to you any warranty offered by the manufacturer of such Mobile Equipment.
        1. If, within 7 days of delivery to you of any Mobile Equipment, you notify us of any material defect or fault in design, material or workmanship, you may return the defective Mobile Equipment to us. Provided we receive such Mobile Equipment from you within 7 days of you notifying us of such defects, we will use reasonable endeavours to procure the repair or replacement of the Mobile Equipment from the manufacturer. Any such repair or replacement is at the manufacturer’s discretion and we will have no liability to you whatsoever in the event that the manufacturer refuses to so repair or replace the Mobile Equipment.
        1. Clause 14.3 shall not apply where any defect arises as a result of:
            1. any usage, installation or connection of or to the Mobile Equipment not in accordance with the Contract and any manuals, documentation or other instructions notified by us to you;
            1. any alteration, repair, maintenance or installation of software on the Mobile Equipment not approved by us in writing in advance;
            1. any change, alteration or modification of the programming or settings of the Mobile Equipment not authorised by us in advance; or
            1. fair wear and tear, wilful damage, negligence or abnormal or improper storage or working conditions.
        2. If you fail to notify us of any defect or fault in the Mobile Equipment in accordance with clause 14.3, you will be deemed to have accepted the Mobile Equipment and we will have no liability or responsibility to you in respect of any defect or fault in the Mobile Equipment (provided that, at our sole discretion, we may assist you to procure any remedy available to you from the manufacturer).
        1. Notwithstanding our delivery and your acceptance of the Mobile Equipment, we shall retain title in the Mobile Equipment until the later of:
            1. the expiry of the Network Minimum Term; and
            1. the date upon which you have paid in full all amounts due and payable by you (whether to us and/or to the Network Provider) in respect of the Mobile Equipment and any Airtime Agreement which relates to the Mobile Equipment (including VAT, where applicable).
        2. Risk in the Mobile Equipment shall pass to you upon delivery. If the Mobile Equipment is lost or damaged before the date upon which title passes to you under clause 14.6, we reserve the right to charge you for the cost of repair or replacement of the Mobile Equipment and any costs or charges we incur in connection with such repair or replacement.
        1. If you install, use and/or access any software, applications or websites which are not supplied or supported by us on the Mobile Equipment, you do so at your own risk and we shall have no liability to you whatsoever in respect of any failure, defect or fault of the Mobile Equipment (or of such software, applications or websites).
    1. Services
        1. Except where otherwise expressed in the Contract, we will provide the Services during normal business hours (9:00am to 5:00pm on any Business Day).
        1. We warrant that we shall supply the Services to you with reasonable skill and care and in accordance with any specification agreed between us in writing prior to performance. We reserve the right to amend any such specification if necessary to comply with any applicable law, or if the amendment will not materially affect the nature or quality of the Services, and we shall notify you in any such event.
        1. We shall use reasonable endeavours to provide the Services to you on the date agreed between us but time is not of the essence in respect of our performance.
    1. Invoices and payment
        1. All sums referred to in the Contract, whether in these terms, in any Purchase Order or otherwise notified by us to you, are exclusive of VAT (which, where applicable, shall be payable in addition to and at the same time as such sums).
        1. Any invoices (or other communications requesting payment) that we send to you in connection with the Contract are due and payable within 7 days of the date of such invoice or communication.
        1. Where any Purchase Order includes monthly charges, we will continue to take (or request, as applicable) payment from you of such charges on a monthly basis unless and until the Contract is terminated in accordance with clause 20. We will not refund to you any sums paid (or any part of such sums) in respect of any period after the date of termination or expiry of the Contract, and it is your responsibility (if you so require) to ensure that the date of termination or expiry coincides with the end of the period in respect of which you have paid any sums to us.
        1. Unless otherwise agreed, we will take payment from you in all cases by direct debit (via GoCardless).
        1. Where any amount due to us under the Contract remains unpaid after the due date for payment, we shall charge to you and you shall pay interest on such overdue amounts at the rate of 5% above the base rate from time to time of Barclays Bank Plc (or at the rate of 5% during any period where such base rate is below 0%), such interest shall accrue daily from the date that the amount becomes overdue until the date that we receive payment from you.
    1. Data Protection
        1. Both parties will (and will procure that any of their respective directors, officers, employees, permitted agents, licensees and contractors will) comply with all applicable requirements of the Data Protection Legislation. The Contract is in addition to, and does not relieve, remove or replace, either party’s obligations under the Data Protection Legislation.
      1. In respect of Personal Data, you are the data controller and we are a processor acting on your behalf. Our processing of Personal Data under the Contract shall be limited to the duration of the term of the Contract and as follows:
          • Subject matter. Our provision to you of the OnePlan Suite and any associated services or products including the Services and Mobile Equipment.
          • Nature. To the extent necessary in connection with our performance under the Contract: collection, recording, storage, access, retrieval, structuring and filing including in an organised database, combination with other data and disclosure by transmission to the third parties that we work with to provide our software and services.
          • Purpose. To facilitate your use of the OnePlan Suite (in particular its data entry and management capabilities); to provide you with training and support in relation to the OnePlan Suite; to provide you with Mobile Equipment and to arrange Airtime Agreements between you and the Network Provider; to provide any other services or products under the Contract or otherwise; and to manage our business relationship generally. We will collect information from you about your employees via a password-protected spreadsheet, sent by email, in order to add such information to your account on the OnePlan Suite.
          • Types of Data. Data relating to your clients that you enter into the OnePlan Suite may include special categories of personal data, in particular relating to health (including medical records and other health-related information). Other data relating to your clients and other data subjects may include basic personal information and contact details, working habits and location of your employees, payment or bank account details, identifiers including national insurance numbers, IP addresses and IMEI numbers (of devices), as well as any other data that you provide to us.
          • Categories of data subject. Your clients, employees, affiliates and other contacts, and any other individuals whose personal data you provide to us.
          • Recipients. We use a sub-processor, Reactive Studios Limited (company number 09928452), to arrange and/or provide the hosting, maintenance and technical support of the OnePlan Suite, including the storage of any data that you enter into the OnePlan Suite (which the sub-processor may access to the extent required in the performance of such services). The OnePlan Suite and all data entered into it (by you or by us) is stored on secure servers in the UK with UK Fast. As part of our Mobile Services, we may transfer personal data relating to your employees to the relevant Network Provider in order to arrange Airtime Agreements between you and the Network Provider (in such a case the Network Provider will be the controller of that data).
      2. You will:
          1. ensure that you have in place all necessary appropriate legal bases, consents (if required), notices and policies to enable the lawful transfer of Personal Data to us under the Contract;
          1. ensure that all Personal Data transferred to us or entered into the OnePlan Suite by or on behalf of you is accurate and up-to-date;
          1. not instruct us to undertake any processing activity that does not comply with the Data Protection Legislation;
          1. not knowingly or negligently do or omit to do anything which places us in breach of our obligations under the Data Protection Legislation; and
          1. indemnify us (to the fullest extent permitted by law) against any claim, loss, damage, expense or fine arising under the Data Protection Legislation that we incur caused by your actions or omissions (unless such action or omission is specifically requested by us).
      3. We will:
          1. process Personal Data only on your written instructions (which comprise these terms, any instructions that you give to us directly or indirectly by entering data into and using the OnePlan Suite, and any other instructions that you give to us in writing), save where otherwise required by law (in which case we will notify you of such requirement prior to such processing, unless prohibited from doing so by such law);
          1. transfer Personal Data outside the EEA only where the European Commission has adopted a decision that the recipient country ensures an adequate level of protection or where we provide appropriate safeguards and ensure the availability for data subjects of enforceable data subject rights and effective legal remedies;
          1. obtain a commitment of confidentiality from any person we allow to process Personal Data;
          1. engage third parties to process Personal Data on our behalf only as permitted under these terms or otherwise with your prior agreement, and always on contractual terms no less restrictive than this clause 17;
          1. implement appropriate technical and organisational measures to (a) ensure an appropriate level of security of Personal Data; and (b) assist you to respond to requests for exercising data subjects’ rights;
          1. assist you to comply with your obligations in respect of any personal data breach (including notification of the same to the supervisory authority and/or data subjects);
          1. make available to you all information reasonably necessary to demonstrate compliance with this clause 17; and
          1. on termination or expiry of the Contract (however caused), at your choice and cost, delete or return to you all Personal Data and copies thereof that we have within our power, ownership or control.
    1. Confidentiality
        1. Where we disclose to you, directly or indirectly, any confidential or proprietary information (however recorded or preserved and in any form or medium), whether before or after the date of the Contract, you undertake to:
            1. keep such information secret and confidential;
            1. not use or exploit such information without our prior written consent; and
            1. disclose such information only on a confidential basis to such of your officers and employees to which disclosure is reasonably necessary in order for you to fulfil your obligations under the Contract.
        2. For the purposes of this clause 18, information shall be deemed to be confidential if it relates to our business, affairs, customers, clients or suppliers or if it would otherwise be regarded as confidential by a reasonable business person.
    1. Limitation of liability
        1. Nothing in the Contract shall limit or exclude the liability of either party for:
            1. death or personal injury caused by negligence;
            1. fraud or fraudulent misrepresentation;
            1. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
            1. any other liability which cannot be excluded under English law.
        2. Subject to clause 19.1, we shall have no liability whatsoever to you for:
            1. any indirect or consequential loss or for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, or loss of or damage to goodwill;
            1. any loss or damage arising out of or in connection with any usage of the OnePlan Suite, Software Documentation, Services or Mobile Equipment which is not in accordance with the Contract.
        3. Subject to clause 19.1, our total liability to you (whether in contract, tort (including negligence), breach of statutory duty or otherwise arising in connection with the Contract) in respect of all breaches occurring within any Contract Year shall not exceed the total amount of the sums actually paid by you to us under the Contract during that Contract Year.
    1. Suspension and termination
        1. If you fail to pay on the due date for payment any amount due to us under the Contract, and the same remains unpaid at least 7 days after we notify you in writing that such payment is overdue, we may suspend your access to the OnePlan Suite and our provision of any Services to you (without any liability whatsoever to you) until such time as payment is made in full and/or the Contract is terminated in accordance with this clause 20.
        1. Either party may terminate the Contract by giving to the other party not less than 30 days’ prior written notice, specifying the intended date of termination, provided that:
            1. in respect of a Software Purchase Order, the date of termination shall not be earlier than the date on which the Software Minimum Period expires; and
            1. in respect of a Mobile Purchase Order, the date of termination shall not be earlier than the date on which the Network Minimum Period expires.
        2. We may terminate the Contract immediately, at any time, by giving written notice to you if:
            1. you commit a material breach of the Contract which is irremediable or (where such breach is remediable) you fail to remedy such breach within 30 days of us notifying you in writing of the breach;
            1. you repeatedly breach any of the terms of the Contract in such a manner as to reasonably justify our opinion that your conduct is inconsistent with you having the intention or ability to give effect to the terms of the Contract; or
            1. you suffer an Insolvency Event.
        3. For the purposes of clause 20.3.1, any failure by you to pay on the due date for payment any amount due to us under the Contract shall constitute a material breach.
        1. Termination or expiry of the Contract (howsoever caused) shall not affect any rights or remedies available to us that have accrued as at the date of termination or expiry.
      1. Upon termination or expiry of the Contract, howsoever caused:
          1. save where we terminate the contract under clause 20.2, we reserve the right to invoice you for, and you shall pay to us in accordance with clause 16.2, any costs or charges we may incur as a result of such termination;
          1. we shall invoice you for, and you shall pay to us in accordance with clause 16.2, any amounts due to us under the Contract that have accrued as at the date of termination;
          1. if title in any Mobile Equipment has not passed to you in accordance with clause 14.6, you shall return such Mobile Equipment to us within 14 days of such termination or expiry; and
          1. any provision of these terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
    1. OTHER
        1. Entire agreement. Unless otherwise expressed, these terms and the relevant Purchase Order constitute the entire agreement between us in relation to the Contract. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Contract and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
        1. Exclusion of warranties. Any terms or warranties implied by statute, common law, course of dealing or otherwise, including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
        1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result 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.
        1. Assignment. We may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of our rights and obligations under the Contract. You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Contract.
        1. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives), save that we may vary the Contract by giving not less than 7 days’ notice to you provided that such variation does not materially adversely affect your rights or obligations under the Contract.
        1. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
        1. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 21.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
        1. Relationship. Nothing in the Contract 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, authorise any party to make or enter into any commitments for or on behalf of any other party or constitute any person the worker or employee of any party.
        1. Time of performance. Time is of the essence in respect of your performance of any of your obligations under the Contract (including any obligation to make any payment to us or any third party). We will use our reasonable endeavours to adhere to any timescales that we agree with you in connection with the Contract, but time shall not be of the essence in relation to our performance under the Contract.
        1. Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by email to such address as the party receiving the notice notifies to the other party from time to time.
        1. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 for any third party to enforce any term of the Contract.
        1. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England.
        1. Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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