1. Definitions and Interpretation

“Application” means any of the online, mobile based applications or platforms of the Supplier which provide multimedia content via a graphical user interface tailored to the Customer’s needs as set out in the Order Agreement;

“Application Deployment Requirements” the requirements specified by the Supplier in respect of the deployment by Customers of the Application on Developer Accounts, as amended and updated by the Supplier from time to time.

“App Store”: the Apple App Store, Google Play or such other repository of mobile applications made available for download as may be compatible with the Application from time to time.

“Cancellation Policy”: the requirements specified in respect of any termination of this Agreement by the Customer, available at https://www.myfirmsapp.co.uk/cancelling-app-service-clients/ or such alternative address as may be notified to the Customer.

“Customer” means the person named or described on the Order Agreement or any quotation or document provided by the Supplier to the Customer (or any person acting on behalf of and with the authority of such person);

“End User” means any customer of the Customer (or any employee or worker of such customer, as the case may be) who is authorised or permitted by Customer to use the Application.

“Hosted Marketing Message” means a marketing or promotional message comprising content to be specified by the Customer (subject to the agreement of the Supplier, such agreement not to be unreasonably withheld), to be sent by the Supplier on behalf of the Customer to such End Users who have consented to receiving marketing messages from the Customer;

“MyFirmsApp”: MyFirmsApp Ltd, a company registered in England and Wales under company number 09152454, which has its registered office at 1st Floor 37-39 Victoria Road, Darlington, Co. Durham, DL1 5SB.

“Order Agreement” means the document titled “Order Agreement” or any other sales document, quotation or service proposal completed by the Customer and accepted by the Supplier in respect of the Services;

“Personal Data” has the meaning ascribed to it in the Data Protection Act 1998;

“Services” means the grant of the licence to use the Application by the Supplier to the Customer as outlined in the Order Agreement;

“Service Fee” means the all fees payable by the Customer to the Supplier for the Services specified in the Order Agreement or on the Supplier’s website at the commencement of the period in question covering the Initial or any renewal periods;

“Supplier” means My Firms App Limited (Company number 09152454, which has its registered office at 1st Floor 37-39 Victoria Road, Darlington, Co. Durham, DL1 5SB), a company incorporated in the United Kingdom, its successors and assigns or any person acting on behalf of and with the authority of MyFirmsApp Limited;

“Term” means the minimum period of twenty four (24) months from the date of this Agreement and including any periods of automatic renewal in accordance with clause 4(a) of this Agreement; and

“User Data” means the data inputted by an End User for the purpose of registering for, enabling and using the Application, and any data generated and displayed by the Application in respect of that End Users.

2. Grant of Licence

(a) In consideration of the payment of the Service Fee, the Supplier grants to the Customer a non-exclusive, non-transferrable licence to use to the Application during the Term in accordance with this Agreement and the Order Agreement.

(b) The Customer must not:

(i) use the Application in any way that could damage the reputation of the Supplier or the goodwill or other rights associated with the Application;

(ii) permit any third party to obtain the Application other than by download through the App Store and Google Play;

(iii) reproduce, make corrections or otherwise modify the Application;

(iv) de-compile, disassemble or otherwise reverse engineer the Application or permit any third party to do so except as may be permitted by law; or

(v) modify or remove any copyright or proprietary notices on the Application.

3. Payment

(a) The Supplier will invoice the Customer for the Service Fee for the Initial period from the date of this Agreement and the Service Fee for the Initial period becomes immediately due and payable from the date of this Agreement. Payment of the Service Fee covering any renewal period shall become immediately due and payable from the date of renewal. Time for payment of the Service Fee shall be of the essence.

(b) Not withstanding clause 3(a), the Customer must make payment of the Service Fee in equal monthly instalments for the duration of the Term. Payment shall be made by the Customer to the Supplier each calendar month by way of direct debit from the Customer’s nominated bank account.

(c) If any part of the Service Fee, including any part of the monthly instalments of the Service Fee, have not been paid by the Customer and remain outstanding for seven (7) days from the due date, the Supplier may in its sole discretion:

(i) immediately demand the full payment of any outstanding amounts;

(ii) commence legal proceedings to recover full payment of the Service Fee; and/or

(iii) remove the Application from the App Store and Google Play.

(d) The Customer acknowledges and agrees that the Supplier is not liable for any loss or damage incurred by the Customer as a result of the Supplier’s exercise of its rights pursuant to this clause.

4. Renewal and Termination

(a) This Agreement will commence on the date of this Agreement and continue for an initial period of 24 months (the “Initial period”).

(b) Thereafter the agreement shall be renewed automatically for successive periods of 24 months, at the higher of (i) the Fee rates paid by the Customer in respect of the prior period and (ii) the Service Fee rates offered by the Supplier to its customers as publicly advertised by Supplier 60 days prior to the due date of renewal.

(c) If the Customer intends not to renew this Agreement, the Customer must at least thirty (30) days before the expiration of the then current period:

(i) send a written notice of intent to cancel to [email protected] and fix a date and time to have a telephone conference with the Supplier;

(ii) engage in the telephone conference with the Supplier at the time mutually agreed by the parties where the Supplier will make available to the Customer a document confirming the Customer’s intention to terminate the Services and this Agreement;

(iii) sign and return the cancellation document to the Supplier.

(d) The Supplier will initiate the cancellation process by removing the Application from the App Store and Google Play so that it will no longer be available for download once it has received the duly executed cancellation document and payment of any outstanding fees due.

(e) The Supplier may immediately terminate this Agreement and remove the Application from the App Store and Google Play in its sole discretion, without notice if:

(i) The Customer does not pay the Service Fee in accordance with this Agreement;

(ii) The Customer breaches a term of this Agreement;

(iii) The Customer engages in fraudulent, illegal, defamatory, offensive activities or any activity in breach of the Supplier’s rights; or

(iv) The Customer’s use of the Services adversely affects the operation of the Service as determined by the Supplier in its sole discretion.

5. Intellectual Property Rights

(a) The Customer must provide all Customer specific data, content logos, designs, graphic and related materials to be incorporated into the Application.

(b) For the purpose of this clause, “Intellectual Property Rights” means copyright, trade mark, design rights (excluding the content provided by the Customer) relevant to, inter alia:

(i) textual, audio and other material displayed on the Application;

(ii) screens, organisation, patents and operation or control features; and

(iii) all software associated with the Application.

(c) Intellectual Property Rights in the Services shall vest in the Supplier and nothing in this Agreement constitutes a transfer of any Intellectual Property Rights. The Customer acknowledges that the Supplier owns all Intellectual Property Rights in the Application and will not directly or indirectly do anything that would or might invalidate or put in dispute the Supplier’s title in the Application.

(d) The Customer shall fully indemnify the Supplier against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party against the Supplier alleging that the Application or the Customer’s use of the Application infringes any such Intellectual Property Rights of any person.

6. Data Protection and End User Marketing

(a) The Customer shall maintain an accurate record of the End Users who have consented by means of the Application to receive marketing material from the Customer and the Supplier.

(b) The Customer shall ensure that all Customers to whom it instructs Supplier to send any Hosted Marketing Message have consented to the receipt of such Hosted Marketing Messages.

(c) The Supplier shall, in providing the Application, comply with its Privacy Policy relating to the privacy and security of the User Data available at www.myfirmsapp.co.uk or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

(d) The Customer acknowledges and agrees that the Supplier shall be entitled at all times (including after the termination of this Agreement) to use the User Data for its own purposes. For the purposes of that use, to the extent that User Data comprises any personal data, the parties record their intention that for the purposes of any applicable privacy or data protection legislation (including any legislation implementing European Directive 95/46/EC) that the Supplier does so as data controller in common with the Customer. To that end, the Customer acknowledges that the Application contains a mechanism for notifying End Users that the Supplier is entitled to use User Data for its own purposes, and for obtaining consent to use of the User Data by the Supplier for marketing purposes. In the event that Customer or the End User is established outside the European Economic Area, the Customer shall be responsible for ensuring the adequacy of such notices under local data protection and privacy legislation.

(e) In the event that the Supplier wishes to undertake direct marketing to End Users by means of the User Data, it shall obtain the prior written (including email) approval of the Customer to the proposed marketing activity.

(f) Subject always to (d) above, to the extent that Supplier’s processing any personal data comprised in the User Data is in the course of providing the Application and related services (including Hosted Marketing Messages) to the Customer under this Agreement (and not where the Supplier processes such personal data for its own purposes as data controller in common), the parties record their intention that for the purposes of any applicable privacy or data protection legislation (including any legislation implementing European Directive 95/46/EC) the Customer shall be the data controller and the Supplier shall be a data processor. In respect of all such cases:

(i) the Customer shall ensure by means of a Privacy Policy, linked to from the Application and displayed on the Customer’s main customer-facing website, that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;

(ii) the Customer shall ensure that End Users have been informed of, and have given their consent to, all use, processing, and transfer of the User Data by the Supplier on Customer’s behalf as required by all data protection legislation applicable in the jurisdiction in which the
Customer is established;

(iii) the Supplier shall process the personal data only in accordance with the terms of this Agreement and in accordance with the terms of the Data Processing Agreement set out in the Schedule;

(g) Each party shall use and store the User Data in accordance with all applicable privacy and data protection legislation and take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;

(h) The Customer shall ensure that it maintains on its main customer-facing website a Privacy Policy, linked to from the Application, in which it prominently discloses that the fact that the Supplier may send Hosted Marketing Messages on behalf of the Customer.

7. Warranties

(a) The Application is sold “as is” and to the fullest extent possible in law Supplier excludes any warranties that the Application is fit for the particular purpose to which the Customer puts the Application

(b) The Customer acknowledges and agrees that the Supplier makes no representation or warranty that the Services provided will be error-free and free from defects, that access to the Application will be timely, secure, uninterrupted and/or error-free or that the Application is free from viruses or any other harmful components at all times.

(c) While the Supplier takes reasonable steps to ensure the accuracy of the calculators and tax information presented in the Application, it is not responsible for the accuracy of the calculators, tax information or data provided in the Application or for any decisions that the Customer’s clients may or may not choose to take having accessed such information. Any information presented in the Application are presented as a guide and should be used only following the professional advice of the Customer.

(d) The Customer acknowledges and agrees that the Application uses “Push Notifications” which rely upon the operating systems of Apple and Android devices for delivery and the Supplier does not make any warranties about the reliability of the Services which use “Push Notifications”.

(e) The Supplier will take reasonable efforts to manage the financial information within the Application and will use its best endeavour to update such information with a reasonable time from the announcement of data that it considers to be important. The Customer agrees and acknowledges that the Supplier makes no representations or warranties about the length of time required to update the Application with any financial or legislative amendments.

8. Liability

(a) The Customer acknowledges and agrees that they are requesting the Services for use in connection with their trade, profession, business or craft only. To the full extent permitted by law the Supplier excludes all liability in respect of loss, interruption of business or any consequential or incidental damages (including due to negligence) incurred by the Customer in relation to the provision of Services.

(b) To the full extent permitted by law, the Supplier excludes all representations or terms (whether express or implied) other than those expressly set out in this Agreement.

(c) The Customer acknowledges and agrees that the Supplier is not liable for any representation made by the Customer on the Application. The Customer agrees to indemnify the Supplier for any claims made against the Supplier in respect of any representations made by the Customer on the Application.

(d) Except for death or personal injury caused by Supplier’s negligence (for which no limit applies), the Supplier limits its liability in respect of all claims, at its option, to:

(i) the supply of the Services again; or

(ii) the total cost of the Services for that period in which the liability arose.

(e) The Customer agrees that the Supplier’s total aggregate liability for all claims relating to this Agreement shall be limited to the greater of £500 (five hundred pounds) and the total Subscription Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.

(f) The Customer agrees to indemnify the Supplier in relation to all claims, actions, liabilities, costs and expenses (including legal costs on a full indemnity basis) relating to this Agreement, including any claims, actions, liabilities costs and expenses resulting from the Customer’s failure to comply with this Agreement.

9. Force Majeure

(a) Neither party shall have liability to the other under this agreement if it is prevented from or hindered or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the affected Party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”), provided that the party affected by the Force Majeure Event notifies the other of such an event and its expected duration as soon as practicable.

(b) Without limitation on clause 9(a), each party acknowledges that the other does not control the App Store or the operator of any AppStore and that any act or omission of any App Store operator shall, if it delays, hinders or prevents either party from performing its obligations under this Agreement, be a Force majeure Event.

(c) If a Force Majeure Event prevents, hinders or delays either party’s performance of its obligations for a continuous period of more than 12 weeks, the other party may terminate this agreement by giving 4 week’s written notice to the affected party.

10. Use of Customer’s Developer Account

(a) The Supplier may at any time require the Customer by notice in writing (“Developer Account Notice”) to make the Application available from a Developer Account established by the Customer in its own name, instead of the Supplier’s developer account, as a condition of continuing to receive the Services. To the extent that the Supplier provides such notice, the Supplier shall grant to Customer a limited revocable, non-exclusive licence to use the Application strictly as set out in clause 10(b). Such licence shall terminate as specified in the Developer Account Notice, or on termination of this Agreement, whichever is the earlier.

(b) The scope of use under such licence shall be strictly limited to loading the Application in object code form on to the Developer Account in the manner specified in the Application Deployment Requirements for the purpose of making the Application available to Clients.

(c) In the event that the Supplier serves a Developer Account Notice, the Customer shall:

(i) ensure that the Developer Account is kept current and in good standing;

(ii) promptly provide to the Supplier all authentication details and credentials in respect of access to the Developer Account;

(iii)adhere to any requirements of the App Store in respect of the Developer Account;

(iv) allow the Supplier exclusive access to the administration of the Developer Account to the extent that the same is required in respect is required in respect of the maintenance and operation of the Application.

11. Variation

(a) Subject to clause 11(b), no variation of this agreement shall be effective unless it is agreed by the parties in writing.

(b) The Supplier may revise these terms from time to time. The Supplier will give the Customer reasonable advance notice of the changes (“Change Notice”). The changes will take effect as specified in the Change Notice, either from the end of the current Term, or some earlier date. If the change is to take effect earlier than the end of the current Initial Term and operates to the material detriment of the Customer, the Customer may terminate this agreement immediately on the date of coming into force of the change, provided that such notice of termination is sent to the Supplier within 14 days of receipt of the change notice.

12. General provisions

(a) The Customer must not assign or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Supplier. The Supplier may assign or otherwise deal in any other way with any of its rights under this Agreement (including the licence granted to the Customer) without prior notice to and written consent of the Customer.

(b) This Agreement is governed by the laws of England and each party submits to the exclusive jurisdiction of the courts of England.

Data Processing Schedule

1. Definitions and Interpretation

1.1 Capitalised terms and expressions used in this Schedule shall have the following meaning:

“Customer Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of Customer pursuant to or in connection with this Agreement;

“Contracted Processor” means a Subprocessor;

“Data Protection Laws” means all relevant data protection laws applicable in the UK and, to the extent applicable, the data protection or privacy laws of any other country;

“EEA” means the European Economic Area;

“GDPR” means EU General Data Protection Regulation 2016/679 or such equivalent legislation as may be brought into law in the UK in relation to data protection matters;

“Data Transfer” means a transfer of Customer Personal Data from the Customer to a Contracted Processor; or an onward transfer of Customer Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor, in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);

“Services” means the services which the Customer provides to its Customers.

“Subprocessor” means any person appointed by or on behalf of Provider to process Personal Data on behalf of the Customer in connection with the Agreement.

The terms, “Commission”, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.

2. Processing of Customer Personal Data

2.1 Where the Provider Processes Customer Personal Data under the terms of the Agreement, the following terms shall apply:

2.1.1 comply with all applicable Data Protection Laws in the Processing of Customer Personal Data; and

2.1.2 not Process Customer Personal Data other than on the relevant Customer’s documented instructions.

3. Provider Personnel

3.1 Provider shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Customer Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Customer Personal Data, as strictly necessary for the purposes of the Agreement, and to comply with applicable laws in the context of that individual’s duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security

4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Provider shall in relation to the Customer Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.

4.2 In assessing the appropriate level of security, Provider shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.

5. Subprocessing

5.1 Provider shall not appoint (or disclose any Customer Personal Data to) any sub-processor unless required or authorised by the Customer (which shall include authorisation under the terms of the Agreement).

6. Data Subject Rights

6.1 Taking into account the nature of the Processing, Provider shall assist the Customer by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer obligations, as reasonably understood by Customer, to respond to requests to exercise Data Subject rights under the Data Protection Laws.

6.2 Provider shall:

6.2.1 promptly notify Customer if it receives a request from a Data Subject under any Data Protection Law in respect of Customer Personal Data; and

6.2.2 ensure that it does not respond to that request except on the documented instructions of Customer or as required by applicable laws to which the Provider is subject, in which case Provider shall to the extent permitted by applicable laws inform Customer of that legal requirement before the Contracted Processor responds to the request.

7. Personal Data Breach

7.1 Provider shall notify Customer without undue delay upon Provider becoming aware of a Personal Data Breach affecting Customer Personal Data, providing Customer with sufficient information to allow the Customer to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

7.2 Provider shall co-operate with the Customer and take reasonable commercial steps as are directed by Customer to assist in the investigation, mitigation and remediation of each such Personal Data Breach.

8. Data Protection Impact Assessment and Prior Consultation

8.1 Provider shall provide reasonable assistance to the Customer with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Customer Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.

9. Deletion or return of Customer Personal Data

9.1 Subject to this section 9, Provider shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Customer Personal Data delete and procure the deletion of all copies of those Customer Personal Data.

10. Audit rights

10.1 Subject to this section 10, Provider shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.

10.2 Information and audit rights of the Customer only arise under section 10.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.

11. Data Transfer

11.1 The Provider may not transfer or authorise the transfer of Data to countries outside the UK and/or the European Economic Area (EEA) without the prior written consent of the Customer. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.