PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE PROCEEDING TO REGISTER FOR OUR SERVICES
These terms of service (together with the documents referred to in it) tell you the terms on which you may order services from either www.profitise.co (“the site”)
Please read these terms carefully and make sure that you understand them, before ordering any services from the site. Please note that when you register to order services from the site, you will be asked to agree to these terms and these terms will form the Contract for Services created between us for the sale of services to you (the “Contract for Services”) including for free-trials of those services. If you do not accept these terms, you will not be able to order any services from the site and should refrain from attempting to do so. By submitting your completed registration-form, you are confirming your acceptance of these terms and that you agree to be bound by them.. If you are acting on behalf of a company, you are also confirming that you are authorised to bind the company in this way when you submit your registration form on the site..
You should print a copy of these terms for future reference.
We amend these terms from time to time as set out below. Every time you wish to order services, please check these terms to ensure you understand the terms which will apply at that time. These terms were most recently updated on 9 April 2016.
Other applicable terms
These terms refer to the following additional documents, which apply to a) visits to the site in relation to use of the services AND b) any other visits to the site:
Information about Us
We are Profitise Ltd (the “Service Provider”). We are registered in England and Wales under company number 08858446 and have our registered office at Devonshire House, 582 Honeypot Lane, Stanmore HA7 1JS. Our VAT number will be notified to customers appropriately. We are a limited company.
We host and provide access to the Services (defined and described below) in our capacity as a SAAS provider.
You may contact us by emailing our customer service team at firstname.lastname@example.org or our sales team at email@example.com . If you wish to give us formal notice of any matter in accordance with the Contract for Services, please see the Notices section below.
1. Definitions and Interpretation
In this Contract for Services, unless the context otherwise requires, the following expressions have the following meanings:
means any day other than Saturday or Sunday that is not a bank or public holiday;
means any time between 9am and 6pm on a Business Day, during which the Service Provider is open for business;
means the date on which the activation email is sent to the Customer and the Contract for Services is formed, as described below.
means all business, technical, financial or other information created or exchanged between the Parties throughout the Term of this Contract for Services;
means the business entity (or, if a person is not acting on behalf of a business entity, the individual) that has registered to receive the Services;
“Customer Computer Systems”
means the Customer’s computer hardware, firmware, software and communications infrastructure through and on which the Software Applications are to be used;
means any data belonging to the Customer or to third parties and used by the Customer under licence which is created using the Software Applications or otherwise stored in the SAAS Infrastructure;
means the sums payable by the Customer in return for access to the Software Applications, the SAAS Infrastructure and support services provided by the Service Provider in accordance with Clauses 4 and 12 of this Contract for Services;
“Intellectual Property Rights”
means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;
means the Service Provider’s computer hardware, firmware, software, mobile app and other communications infrastructure which is used to facilitate access to and use of the Software Applications by the Customer;
means, collectively, the Software Applications, SAAS Infrastructure and support services provided by the Service Provider to the Customer;
means the selected Software Applications, provided by the Service Provider, which shall be made available to the Customer, as detailed in the activation email sent to the Customer after its order is accepted and processed;
means the duration of the Contract for Services, as defined below;
means an employee or other authorised agent of the Customer who shall, from time to time, access the Software Applications through the SAAS Infrastructure;
“writing” Unless the context otherwise requires, each reference in this Contract for Services to “writing” includes any communication by email, fax or other electronic or similar means.
2. Ordering Services
2.1 The registration pages of the site will guide the Customer through the steps needed to register and to place an order for Services. The order process allows the Customer to check and amend any errors before submitting the order and the Customer agrees to take the time to read and check their order at each page of the order process.
2.2 Upon signing up for a trial, the Customer will receive an e-mail from the Service Provider acknowledging that the order has been received. The acceptance of the order will take place as described in Clause 2.3.
2.3 The Service Provider will confirm its acceptance of the order by sending an activation e-mail to the Customer. This email may take up to 24 hours to be processed by the Service Provider and, where initial fees are due in advance of activation, will be subject to the Service Provider’s receipt of such initial fees. The Contract for Services between the Customer and the Service Provider will only be formed when the activation email is sent and the date on which such email is sent shall constitute the “Commencement Date” for the purposes of the Contract for Services.
2.4 If the Service Provider is unable to supply particular services, for example because that service is no longer available or because of an error in the price on the site (as referred to in the Fees and Payment clause below), the Service Provider will inform the Customer of this by e-mail and will not process the order for those services. If initial fees were due in advance of activation for such services and the Customer has already paid for those services, the Service Provider will, as soon as possible, refund the full amount paid in relation to the services that cannot be provided.
3. The Services and the Term of the Contract
3.1 The Service Provider shall, with effect from the Commencement Date, provide the Services to the Customer on a non-exclusive basis, under a non-exclusive licence, from a remote location for the duration of the Term of this Contract for Services and in accordance with the terms and conditions of this Contract for Services.
3.2 The Service Provider shall provide access to the Software Applications and SAAS Infrastructure through the site and shall use its reasonable endeavours to ensure that such access is available, without interruption, 24 hours a day, 7 days a week, 365 days a year. This undertaking shall be subject to the exceptions contained in Clauses 4, 12, 18 and 19 of this Contract for Services.
3.3 The Services will be provided by the Service Provider during the Term (defined below) of this Contract for Services. The Contract for Services shall commence on the Commencement Date for either (a) where applicable, an initial fee-free trial period of 14 days or (b) the initial period of the contract as selected by the customer. Thereafter the Contract for Services shall renew automatically and continue to do so on a periodic basis (i.e. monthly, quarterly, annually etc) specified in the confirmation email received by the Customer upon signing up unless and until otherwise terminated in accordance with Clause 19 of this Contract for Services. The initial period plus each monthly renewal period shall together constitute the “Term” of the Contract for Services.
4. Fees and Payment
4.1 The Fees due for the Service are specified on the site and will be confirmed in the email sent to confirm receipt of the Customer’s order. The Customer must pay for Services using the Nochex facility provided on the site or, at its discretion or upon request from the Customer, the Service Provider can agree to accept payment in a different manner.
4.2 The Customer shall pay all Fees to the Service Provider upon renewal of the contract in advance unless otherwise agreed in writing by the parties.
4.3 In the event that the Customer does not pay all Fees due in advance of activation and / or on periodic renewal, the Service Provider may delay access and/ or suspend the Customer’s use of the Service by whatever means it deems appropriate.
4.4 In the event that the Customer fails to pay under sub-Clause 4.3 then, without prejudice to sub-Clause 4.3, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at 1% per month or if higher, at the rate applied by statutory rights.
4.5 The Service Provider reserves the right to vary the Fees from time to time as it may deem appropriate. The Customer shall receive no less than 7 days’ written notice via the site of any such variation. Such variations shall take effect upon expiry of such notice and the Customer may exercise its termination rights, described below, in relation to such variation.
4.6 The site contains a variety of services and, from time to time, some of the services may be incorrectly priced. If the Service Provider discovers an error in the price of the Services, it will contact the Customer in writing to inform the Customer of this error and will offer the Customer the option of purchasing the Service at the correct price or cancelling the order for that service. The Service Provider reserves the right not to process the order for the affected services until it has received the Customer’s instructions. If the Service Provider is unable to contact the Customer using the contact details provided during the order process, the Service Provider will treat the order as cancelled and notify the Customer in writing. The parties agree that, if the pricing error is obvious and unmistakeable and could have reasonably been recognised as a mispricing, the Service Provider does not have to provide the Services at the incorrect (lower) price.
5. The Software Applications
5.1 The Software Applications to which the Customer shall have access are detailed in the contract summary that will be provided to the Customer upon confirmation of the order.
5.2 The Customer is free during the Term of this Contract for Services to add to the selection of Software Applications, subject to availability of required Software Applications from the Service Provider. The Fees shall be amended accordingly in the event of such modification and charged to the Customer on a pro-rata basis up to the date of the next renewal.
6.1 The Service Provider will endeavour to provide Users with training in relation to use of the Software Applications. Such training (if any) will be made available remotely for a period of 30 days from the Commencement Date.
6.2 If the Customer requires the Service Provider to provide onsite training, at any venue nominated by the Customer, the Service Provider shall charge to the Customer all reasonable costs incurred by it in facilitating / delivering such training and which shall be calculated by reference to its usual fees and the costs incurred. Additional terms, reasonably required by the Service Provider in relation to such additional training, shall be accepted by the Customer before any such additional training can be delivered.
6.3 In the event that any Users require training after the initial 30 day period in order to use the Software Applications, it shall be the responsibility of the Customer to ensure that all Users are appropriately trained and to bear any costs associated with such training. The Service Provider shall not provide any training of any kind but may do so provided that the Customer bears all associated costs.
7.1 The Service Provider shall ensure that the SAAS Infrastructure includes reasonably required security measures including firewalls, reserve power, redundant systems and any other infrastructure that the Service Provider may from time to time deem necessary.
7.2 The Service Provider shall make periodic backups of all data relating to the Software Applications but is under no obligation to do so.
8.1 The Service Provider shall be responsible for all maintenance and upgrades to the SAAS Infrastructure which may from time to time be required.
8.2 Subject to the provisions of Clause 12, the Customer shall be responsible for all maintenance and upgrades to the Customer Computer Systems which may from time to time be required.
8.3 Whenever possible, the Service Provider shall use its best and reasonable endeavours to undertake maintenance work outside of the Customer’s business hours.
Unless maintenance is corrective in nature, the Service Provider shall provide at least 7 Business Days’ notice of any maintenance which may affect the Customer’s use of the Service. The Service Provider shall use its best and reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible.
8.4 Where maintenance will disrupt the Service, the Service Provider shall aim to complete all necessary work within 8 Business Hours or as soon as possible thereafter where resolution in that time is not possible.
8.5 Whenever possible, the Service Provider shall provide a workaround solution to the Customer to enable the Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
9. Software Licences
9.1 The Customer shall use all Software Applications under a non-exclusive, non-transferrable licence, as set out in this Contract for Services and detailed in the confirmation email. This licence permits the maximum number of Users detailed in the confirmation email to access the Software Applications at any given time and such access is only permitted through the site, unless otherwise agreed.
9.2 All Software Applications provided by the Service Provider are the property of the Service Provider unless otherwise stated and shall be covered by the terms of the licence included in this Contract for Services. Where Software Applications are the property of a third party, the Service Provider warrants that they have all requisite authority to sub-licence such Software Applications to the Customer for the purposes of this Contract for Services and for use under its terms.
10.1 Under this Contract for Services, as indicated in sub-Clause 9.1 above, a specified number of Users may access the Software Applications through the site and SAAS Infrastructure at any given time.
10.2 Users’ access to the Software Applications and the SAAS Infrastructure shall be controlled by means of usernames and passwords.
10.3 Should the Customer require an increased maximum number of Users, such an increase shall be permitted at the exclusive discretion of the Service Provider. The Service Provider reserves the right to increase Fees proportionately, in accordance with fees listed on the site, in the event of an increase in the maximum number of Users.
10.4 Use by anyone other than Users (as defined above) is not permitted under this Contract for Services in the absence of express written consent from the Service Provider.
10.5 The Customer shall use the Service exclusively for the purposes of carrying on its business unless otherwise agreed by the Service Provider and in which case the additional terms set out in Schedule 1 to these terms and applicable to individual consumer customers and/ or sole-traders as appropriate, shall apply .
10.6 The Service Provider shall monitor the Customer’s use of the Software Applications and SAAS Infrastructure from time to time to ensure compliance with the terms and conditions of this Contract for Services and with reasonable usage expectations. In the event that the Customer’s use of the Service exceeds levels deemed reasonable (as determined by the Service Provider), the Service Provider reserves the right to increase Fees, in accordance with the fees listed on the site, as it deems appropriate, supplying 30 days’ written notice to the Customer of such an increase
10.7 The Customer may only access the Software Applications detailed in the confirmation email. No access to other parts of the SAAS Infrastructure shall be permitted in the absence of express written permission from the Service Provider.
10.8 The Customer is exclusively responsible for its use of the Service, including the conduct of individual Users and must ensure that all use is in accordance with this Contract for Services. The Customer shall notify the Service Provider immediately of any breaches of this Contract for Services by any Users.
10.9 Access to the Software Applications is only permitted through the site via the SAAS Infrastructure provided. Under no circumstances may the Customer download, store, reproduce or redistribute the Software Applications or any other part of the SAAS Infrastructure, without first obtaining the express written permission of the Service Provider.
10.10 The Customer’s use of the Software Applications and SAAS Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of this Contract for Services. It shall be the Customer’s exclusive responsibility to ensure that their use of the Service is in compliance with any such laws.
10.11 The Customer’s use of the Service shall be subject to the following limitations, unless otherwise expressly agreed in writing by the Service Provider:
10.11.1 The Customer may not use or redistribute the Software Applications or the SAAS Infrastructure for the purpose of conducting the business of a SAAS service provider or as another similar service provider;
10.11.2 The Customer may not redistribute or reproduce the Software Applications or the SAAS Infrastructure through any network; and
10.11.3 The Customer may not allow any unauthorised third party to access the Software Applications or the SAAS Infrastructure other than the Users defined in this Contract for Services.
10.12 Neither the Customer, nor anyone on their behalf may, in the absence of written consent from the Service Provider:
10.12.1 Make changes of any kind to the Software Applications or the SAAS Infrastructure; or
10.12.2 Attempt to correct any fault or perceived fault in the Software Applications or the SAAS Infrastructure.
10.13 If and to the extent that access to the Services requires a user identification code, password or any other piece of information as part of the Service Provider’s security procedures, the following shall apply:
10.13.1 the Customer agrees to treat such information as confidential and will not disclose it to any unauthorised third party;
10.13.2 the Service Provider has the right to disable any user identification code or password at any time, whether they were chosen by the Customer or allocated by the Service Provider, if in the reasonable opinion of the Service Provider, the Customer has failed to comply with any of the provisions of the Contract for Services; and
10.13.3 if the Customer knows or suspects that anyone other than a User knows such user identification code/s or password/s, the Customer must promptly notify the Service Provider.
11. Customer Computer Systems
11.1 Prior to activation of the Service the Service Provider shall have the right to conduct a full inspection and inventory of the Customer Computer Systems to ensure compatibility with the Software Applications and SAAS Infrastructure. Additional terms may apply to such inspections and will be notified to the Customer in advance. Where appropriate, the Service Provider may offer recommendations for upgrades and other alterations. Any such recommendations shall be presented in a written report to the Customer.
11.2 The Service Provider may from time to time require physical access to the Customer Computer Systems for the purposes of inspecting, testing and upgrading the Customer Computer Systems to ensure their compatibility with the Software Applications and SAAS Infrastructure. Such access shall be granted by the Customer only upon receipt of reasonable notice from the Service Provider
11.3 The Service Provider shall be entitled at all times during the Term of this Contract for Services to access the Customer Computer Systems remotely for the purposes of inspecting, testing and upgrading the Customer Computer Systems to ensure their compatibility with the Software Applications and SAAS Infrastructure under the terms of this Contract for Services.
11.4 Where, in the opinion of the Service Provider, Customer Computer Systems are likely to cause disruption to the SAAS Infrastructure, the Service Provider may request that the Customer disconnects from the SAAS Infrastructure until advised that reconnection is possible. The Service Provider may require changes such as upgrades or equipment replacement to be made to the Customer Computer Systems prior to reconnection.
11.5 In the event of any unauthorised access by the Customer of Software Applications or the SAAS Infrastructure, in breach of sub-Clause 10.4 or otherwise the Service Provider shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate this Contract for Services in accordance with Clause 19 below.
11.6 The Customer shall ensure that no Customer Computer Systems are connected to a third party system or other service, communications system or network in such a way that the Services may be accessed by unauthorised third parties.
12.1 The Service Provider shall provide unlimited technical support services during their normal business hours of 9am to 6pm, Monday to Friday, such business hours to exclude public holidays via its online ticketing system. The support provided by the Service Provider shall relate only to the Software Applications and SAAS Infrastructure. Any problems which are related to Customer Computer Systems must be resolved by the Customer’s own support staff.
12.2 In addition to the standard support provided for in sub-Clause 12.1, the Service Provider shall also provide unlimited technical support via telephone during the hours provided for in sub-Clause 12.1, during the first 30 days of the Term of the Contract for Services. Additional support services shall be available at additional cost to the Customer at the rates set out on the site from time to time.
12.3 When seeking support the Customer shall use its best and reasonable endeavours to provide the fullest information possible to aid the Service Provider in diagnosing any faults in either the Software Applications or the SAAS Infrastructure.
12.4 The Service Provider shall aim to resolve all support problems within 8 Business Hours or as soon as possible thereafter where resolution in that time is not possible.
12.5 In the event of support problems, the Service Provider shall reasonably endeavour to provide a workaround solution to the Customer to enable the Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
13. Intellectual Property
13.1 Subject to sub-Clause 13.2 all Intellectual Property Rights subsisting in the Software Applications and the SAAS Infrastructure, including any supporting software and documentation are owned by and/ or licensed to the Service Provider. For the purposes of this Clause 13, ‘Software Applications’ and ‘SAAS Infrastructure’ along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented.
13.2 Where expressly indicated, the Intellectual Property Rights subsisting in certain Software Applications including any supporting software and documentation may be the property of named third parties.
13.3 The Customer shall not either during the Term or after the expiry of this Contract for Services permit or cause to occur any infringement of any Intellectual Property Rights covered by this Clause 13. Use by the Customer and its employees of the Service shall be only within the terms of the Contract for Services.
13.4 The Customer shall not, in the absence of the Service Provider’s written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Software Applications, any part of the SAAS Infrastructure, or any other material associated with the Contract for Services where such activity goes beyond the scope of actions permitted by the terms and conditions of this Contract for Services.
13.5 Where the Customer either suspects or is aware of any breach of Intellectual Property Rights covered by this Clause 13 it shall be under a duty to inform the Service Provider of such breach immediately.
14. Customer Data
14.1 14.1 Subject to sub-Clause 14.2, all Intellectual Property Rights subsisting in Customer Data are and shall remain the property of the Customer. The Customer permits the Service Provider to interrogate and analyse the data from time to time in order to enable it to develop new services provided that the Service Provider shall not make such data available to any third party without the express written consent of the Customer. Certain Customer Data may belong to third parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of relevant third parties.
15.1 During the Term of this Contract for Services and after the termination or expiration of this Contract for Services for any reason, the Service Provider shall use its best and reasonable endeavours to ensure that all Customer Data is kept secure and confidential. Except as otherwise provided for in these terms, the Service Provider shall not, in the absence of express written consent from the Customer, disclose Customer Data to any third party unless such disclosure is required by law in which case the Customer shall be notified in writing of the disclosure.
15.2 The Customer agrees and accepts that injunctive relief shall not be available to it in the unlikely event of a breach of the obligations set out in this clause 15 or elsewhere in the Contract.
16.1 The Service Provider shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer even if such loss is reasonably foreseeable or if the Service Provider has been advised of the possibility of the Customer incurring it.
16.2 The Service Provider’s entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Contract for Services shall be limited to a sum equal to the greater of (a) the fees received under the Contract by the Service Provider from the Customer in the 12 months preceding the event from which such loss arose or (b) £500.
16.3 Notwithstanding any other provision in this Contract for Services, the Service Provider’s liability to the Customer for (a) death or injury resulting from the Service Provider’s own negligence or that of their employees, agents or sub-Contract for contractors or (b) fraudulent misrepresentation, shall not be limited.
17.1 The Customer will fully indemnify the Service Provider against all costs, expenses, liabilities, losses, damages and judgments that the Service Provider may incur or be subject to as a result of any of the following:
17.1.1 The Customer’s misuse of the Software Applications, SAAS Infrastructure or any other element of the Service;
17.1.2 The Customer’s breach of this Contract for Services; or
17.1.3 The Customer’s negligence or other act of default.
18. Force Majeure
18.1 Neither the Service Provider nor the Customer shall be liable for breaching this Contract for Services where that breach results from Force Majeure.
18.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to: power failure, internet service provider failure or other third party service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
19.1 The Service Provider reserves the right to terminate this Contract for Services or to suspend the Service in the following circumstances:
19.1.1 If the Customer fails to pay Fees due under Clause 4 of this Contract for Services. The Service Provider reserves the right to delete all Customer data from the SAAS infrastructure after 14 days of suspension or termination of services and shall be under no obligation to take / retain any backups of such data;
19.1.2 If the Customer is in breach of the terms of this Contract for Services and fails to remedy such breach within a period of 7 days commencing the date of notification of such breach;
19.1.3 If the Customer becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
19.1.4 If the Customer is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
19.1.5 If the Customer has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
19.2 Upon written notice to the Service Provider, the Customer may terminate this Contract for Services in the following circumstances:
19.2.1 If the Service Provider is in breach of the terms of this Contract for Services and fails to rectify such breach within a period of 7 days commencing the date of receipt of written notice;
19.2.2 If the Service Provider becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
19.2.3 If the Service Provider is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986;
19.2.4 If the Service Provider has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order;
19.2.5 If the terms of this Contract for Services have been varied by the Service Provider, the Customer does not wish to receive the Services under such varied terms and the notice of termination is served within the 7 day period before such varied terms become effective; or
19.2.6 If the Service Provider no longer wishes to provide the Services and serves notice of non-renewal no less than 7 Business Days before the next renewal date. Termination under this sub-Clause shall be effective at the end of the contract period in which such notice is served.
19.2.7 If the Customer no longer wishes to renew any Service(s) they may do so by cancelling their service via the SAAS control panel no later than at least 2 business days prior to the renewal date. All cancellations will deem to be effective only upon receipt by the Customer of written confirmation from the Service Provider via email sent to an email address registered with the Service Provider from time to time.
19.3 Within 7 Business Days of the termination of this Contract for Services in accordance with this Clause 19, the Customer shall uninstall or otherwise remove any means of access to the Software Applications and SAAS Infrastructure [including, but not limited to, client software supplied by the Service Provider for that sole purpose. Immediately following taking such action, the Customer shall inform the Service Provider in writing that such action has been taken]. [The Service Provider shall have the right to dispatch a representative to the Customer’s premises for verification purposes.]
19.4 The Service Provider may retain Customer Data for a period of 14 days following cancellation / termination by either party but shall be under no obligation to do so.
19.5 In the event that the contract is terminated by either the Service Provider or the Customer, the Customer shall take copies of whatever data they require prior to the expiry of the notice period or end of the Contract period whichever shall occur first. The Service Provider shall be under no obligation to provide access to the SAAS infrastructure after this date.
20.1 All notices under this Contract for Services shall be in writing.
20.2 Notices shall be deemed to have been duly given:
20.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
20.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
20.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
20.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
20.3 In each case notices should be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
21. Relationship of Parties
Nothing in this Contract for Services shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Customer.
Neither Party shall assign, transfer, sub-Contract for Services, or in any other manner make over to any third party the benefit and/or burden of this Contract for Services without the prior written consent of the other, such consent not to be unreasonably withheld.
The Parties agree that, in the event that one or more of the provisions of this Contract for Services is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Contract for Services. The remainder of this Contract for Services shall be valid and enforceable.
24. Entire Agreement
24.1 This Contract for Services embodies and sets forth the entire Contract for Services and understanding between the Parties and supersedes all prior oral or written contracts, understandings or arrangements relating to the subject matter of this Contract for Services. Neither Party shall be entitled to rely on any term, understanding or arrangement not expressly set forth in this Contract for Services, save for any representation made fraudulently.
24.2 Unless otherwise expressly provided elsewhere in this Contract for Services, this Contract for Services may be varied only by a document signed by both of the parties.
25.1 In addition to the right to vary the Fees (as described above), the Service Provider may amend these terms from time to time. The Customer must look at the beginning of these terms to see when they were last updated and which terms were changed. Every time that Services are ordered, the terms in force at the time of that order will, subject to Clause 25.2 below, apply to the Contract for Services relating to that order.
25.2 The Service Provider may revise these terms as they apply to an order from time to time as a result of but not limited to:
25.2.1 changes in relevant laws and regulatory requirements ;OR
25.2.2 changes in terms of service by third parties on which the Service Provider is reliant in order to provide its’ own services
25.3 If the Service Provider has to revise these terms under Clause 25.2 above, the Service Provider will endeavour to provide the Customer with not less than 7 days’ notice of such change via the site but cannot guarantee it will be able to do so in the event that such a revision occurs as a result of actions taken by a third party and the Customer may choose to exercise its right to terminate, as described above.
26. No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Contract for Services shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Contract for Services. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The relationship between the Parties under this Contract for Services is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.
28. Dispute Resolution (Arbitration)
28.1 It is agreed that where any dispute or difference relating to this Contract for Services arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.
28.2 The arbitrator shall be agreed by the Parties or in the event of failure to agree shall be appointed by the President for the time being of the Law Society of England and Wales .
28.3 The arbitration shall take place in London and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.
28.4 The Parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.
28.5 The Parties shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable. The Parties shall co-operate fully with the arbitrator to achieve this objective.
28.6 The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon both Parties.
28.7 The Parties agree to exclude any right of application or appeal to the courts of England and Wales concerning any question of law arising in the course of the arbitration.
29. Law and Jurisdiction
This Contract for Services shall be governed by the laws of England and Wales and shall be subject to the non-exclusive jurisdiction of the laws of England and Wales.
TERMS APPLICABLE TO CONSUMER AND SOLE-TRADER CUSTOMERS
If you are consumer Customer using the Services for non-business purposes or if you are a sole-trader Customer, the additional terms set out here are applicable to you. In the event of a conflict between the terms set out in this schedule and those elsewhere in the Contract for Services, the terms of this schedule shall prevail.
Contacting us if you are a consumer
To cancel a Contract in accordance with your legal right to do so (as described in more detail below), you just need to let us know that you have decided to cancel. You need to do this by logging into your account and cancelling the contract through the Application control panel. We will e-mail you to confirm we have received your cancellation.
If you wish to contact us for any other reason, including because you have any complaints, you can contact us by telephoning our customer service team using any of the numbers published on our website or by e-mailing us at firstname.lastname@example.org.
Your consumer right to cancel and receive a refund
If you are a consumer, you have a legal right to cancel a Contract under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 during the period set out below. This means that during the relevant period if you change your mind or decide for any other reason that you do not want to receive the Services, you can notify us of your decision to cancel the Contract and (if sums have been paid in advance) receive a refund.
This is subject to a cancellation period which expires fourteen (14) days from the Commencement Date (i.e. when the contract between us was formed).
However, if our Services are activated and accessed by you before the expiry of the cancellation period, your right to cancel will expire once you have accessed them during the cancellation period. For Services which do not involve the activation and accessing of software services, which are not completed during the cancellation period and which you subsequently choose to cancel before the end of the cancellation period, you shall be liable for fees applicable to the proportion of the Services that have been delivered to you up until you communicated your cancellation; this may include costs incurred by Profitise Ltd to its suppliers and service providers.
More advice about your legal right to cancel the Contract is available from your local Citizens’ Advice Bureau or Trading Standards office.
Our liability if you are a consumer or sole-trader
You have legal rights in relation to Services that are not as described. These legal rights are not affected by your right of refund above or anything else in this Contract.
If Profitise Ltd fails to comply with the terms of this Contract, it is responsible for loss or damage you suffer that is a foreseeable result of such breach of contract or negligence but Profitise Ltd is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of the breach or if it was contemplated by you and Profitise Ltd at the time you signed this Contract.
Profitise Ltd only supplies the Services to consumer Customers for domestic and private use. If you are a consumer Customer, you agree not to use the product for any commercial, business or resale purposes and, if you are a consumer or sole-trader, you accept that Profitise Ltd has no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Profitise Ltd does not in any way exclude or limit its liability to you for:
– death or personal injury caused by its negligence;
– fraud or fraudulent misrepresentation;
– any breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession) if applicable to the Services;
– any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples) if applicable to the Services; and
– defective products under the Consumer Protection Act 1987 if applicable to the Services.