Terms of Service
1. The Contract
1.1 The definitions and rules of interpretation adopted by these Conditions are set out in Schedule 1.
1.2 These Conditions will apply to the Contract and any other contract between ImpactWise and the Customer in relation to the supply by ImpactWise of Services to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2. Commencement and Duration
2.1 The Contract will, unless otherwise terminated in accordance with clause 15, commence on the Effective Date and continue for the Initial Subscription Term and, thereafter, the Contract will be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
2.1.1 either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case these Conditions will terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
2.1.2 otherwise terminated in accordance with the provisions of these Conditions;
and the Initial Subscription Term together with any subsequent Renewal Periods will constitute the “Subscription Term”.
3.1 Subject to the Customer paying the Subscription Fees in accordance with clause 9.1 and the restrictions set out in this clause 3 (and these Conditions generally), ImpactWise hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business operations in managing volunteering campaigns and related matters.
3.2 In relation to the Authorised Users, the Customer undertakes that:
3.2.1 each Authorised User will keep a secure password for his use of the Services and access to the single sign-on facility (where applicable), such password(s) will be changed no less frequently than monthly and each Authorised User will keep his password confidential;
3.2.2 it will permit ImpactWise or ImpactWise's designated auditor to audit the Services in order to establish the name and password of each Authorised User and ImpactWise's data processing facilities to audit compliance with these Conditions. Each such audit may be conducted no more than once per quarter, at ImpactWise’s expense, and this right will be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
3.2.3 if any of the audits referred to in clause 3.2.2 reveal that any password has been provided to any individual, entity or other party who is not an Authorised User, then without prejudice to ImpactWise's other rights, the Customer will promptly disable such passwords and ImpactWise will not issue any new passwords to any such individual, entity or other party (as the case may be); and
3.2.4 if any of the audits referred to in clause 3.2.2 reveal that the Customer has underpaid Subscription Fees to ImpactWise, then without prejudice to ImpactWise's other rights, the Customer will pay to ImpactWise an amount equal to such underpayment as calculated in accordance with the prices set out in the Statement of Work within 7 Business Days of the date of the relevant audit.
3.3 The Customer will not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6 is otherwise illegal or causes damage or injury to any person or property;
and ImpactWise reserves the right, without liability or prejudice to its other rights to the Customer, to at its sole discretion:
3.3.7 disable the Customer's access to any material that breaches the provisions of this clause 3.3; or
3.3.8 disable the Customer’s access to the Services and the Customer will have no right to receive a refund in respect of paid Subscription Fees in these circumstances.
3.4 The Customer will not:
3.4.1 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 these Conditions:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2 access all or any part of the Services in order to build a product or service which competes with the Services; or
3.4.3 use the Services to provide services to third parties; or
3.4.4 subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
3.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 3.
3.5 The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, it will promptly notify ImpactWise.
3.6 The rights provided under this clause 3 are granted to the Customer only, and will not be considered granted to any subsidiary or holding company of the Customer.
3.7 ImpactWise will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.7.1 planned maintenance; and
3.7.2 unscheduled maintenance performed outside Normal Business Hours.
3.8 ImpactWise will, as part of the Services, provide the Customer with ImpactWise's standard customer support services during Normal Business Hours as described in the Statement of Work. The Customer may purchase enhanced support services separately at 3.9 ImpactWise's then current rates.
ImpactWise will use reasonable endeavours to meet any performance dates specified in the Statement of Work but any such dates will be estimates only and time for performance by ImpactWise will not be of the essence.
3.10 Each party will appoint a manager in respect of the Services, such person to be identified in the Statement of Work. That person will have authority to contractually bind the party whom it represents on all matters relating to the Services (including by signing amended Statements of Work). Each party will use reasonable endeavours to ensure that the same person acts as manager throughout the Subscription Term but may replace that person from time to time where reasonably necessary in the interests of each party’s respective business.
3.11 The Customer will also appoint an IT manager in respect of the Services, such person to be identified in the Statement of Work. That person will work with ImpactWise to achieve the integration of the Software into the Customer’s chosen enterprise social network(s).
3.12 ImpactWise may install project metrics to assist with its provision of the Services but will be under no obligation to do so and will be under no obligation to report to the Customer with any associated or resulting data.
4. Change Control
4.1 Either party may propose changes to the scope or execution of the Services but no proposed changes will come into effect until an amended Statement of Work has been signed by both parties. An amended Statement of Work will set out the proposed changes and the effect those changes will have on:
4.1.1 the Services;
4.1.2 the Subscription Fees;
4.1.3 any timetable for the Services; and
4.1.4 any of the other terms of the Statement of Work.
4.3 If ImpactWise wishes to make a change to the Services it will provide a draft amended Statement of Work to the Customer.
4.3.1 If the Customer wishes to make a change to the Services:
it will notify ImpactWise and provide as much detail as ImpactWise reasonably requires of the proposed changes, including timing implications; and
4.3.2 ImpactWise will, as soon as reasonably practicable after receiving the information at clause 4.3.1, provide a draft amended Statement of Work to the Customer.
4.4 If the parties:
4.4.1 agree to an amended Statement of Work, they will sign it and that amended Statement of Work will replace the original Statement of Work; or
4.4.2 are unable to agree an amended Statement of Work, either party may require the disagreement to be dealt with in accordance with clause 17.
5. Customer Data and Data Protection
5.1 The Customer will own all right, title and interest in and to all of the Customer Data that is not personal data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against ImpactWise will be for ImpactWise to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by ImpactWise. ImpactWise will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by ImpactWise to perform services related to Customer Data maintenance and back-up for which it will remain fully liable under clause 5.8).
5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
5.4 The parties acknowledge that:
5.4.1 if ImpactWise processes any personal data on the Customer's behalf when performing its obligations under these Conditions, the Customer is the data controller and ImpactWise is the data processor for the purposes of the Data Protection Legislation (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation).
5.4.2 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and ImpactWise's other obligations under these Conditions.
5.5 Without prejudice to the generality of clause 5.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal data to ImpactWise for the duration and purposes of the Contract so that ImpactWise may lawfully use, process and transfer the Personal data in accordance with these Conditions on the Customer's behalf.
5.6 Without prejudice to the generality of clause 5.3, ImpactWise will, in relation to any Personal data processed in connection with the performance by ImpactWise of its obligations under these Conditions:
5.6.1 process that Personal data only on the written instructions of the Customer unless ImpactWise is required by the laws of any member of the European Union or by the laws of the European Union applicable to ImpactWise to process Personal data (“Applicable Laws”). Where ImpactWise is relying on laws of a member of the European Union or European Union law as the basis for processing Personal data, ImpactWise will promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ImpactWise from so notifying the Customer;
5.6.2 not transfer any Personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(a) the Customer or ImpactWise has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) ImpactWise complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal data that is transferred; and
(d) ImpactWise complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal data;
5.6.3 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.6.4 notify the Customer without undue delay on becoming aware of a Personal data breach;
5.6.5 at the written direction of the Customer, delete or return Personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal data; and
5.6.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 5.
5.7 Each party will ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal data and against accidental loss or destruction of, or damage to, Personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
5.8 The Customer consents to ImpactWise appointing the Third-Party Processors as third-party processors of Personal data under these Conditions. ImpactWise confirms that it has entered or (as the case may be) will enter with the Third-Party Processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 5. As between the Customer and ImpactWise, ImpactWise will remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
5.9 Either party may, at any time on not less than 30 days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which will apply when replaced by attachment to these Conditions).
6. Third Party Providers
7. ImpactWise’s Obligations
7.1 ImpactWise will, during the Subscription Term, use reasonable endeavours to provide the Services in accordance with the Statement of Work in all material respects on and subject to these Conditions.
7.2 The undertaking at clause 7.1 will not apply to the extent of any non-conformance which is caused by use of the Services contrary to ImpactWise's instructions, or modification or alteration of the Services by any party other than ImpactWise or ImpactWise's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, ImpactWise will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, ImpactWise:
7.2.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free;
7.2.2 does not warrant that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
7.2.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
(a) the transfer of data over communications networks and facilities, including the internet; or
(b) downtime or failings in service on the part of host servers or the Customer’s enterprise social networking facilities or providers,
and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 These Conditions will not prevent ImpactWise from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and/or services which are similar to those provided under these Conditions.
7.4 ImpactWise warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.
8. Customer's Obligations
The Customer will:
8.1.1 provide ImpactWise with:
(a) all necessary co-operation in relation to the Services;
(b) timely feedback in relation to the Services on request;
(c) volunteer opportunity data for migrations in the form prescribed by ImpactWise in a timely fashion;
(d) all necessary access to such information as may be required by ImpactWise; and
(e) all necessary assistance to enable ImpactWise to provide the Services, including (but not limited to) Customer Data, security access information and configuration services, office accommodations and internet and local network connectivity;
8.1.2 without affecting its other obligations under these Conditions, comply with all applicable laws and regulations with respect to its activities under the Contract;
8.1.3 carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, ImpactWise may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Services in accordance with these Conditions and will be responsible for any Authorised User's breach of these Conditions;
8.1.5 obtain and will maintain all necessary licences, consents, and permissions necessary for ImpactWise, its contractors and agents to perform their obligations under these Conditions, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by ImpactWise from time to time; and
8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to ImpactWise's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
9. Charges and Payment
9.1 The Customer will pay the Subscription Fees to ImpactWise in accordance with this clause 9 and the Statement of Work.
9.2 The Customer will on the Effective Date provide to ImpactWise valid, up-to-date and complete credit card details or approved purchase order information acceptable to ImpactWise and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
9.2.1 its credit card details to ImpactWise, the Customer hereby authorises ImpactWise to bill such credit card:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to clause 2, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
9.2.2 its approved purchase order information to ImpactWise, ImpactWise will invoice the Customer:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to clause 2, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer will pay each invoice within 30 days after the date of such invoice.
9.3 If ImpactWise has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of ImpactWise:
9.3.1 ImpactWise may, without liability to the Customer, disable the Customer's passwords, account and access to all or part of the Services and ImpactWise will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest will accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of ImpactWise's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in these Conditions:
9.4.1 will be payable in pounds sterling;
9.4.2 are, subject to clause 14.3.2, non-cancellable and non-refundable; and
9.4.3 are exclusive of VAT, which will be added to ImpactWise's invoice(s) at the appropriate rate.
9.5 ImpactWise will be entitled to increase the Subscription Fees by up to 5% at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Statement of Work will be deemed to have been amended accordingly. For the avoidance of doubt, ImpactWise will be under no obligation to follow the procedure set out in clause 4.
10. Proprietary Rights
10.1 The Customer acknowledges and agrees that ImpactWise and/or its licensors own all intellectual property rights in the Software and Services. Except as expressly stated herein, these Conditions do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 ImpactWise confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with these Conditions.
10.3 The parties may use each other’s logos, trade names, product names and trade marks in connection with their respective marketing activities connected with the Services including (without limitation) on websites and in brochures and presentations provided that:
10.3.1 neither party may do anything which may adversely affect the other party’s intellectual property or right or title to it;
10.3.2 each party will immediately stop using specific advertising or promotional material which bears the other parties logos, trade names, product names and trade marks on receipt of a request to do so from the other party; and
10.3.3 neither party may do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to the other party’s brand, trade marks, intellectual property or the reputation or goodwill associated with the same, or that may invalidate or jeopardise any registration of such trade marks.
11.1 The parties will use reasonable efforts to establish connectivity between the Software and the Customer’s systems to allow each party’s performance of its respective obligations in connection with the Contract.
11.2 ImpactWise’s obligation in connection with clause 11.1 is to use all reasonable endeavours to make the Software available on the internet and it is the Customer’s responsibility to secure all connections and take other actions necessary to ensure that it is able to access the Software.
11.3 ImpactWise will have no liability to the Customer to the extent that the Customer does not use all reasonable efforts to establish connectivity between Software and the Customer’s systems.
11.4 The Customer will ensure that it promptly complies with any minimum hardware configuration requirements reasonably specified by ImpactWise for the purpose of establishing that connectivity.
11.5 Each party will bear its own costs of establishing connectivity in accordance with this clause 11.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Conditions. A party's Confidential Information will not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in the other party's lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to clause 12.4, each party will hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these Conditions.
12.3 Each party will take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Conditions.
12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute ImpactWise's Confidential Information.
12.7 ImpactWise acknowledges that Customer Data is the Confidential Information of the Customer.
12.8 No party will make, or permit any person to make, any public announcement concerning these Conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.9 The above provisions of this clause 12 will survive termination of the Contract, however arising.
13.1 The Customer will defend, indemnify and hold harmless ImpactWise against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
13.1.1 the Customer is given prompt notice of any such claim;
13.2.1 ImpactWise provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
13.2.2 the Customer is given sole authority to defend or settle the claim.
13.2.3 ImpactWise will defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and will indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
ImpactWise is given prompt notice of any such claim;
the Customer provides reasonable co-operation to ImpactWise in the defence and settlement of such claim, at ImpactWise's expense; and
ImpactWise is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, ImpactWise may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Conditions on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4 In no event will ImpactWise, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
13.4.1 a modification of the Services by anyone other than ImpactWise; or
13.4.2 the Customer's use of the Services in a manner contrary to the instructions given to the Customer by ImpactWise; or
13.4.3 the Customer's use of the Services after notice of the alleged or actual infringement from ImpactWise or any appropriate authority.
13.5 The foregoing and clause 14.3.2 state the Customer's sole and exclusive rights and remedies, and ImpactWise's (including ImpactWise's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. Limitation of Liability
14.1 Except as expressly and specifically provided in these Conditions:
14.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. ImpactWise will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ImpactWise by the Customer in connection with the Services, or any actions taken by ImpactWise at the Customer's direction;
14.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions; and
14.1.3 the Services are provided to the Customer on an "as is" basis.
14.2 Nothing in these Conditions excludes the liability of ImpactWise:
14.2.1 for death or personal injury caused by ImpactWise's negligence; or
14.2.2 for fraud or fraudulent misrepresentation.
14.3 Subject to clause 14.1 and clause 14.2:
14.3.1 ImpactWise will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and
14.3.2 ImpactWise's total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Conditions will be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
15. Term and Termination
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.1.1 the other party fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
15.1.2 the other party commits a material breach of any other term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
15.1.3 the other party repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions;
15.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
15.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
15.1.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
15.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
15.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.4 to clause 15.1.10 (inclusive);
15.1.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
15.1.13 there is a change of control of the other party.
15.2 On termination of the Contract for any reason:
15.2.1 all licences granted under these Conditions will immediately terminate and the Customer will immediately cease all use of the Services;
15.2.2 each party will return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
15.2.3 may destroy or otherwise dispose of any of the Customer Data in its possession, unless ImpactWise receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. ImpactWise will use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by ImpactWise in returning or disposing of Customer Data; and
15.2.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination will not be affected or prejudiced.
16.1 The Customer will not, without the prior written consent of ImpactWise, at any time from the Effective Date to the expiry of 12 months after the termination or expiry of the Contract, solicit or entice away from ImpactWise or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of ImpactWise in the provision of the Services.
16.2 Any consent given by ImpactWise in accordance with clause 16.1 will be subject to the Customer paying to ImpactWise a sum equivalent to 20% of the then current annual remuneration of ImpactWise’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
17. Dispute Resolution
17.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (“Dispute”) then except as expressly provided in this agreement, the parties will follow the procedure set out in this clause 17:
17.1.1 either party will give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the respective managers of the parties appointed in accordance with clause 3.10 will attempt in good faith to resolve the Dispute;
17.1.2 if the respective managers of the parties appointed in accordance with clause 3.10 are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute will be referred to the CEO of the Customer and CEO of ImpactWise who will attempt in good faith to resolve it; and
17.1.3 if the CEO of the Customer and CEO of ImpactWise are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice.
17.2 No party may commence any court proceedings under clause 29 in relation to the whole or part of the Dispute until 21 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
17.3 If the Dispute is not resolved within 60 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 60 days, or the mediation terminates before the expiration of the said period of 60 days, the Dispute will be finally resolved by the courts of England and Wales in accordance with clause 29.
18. Force Majeure
ImpactWise will have no liability to the Customer under these Conditions if it is prevented from or delayed in performing its obligations under these Conditions, 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 ImpactWise 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, provided that the Customer is notified of such an event and its expected duration.
No variation of these Conditions will be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law will constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and Remedies
Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of these Conditions.
22.2 If any provision or part-provision of these Conditions is deemed deleted under clause 22.1 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Entire Agreement
23.1 These Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2 Each party acknowledges that in entering into these Conditions it does not rely on, and will have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions.
23.3 Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
23.4 Nothing in this clause 23 will limit or exclude any liability for fraud.
24.1 The Customer will not, without the prior written consent of ImpactWise, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.
24.2 ImpactWise may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.
25. No Partnership or Agency
Nothing in these Conditions is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
26. Third Party Rights
These Conditions do not confer any rights on any person or party (other than the parties to these Conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
27.1 Any notice required to be given under these Conditions will be in writing and will be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these Conditions, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in these Conditions.
27.2 A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax will be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
28. Governing Law
These Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or its subject matter or formation (including non-contractual disputes or claims).
Definitions and interpretation
1. The following definitions and rules of interpretation in this Schedule 1 apply in these Conditions and the Statement of Work and in any other agreement between ImpactWise and the Customer:
Active Campaign: a volunteering Campaign which is actively allowing employees to search and sign-up to volunteer opportunities.
Always On Campaign: a volunteering Campaign lasting more than 60 days.
Applicable Laws: has the meaning given in clause 5.6.1.
Authorised Users: those employees of the Customer who are authorised by the Customer to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Campaign: a volunteering initiative run by the Customer using the ImpactWise platform and Software.
Change of Control: will be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly.
Chatbot: a core ImpactWise feature used to collect information and make suggestions related to volunteering from employees of Customers.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 19 including any document incorporated by reference including (without limitation) the Statement of Work.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.6 or clause 12.7.
Contract: the contract between ImpactWise and the Customer for the supply by ImpactWise of the Services in accordance with these Conditions and the Statement of Work.
Customer Data: the data inputted by the Customer, Authorised Users, or ImpactWise on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter:
(a) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
(b) any successor legislation to the GDPR or the Data Protection Act 1998.
Effective Date: the start date for the Services as identified in the Statement of Work.
Source: means the Customer’s primary enterprise social network as identified in the Statement of Work which is integrated with the ImpactWise platform and Software.
Initial Subscription Term: the initial term of Contract as identified in the Statement of Work.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in clause 2.
ImpactWise: ImpactWise CSR LTD incorporated and registered in Scotland and Wales with company number SC667958 whose registered office is at 104 Hamilton Place, AB15 5BB, Aberdeen, Scotland.
Services: the subscription services provided by ImpactWise to the Customer under these Conditions, as more particularly described in the Statement of Work.
Software: the online software applications provided by ImpactWise as part of the Services.
Statement of Work: the detailed plan agreed between the parties describing the services to be provided by ImpactWise and other related matters.
Subscription Fees: the subscription fees payable by the Customer to ImpactWise in accordance with these Conditions as set out in the Statement of Work.
Subscription Term: has the meaning given in clause 2 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Third Party Processors: Microsoft Azure.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1. In these Conditions, the following rules apply:
1.1 Clause, schedule and paragraph headings will not affect the interpretation of these Conditions. References to clauses and schedules are to the clauses and schedules of these Conditions and references to paragraphs are to paragraphs of the relevant schedule to these Conditions (unless otherwise stated).
1.2 A “person” includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a “company” will include any company, corporation or other body corporate, wherever and however incorporated or established.
1.3 Unless the context otherwise requires:
1.3.1 words in the singular will include the plural and in the plural will include the singular; and
1.3.2 a reference to one gender will include a reference to the other genders.
1.4 A reference to a statute or statutory provision:
1.4.1 is a reference to it as it is in force as at the Effective Date; and
1.4.2 will include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.5 A reference to writing or written includes faxes but not e-mail.1.
1.6 In the case of conflict or inconsistency or ambiguity between the various provisions of these Conditions (including all documents incorporated into them by reference) the inconsistency will be resolved by giving such provisions and documents the following order of precedence:
1.6.1 these Conditions;
1.6.2 the Schedule; and
1.6.3 the Statement of Work.