Childcare Gateways Ltd Revised Terms and Conditions for Childcare Providers and all Organisations v1.0:
This Agreement describes the terms and conditions for using Childcare Gateways Ltd Products and Services.
The terms: “you,” and “your” are referring to you, your employees, and your users; “we” and “our” refer to Childcare Gateways Ltd, trading as Global Software Enterprises and, references to “party” and “parties”’ refer to either or both of us as a party or parties to this Agreement. You agree you have read, understood and agree to these terms and conditions by signing the document in the space indicated on the final page and returning a copy to us.
1. Definitions and Interpretation
1.1. Definitions
Agreement: This agreement between us and you for the provision of Childcare Gateways Products and Services;
Monthly Licence Fee: our monthly fee, payable in accordance with the terms set out in Schedule 1;
Childcare Gateways Ltd: us, the service provider, trading as Childcare Gateways Ltd, an operating division of Global Software Enterprises Limited (a company registered in England and Wales at Kemp House, 152-160 City Road, London, EC1V 2NX, under registration number 03145050;
Childcare Gateways Ltd Products and Services: Our products and services which may include Childcare Gateways Ltd, Childcare Gateways Ltd – Notifications, Childcare Gateways Ltd Verifications, Childcare Gateways Ltd Messaging – Premium, Childcare Gateways Ltd Payments, Childcare Gateways Ltd, Online Reporting, Childcare Gateways Ltd Desktop, and related support sites for these products; and, services provided by us that may include the Childcare Gateways Ltd Collection Service, and other services such as support, setup, training, project management and consultancy;
Confidential information: All information which prior to, or upon, its disclosure is communicated to the receiving party as being confidential by the disclosing party, or which should reasonably be considered as information of a confidential nature by the receiving party, provided that this definition shall not include information which: is at the time of disclosure in the public domain; subsequently comes into the public domain other than by the deliberate act of the receiving party; is in the possession of the receiving party at the time of the disclosure; is subsequently disclosed to the receiving party by a third party without restrictions as to its use or disclosure; is independently developed by employees of the receiving party who have not had access to the information disclosed; or, is information disclosed pursuant to a requirement of law;
Content: Any data, information or other material uploaded to, posted into, or sent via Childcare Gateways Ltd Products and Services, including messages and emails, whether sent by you, from your account login; or, by us on your behalf;
Effective Date: means the date on which we commence providing you with Childcare Gateways Ltd Products and Services, as set out in Schedule 1;
Force Majeure: Any event which is outside the reasonable control of the relevant party, including without loss of generality: the unavailability or faulty performance of communication networks or energy sources; any act of God; any act or omission of governmental or other competent authority; fires; strikes and industrial disputes; riots, war, civil unrest, revolution or acts of terrorism; inability to obtain materials; embargos; refusal of licences; theft; destruction; denial of service (DoS) attacks; unauthorised access to computer systems or records, programs, equipment, data, or services; breakdown of plant or machinery; and, flood or other adverse weather conditions;
Initial Term: A period of twelve (12) months from the Effective Date;
Notices : Any Notice is deemed to be served by us if it is: sent to you via post or email; or, posted on our websites; or, posted to your online account on Childcare Gateways Ltd Products. Any Notice is deemed to be served by you if it is sent in writing by one of your company’s duly authorised individual or office holders: by email to info@childcaregateways.co.uk or other email address as we may advise from time to time; or, is sent by recorded delivery to the office address at the top of this Agreement;
Renewal Term : Each subsequent period of twelve (12) months after the end of the Initial Term;
Term: The Initial Term or a Renewal Term as the context so allows;
Trademarks: all of our trademarks and logos that exist now or in the future, both registered and non-registered
1.2. Clause and Schedule headings shall not affect the interpretation of this Agreement.
1.3. References to clauses and Schedules are to clauses of and Schedules to this Agreement and references to paragraphs and Parts are to paragraphs and Parts of the relevant Schedule.
1.4. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.5. A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied, superseded or novated (in each case, other than in breach of the provisions of this Agreement or the provisions of the agreement or document in question, as appropriate) from time to time.
1.6. Unless the context otherwise requires: words in the singular shall include the plural and in the plural shall include the singular.
1.7. A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.8. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.9. Any words following the terms including, include, in particular or for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.10. Where the context permits, other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.11. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.12. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.13. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Licence Terms
2.1. In consideration of your payment of the Monthly Licence Fee, we agree to provide you with, and you hereby accept, a non-exclusive, non-transferable licence for you to access and use Childcare Gateways Ltd Products and Services for the Term, subject to the conditions laid out below.
2.2. The licence will at all times be governed by this Agreement.
2.4. The licence allows you and your employees to use Childcare Gateways Ltd Products and Services for your own internal use only, is personal to you, and may not be assigned, sub-licensed, sold, resold, transferred, distributed or otherwise disposed of or commercially exploited in any way, including by way of charge, lien or other encumbrance.
2.5. You are expressly forbidden and you hereby agree not to: modify, translate, adapt, disassemble, decompile, reverse engineer, or in any way copy the software used in the Childcare Gateways Ltd Products and Services; or, to copy or emulate in any way the design, layout, or functionality of Childcare Gateways Ltd Products and Services.
2.6. Childcare Gateways Ltd Products and Services are provided under the absolute condition that they may not be used to undertake or support: unsolicited commercial emailing; bulk emailing (other than the legitimate between authorised organisations); copyright violation; defamatory speech; distribution of internet viruses, worms, trojan horses or other malware; flaming; distribution of pornography; or, abusive internet postings. Any such use, or what may be reasonably interpreted as such use would be a breach of this Agreement and not withstanding any payments made or received will cause us to take such action as is necessary to preserve our good name at our sole discretion, including immediate termination of service and this Agreement.
2.7. We may impose reasonable conditions regarding the ethical, moral and legal use of Childcare Gateways Products Ltd and Services from time to time. You shall impose such conditions on your users to the extent necessary to ensure compliance.
2.8. You hereby grant us the right to: connect to your IT systems; and, host, download, view, analyse and retain your Content in so far as it is necessary for the provision of the Childcare Gateways Ltd Products and Services to you as envisaged in this Agreement, which shall inter alia include the following purposes:
2.8.1. verification of your identity where required;
2.8.2. prevention and detection of crime, fraud and money laundering;
2.8.3. provision of the Childcare Gateways Ltd Products and Services covered by this Agreement;
2.8.4. ongoing administration of Childcare Gateways Ltd Products and Services;
2.8.5. improvement of Childcare Gateways Products Ltd and Services including developing new Childcare Gateways Ltd Products and Services;
2.8.6. research and statistical analysis including payment and usage patterns; and,
2.8.7. compliance with our legal and regulatory obligations.
2.9. We may retain your Content for as long as is necessary to fulfil the purpose(s) set out in Clause 2.8 and in accordance with the law.
2.10. Some Childcare Gateways Ltd Products and Services are provided as software as a service. As such, the Monthly Licence Fee relates to the use of those Childcare Gateways Ltd Products and Services as a service, but does not provide access to or copies of the software used to deliver those services. The Childcare Gateways Ltd desktop client software (“Childcare Gateways Ltd Desktop”) and any other pupil data upload clients which may be available in the future, will be installed locally subject to clause 2.11 below.
2.11. Solely for the purpose of facilitating the transfer of the registered Child and Parent data from your registered child provider setting, and to support the operation of the Childcare Gateways Ltd Products and Services, you may install and use the Childcare Gateways Ltd Desktop and where the number of instances is restricted to one copy, for standard (non-premium) licenced products. Additionally, after termination of this Agreement, all rights under this licence are terminated and you must securely delete any and all copies of Childcare Gateways Ltd Desktop or clients held by you as a result of this Agreement.
3. Term and Termination
3.1. This Agreement shall commence on the Effective Date for the Initial Term and shall be renewed for each Renewal Term thereafter, unless terminated in accordance with the terms set out herein.
3.2. Notwithstanding clause 3.1, we shall have the right to terminate this Agreement immediately in the event that:
3.2.1. you breach any representation, warranty, covenant or other obligation under this Agreement;
3.2.2. you are delinquent in any payment hereunder forty five (45) days after the sum has become due;
3.2.3. you assign this Agreement to any party without the required consent;
3.2.4. we are requested to do so by a financial institution or any other party upon whose services we rely; or you have any distress, execution or other process levied upon your assets; or you make or offer to make any arrangement or composition with any one or more of your creditors or commit any act of bankruptcy; or if any petition or receiving order in bankruptcy is presented or made against you; or if any resolution or petition for your winding up is issued or passed or presented otherwise than for a reconstruction or amalgamation; or you become subject to an administration order; or you cease or threaten to cease to carry on your business; or your financial position deteriorates to such an extent that in our reasonable opinion your capability to adequately to fulfil your obligations under this Agreement has been placed in jeopardy.
3.3. Either party may terminate this Agreement without cause at the end of the Initial Term or at the end of the Renewal Term by giving Notice to the other party of their intention to terminate, provided that the Notice is given at least three (3) months prior to the end of the Term.
3.4. Notwithstanding the provisions of Clause 3.3, you may terminate this Agreement at any time, with or without cause, upon giving us Notice of your intended termination date, which shall be deemed to be three (3) months after Notice is properly given, provided that you pay any and all Monthly Licence Fees due to us under this Agreement up until the intended termination date.
3.5. Upon any termination of this Agreement, you shall immediately discontinue the use of all Childcare Gateways Ltd Products and Services and any license granted under this Agreement shall terminate.
3.6. Termination, repudiation or expiry of this Agreement will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by repudiation, expiry or termination of this Agreement.
4. Fees – General
4.1. The Monthly Licence Fee is in Pounds Sterling and is subject to applicable taxes, including Value Added Tax at the rate prevailing at the tax point of sale.
4.2. Regardless of whether Childcare Gateways Ltd Products and Services are used at all, or whether Childcare Gateways Ltd Products and Services are continually used throughout the Initial Term, or any subsequent Renewal Term, we do not offer and shall not be obliged to make refunds of any Monthly Licence Fee charged under this Agreement.
4.3. We retain the right to revise our Monthly Licence Fee to you at no less than thirty (30) days’ notice, provided that we serve a valid Notice of this change. You are entitled to terminate this Agreement per the effective date of the increase, by sending us a Notice within fourteen (14) days of our Notice of the change. For the avoidance of doubt, after termination under this clause 4.3, no further Monthly Licence Fee shall be charged to you, however, no Monthly Licence Fee shall be refunded and such termination shall not diminish your responsibility to pay Monthly Licence Fees already charged by us.
5. Payment, invoicing and debt
5.1. Payment shall be made in Pounds Sterling into the account designated by us, or as may otherwise be agreed in writing by the parties. Payments are due on the dates set out in Schedule 1. If due to bank charges, transfer fees, or the like, we receive less than the invoiced amount, we will invoice you for the shortfall. Should payment in full of any Monthly Licence Fee not be received by us by the relevant dates set out in Schedule 1, we may impose a debt service charge on the overdue balance for each 30-day period or fraction thereof that the overdue amount remains unpaid amounting to eight percent (8%) above the sterling base rate quoted from time to time by Barclays PLC. In the event that any amount remains unpaid forty five (45) days after the relevant date in Schedule 1, you will be in breach of this Agreement and we may discontinue, withhold, or suspend services to you without any further notice. Our decision not to take action for sums overdue does not diminish your responsibility to pay any and all outstanding amounts due to us.
5.2. You hereby agree to pay reasonable and appropriate legal fees, court costs, and related expenses incurred by us in the collection of any overdue amounts from you.
6. Your Responsibilities
6.1. You will support and train your employees in the use of the Childcare Gateways Ltd Products and Services by providing first line support to them.
6.2. You will place a link on your website to our website home page, based on URL details provided by us, to inform parents about what Childcare Gateways Ltd Products and Services are how their data will be used.
6.3. Where you use our logo, you will use a logo approved and provided by us, and will ensure that all tags for the logo are accurate based on the copy provided by us.
6.4. Where you use text on your website to explain and describe us or Childcare Gateways Ltd Products and Services, you will use text provided by, or approved by us prior to release, such approval not to be unreasonably withheld by us.
6.5. You hereby represent and warrant to us that:
6.5.1. you will not conduct your business in any manner that harms our value and reputation or of the value and reputation of our third party service providers;
6.5.2. you will conduct your business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all applicable laws and regulations;
6.5.3. you will not use Childcare Gateways Ltd Products and Services in connection with any illegal or fraudulent activities as determined by the relevant applicable jurisdiction;
6.5.4. you shall not permit nor authorise any other person or business to use Childcare Gateways Ltd Products unless specifically agreed with us in writing in advance;
6.5.5. you will keep your password and login details confidential and will report any suspected breach immediately to us;
6.5.6. you will not copy the Childcare Gateways Ltd website or Childcare Gateways Ltd Product or functionality or use your account access to aid in the development of a competitive product or service by yourselves or any other third party, nor will you allow any third party to access your account for these purposes;
6.5.7. you will not publish or copy any information on our website without our written permission, nor infringe intellectual property or content copyrights owned by us or any third party suppliers of ours.
6.5.8. you will accept responsibility for any and all Content provided under your account login, regardless of whether the user using your account login has been authorised by you to do so, and, you accept that we owe no obligation to you or anyone else to monitor, check or review the legality, validity or accuracy of any Content.
6.6. You will take all reasonable measures to preclude us from being made a party to any lawsuit or claim regarding Childcare Gateways Ltd Products and Services provided to any user. You hereby agree to indemnify and hold us harmless from any and all claims of whatever nature brought by any of your users or individuals against us in excess of the remedy set forth in clause 8.1 below.
7. Our responsibilities
7.1. We will use reasonable technical and organisational measures and endeavours, and reasonable skill and care to:
7.1.1. provide Childcare Gateways Ltd Products and Services in a professional accurate and timely manner and to maintain the availability of the service for you;
7.1.2. prevent unauthorised, unlawful or accidental processing of or access, destruction or damage to your Content;
7.1.3. ensure Content and payment data is stored and processed in a secure manner using appropriate industry standard security;
7.1.5. comply with the Data Protection Act 2018 (“DPA”) when processing data submitted by you, or data held by you as a Data Controller, thus performing our duties as a Data Processor under the DPA for which our registration number with the Information Commissioner Office, is ZA461591 and
7.1.6. notify you as soon as possible of any loss of, damage, destruction or unauthorised access to your Content.
8. Limitation of Liability
8.1. Subject to the other terms of this clause 8 our maximum aggregate liability arising in connection with this Agreement, whether arising in contract, tort, negligence or otherwise, and whether an act, omission or breach of statutory duty of us our employees, agents, subcontractors or suppliers, in respect of any single event or series of connected events, shall not in the aggregate exceed the total amount of Monthly Licence Fees due and paid by you, for the calendar year in which the event resulting in liability arises.
8.2. Nothing in this Agreement, including the limits and exclusions in the remainder of this clause 8, shall limit or exclude our liability for death or personal injury resulting from our negligence, fraud or fraudulent misrepresentation, or any other liability which cannot be legally excluded or limited.
8.3. Subject to 8.2 above, we assume no responsibility for, and you shall indemnify and keep us and our employees, agents, subcontractors or suppliers indemnified for, any loss, damage, or injury to any person or property of whatever nature and whether direct or indirect, occasioned by, arising from, or due to:
8.3.1. the breach by you or your systems of any applicable laws;
8.3.2. the inaccuracy or unlawfulness of any of your Content
8.3.3. any cause over which we do not have direct control, including: problems attributable to computer hardware or software, including computer viruses and malware; telephone or other communications failures; internet service provider failures;, or delays, non-deliveries, mis-deliveries, or service interruptions arising from Force Majeure;
8.3.4. unauthorised interception or use of your data or Content;
8.3.5. any actions or transactions by any individual or entity that uses your username, password or other login credentials or data used to identify you to us;
8.3.6. any breach by you of your obligations under the Data Protection Act; and
8.3.7. any breach by you of clause 6 above; except and to the extent such losses result directly from our knowing or wilful misconduct.
8.4. Childcare Gateways Ltd Products and Services are provided “as is” and we disclaim, and you waive, any warranties, express or implied, as to merchantability, fitness for a particular purpose, title, non-infringement or any other warranty, guarantee or representation relating to Childcare Gateways Ltd Products and Services and those arising by statute or otherwise in law. We do not guarantee continuous availability of the service, service at a particular time, or service without error and cannot be held responsible for any downtime or difficulties in accessing the service or for delays in or inability to send messages.
8.5. We shall not be liable to you or any of your users, for any direct, indirect or consequential losses including, but not limited to, loss of business, profit, reputation, interest, goodwill, or anticipated savings, including any type of special, punitive, consequential or indirect loss whatsoever.
8.6. If you wish to make a claim against us, you should notify us in writing including details of the claim, at the earliest possible time after becoming aware, or you should reasonably have become aware, of the event or error leading to such a loss, but in any case, not later than three (3) months after the loss.
9. Confidentiality
9.1. You acknowledge that by reason of your relationship with us hereunder, you may have access to certain information and materials relating to our business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to us, which value would be impaired if such information were disclosed to third parties. You agree that you will not use in any way for your own account, nor for the account of any third party, nor disclose to any third party, any such information revealed to you by us. You further agree that you will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this Agreement, there shall be no use or disclosure by you of any such confidential information in your possession, and all confidential materials shall be returned to us or destroyed. The provisions of this section shall survive the termination of this Agreement for any reason. Upon any breach or threatened breach of this provision, we shall be entitled to seek the remedies of injunction, specific performance and other equitable relief, and such relief shall not be contested by you.
10. Intellectual Property Rights
10.1. We hereby grant you a royalty-free and non-exclusive right for the term of this Agreement to use the Trademarks on your website(s) and in any of your offline promotional materials solely in order to indicate that you make use of Childcare Gateways Ltd Products and Services. You shall use such Trademarks in accordance with our directions and you do not have a right of sub-license.
10.2. You hereby grant us a royalty free and non-exclusive right for the term of this Agreement to use your trademark and logos on our websites and in off-line publications for promotional purposes, only to indicate that you are a user of Childcare Gateways Ltd Products and Services.
10.3. When using the Trademarks the parties shall ensure that no composite marks are created with its own trademarks and/or logos. The parties acknowledge that their use of the Trademarks does not create for themselves any rights in the Trademarks other than those explicitly granted in this Agreement.
10.4. All proprietary rights in the equipment, software (such as interfaces) and other materials used by us in the performance of this agreement, whether or not supplied to you, shall remain with us or our licensors. You shall only acquire such right of use as is explicitly granted hereunder or otherwise and no other right is granted.
10.5. For the avoidance of doubt, clause 10.4 above shall include, and not be limited to, any software, bespoke development, or other enhancements, features, interfaces or otherwise, developed by us under this Agreement, or used by you under this Agreement, regardless of whether these developments were specified, requested or paid for by you. No terms under this Agreement will prevent such enhancements being provided by us to other clients, either during the term of the Agreement or afterwards.
10.6. Upon termination of this Agreement you will immediately withdraw any reference to us from your website(s) and will cease the use of the Trademarks.
11. Non-assignability
11.1. You may not assign any rights hereunder, directly or by operation of law, without our prior written consent, which consent may not be unreasonably withheld. For the purposes of this Agreement, assignment shall include, but not be limited to, transfer of control, any ownership change which results in a new majority owner and any change in the jurisdiction of incorporation.
11.2. We may at any time transfer all or any part of our rights and/or obligations under this Agreement and upon completion of any such transfer (including the assumption by the transferee of all our remaining rights, benefits and obligations) we will be released from and have no further obligation under this Agreement. You will promptly execute all documents reasonably requested by us to affect, perfect record or implement such transfer and will promptly comply with any of our or our successors’ other reasonable requests in respect of such transfer.
12. Amendments
12.1. We may only modify this Agreement by serving a valid Notice. Where any amendments: materially diminish our responsibility to deliver the Childcare Gateways Ltd Products and Services to you; significantly reduce our liability to you; breach or threaten to breach your intellectual property or confidentiality rights; or, attempt to materially increase the Term or the Fees beyond the limits for such increases detailed in clause 4.8; then you are entitled to terminate this Agreement, effective on the date the amendment is to take effect, by sending us a Notice within fourteen (14) days of the Notice being served by us. For the avoidance of doubt, after termination under this clause 12.1, no further Monthly Licence Fee shall be charged to you, however, no Monthly Licence Fee shall be refunded and such termination shall not diminish your responsibility to pay Monthly Licence Fees already due to us.
13. Partial Invalidity
13.1. If any provision of this agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby.
14. Entire Agreement
14.1. This Agreement (together with any documents referred to in it) sets out the entire agreement between the parties and supersedes any previous agreement or arrangement between the parties relating to the subject matter of it (and any document referred to in it).
14.2. Each party agrees and acknowledges that it has not relied on, or been induced to enter into this Agreement by any warranty, statement, representation or undertaking which is not expressly included in this Agreement.
14.3. Subject to clause 8.2 no party has any claim or remedy in respect of a warranty, statement, misrepresentation (whether negligent or innocent) or undertaking made to it by or on behalf of the other party in connection with or relating to the subject matter of this Agreement and which is not expressly included this Agreement.
15. Applicable Law
15.1. This Agreement shall be governed by and construed in accordance with the laws of England and Wales whose courts will have sole jurisdiction.