1.      Introduction

1.1              This is an agreement between you (“you” or the “Customer”) and Social-Ability Limited (“Social-Ability” or “we”), a company registered in England and Wales (registration number 12023769), whose registered office is at Pipers Business Centre, 220 Vale Road, Tonbridge, Kent, England, TN9 1SP, each a “Party”, and together the “Parties”.

1.2             Your use of the Service is governed by these terms and conditions (the “T&Cs”). When you sign up for the Service, you agree to these T&Cs. You should only join if you have read and accept them.

 

2.     Definitions and interpretation

2.1             In the Invoice and these T&Cs, the following words shall have the following meanings:

 

“Applicable Law”: means all laws, statutes, regulations, rules, mandatory codes of conduct and guidelines that are applicable to the activities to be carried out by either Party pursuant to these T&Cs;

“Advance Fee Amount”: means, if applicable, the amount you agree to pay in advance to Social-Ability for the Service in lieu of Monthly Service Fees as specified in your Invoice (or other relevant period agreed between the Parties);

“Content”: means textual, visual or other information, software, games, data, photos, video, graphics, music, sound and other material appearing on or available to access via the Service from time to time;

“Invoice”: means your invoice dated on or around the commencement of the Service which shall be incorporated into these T&Cs;

“Data Protection Legislation”: means the UK Data Protection Act 2018, the GDPR, the Privacy and Electronic Communications Regulations 2003 and all other Applicable Law relating to the processing of personal data and data privacy;

“Equipment”: means the equipment to be provided by Social-Ability as part of the Service; 

“Excluded Event”: has the meaning given at Clause11.2;

“GDPR”: means the General Data Protection Regulation (EU) 2016/679;

“Group”: means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;

“Intellectual Property”: means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, database rights, rights in computer software, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights;

“Liability”: means any and all liability of Social-Ability in contract, tort (including, without limitation, negligence) or otherwise whether arising out of, in connection with or in relation to these T&Cs, the Service or the supply or non-supply of the Service;

“Maintenance”: means the maintenance service provided by Social-Ability to the Customer in accordance with Clause7;

“Minimum Initial Term”: means the minimum initial term of the Service as specified in your Invoice;

“Monthly Service Fee”: means the amount you agree to pay to Social-Ability for the Service as specified in your Invoice; 

“Service” means provision by Social-Ability of the Equipment, the Content and the Maintenance; and

 

2.2           References to Clauses are to the clauses of these T&Cs.

2.3            Headings are for convenience only and shall be ignored in interpreting these T&Cs.

2.4           General words such as “other”, “including” and “in particular” shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words.

 

3.     Provision of Service

3.1             In consideration of the Customer agreeing to pay Social-Ability the Monthly Service Fee and complying with its other obligations under this these T&Cs, Social-Ability will provide the Service to the Customer.

3.2            Unless otherwise agreed in writing and subject to Clause 5, the Service shall automatically renew at the end of the Minimum Initial Term and each expiration date thereafter for an additional period of one year.

3.3            Social-Ability reserves the right to:

(a)   suspend or restrict access to certain elements of the Service; and

(b)   vary the Service and / or Content from time to time.

3.4           The Service and Content is subject to change and is provided on an ‘as is’ basis. You accept that Social-Ability will not be liable for any action you take in reliance on an element of the Service and / or Content as a condition of us allowing you access to the Service.

3.5            To use some of our Service, you will need to ensure that an internet connection is available for the Equipment. 

3.6           To maximise the best implementation and use of the Service, the Customer shall ensure that its staff, volunteers and visitors are made aware of, and will proactively participate in, all elements of the Service (including all training and support functions).

3.7           Social-Ability may conduct any credit checks, or other background checks, on the Customer as it shall deem appropriate, and the Customer agrees to cooperate and comply with such checks. The Customer agrees that Social-Ability may use the Customer’s data, including any personal data, for the purpose of making credit checks, and the Customer agrees to Social-Ability’s collection, storage and use of such data for this purpose.

 

4.    Monthly Service Fee

4.1            Subject to Clause 4.6, the Monthly Service Fee will be charged monthly in advance to your payment method on the date indicated on your Invoice. By accepting these T&Cs, you expressly authorise Social-Ability or any authorised third-party to charge the Monthly Service Fee to your payment method and agree that Social-Ability shall not be responsible for any additional charges which may be imposed on you by your bank or card issuer in respect thereof.

4.2           Any additional charges payable in accordance with Service-Ability’s standard rates as updated from time to time (the “Additional Charges”) shall be invoiced to you in arrears and shall be payable within 14 days of the date of the relevant invoice.

4.3           We will send you a copy of the Invoice to the email address you provide within a reasonable time.

4.4           After the Minimum Initial Term, we may increase or decrease the Monthly Service Fee at any time (including the introduction of prices for aspects of the Service previously provided at no extra cost).

4.5           We reserve the right to block or bar your Service if we have reasonable cause to suspect fraudulent use of a payment method.

4.6           The Customer may elect to pay an Advance Fee Amount, which shall be paid in total in advance. Following the Minimum Initial Term, Clause 3.2 and 4.1 shall apply to the Customer’s Service unless a further Advance Fee Amount is agreed in writing with Social-Ability or the Service is cancelled in accordance with Clause 5.

4.7           Social-Ability reserves the right to issue and send all documents, including but not limited to notices, receipts, statements, terms and conditions, quotes and order acknowledgements to the Customer in an electronic format, and the Customer accepts to receive all such documents electronically by e-mail.

4.8           Monthly Service Fees and any Advance Fee Amounts or Additional Charges shall exclude VAT unless otherwise stated.

4.9           The Customer shall not be permitted to any set off against any amounts due to Social-Ability.

 

5.     Cancellation

5.1             The Service may be cancelled by giving written notice to us at least 3 months prior to the end date of the Minimum Initial Term or other relevant term thereafter in accordance with this clause 5.1. You will continue to be charged your Monthly Service Fee until the end of the relevant term and you will be obligated to pay any unpaid fees. You may continue to use the Service until the end date of the relevant term. 

5.2            Social-Ability reserves the right to terminate, cancel, suspend or disable your Service with immediate effect in accordance with these T&Cs including in the following circumstances:

(a)   non-payment, or late payment, of any Monthly Service Fee, Advance Fee Amount or Additional Charges;

(b)   material, repeated or persistent (in Social-Ability’s reasonable opinion) failure by the Customer to comply with these T&Cs or any other instructions or guidelines issued by Social-Ability from time to time;

(c)   the Customer doing or omitting to do anything which may bring into disrepute or could otherwise damage the reputation of Social-Ability or its Intellectual Property; 

(d)   the Customer experiencing an insolvency event as recognised by Applicable Law; or

(e)   any other circumstance which Social-Ability determines, in its sole discretion, to render provision of the Service unfeasible or unsafe. 

5.3      During or following cancellation of the Service by you or us, you shall arrange the return of the Equipment to us by any method as requested by us within 14 days of cancellation becoming effective, unless otherwise agreed between the Parties.

5.4           We reserve the right to charge either the Monthly Service Fee or the full cost of the Equipment if you fail to return the Equipment to us in accordance with this Clause.

5.5     Following the cancellation or expiration of the Service, where the Customer is entitled to retain the Equipment, unless otherwise agreed between the Parties in writing, the Content will not be  available for the Customer to access.  

6.     Equipment

6.1            The Customer will, for the duration of the Service:

(a)   hold the Equipment as bailee for Social-Ability;

(b)   inspect the Equipment upon delivery and report any fault or other issue to Social-Ability immediately in accordance with the process set out at Clause 7;

(c)   take all reasonable care of the Equipment and maintain the Equipment in reasonable condition;

(d)   carry out an onsite portable appliance test, or other applicable electrical safety check, to ensure that the Equipment is safe to use at the Customer’s address;

(e)   not remove or alter any mark on or packaging of the Equipment without Social-Ability’s consent; 

(f)    provide Social-Ability with such information concerning the Equipment as Social-Ability may request from time to time; and

(g)   provide Social-Ability with access to the Customer’s premises during reasonable business hours in order to inspect the Equipment and the Customer’s use thereof.

6.2           Social-Ability may:

(a)   require the Customer (at the Customer’s expense) to redeliver the Equipment to Social-Ability; or

(b)   if the Customer fails to do so promptly, enter any premises where the Equipment is stored to repossess it.

6.3           Delivery dates are given in good faith but any time or date quoted by Social-Ability for delivery or performance is an estimate only and Social-Ability shall not be liable for any damages or loss whether direct, indirect or consequential caused by any delay in delivery or performance. Time for delivery or performance shall not be of the essence. 

 

7.     Maintenance

7.1            The Customer shall promptly notify Social-Ability in writing of any non-functionality, errors, installation issues or other defects in relation to the Equipment during the Term (each a “Service Issue”).

7.2           Social-Ability shall, subject to Clauses 7.4 and7.5, use reasonable endeavours to engage with a Service Issue and subsequently rectify or replace the relevant Equipment within a reasonable timeframe following receipt of notification issued in accordance with Clause7.1. 

7.3           The Customer shall remain bound to pay the Monthly Service Fee and any Advance Fee Amount or Additional Charges due during resolution of a Service Issue. A Service Issue shall not provide grounds for cancellation of the Service except as set out at Clause5.

7.4           Social-Ability shall not be responsible for circumstances outside its control which affect the performance of the Equipment once Equipment has been installed and commissioned to Social-Ability’s reasonable satisfaction. Social-Ability reserves the right to:

(a)   at reasonable business hours, enter upon the Customer’s premises for the purpose of inspecting any Equipment which the Customer reports a fault with, 

(b)   ask for assistance from the Customer in identifying or addressing a Service Issue (including the provision of photos and videos); and

(c)   in circumstances where the Equipment is found not to be faulty or the cause of the fault does not relate to the Equipment or the installation of the Equipment, invoice the Customer for Additional Charges in accordance with Clause 4.2 which may include an installation or call out fee. 

7.5           Social-Ability will not be liable to provide Maintenance in respect of any Excluded Events, including without limitation any Equipment which is lost or damaged during the Service. The Customer shall:

(a)   be liable to Social-Ability for the full cost of any repairs or replacement of Equipment as a consequence of loss or damage; and

(b)   purchase and maintain throughout the Term, adequate insurance covering the Equipment for up to £5,000 to protect against the risk of loss or damage.

7.6           Maintenance by Social-Ability in accordance with this Clause 7 shall be the Customer’s sole remedy for any claim related to any Equipment.

7.7           The Customer shall ensure that Social-Ability (or its agents) has access to Equipment in order to conduct Maintenance and in cases where Social-Ability is not able to gain access to the relevant Equipment, Social-Ability reserves the right to invoice the Customer for Additional Charges in accordance with Clause4.2.

 

8.     Installation

8.1            In relation to the installation of any Equipment (whether or not such Equipment has already been delivered), Social-Ability reserves the right to:

(a)   deliver a ceiling and installation requirements document to the Customer explaining what actions Social-Ability shall carry out and what actions the Customer is required to carry out to effect an installation of the Equipment. The Customer is required to confirm by email at least 48 hours in advance of an installation that all actions and works have been carried out to effect the installation;

(b)   charge the Customer for the installation of any Equipment which is fitted, placed or otherwise installed;

(c)   undertake a survey of the site of installation of Equipment prior to the delivery of any Equipment to satisfy itself that the location for the Equipment is suitable;

(d)   in accordance with Clause 5.2 cancel any Service if it considers the installation or use of the Equipment to be unfeasible or unsafe.

8.2           Social-Ability shall remain entitled to invoice the Customer for Additional Charges in accordance with Clause4.2, regardless of whether Social-Ability has undertaken an assessment or survey of the Customer’s premises. The Customer acknowledges and agrees that Additional Charges may be payable in the following circumstances:

(a)   the Customer provides Social-Ability with incorrect information with regard to the installation of Equipment or does not undertake the actions required in accordance with Clause 8.2(a) above;

(b)   any additional work, parts or storage are required to install the Equipment which are outside the work and parts to be provided for within the original scope of an installation; 

(c)   the Customer (or their agent) installs or modifies any Equipment incorrectly, requiring Social-Ability to carry out work to rectify or repair Equipment; 

(d)   Social-Ability spends any time or costs as a result of any Customer act or omission which costs are not already provided for in any quote for work provided by Social-Ability; or

(e)   the Customer cancels an appointment for installation of Equipment less than 48 hours before the agreed installation date.

 

 

 

9.     Intellectual Property

9.1            All Intellectual Property in the Content and the Equipment is, as between the Parties, owned legally and beneficially by Social-Ability or its Group (the “Social-Ability IP”). The Customer does not obtain any rights to the Social Ability IP save as are expressly granted by these T&Cs and nothing in these T&Cs shall operate to assign or otherwise transfer any such ownership rights to the Customer.

9.2           Social-Ability hereby grants a non-assignable, non-exclusive, royalty-free licence of the Social-Ability IP for the Term solely for the purpose and to the extent necessary for the Customer to use the Service in accordance with the rights granted under these T&Cs.

9.3           The Customer shall comply with any guidelines provided by Social-Ability from time to time in respect of all use of the Social-Ability IP by or on behalf of the Customer.

9.4           Without prejudice to the foregoing, the Customer shall promptly upon becoming aware of the same assign or procure the assignment (as applicable) to Social-Ability absolutely of all Intellectual Property and goodwill as may be owned from time to time by the Customer or any member of its Group which, according to Clause 9.1 of this Agreement is the property of Social-Ability.

9.5           All goodwill arising in connection with use by the Customer of Social-Ability IP shall vest in Social-Ability. The Customer undertakes that it will make no claim to any of the Social-Ability IP or any goodwill therein.

 

10.   Data Protection

10.1          All capitalised terms used in this Clause 10 which are not otherwise defined in this Agreement shall have the meaning ascribed to them in the GDPR unless otherwise stated or self-evident from the context.

10.2         Each Party undertakes to the other that it will, and will procure that its agents and sub-contractors will, comply with applicable Data Protection Legislation, in connection with the performance of its obligations and exercise of its rights under these T&Cs.

10.3         Notwithstanding Clause10.2, the Parties acknowledge and agree that it is not intended by either Party that any Personal Data is processed under the terms of these T&Cs.

10.4         The Customer hereby indemnifies and shall keep indemnified Social-Ability and its Group on an after-tax basis against all damage (including regulatory fines and penalties) caused by any breach or alleged breach by the Customer of this Clause 11.

 

11.    Liability

11.1            Our Liability shall not be limited to you in respect of death or personal injury to any person resulting from our own negligence and any other type of liability which we cannot exclude or limit under the laws of England and Wales.

11.2           Subject to Clause11.1, Social-Ability excludes its Liability and will not be responsible for any damages, liabilities, injuries or claims (including any indemnification or product liability exposure to the Customer), in the event:

(a)   of any unapproved modification or alteration to the Equipment or the Content by the Customer or its employees or agents;

(b)   of any improper use, installation, movement, operation, selection or return of the Equipment, or improper use of the Content, by the Customer or its employees or agents;

(c)   of any failure of the Customer or its employees or agents to maintain and operate the Equipment in accordance with these T&Cs and any other applicable manuals and training; or

(d)   that we cannot provide the Service to you because of circumstances beyond our reasonable control,

together, the “Excluded Events”.

11.3           Subject to Clause11.1, Social-Ability shall not be liable to the Customer by reason of any representation, or any express or implied warranty, condition or other term or any duty at common law for any:

(a)    indirect, special or consequential loss, damage, costs or expenses which arise out of or in connection with the supply or installation of the Equipment (including any delay in supplying or failure to supply or install the Equipment) or their use by the Customer except as expressly provided by these T&Cs; or

(b)   loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect, and, in each case, however arising.

11.4          Save as expressly provided in these T&Cs, Social-Ability does not give any warranties, representations or undertakings in respect of the Service, its delivery, operation or availability, or any Intellectual Property therein, and all such warranties which may be implied (whether statutory or otherwise) are hereby excluded to the maximum extent permitted by law.

11.5           Any action against Social-Ability under these T&Cs or related to any Equipment or otherwise related to or arising under or in connection with these T&Cs must be brought within one (1) year after the cause of action accrues.

11.6           Social-Ability’s total Liability under these T&Cs for any one claim or series of connected claims shall be limited to the greater of:

(a)   £250; or

(b)   the total Monthly Service Fee and Additional Charges paid or payable by the Customer in respect of the period of one month ending on the date of that event (or first in the series of connected events) or, where payment is made by Advance Fee Amount, the proportion of the Advance Fee Amount corresponding to the period of one month ending on the date of that event (or first in the series of connected events). 

 

12.   Customer indemnities

12.1           The Customer agrees to indemnify and keep indemnified on an after-tax basis Social-Ability, and its employees, agents, successors, assigns and affiliates from and against any and all liabilities, obligations, losses, damages, injuries, claims, demands, penalties, actions, costs and expenses, including reasonable legal costs and fees, of whatsoever kind or nature, arising directly or indirectly  out of:

(a)   any breach of these T&Cs by the Customer;

(b)   the possession, use, installation (other than by Social-Ability), movement, operation, ceiling preparation, selection or return of the Equipment, other than any claim arising from the negligence or the misconduct of Social-Ability; 

(c)   infringement of Intellectual Property with respect to the Service or Equipment or other goods designed, manufactured or modified, wholly or partially, to Customer’s designs or specifications.

12.2          The Customer shall indemnify Social-Ability in respect of Liability to any person caused by the addition to any Equipment supplied by Social-Ability of any part which is not a Social-Ability designated part and Social-Ability shall have no Liability to the Customer for loss or damage or injury directly or indirectly caused by such addition.

 

13.   Confidentiality

13.1           Each party agrees and undertakes that during the term of the Service and thereafter it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party all information of a confidential nature (including trade secrets and information of commercial value) which may become known to that party from the other party (“Confidential Information“) unless the information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge other than by breach of these T&Cs or subsequently comes lawfully into the possession of that party from a third party.

13.2          To the extent necessary to implement the provisions of these T&Cs each party may disclose the Confidential Information to those of its employees as may be reasonably necessary or desirable provided that before any such disclosure each party shall make those employees aware of its obligations of confidentiality under these T&Cs and shall at all times procure compliance by those employees with them.

13.3          To the extent permitted by law, the obligations in this Clause 14 shall continue without limit of time.

 

14.   Modifications 

14.1          Social-Ability reserves the right to modify any design or specification or to use materials different to those specified and to enter upon the Customer’s premises upon giving the Customer reasonable notice to make modifications to Equipment. 

14.2         Social-Ability reserves the right to make any changes in the specification of the Equipment or the provision of any Service which are required to conform with Applicable Law or, where the Equipment is to be supplied to the Customer’s specification, which do not materially affect their quality or performance and to enter upon the Customer’s premises upon giving the Customer reasonable notice to make modifications to Equipment.

14.3         Social-Ability reserves the right to modify these T&Cs from time to time.

 

15.   Force Majeure 

15.1           Should the manufacture, delivery or installation of any Service or Equipment or any part thereof whether by Social-Ability or any contractor or carrier be prevented or hindered for a continuous period in excess of one month due to any cause beyond the reasonable control of Social-Ability then, Social-Ability shall have the right to suspend or cancel any obligation then unperformed without prejudice to any of Social-Ability’s rights including the right to payment in respect of any Service or Equipment supplied prior to such suspension or cancellation. Social-Ability shall not be liable for any direct, economic or consequential loss (including loss of profits, revenue or goodwill) that Customer may suffer.

 

 

16.   Waiver 

16.1           No waiver by Social-Ability of any breach of these T&Cs by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provisions.

 

 

17.   Invalidity 

17.1           If any provision of these T&Cs is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these T&Cs and the remainder of the provision in question shall not be affected.

 

18.   Assignment 

18.1          Neither these T&Cs nor any obligations under the same may be assigned by either party without the express written consent of the other party, and any attempt to do so will be void; except that Social-Ability may assign any benefit to any subsidiary, affiliate or holding company of Social-Ability’s Group from time to time and the Customer hereby expressly grants its consent to the novation of any obligation arising hereunder to any subsidiary, affiliate or holding company of Social-Ability’s Group from to time.

18.2         Unless agreed in writing with Social-Ability, the Customer shall not loan or hire the Equipment to any other party.

 

19.   Entire agreement 

19.1           These T&Cs (incorporating, for the avoidance of doubt, your Invoice) constitute the entire agreement and understanding of the Parties as to the subject matter of these T&Cs. They supersede any prior agreement or understanding between the Parties and no variation of these T&Cs or any other document shall be binding unless agreed in writing.

 

20.  Law & Jurisdiction 

20.1         These T&Cs and its performance is governed in all respects by English law and the Parties agree that the courts of England and Wales shall have exclusive jurisdiction over any dispute or difference arising out of or in connection with these T&Cs.