These Terms and Conditions apply to the use of the Software provided by us, All Incompass Ltd, a company registered in England and Wales under number 15609837, whose registered office address is at Office 40, Burlington House, 369 Wellingborough Road, Northampton, England, NN1 4EU (referred to as “we/us/our”).
We sell our Software to business Clients only. We do not sell to Consumers (as defined in the Consumer Rights Act 2015).
In these Terms and Conditions, the following expressions have the following meanings:
“Booking” means a booking made through the Software for your class, club, after-school care or other applicable service provided by you;
“Client/you/your” means the sole trader, firm or corporate body entering into the Contract with us. Where an individual is entering into this Contract on behalf of a business, the individual confirms they have the authority to do so and to contractually bind that business and the business will be our Client in the context of the Contract;
“Client Data” means the data inputted to the Software by you, your authorised users, or us on your behalf, for the purpose of using the Software or facilitating your use of it;
“Contract” means the contract formed as detailed in clause 2, which includes these Terms and Conditions; and
“Proposal” means our written quotation to provide you with access to the Software, which remains open for acceptance for a period of 30 days unless otherwise specified and sets out our entire scope of works;
“Software” means the All Incompass booking system developed by us, and includes all elements of it.
1.1 Each reference in these Terms and Conditions to:
1.1.1 “writing” and “written” includes emails and similar communications;
1.1.2 a statute refers to that statute as amended or re-enacted at the relevant time;
1.1.3 “Terms and Conditions” refers to these Terms and Conditions as may be amended or supplemented at the relevant time;
1.1.4 a clause refers to a clause of these Terms and Conditions;
1.1.5 a “party” or the “parties” refer to the parties to these Terms and Conditions.
1.2 The headings used in these Terms and Conditions are for convenience only and will have no effect upon their interpretation.
1.3 Words imparting the singular number include the plural and vice versa. References to persons include corporations.
2.1 We will send you a written Proposal, detailing the Software to be provided and our fees. A legally binding Contract will be formed as soon as you accept our Proposal, electronically or otherwise, or place an order with us. The Contract will include the acceptance of these Terms and Conditions, which will apply between you and us.
2.2 You are responsible for the accuracy of any information submitted to us and for ensuring that our Proposal reflects your requirements. Our Proposal is based on the information provided to us at the time of its preparation. Should any errors or discrepancies become evident which affect the order value, we reserve the right to adjust it.
2.3 No terms or conditions stipulated or referred to by you in any form whatsoever will in any respect vary or add to these Terms and Conditions unless we agree otherwise in writing.
2.4 Once formed, the Contract will continue in force on a rolling monthly basis, until it is cancelled under clause 6.
3.1 Each user that will be authorised to use the Software (an “Authorised User”) will need to create a separate log-in.
3.2 It is your responsibility to ensure that all Authorised Users use the Software in accordance with the Software Terms of Use, which will be accessible via the Software.
3.3 You must not allow any log-in to be used by more than one Authorised User and you will use reasonable endeavours to ensure that each Authorised User keeps their password confidential and secure in accordance with cyber-security best practice in effect at the time.
3.4 You are solely responsible for procuring and maintaining adequate network connections and telecommunications links enabling you to access and use the Software. We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, and you acknowledge that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.5 We reserve the right to carry out maintenance at such times as may be necessary at our discretion but will endeavour to give you advance notice where possible.
3.6 We do not warrant that your use of the Software will be uninterrupted or error-free; nor that the Software, and/or the information obtained by you through the Software, will meet your requirements.
3.7 You must not access, store, distribute or transmit any viruses, or any material during the course of your use of the Software that:
3.7.1 is unlawful, harmful, threatening, defamatory, obscene, harassing or offensive;
3.7.2 facilitates illegal activity;
3.7.3 depicts sexually explicit images;
3.7.4 promotes unlawful violence;
3.7.5 is knowingly discriminatory; or
3.7.6 causes or may cause damage or injury to any person or property
and we reserve the right, without liability to you, to remove any Client Data or other material that, in our reasonable opinion, breaches the provisions of this clause.
3.8 You own and retain all rights, title and interest in and to all of the Client Data and will have sole responsibility for its legality, reliability, integrity, accuracy and quality.
3.9 You are responsible for backing up any Client Data and we recommend you do so regularly. We cannot be held liable for any loss of such Client Data, unless this is caused by our negligence.
4.1 The Software is commercially licensed software. It is not open-source, freeware or shareware.
4.2 You will be required to pay an ongoing monthly fee, together with a volume-based fee based on the monthly revenue of Bookings made through the Software, as set out in the Proposal. All fees quoted are exclusive of VAT, where applicable.
4.3 All fees will be calculated and invoiced on or around 1st of each month. If the Contract commences part-way through a month, the monthly fee will be calculated on a pro-rata basis.
4.4 All invoices are payable by direct debit, unless otherwise agreed, without set-off, withholding or deduction.
4.5 We reserve the right to review our fees periodically and will provide you with a minimum of 30 days’ notice before such change will take effect.
4.6 The time for payment is of the essence of the Contract. If you fail to make any payment to us by the due date then, without prejudice to any other right or remedy available to us, we will have the right to suspend your access to the Software and/or charge you interest on a daily basis at the rate of 8% per annum above the Bank of England base rate from time to time, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, both before and after We will also charge for any costs we may incur in attempting to recover any outstanding debt.
5.1 Once the Contract is formed, we will immediately grant you a limited, non-exclusive, non-transferrable licence to use our Software solely for your own internal Booking operations, within the bounds of these Terms and Conditions.
5.2 The Software, together with any and all intellectual property rights of whatever nature which now or in the future subsist in the Software, is and will remain our property. This Contract does not constitute a sale of the original Software or any copies of it.
5.3 You must not:
5.3.1 attempt to copy, modify, duplicate, create derivative works from, reverse compile, disassemble, reverse engineer, frame, mirror, republish, transmit, or distribute all or any part of the Software in any form or media or by any means;
5.3.1 access all or any part of the Software in order to build a product or service which competes with the Software;
5.3.1 vary, delete or obscure any notices of proprietary rights, means of identification or restrictions on or in the Software;
5.3.1 sub-license, sell, rent, lease, transfer, assign, distribute or otherwise commercially exploit or make the Software available to any third party except the Authorised Users; or
5.3.1 attempt to obtain, or assist third parties in obtaining, access to the Software other than as provided under this clause 5.
5.4 You must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, you must promptly notify us in writing.
5.5 We will defend, at our own expense, any claim brought against you alleging that the use of the Software infringes the intellectual property rights of a third party and we will pay all costs and damages awarded or agreed to in settlement of such a claim, provided you:
5.5.1 provide us with prompt written notice of the alleged claim;
5.5.2 provide us with reasonable assistance in respect of the claim;
5.5.3 and give us the sole authority to defend or settle the claim.
5.6 We will have no liability for any such claim resulting from any modification of any part of the Software by any party other than us or an authorised agent of ours.
7.1 Nothing in these Terms and Conditions excludes or seeks to exclude our liability for death or personal injury caused by our negligence, or for fraud or fraudulent misrepresentation.
7.2 Except as provided in clause 7.1 above, we will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained in the Contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our employees, agents or otherwise) in connection with the performance of our obligations under the Contract.
7.3 All warranties or conditions whether express or implied by law are expressly excluded to the maximum extent permitted by law.
7.4 In the event of a breach by us of our express obligations under these Terms and Conditions, your remedies will be limited to damages, which in any event, will not exceed the fees paid by you for the use of the Software in the 3 months preceding the date on which the alleged claim arose.
7.5 You are wholly responsible for the Client Data inputted into the Software and for the results and information obtained from this. We accept no liability for your use of the information obtained by using the Software.
The parties agree that they will not use any confidential information provided by the other, except to perform their obligations under the Contract. Each party will maintain the confidential information’s confidentiality and will not disseminate it to any third party, unless so authorised by the other party in writing.
9.1 All personal information that we may process will be collected, used and held in accordance with the provisions of the Data Protection Act 2018, the UK General Data Protection Regulation and any amendments to them.
9.2 You agree that you will also comply with current data protection legislation in force from time to time. In particular, in relation to Client Data, you warrant that you have obtained the appropriate consents from any individual whose personal data will be uploaded to the Software. We will have access to the Client Data but will use this only to perform our obligations under the Contract.
9.3 For further information, please refer to our Privacy Policy, which is available via the Software or on request.
Neither party will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
11.1 Notices will be deemed to have been duly received and properly served 24 hours after an email is sent or three working days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that it was properly addressed to the address provided, stamped and placed in the post and in the case of an email, that it was sent to the specified email address of the addressee.
11.2 We may transfer (assign) our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (if for example, we sell our business). If this occurs, we will inform you in writing. Your rights under these Terms and Conditions will not be affected and our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them.
11.3 You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without our express written permission.
11.4 Each party acknowledges that, in entering into this Contract, it does not rely on any representation, warranty or other provision except as expressly provided in this Contract. This Contract constitutes the entire Contract between you and us with respect to its subject matter and supersedes all prior proposals, representations, understandings and agreements, whether oral or written, and all other communications between us, relating to that subject matter.
11.5 The Contract is between you and us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.
11.6 Any part of these Terms and Conditions found to be unlawful, invalid or otherwise unenforceable would be severed from our Contract. The validity and enforceability of the remaining parts of the Contract would not be affected.
11.7 If any rights under these Terms and Conditions are not exercised or enforced following a breach of contract by either party, this does not mean that either of us has waived our right to do so at a later date.
12.1 These Terms and Conditions and the relationship between you and us (whether contractual or otherwise) will be governed by, and construed in accordance with, the laws of England and Wales.
12.2 Any dispute, controversy, proceedings or claim between you and us relating to the Contract or these Terms and Conditions (whether contractual or otherwise) will be subject to the jurisdiction of the courts of England and Wales.
