1. TERMS OF SERVICE (“Agreement”)
This Agreement sets out the terms and conditions on which thinkBooker provides its SafeBook Application to its Subscribers and their Authorised Users. By choosing to register with thinkBooker, the Subscriber represents and acknowledges that it has read, understood and agreed to be bound by the terms and conditions of this Agreement. In entering into this Agreement as an agent, officer, employee or representative of a Subscriber, you and the Subscriber warrant to that you are duly authorised to enter into this Agreement on behalf of the Subscriber.
2. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the contrary intention appears, the following words have the following meanings:
Administrator Email Address
means the email address by which the Subscriber has provided ‘System Administrator’ level access within the SafeBook Application, whether or not that level of access has been renamed by the Subscriber.
means this agreement, the Pricing Plan and any notices published on the SafeBook Website or on the Subscriber Installation from time to time.
means the username and password or any other means of authentication which an Authorised User must use to gain access to the SafeBook Application.
means any current or former employees, officers, agents, independent contractors of the Subscriber, its subsidiaries or other related entities who have been issued with an Authentication Credential in accordance with this Agreement.
means a day other than a Saturday, Sunday or public holiday in England when the banks in London are open for business.
means the date a Subscriber first registers online with thinkBooker and confirms acceptance of this Agreement.
means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13 below.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures
has the meaning as defined in the Data Protection Legislation.
Data Protection Legislation
means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including without limitation the privacy of electronic communications).
means any documents made available by thinkBooker to its Subscribers in respect of the SafeBook Application.
Fair Use Policy
means the policy described at clause 8 which governs the use of the SMS Services, SafeBook Application, SafeBook Website, thinkBooker Infrastructure or any other services, application and infrastructure provided or supplied by thinkBooker.
means any fees or other amounts payable under a Pricing Plan by a Subscriber for any Services provided pursuant to this Agreement.
Force Majeure Event
means a strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, any outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority, any government law, regulation, restraint or requirement, or any other cause beyond the reasonable control of SafeBook and includes, without limitation, the following:
(a) an outage or impairment of the hosting and any other services provided to SafeBook by Microsoft;
(b) an outage or impairment of the messaging and other services provided to SafeBook by Twilio; and
(c) other internet, telecommunications or utility outage or impairment which is beyond the reasonable control of thinkBooker.
means in respect of a Subscriber the happening of any of these events:
(a) the Subscriber becoming the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation;
(b) an assignment for the benefit of creditors;
(c) suspending payments of its debts, ceasing (or threatening to cease) to carry on all or material part of its business, stating that it is unable to pay its debts or otherwise becoming insolvent; and or
(d) any analogous event.
means all trade marks, trade and business names, patents, copyright (including copyright in computer programs) database rights, design rights, utility models, topography rights, inventions, know how, confidential information and all other intellectual property and rights of a similar or corresponding nature in any part of the world, whether or not registered or capable of registration, in respect of such rights which are registerable the right to apply for registration and al applications for registration of any of the foregoing right.
means the current pricing rates for the Services set out on the SafeBook Website.
means the current version of the SafeBook application made available by thinkBooker for use by its Subscribers and their Authorised Users from time to time.
means www.SafeBook.uk and any other website which thinkBooker may use or provide to its Subscribers for use from time to time.
means any accidental or unlawful destruction, loss or alteration of Personal Data, or any unauthorised disclosure of or access to Personal Data.
means the User Subscriptions and any Documentation provided by thinkBooker to the Subscriber under this Agreement via www.safebook.uk and any SMS Services.
means the SMS messaging service made available by thinkBooker for use by Subscribers and their Authorised Users.
means the person who registers to use the SafeBook Application, any party identified as the subscriber on any registration, order or other similar form or document submitted to thinkBooker.
means the data uploaded to the SafeBook Application by the Subscriber, Authorised Users or thinkBooker on behalf of the Subscriber for the purpose of using the Services or facilitating the Subscriber’s use of the Services.
means an instance of the SafeBook Application made available by SafeBook to its Subscribers through a nominated URL published or provided by SafeBook to its Subscribers.
has the meaning given to it in clause 3.
is the trading name of Uprise Marketing Limited, a subsidiary of Flex Systems Limited.
means the computer servers or other hardware used by thinkBooker in connection with its provision of the Services (if any).
Third Party Application
means any product, service, system, application or internet site integrated or interfaced with the SafeBook Application which may be owned or operated by a Third Party Provider which is used by a Subscriber or its Authorised User in connection with the SafeBook Application.
Third Party Provider
means any third party that provides support, technology and/or other products or services that may be used by a Subscriber or its Authorised User in connection with the SafeBook Application.
means a free 30 day trial access to the SafeBook Application.
means any content which, in thinkBooker’s reasonable opinion, is obscene, offensive, upsetting, defamatory, illegal.
means the user subscriptions purchased by the Subscriber pursuant to clause 4 with entitles Authorised Users [and their guests] to access and use the Services in order to select Things.
Thing (Thing to Book)
means a thing (a bookable resource such as a venue, a person, a room etc) or number of things to book under a Pricing Plan.
In this Agreement, unless the subject or context otherwise requires:
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
- A reference to writing or written includes e-mail.
- References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
This Agreement shall commence on the Commencement Date and shall continue to apply unless and until terminated in accordance with clause 11 (Termination).
4. USER SUBSCRIPTION
4.1 In registering on the SafeBook Website the Subscriber automatically subscribes for a Trial Subscription and gain access to the SafeBook Application.
4.2 Subject to the Subscriber purchasing the User Subscriptions, throughout the Term thinkBooker grants to the Subscriber and its Authorised Users a non-exclusive, non-transferable right (without the right to grant sub-licences) to access and use the Services and Documentation solely for the Subscriber’s internal business operations.
4.3 Each Authorised User shall keep a secure password for their use of the Services and Documentation which shall be changed as prompted and each Authorised User shall keep their password confidential.
4.4 Subject to clause 4.5 below, the Subscriber may during the Term vary the number of Things under the relevant User Subscription.
4.5 Where a Subscriber makes changes to the User Subscription in respect of:
- a decrease in the number of Things, the Subscriber will be charged the prevailing Fee for a reduced number of Things at the prevailing Pricing Plan on a pro rate basis for the remainder of the relevant month in which the change was made; and/or
- an increase in the number of Things, the Subscriber will be charged the prevailing Fee for the increased number of Things at the prevailing Pricing Plan on a pro-rate basis for the remainder of the relevant month in which the change was made.
4.6 The Subscriber acknowledges and agrees that thinkBooker may at any time amend, vary or remove any of the features, functions and other benefits in respect of the SafeBook Application as it sees fit without any prior notice to the Subscribers. Nothing in this Agreement requires thinkBooker to provide or maintain any features, functions or other benefits in respect of the SafeBook Application.
5. THIRD PARTY APPLICATIONS
5.1 The Subscriber acknowledges that the SafeBook Application may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used when utilising certain features or functionality in the SafeBook Application. Where such Third Party Applications or Third Party Providers are used, the Subscriber acknowledges and agrees that:
- thinkBooker makes no representations or warranties relating to the Third Party Providers or the Third Party Applications;
- the Third Party Providers and thinkBooker are not partners, joint venturers, representatives or agents of each other;
- the inclusion of any link to or integration with any Third Party Application does not constitute or imply any affiliation with, or sponsorship, endorsement or approval by thinkBooker of the Third Party Provider or Third Party Application;
- the Subscriber agrees to and must abide by, and must ensure that each Authorised User agrees to and abides by, any obligations imposed upon it by such Third Party Provider, and thinkBooker may notify the Subscriber of such obligations;
- access to Third Party Applications is at the Subscriber’s risk and thinkBooker will not be responsible for any loss that may result from the Subscriber’s use of any Third Party Application, even if the Third Party Application may interface with the SafeBook Application, or even if thinkBooker may have provided installation or integration services with respect to the Third Party Application;
- the Third Party Providers may have practices, terms and policies, including those relating to privacy or data security, that are different from those of thinkBooker and thinkBooker is not responsible for any these practices, terms and policies and specifically disclaims any liability for any of them;
- thinkBooker makes no representations or warranties regarding the Third Party Applications or the Third Party Providers. Without limiting the above, thinkBooker does not make any representations or warranties regarding the availability or timing of any availability of any interface between the SafeBook Application and any Third Party Applications;
- the Subscriber will maintain a direct, independent contractual relationship with all Third Party Providers in relation to the Subscriber’s access to or use of the Third Party Applications; and
- thinkBooker is not responsible for and has no obligation to provide the Subscriber with any assistance or support in relation to the functioning or operation of the Third Party Applications.
6. AUTHENTICATION CREDENTIALS
6.1 Upon request from the Subscriber thinkBooker will provide the Subscriber with Authentication Credentials in order for the Authorised Users to access the SafeBook Application.
6.2 Where the Subscriber implements an Authentication Credential in a system or Third Party Application with the result that such a system is an Authorised User (Authorised System), the Subscriber will implement the Authorised System such that any person accessing the SafeBook Application via the Authorised System can be accurately identified to thinkBooker upon its request, and the date, time and nature of such person’s access to the SafeBook Application via the Authorised System can likewise be accurately identified to thinkBooker.
6.3 The Subscriber must:
- ensure that each Authentication Credential is securely maintained and used only by the Authorised User to whom the Authentication Credential has been issued;
- comply with any policies, guidelines or other requirements issued by thinkBooker from time to time in any way relating to Authentication Credentials;
- immediately notify thinkBooker and take immediate steps to disable an issued Authentication Credential if:
- an Authorised User ceases to be employed by, contracted to, or otherwise authorised to use the SafeBook Application by the Subscriber;
- an Authentication Credential is lost, stolen, missing or is otherwise compromised; or
- the Subscriber becomes aware of any breach of the provisions of this Agreement by the Authorised User, in which case the Authentication Credentials will be suspended until such time the breach is remedied to thinkBooker’s satisfaction.
- not transfer or allow to be transferred Authentication Credentials between or amongst Authorised Users or other individuals or systems and take all reasonable steps to ensure that Authentication Credentials are not transferred;
- conduct regular checks to ensure the integrity of all issued Authentication Credentials, including regularly cross checking its list of Authorised Users with such list maintained by thinkBooker and provided to the Subscriber; and
- periodically reset Authentication Credentials as and to the extent required by thinkBooker from time to time.
6.4 thinkBooker reserves the right to change and/or revoke any Authentication Credentials at any time and will provide the Subscriber with a written notice of the change or revocation.
7. SUBSCRIBER OBLIGATIONS
7.1 The Subscriber shall:
- upload all Subscriber Data into the SafeBook Application and ensure all Subscriber Data is accurate;
- be responsible for the day to day use of the SafeBook Application;
- obtain all licenses, consents, or permissions necessary to upload the Subscriber Data into the SafeBook Application, store the Subscriber Data on the thinkBooker Infrastructure and to otherwise use the SafeBook Application;
- ensure that the use of the SafeBook Application by the Subscriber and each of its Authorised Users and the uploading and storage of the Subscriber Data complies with all applicable laws, regulations or codes of conduct;
- satisfy itself that the SafeBook Application is compatible with its own hardware, software and internet and network systems and maintaining all hardware, software, Third Party Applications and other technology necessary to be able to access and use the SafeBook Application;
- ensuring that it maintains back up or alternate systems for use if the SafeBook Application is unavailable or is otherwise unable to be used by the Subscriber;
- ensuring no Unacceptable Content is uploaded to the SafeBook Application or stored in the thinkBooker Infrastructure; and
- be responsible for any acts or omissions committed by the Authorised Users or the other employees, officers, contractors or representatives of the Subscriber or any of its related parties in relation to the SafeBook Application.
- only use and copy the Documentation to the extent necessary to use the SafeBook Application;
- comply with and ensure that its Authorised Users comply with the terms and conditions of this Agreement and any policies regarding the use of the SafeBook Application which thinkBooker may notify of its Subscriber from time to time (notification of which may be made available or accessible on the SafeBook Website or through the Subscriber Installation), including without limitation, thinkBooker’s Fair Use Policy; and
- ensure that each Authorised User is either an employee or contractor or visitor of the Subscriber who has all authority, permissions or other approvals required to be able to access and use the SafeBook Application.
7.2 The following conditions of this Agreement prohibit:
- the use of the SafeBook Application or any other Intellectual Property in any way or for any purpose other than as contemplated by this Agreement;
- the use of any Intellectual Property or Confidential Information of Flex System Limited or any of its subsidiaries or other affiliates or otherwise breach any other legal obligation to build a competitive product or service or build a product or service using similar ideas, features, functions or graphics of the SafeBook Application;
- any person other than the Authorised Users to use the SafeBook Application and ensure that those Authorised Users, in using the SafeBook Application, comply with the terms and conditions of this Agreement as if they were the Subscriber;
- any actions to modify, adapt, translate, reverse engineer, decompile, disassemble or copy all or any part of the SafeBook Application;
- any attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the SafeBook Application;
- the sending or storing of material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
- interference with or disrupt the integrity or performance of the SafeBook Application or the data contained therein;
- any attempt to gain unauthorised access to the SafeBook Application, thinkBooker Infrastructure or its related systems or networks;
- create internet "links" to or from the SafeBook Application, or "frame" or "mirror" any content forming part of the SafeBook Application other than on the Subscriber’s own intranets or otherwise for its own internal business purposes;
- distribute any part of the SafeBook Application for commercial purposes or otherwise sub-licence or resell the SafeBook Application;
- create derivative works from all or any part of the SafeBook Application;
- transfer, assign, rent, lease, lend, sell or dispose of all or any part of the SafeBook Application or any compilation derived from the SafeBook Application or otherwise commercially exploit or make the SafeBook Application;
- make any part of the SafeBook Application publicly available in violation of this Agreement or other legal obligation; or
- attempt or allow its Authorised Users or any other third parties to do or attempt to do any of the above.
7.3 Access to Subscriber’s system
The Subscriber acknowledges and agrees that, throughout the Term, the Subscriber grants SafeBook the right and permission to access the Subscriber Installation and the computer systems of the Subscriber used to access the Subscriber Installation, including but not limited to, to provide support services to the Subscriber and to monitor the use of the SafeBook Application by the Subscriber. The Subscriber must do all things reasonably requested by thinkBooker to ensure thinkBooker has the required access during the Term.
8. FAIR USE POLICY
8.1 For the purpose of this clause 8, Unreasonable Use includes, without limitation, the following:
- exceeding 5,000 appointment bookings per Thing in any single monthly period under the Term;
- messages sent through the SMS Services are sent to recipients other than those who are bona fide employees, contractors or associates of the Subscriber whose details have been entered into in the Subscriber Data;
- use of the SafeBook Application (including the SMS Services):
- for any activity that breaches any law and regulations or in a manner other than those intended for the Subscription Services;
- to transmit, publish or make available material that is offensive, abusive, indecent, pornographic or confidential (or promote others to engage in such acts);
- in a way that infringes the rights of other persons, including to defame, harass, injure, menace or abuse any person or property or violate any person’s privacy, to infringe any person’s intellectual property rights or incite hatred against any person;
- to send unsolicited data to third parties for any purpose; and
- in a way that will interfere with, interrupt, manipulate, bypass or degrade the SafeBook Application, the integrity of the thinkBooker Infrastructure or any network or equipment of another person;
- any acts or activities which are similar in nature.
8.2 thinkBooker’s Fair Use Policy applies to all Subscribers and all Services to ensure that the availability of the SafeBook Application to all Subscribers and that the SafeBook Application is not subject to an Unreasonable Use. thinkBooker reserves the right to vary the terms of the Fair Use Policy at any time and from time to time without notice. The Subscriber must not engage in any Unreasonable Use of all or any part of the SafeBook Application and must ensure that there is no Unreasonable Use of the SafeBook Application by the Subscriber.
8.3 The Subscriber acknowledges and agrees that, if thinkBooker, at its sole discretion, determines the Subscriber’s use of the SafeBook Application is in breach of this Fair Use Policy, thinkBooker has the right to, at its sole and absolute discretion, do any of the following:
- give a notice or warning requesting the Subscriber to stop certain activities or conduct or take steps to remedy the breach;
- immediately suspend or limit the Subscriber’s access to the SafeBook Application without notice;
- terminate this Agreement in accordance with clause 11.
8.4 thinkBooker may amend, vary or update any Documentation from time to time and will notify and make the revised Documentation available to the Subscribers as soon as practicable.
9.1 The Subscriber shall pay the Fees for the Services to thinkBooker in accordance with this clause 9.
9.2 The Subscriber shall on or before the Commencement Date provide valid credit card details together with any other relevant contact and billing details as prompted by Stripe or similar other payment platform from time to time. The Subscriber in supplying such credit card details authorises the debit of the Fees in accordance with the relevant Pricing Plan.
9.3 If thinkBooker has not received payment within 15 days after the due date under the Pricing Plan (and without prejudice to thinkBooker’s other rights and remedies) thinkBooker may:
- without liability to the Subscriber, disable all passwords, accounts and access to all or part of the Services and be under no obligation to provide any or all of the Services while payment remains outstanding; and
- apply interest on all outstanding amounts at an interest rate of 4% per month, calculated daily, and will accrue from the first day on which such amounts become overdue until the outstanding amount (including all interest) has been paid in full whether before or after judgment.
9.4 All fees payable under this Agreement are payable in pounds sterling and are subject to value added tax.
9.5 thinkBooker may at any time change the Fees it may charge its Subscribers . In doing so, it will:
- promptly notify Subscribers by notice in writing for any change in the Fees for SMS Services will be effective on notification; and
- provide the Subscriber with at least 30 days’ written notice with respect any changes to all other Fees, which will be effective 30 days from the date of the written notice;
and any written notice made pursuant to this clause will be effectively provided if thinkBooker publishes in a visible location the changes on the SafeBook Website.
10. UNACCEPTABLE CONTENT
10.1 If thinkBooker in its reasonable opinion believes that Unacceptable Content has been uploaded into the SafeBook Application or is being stored on the thinkBooker Infrastructure, thinkBooker may request the Subscriber immediately to disable access to and remove the Unacceptable Content.
10.2 thinkBooker has the right to disable access and remove any Unacceptable Content from the SafeBook Application and/or thinkBooker Infrastructure without further notice to the Subscriber and thinkBooker may seek reimbursement from the Subscriber for any reasonable costs incurred by thinkBooker in doing so.
10.3 Nothing in this clause 10 imposes an obligation on thinkBooker to monitor or screen the SafeBook Application, thinkBooker Infrastructure or their contents for any Unacceptable Content and thinkBooker will not be responsible for any Unacceptable Content uploaded but not removed.
11.1 The Subscriber may terminate this Agreement at any time from within the SafeBook Application.
11.2 thinkBooker may terminate this Agreement at any time by giving 4 weeks’ written notice to a Subscriber provided thinkBooker may immediately terminate a Trial Subscription at any time without cause and without notice.
11.3 Notwithstanding clause 11.2 thinkBooker may immediately terminate this Agreement at any time if:
- the other party materially breached this Agreement and has failed to rectify such breach within seven (7) Business Days of notice provided by the other party;
- the Subscriber breaches its obligations with regard to Intellectual Property, or a party commits a breach of this Agreement which is incapable of being remedied;
- the other party suffers an Insolvency Event or bankruptcy; or
- a Force Majeure Event occurs and continues for more than 20 Business Days.
11.4 Upon termination of this Agreement:
- All licences granted under this Agreement shall immediately terminate and thinkBooker shall be entitled to disconnect the Subscriber’s access to the SafeBook Application and disable all Authentication Credentials;
- the Subscriber must immediately return any Documentation to thinkBooker;
- thinkBooker may destroy or otherwise dispose of any Subscriber Data in its possession in accordance with clause 16 below; and
- 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 breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
- subject to clause 11.5 below the Subscriber will be liable to thinkBooker for the Fees for its User Subscriptions until the end of the relevant billing month during which the Subscriber terminated the Services. For example, if the Subscriber terminated this Agreement on the 10th day of the billing month, thinkBooker will invoice the Subscriber at the end of the billing month for the entire month;
11.5 Where a Subscriber elects to terminate a User Subscription where the Fee has been paid for a 12 month period from the Commencement Date thinkBooker may at its absolute discretion refund the Fees on a pro-rated basis save that the Subscriber shall not be entitled to benefit from any discounts applied to the Fee.
12. CHANGES TO TERMS
Notwithstanding any other provision of this Agreement, thinkBooker may, in its sole discretion, modify any of the terms and conditions contained in this Agreement, at any time, with consent of the Subscriber or by notifying the Subscriber at any Administrator Email Address or by posting the new agreement on the SafeBook Website. The Subscriber may terminate this Agreement at any time within fourteen (14) days of the earlier of the date that the new agreement is posted on the SafeBook Website or emailed to the Subscriber.
13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 Subject to clause 13.4, each party shall 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 this Agreement.
13.3 Each party shall 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 contravention of this Agreement.
13.4 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 13.4 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.5 The Subscriber acknowledges that details of SafeBook Application, constitutes thinkBooker's Confidential Information.
13.6 thinkBooker acknowledges that the Subscriber Data is the Confidential Information of the Subscriber.
13.7 No party shall make, or permit any person to make, any public announcement concerning this agreement 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.
13.8 The above provisions of this clause 13 shall survive termination of this Agreement, however arising.
14. INTELLECTUAL PROPERTY
14.1 The Subscriber’s rights in the SafeBook Application will be limited to those expressly granted in this Agreement. thinkBooker reserves all rights and licences in and in relation to the SafeBook Application not expressly granted to the Subscriber in this Agreement.
14.2 Ownership of Intellectual Property
- All Intellectual Property, however created, is the sole and absolute property of thinkBooker and may not be used, sold or modified by the Subscriber, its Authorised Users or any third parties in any circumstances whatsoever other than to exercise their rights or fulfil their obligations under this Agreement.
- The Subscriber agrees and acknowledges that:
- nothing in this Agreement grants the Subscriber any ownership rights in respect of the Intellectual Property, whatsoever; and
- any Intellectual Property created by, for, on behalf of or otherwise vested in the Subscriber during the Term is unconditionally and irrevocably assigned to thinkBooker immediately when the Intellectual Property is created and the Subscriber agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.
14.3 Use of Intellectual Property:
- For the duration of the Term, thinkBooker grants to the Subscriber and its Authorised Users a limited, non-exclusive, non-transferable and revocable licence to use the Intellectual Property solely to the extent necessary for the Subscriber to exercise its rights under this Agreement thinkBooker may at any time suspend such licence.
15.1 thinkBooker will use all reasonable commercial endeavors to protect the security and safety of all Subscriber Data and any other Confidential Information stored on the thinkBooker Infrastructure, including the implementation and maintenance of reasonably adequate and current data protection and virus screening procedures and technologies.
15.2 SafeBook agrees to use firewalls and other technology generally used in the trade to prevent unauthorised third party access to its computer systems storing Subscriber Data and available encryption technology generally used in the trade to prevent unauthorised third party access to Subscriber Data transmissions.
15.3 Nothing in this clause 15 constitutes a representation or warranty by thinkBooker that Subscriber Data storage or transmission will be inaccessible to unauthorised third parties. thinkBooker will notify the Subscriber of any such unauthorised access to Subscriber Data promptly following thinkBooker’s detection, or upon becoming aware of, such unauthorised access.
15.4 The Subscriber acknowledges that regardless of the security precautions taken, no physical, internet or other electronic transmission or storage of data can be fully secure or error free. thinkBooker does not accept any liabilities, and neither thinkBooker nor any thinkBooker subsidiary or affiliate will be liable to the Subscriber or any affected third parties for any losses suffered by them as a result of or arising from:
- any computer viruses being transferred to or obtained by the Subscriber, its Authorised Users or any other third parties as a result of their use of the SafeBook Application;
- any hacking into or other similar attacks on the SafeBook Application or the thinkBooker Infrastructure; or
- any other data security issues in respect of the SafeBook Application or the thinkBooker Infrastructure,
which are beyond the reasonable control of thinkBooker, having implemented the protection procedures and technologies referred to in this clause 15.
16. DATA PROTECTION
16.1 The Subscriber shall own all right, title and interest in and to all of the Subscriber Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Subscriber Data. Notwithstanding any other provision of this Agreement, the Subscriber grants to thinkBooker and its subsidiaries and other affiliates a non-exclusive, irrevocable and perpetual licence to use, reproduce and otherwise exploit and search the Subscriber Data:
- for the purposes of providing the Services to the Subscriber and for any purposes which thinkBooker considers are ancillary to its provision of the Services or are otherwise necessary for the proper operation of the SafeBook Application;
- for the purposes of contacting Authorised Users in relation to and providing to Authorised Users the Services and/or any service offering outside of the SafeBook Application subject always to this Agreement; and/or
- to determine whether any Subscriber Data or use of the SafeBook Application by Subscriber or its Authorised Users contravenes this Agreement.
16.2 In the event of any loss or damage to Subscriber Data, the Subscriber's sole and exclusive remedy under this Agreement thinkBooker shall be for thinkBooker to use reasonable endeavours to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by SafeBook in accordance with the archiving procedures from time to time. thinkBooker shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by thinkBooker to perform services related to Subscriber Data maintenance and back-up for which it shall remain fully liable under clause 16.8).
16.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 16 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
16.4 The parties acknowledge that:
- if thinkBooker processes any personal data on the Subscriber's behalf when performing its obligations under this Agreement, the Subscriber is the controller and thinkBooker is the processor for the purposes of the Data Protection Legislation;
- Annex A sets out the scope, nature and purpose of processing by thinkBooker, the duration of the processing and the types of personal data and categories of data subject; and
- the personal data may be transferred or stored outside the EEA or the country where the Subscriber and the Authorised Users are located in order to carry out the Services and thinkBooker's other obligations under this Agreement.
16.5 Without prejudice to the generality of clause 3, the Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to thinkBooker for the duration and purposes of this Agreement so that thinkBooker may lawfully use, process and transfer the personal data in accordance with this agreement on the Subscriber's behalf.
16.6 Without prejudice to the generality of clause 3 thinkBooker shall, in relation to any personal data processed in connection with the performance by thinkBooker of its obligations under this Agreement:
- process that personal data only on the documented written instructions of the Subscriber unless thinkBooker is required by the laws of any member of the European Union or by the laws of the European Union applicable to thinkBooker and/or the UK Data Protection Legislation to process personal data (Applicable Laws). Where thinkBooker is relying on Applicable Laws as the basis for processing personal data, thinkBooker shall promptly notify the Subscriber of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit thinkBooker from so notifying the Subscriber;
- not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
- the Subscriber or thinkBooker has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- thinkBooker complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- thinkBooker complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the personal data;
- assist the Subscriber, at the Subscriber'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;
- notify the Subscriber without undue delay on becoming aware of a personal data breach;
- at the written direction of the Subscriber, delete or return personal data and copies thereof to the Subscriber on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 16 and immediately inform the Subscriber if, in the opinion of thinkBooker, an instruction infringes the Data Protection Legislation.
16.7 Each party shall 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).
16.8 The Subscriber consents to thinkBooker appointing a third-party processor of personal data under this Agreement where required. thinkBooker confirms that it will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 16. As between the Subscriber and thinkBooker, thinkBooker shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 16.
17.1 To the extent permitted by law, thinkBooker does not warrant or guarantee:
- that the SafeBook Application will meet the Subscriber’s requirements and expectations;
- that the SafeBook Application will be compatible with, or capable of being used on or in connection with, the Subscriber’s computer and communications systems;
- that the Subscriber’s access to the SafeBook Application will be uninterrupted or error free;
- that the SafeBook Application will be accurate, reliable or fit for any particular purpose;
- anything that thinkBooker does not expressly warrant in this Agreement.
17.2 Except as may be expressly set forth in this Agreement, thinkBooker makes no express warranty with regard to the SafeBook Application and/or the thinkBooker Infrastructure and/or the Services.
17.3 The Subscriber acknowledges and warrants that:
- relied on its own skill and judgment in the choosing to use the SafeBook Application;
- it has satisfied itself that the SafeBook Application is fit for all the purposes which the Subscriber requires it for;
- it has not relied on any representation of thinkBooker in entering into this Agreement other than those expressly stated on the SafeBook Website and/or in this Agreement;
- it has full corporate power and lawful authority to execute and deliver this Agreement and to consummate and perform or cause to be performed its obligations under this Agreement; and
- this Agreement constitutes a legal, valid and binding obligation on it, enforceable in accordance with its terms by appropriate legal remedy.
18.1 Except as expressly and specifically provided in this Agreement:
- the Subscriber assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Subscriber (and for conclusions drawn from such use). thinkBooker shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to thinkBooker by the Subscriber in connection with the Services, or any actions taken by thinkBooker at the Subscriber's direction;
- 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 this Agreement; and
- the Services and the Documentation are provided to the Subscriber on an "as is" basis.
18.2 Nothing in this Agreement excludes the liability of thinkBooker:
- for death or personal injury caused by the thinkBooker's negligence; or
- for fraud or fraudulent misrepresentation.
18.3 Subject to clauses 18.1 and 18.2 above:
- thinkBooker shall 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 this Agreement; and
- thinkBooker's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid by the Subscriber during the 12 months immediately preceding the date on which the claim arose.
18.4 The Subscriber shall defend, indemnify and hold harmless thinkBooker 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 Subscriber's use of the Services and/or Documentation, provided that:
- the Subscriber is given prompt notice of any such claim;
- the thinkBooker provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber's expense; and
- the Subscriber is given sole authority to defend or settle the claim.
18.5 thinkBooker shall defend the Subscriber, its officers, directors and employees against any claim that the Subscriber's use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:
- thinkBooker is given prompt notice of any such claim;
- the Subscriber provides reasonable co-operation to the thinkBooker in the defence and settlement of such claim, at thinkBooker's expense; and
- thinkBooker is given sole authority to defend or settle the claim.
18.6 In the defence or settlement of any claim, thinkBooker may procure the right for the Subscriber 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 this Agreement on 2 Business Days' notice to the Subscriber without any additional liability or obligation to pay additional costs to the Subscriber.
18.7 In no event shall thinkBooker, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than thinkBooker; or
- the Subscriber's use of the Services or Documentation in a manner contrary to the instructions given to the Subscriber by thinkBooker; or
- the Subscriber's use of the Services or Documentation after notice of the alleged or actual infringement from SafeBook or any appropriate authority.
19. FORCE MAJEURE
thinkBooker shall have no liability to the Subscriber under this Agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, provided that the Subscriber is notified of such an event and its expected duration.
No variation of this Agreement shall be effective unless it is in writing.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall 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 shall prevent or restrict the further exercise of that or any other right or remedy.
22. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
23.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
23.2 If any provision or part-provision of this Agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. ENTIRE AGREEMENT
24.1 This Agreement 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.
24.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
24.4 Nothing in this clause shall limit or exclude any liability for fraud.
25.1 The Subscriber shall not, without the prior written consent of thinkBooker, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
25.2 thinkBooker 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 this Agreement.
26. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall 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).
27. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
28.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address.
28.2 A notice delivered by hand shall 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 shall 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 shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
29. GOVERNING LAW
This Agreement 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) shall 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 shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
DETAILS OF DATA PROCESSING ACTIVITIES CARRIED OUT BY THINKBOOKER
Subject matter and duration of the processing of Personal Data
The subject matter and duration of the processing of the Personal Data are set out in the Agreement.
The Personal Data processed concern the following categories of Data Subjects:
Categories of data
The Personal Data processed contain the following categories of Personal Data:
- Phone number;
- Email address;
- Home and business postal addresses;
- Profile photo;
- Social networking information
- Log data
Special categories of data (if appropriate)
The Personal Data processed contain the following special categories of Personal Data: None
The Personal Data processed will be subject to the following basic processing activities:
The nature and purpose of the processing of the Personal Data are set out in the Agreement. thinkBooker may also transfer Personal Data to the data recipients specified in the Agreement to the extent permitted under the Agreement.