These Subscription Terms will apply to any contract between us for provision of our Services to you. Please read these Subscription Terms carefully and make sure that you understand them, before subscribing for our Services.
IF YOU DO NOT AGREE WITH THESE SUBSCRIPTION TERMS PLEASE DO NOT USE OUR SERVICES.
Please click on the button marked "I Accept" during the registration of your Account if you accept these Subscription Terms. If you refuse to accept these Subscription Terms, you will not be able to subscribe for Services via the Website.
You should print a copy of these Subscription Terms or save them to your computer for future reference.
YOUR ATTENTION IS IN PARTICULAR DRAWN TO CLAUSE 10 (LIMITATION OF LIABILITY)
- The definitions and rules of interpretation in this Clause apply in these Subscription Terms. "Account" means an account created through the Website for your receipt of the Services. "Add-ons" added features to complement the Services and other additional services (for example, 'daily deal redemption' or 'enable 2-way SMS') further details of which are set out on the Website. "Add-on Fees" means the fees payable for the Add-ons as set out in our Price List. “Affiliate” of a party means any person that is or has been their consultant, contractor or agent, or that, now or hereafter is a Group company. "BookingBug", "us", "our", "we"means BookingBug Limited registered in England and Wales under company number 06770610 whose registered office is at 42 King Edward Court, Windsor, Berkshire, SL4 1TG. “BookingBug Materials” means the Services, BookingBug Technology, and any information, Documentation, software, products and services contained in or made available to you by or on behalf of BookingBug while providing the Services. “BookingBug Technology” means any software development kits, application programming interfaces, and underlying proprietary technology, including software, hardware, user interfaces, algorithms and processes. "Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. "Change of Control" means a change to the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly. "Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in accordance with Clause 12. "Confirmation Email" means the email from BookingBug accepting your Order and confirming details such as the Services that will be provided to you, the Fees, the Monthly Payment Date and whether you have chosen to receive any Add-Ons. "Contract Commencement Date" means the date you receive your initial Confirmation Email. "Customer Data" means the data input by you, Staff Members, or BookingBug on your behalf for the purpose of using the Services or facilitating your use of the Services. "Data Protection Laws" means any laws and regulations relating to privacy or the use or processing of data relating to natural persons, including: (a) EU Directives 95/46/EC and 2002/58/EC (as amended by 2009/139/EC) and any legislation implementing or made pursuant to such directives, including (in the UK) the Data Protection Act 1998 (the "DPA") and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) from 25 May 2018, EU Regulation 2016/679 ("GDPR"); and (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR; in each case, to the extent in force, and as such are updated, amended or replaced from time to time. "Documentation" means the document made available to you by BookingBug online via the Website or such other web address notified by BookingBug to you from time to time which sets out a description of the Services and the user instructions for the Services. "DP Regulator" means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Laws. "Fees" means the Subscription Fees, Add-On Fees and any other charges or fees payable by you under these Subscription Terms. "Group" means in relation to a party, a company that directly or indirectly controls, is controlled by, or is under common control with any subsidiary or holding company of that party. "Monthly Payment Date" means the date set out in the Confirmation Email being the date on which payment may be taken or due under Clause 10 for the Services or, in the absence of a date being set out in the Confirmation Email, shall be the same day of the month as the Contract Commencement Date (unless the date is the 29th, 30th or 31st of the month where the day shall be the 28th of the month). "Normal Business Hours" means 9.00 am to 6.00 pm local UK time, each Business Day. "Order" means an order placed by you in accordance with Clause 2. "Price List" means the price list for Add-ons as set out on the Website from time to time. "Renewal Term" means a period of 1 calendar month. "Service Package" means the service subscribed to in an Order and as set out on the Website from time to time. "Services" means the subscription services provided by BookingBug to you under these Subscription Terms via the Website or any other website notified to you by BookingBug from time to time, together with any Add-Ons. "Staff Members"means those employees, agents and independent contractors of yours who are authorized by you to use the Services and the Documentation, as further described in Clause 5. "Subscription Fees" means the subscription fees payable by you to BookingBug for the User Subscriptions, as set out on the Website. "Subscription Term" means the Trial Period together with any Renewal Term(s). "Support Services Policy" means the standard customer support services that are provided by BookingBug during Normal Business Hours. BookingBug may amend the Support Services Policy in its sole and absolute discretion from time to time. "Trial Period" means a period of 14 days commencing on the day that you are given access to the Services by BookingBug. "User Subscriptions" means the user subscriptions purchased by you pursuant to Clause 10.1 which entitle Staff Members to access and use the Services and the Documentation in accordance with these Subscription Terms. "Virus" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- Clause, schedule and paragraph headings shall not affect the interpretation of these Subscription Terms.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
- A reference to a company 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 these Subscription Terms.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Subscription Terms under that statute or statutory provision.
- A reference to writing or written includes faxes but not e-mail.
- References to Clauses and schedules are to the Clauses and schedules of these Subscription Terms; references to paragraphs are to paragraphs of the relevant schedule to these Subscription Terms.
2. Ordering Process
- Once you have created an Account, you choose a Service Package and place an Order through our Website ("Order").
- After an Order is placed, an email will be sent from BookingBug to invite you to activate your Account. This email does not mean that the Order has been accepted.
- The Order shall only be deemed to be accepted when BookingBug issues you with a Confirmation Email.
3. Term and Trial period
- Subject to Clause 3.2, you may be granted a free Trial Period by BookingBug upon creating an Account. If, during the Trial Period you decide that you do not want to continue to subscribe for our Services, then you must notify us prior to the end of the Trial Period.
- If BookingBug considers that you (or any of your Affiliates) have previously benefited from a Trial Period, it may at its discretion refuse to grant you another Trial Period.
- These Subscription Terms shall commence on the Contract Commencement Date and shall, unless terminated in accordance with their express terms, continue for the Subscription Term.
- Each Order shall automatically renew at the end of the Trial Period or then current Renewal Term for successive Renewal Term(s), unless either party notifies the other of its election not to renew, as provided in Clause 3.5.
- You may elect not to renew an Order (or any part of an Order) by notifying BookingBug in writing prior to the expiry of the Trial Period or then-current Renewal Term to be effective on the last day of the Trial Period or then current Renewal Term respectively. Where either party elects to renew only part of an Order, BookingBug may re-issue an Order to reflect the changes to the Services.
4. Changes to Service Package and Add-Ons
- If you want to change your Service Package or Add-Ons, please change the Services you subscribe to using your Account. Any changes to your Service Package and Subscription Fees will be effective immediately.
5. Use of the Services
- Subject to you complying with these Subscription Terms, BookingBug hereby grants to you a non-exclusive, non-transferable right, revocable without the right to grant sub-licenses for the Subscription Term to (a) access and use the Service solely for your own internal business purposes in accordance with your Service Package; and (b) use: (i) any BookingBug Technology that BookingBug provides to you from time to time; and (ii) any Documentation, in each case of (b)(i) and (ii), solely in connection with your access and use of the Service.
- You shall ensure that Staff Members comply with your obligations under these Subscription Terms, and you are responsible for the use and misuse of the Services and BookingBug Materials by the Staff Members. A breach by any of your Affiliates or Staff Members of these Subscription Terms will be deemed a breach by you of these Subscription Terms.
- In relation to the Staff Members, you undertake that:
- the maximum number of Staff Members that you authorize to access and use the Services and the Documentation shall not exceed the number permitted under your Service Package;
- you will not allow or suffer any User Subscription to be used by more than one individual Staff Member unless it has been reassigned in its entirety to another individual Staff Member, in which case the prior Staff Member shall no longer have any right to access or use the Services and/or Documentation;
- each Staff Member shall keep a secure password for his use of the Services and Documentation, that such password shall be changed regularly and that each Staff Member shall keep his password confidential;
- you shall permit BookingBug to audit the Services in order to establish the name and password of each Staff Member. Such audit may be conducted no more than once per quarter, at BookingBug's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;
- if any of the audits referred to in Clause 5.3(d) reveal that any password has been provided to any individual who is not an Staff Member, then without prejudice to BookingBug's other rights, you shall promptly disable such passwords and BookingBug shall not issue any new passwords to any such individual; and
- if any of the audits referred to in Clause 5.3(d) reveal that you have underpaid Fees to BookingBug, then without prejudice to BookingBug's other rights, you shall pay to BookingBug an amount equal to such underpayment as calculated in accordance with the prices set out in the Price List within 10 Business Days of the date of the relevant audit.
- You shall not access, store, distribute or transmit any Viruses or any material during the course of your use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
- and BookingBug reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this Clause.
- You shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Subscription Terms:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
- use the Services and/or Documentation to provide services to third parties; or
- subject to Clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Staff Members, or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 4.
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Subscription Terms:
- You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify BookingBug.
- The rights provided under this Clause 4 are granted to you only and shall not be considered granted to any subsidiary or holding company of yours.
- BookingBug shall, during the Subscription Term, provide the Services and make available the Documentation to you on and subject to the terms of these Subscription Terms.
- BookingBug shall use commercially reasonable endeavors to make the Services available 24 hours a day, seven days a week, except for any maintenance. BookingBug shall use its reasonable endeavors to give you notice of any scheduled maintenance.
- BookingBug will, as part of the Services, provide you with BookingBug's standard customer support services during Normal Business Hours in accordance with BookingBug's Support Services Policy in effect at the time that the Services are provided. BookingBug may amend the Support Services Policy in its sole and absolute discretion from time to time.
- BookingBug represents and warrants that:
- the Services will perform substantially in accordance with the Documentation under normal use and circumstances;
- it will perform the Services with reasonable skill and care;
- it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under these Subscription Terms; and
- it will use commercially reasonable efforts to detect and remove or neutralize viruses or other malicious code introduced into the Services by BookingBug that could have an adverse effect on your use of the Services. In the event BookingBug breaches any of the foregoing representations and warranties, your sole and exclusive remedy, and BookingBug’s sole liability, will be for BookingBug to remedy the non-performance or non-compliance of the Services and/or remove or neutralize the virus or malicious code.
- Except for the express warranties set forth in Clauses 6.4, the BookingBug Materials are provided “as is” and BookingBug hereby disclaims and excludes all warranties, whether express, implied, statutory, or other, and BookingBug specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, BookingBug makes no warranty of any kind that the BookingBug Materials, or any products or results of the use thereof, will meet your or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code or viruses, or error free.
- These Subscription Terms shall not prevent BookingBug from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Subscription Terms.
7. Customer data
- The terms "Data Subject", "Personal Data" and "processing" shall have the meanings set out in the DPA until 25 May 2018, and thereafter the meaning set out in GDPR.
- The parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing Personal Data in connection with these Subscription Terms, which processing shall be in respect of the types of Personal Data, categories of Data Subjects, nature and purposes, set out below for the duration of your Subscription:
- Types of Personal Data: contact information; names; postal and email addresses; dates and times of bookings; and any other Personal Data contained in you Data;
- Categories of Data Subjects: your employees; your end-users or customers; and any other categories of Data Subjects contained in you Data
- Nature and purposes: to provide the Services to you.
- To the extent BookingBug receives from, or processes any Personal Data on behalf of, you, BookingBug shall:
- process such Personal Data (i) only in accordance with your written instructions from time to time (including those set out in these Subscription Terms), unless it is otherwise required by any applicable law (in which case, unless such law prohibits such notification on important grounds of public interest, BookingBug shall notify you of the relevant legal requirement before processing the Personal Data), and (ii) only for the duration of these Subscription Terms;
- not process such Personal Data for any purpose other than those set out in these Subscription Terms or otherwise expressly authorised by you;
- take reasonable steps to ensure the reliability of all its personnel who have access to such Personal Data, and ensure that any such personnel are committed to binding obligations of confidentiality when processing such Personal Data;
- implement and maintain technical and organizational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorized destruction, loss, alteration, disclosure, dissemination or access;
- only transfer such Personal Data outside the European Economic Area in accordance with Data Protection Laws and as authorized by you under Clause 7.4;
- promptly inform you if any such Personal Data is (while within BookingBug's possession or control) subject to a personal data breach (as defined in Article 4 of GDPR) or is lost or destroyed or becomes damaged, corrupted or unusable;
- not disclose any Personal Data to any Data Subject or to a third party other than at your written request or as expressly provided for in these Subscription Terms;
- return or irretrievably delete all Personal Data on termination or expiry of these Subscription Terms, and not make any further use of such Personal Data (except to the extent applicable law requires continued storage of the Personal Data by BookingBug);
- provide to you and any DP Regulator all information and assistance necessary or desirable to demonstrate or ensure compliance with the obligations in this Clause 7.3 and/or the Data Protection Laws;
- permit you or your representatives (at your sole cost) to access (during business hours and without causing disruption) any relevant premises, personnel or records of BookingBug on reasonable notice in order to audit and otherwise verify compliance with this Clause 7.3 and Clause 7.4 provided that such access shall be granted no more than once in any twelve (12) calendar month period, except if specifically required by a DP Regulator or if necessary due to personal data breach (as defined in Article 4 of GDPR) suffered by BookingBug;
- take such steps as are reasonably required to assist you in ensuring compliance with your obligations under Articles 30 to 36 (inclusive) of GDPR;
- promptly notify you if it receives a request from a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data; and
- provide you with reasonable co-operation and assistance in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data (BookingBug may charge you for the reasonable costs of such assistance).
- You consent to BookingBug using those sub-processors as listed on the Website at https://www.jrni.com/information-security(as such list is maintained and updated from time to time) to process Personal Data. BookingBug will ensure that it enters into a written agreement with its sub-processors on terms which are substantially similar to those set out in these Subscription Terms and will remain fully liable for all acts or omissions of any sub-processor appointed by it.
- If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other party or to either party's compliance with the Data Protection Laws, it shall as soon as reasonably practicable notify the other party and it shall provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.
- You shall:
- own all right, title and interest in and to all Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
- ensure that any transfer of Customer Data to BookingBug is in compliance with Data Protection Laws, permitting BookingBug to lawfully use, process and transfer the personal data in accordance with these Subscription Terms on your behalf; and
- ensure that the relevant third parties have been informed of and have (where necessary) given their consent to such use, processing, and transfer as required by all applicable Data Protection Laws.
- In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for BookingBug to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by BookingBug in accordance with BookingBug's archiving procedure. BookingBug shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by BookingBug to perform services related to Customer Data maintenance and back-up).
8. Third party providers
9. Your obligations
- You shall:
- provide BookingBug with:
- all necessary co-operation in relation to these Subscription Terms; and
- all necessary access to such information as may be required by BookingBug;
- in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
- comply with all applicable laws and regulations with respect to your activities under these Subscription Terms;
- carry out all of your other responsibilities set out in these Subscription Terms in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, BookingBug may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Staff Members use the Services and the Documentation in accordance with the terms and conditions of these Subscription Terms and shall be responsible for any Staff Member's breach of these Subscription Terms;
- obtain and shall maintain all necessary licenses, consents, and permissions necessary for BookingBug, its contractors and agents to perform their obligations under these Subscription Terms, including without limitation the Services;
- ensure that your network and systems comply with the relevant specifications provided by BookingBug from time to time; and
- be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to BookingBug's data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
- provide BookingBug with:
- The Services may offer you the ability to communicate with others by sending messages, including e-mail and text messages. You will not use any of the BookingBug Materials for any purpose which is illegal, unlawful, offensive, discriminatory, harassing, likely to bring any of our software or services into disrepute or cause them to be black-listed, for spamming, or in any other way or for any other purpose which is, in BookingBug's reasonable opinion, undesirable. You will only send messages to people who have given you their express consent to receive such messages. You are exclusively responsible for all communications sent using the Services, including all fees and charges associated with such messages, and any liability that may arise from such communications. You shall comply with your internal policies concerning the use and disclosure of personal information and all applicable laws.
10. Charges and payment
- You shall pay the Fees to BookingBug for the Services in accordance with this Clause 10.
- You shall either provide valid, up-to-date and complete credit card details or approved purchase order information acceptable to BookingBug and any other relevant valid, up-to-date and complete contact and billing details:
- on the Contract Commencement date; or
- at the end of your initial Renewal Term, upon BookingBug's request.
- Where you have provided credit card details to BookingBug, you hereby authorise BookingBug to bill such credit card:
- immediately, a pre-authorization amount of £1/ $1, which will then be refunded; and
- on each Monthly Payment Date for the Fees in respect of the most recent Renewal Term.
- Where you have provided approved purchase order information, BookingBug shall invoice you on each Monthly Payment Date and you shall pay each invoice within 30 days after the date of such invoice.
- If BookingBug does not receive payment on the Monthly Payment Date, and without prejudice to any other rights and remedies of BookingBug:
- BookingBug may, without liability to you, disable your password, Account and suspend access to all or part of the Services and BookingBug shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and/or
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of BookingBug's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- All amounts and fees stated or referred to in these Subscription Terms:
- shall be payable in the local currency for the country in which you are established, which BookingBug shall determine by identifying the IP address through which you are accessing the Website;
- are, subject to Clause 14.3(b), non-cancellable and non-refundable; and/li>
- are exclusive of value added tax, which shall be added to BookingBug's invoice(s) at the appropriate rate.
- If, at any time whilst using the Services, you exceed the amount of disk storage space specified in the Documentation, BookingBug shall charge you, and you shall pay, BookingBug's then current excess data storage fees.
- BookingBug may increase the Fees for any Renewal Term by providing written notice to you (including by e-mail) at least 30 days prior to the commencement of the then current Renewal Term provided that BookingBug shall not increase the Fees more than once during any 12-month period.
- You shall ensure that the credit card and/or purchase order details held by BookingBug remain current and accurate and you shall promptly notify BookingBug in the event that your credit card details or purchase order number change during the Subscription Term.
11. Proprietary rights
- As between BookingBug and you:
- BookingBug owns all right, title and interest, including all related intellectual property rights, in and to the BookingBug Materials and Feedback; and
- you own all right, title and interest, including all related intellectual property rights, in and to you Data.
- You grant to BookingBug a worldwide, royalty-free license to access, use, transmit and disclose Customer Data for the limited purpose of BookingBug providing, and supporting your use of, the Services.
- The party receiving Confidential Information under these Subscription Terms ("Receiving Party") will use at least the same degree of care in protecting Confidential Information of the party disclosing Confidential Information under these Subscription Terms ("Disclosing Party") that the Receiving Party uses to protect the confidentiality of its own Confidential Information, but in no event less than a reasonable standard of care. The Receiving Party shall: (i) not use any Confidential Information of the Disclosing Party for any purpose other than as permitted under these Subscription Terms; and (ii) limit access to Confidential Information of the Disclosing Party to its, and its Affiliates’, employees and contractors who need such access to perform their duties to the Disclosing Party and who owe a duty of confidentiality to the Disclosing Party and shall ensure that it includes equivalent contractual terms on confidentiality with such third party. Your Confidential Information includes your Customer Data. BookingBug’s Confidential Information includes the BookingBug Materials, any Order form, and these Subscription Terms.
- The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by applicable law to do so, on condition that the Receiving Party uses commercially reasonable efforts to give the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, in order to permit the Disclosing Party to contest or limit the disclosure.
- Notwithstanding any other provision of these Subscription Terms, BookingBug may: (i) monitor use of the Service to determine your compliance with these Subscription Terms and provide support; (ii) utilise any Customer Data on an anonymous and aggregated basis in connection with our development of any products, strategies, or services; (iii) anonymize any Customer Data or other information and aggregate it with other information and data for any further use or purpose related to BookingBug’s business; and (iv) use any information gathered by BookingBug in connection with providing the Services as is necessary to comply with applicable laws or in the course of any litigation.
- You shall defend, indemnify and hold harmless BookingBug 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 your use of the Services and/or Documentation, provided that:
- you are given prompt notice of any such claim; and
- BookingBug provides reasonable co-operation to you in the defense and settlement of such claim, at your expense.
14. Limitation of liability
WARNING: you are strongly advised to read this Clause.
- Except as expressly and specifically provided in these Subscription Terms:
- you assume sole responsibility for results obtained from the use of the Services and the Documentation by you, and for conclusions drawn from such use. BookingBug shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to BookingBug by you in connection with the Services, or any actions taken by BookingBug at your direction; and
- the Services and the Documentation are provided to you on an "as is" basis.
- Nothing in these Subscription Terms excludes the liability of BookingBug:
- for death or personal injury caused by BookingBug's negligence;
- for fraud or fraudulent misrepresentation; or
- breach of Clause 5 or your obligation to pay the undisputed Fees.
- Subject to Clause 14.1 and Clause 14.2:
- BookingBug 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 these Subscription Terms; and
- BookingBug'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 these Subscription Terms shall be limited to the total Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
- Without affecting any other right or remedy available to it, BookingBug may terminate these Subscription Terms with immediate effect by giving written notice to the other party if:
- you have a Change of Control;
- you fail to pay any amount due under these Subscription Terms on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
- you commit a material breach of any other term of these Subscription Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so; or
- you repeatedly breach any of the terms of these Subscription Terms in such a manner as to reasonably justify the opinion that your conduct is inconsistent with it having the intention or ability to give effect to the terms of these Subscription Terms.
- Without affecting any other right or remedy available to it, either party may terminate these Subscription Terms with immediate effect by giving written notice to the other party if:
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 15.2(a) to Clause 15.2(g) (inclusive); or
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- On termination of these Subscription Terms for any reason:
- all licenses granted under these Subscription Terms shall immediately terminate and you shall immediately cease all use of the Services and/or the Documentation;
- each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
- BookingBug may destroy or otherwise dispose of any of the Customer Data in its possession unless BookingBug receives, no later than ten days after the effective date of the termination of these Subscription Terms, a written request for the delivery to you of the then most recent back-up of the Customer Data. BookingBug shall use reasonable commercial endeavors to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by BookingBug in returning or disposing of Customer Data;
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced; and
- if these Subscription Terms are terminated for any reason no refund shall be made to you for any Subscription Fees already paid by you in advance and any Add-on Fees shall become immediately payable.
16. Force majeure
- BookingBug shall have no liability to you under these Subscription Terms if it is prevented from or delayed in performing its obligations under these Subscription Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BookingBug or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you is notified of such an event and its expected duration.
- BookingBug is not and will not be responsible or liable for any delay or failure of performance caused in whole or in part by you delay in performing, or failure to perform, any of your obligations under these Subscription Terms.
- You are solely responsible for providing and maintaining their internet connection and information technology environment, networks and systems. Use of the Services may be subject to limitations, delays and other problems beyond BookingBug’s control, including those inherent in use of the internet.
- If there is an inconsistency between any of the provisions in the main body of these Subscription Terms and the Schedules, the provisions in the main body of these Subscription Terms shall prevail.
- BookingBug may vary these Subscription Terms from time to time by providing you with notice in the following circumstances:
- changes in how we accept payment from you;
- changes in relevant laws and regulatory requirements; and
- changes in how we charge for our Services.
- Other than as specified under Clause 18.1 above, no variation of these Subscription Terms shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
- The failure of either you or BookingBug arty to enforce any right or provision in these Subscription Terms will not constitute a waiver of such right or provision by that party unless acknowledged and agreed to by that party in writing.
20. Rights and remedies
- Except as expressly provided in these Subscription Terms, the rights and remedies provided under these Subscription Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision (or part of a provision) of these Subscription Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
22. Entire agreement
- These Subscription Terms constitute 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.
- Each party acknowledges that in entering into these Subscription Terms 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 these Subscription Terms.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Subscription Terms.
- Nothing in this Clause shall limit or exclude any liability for fraud.
- These Subscription Terms apply to the provision of the Services to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- You shall not, without the prior written consent of BookingBug, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these Subscription Terms.
- BookingBug may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Subscription Terms.
24. No partnership or agency
- Nothing in these Subscription Terms 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).
25. Third party rights
- These Subscription Terms do not confer any rights on any person or party (other than the parties to these Subscription Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- BookingBug may give notice regarding operational aspects of the Service by means of a general notice on the Website, electronic mail to your e-mail address on record with BookingBug, or both.
- Any other notice by one Party to the other under this Subscription Terms will be in writing sent by first class mail, return receipt requested, or nationally recognized overnight delivery service.
- Any notice will be deemed to have been given upon receipt (if sent by overnight delivery service), five (5) business days after mailing (if sent by first class mail) or twelve (12) hours after sending (if sent by e-mail).
- Notice to BookingBug will be addressed to: BookingBug Ltd, 3-7 Herbal Hill, London, EC1R 5EJ, United Kingdom, attention: CEO. Notice to you will be addressed to your address set out in your Order.
27. Governing law
- These Subscription Terms 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 these Subscription Terms or its subject matter or formation (including non-contractual disputes or claims).
- These Subscription Terms have been entered into on the date stated at the beginning of them.