Subscription Terms

Last updated: September 2020

These subscription terms (“Agreement”) set out the terms of the relationship between you, the Subscriber and SEN Professional Software LTD (registered number: 12693245) whose registered office is at 85 Great Portland Street, First Floor, London, W1W 7LT ("us", "we" or "SENPRO").

SENPRO’s software services provide Subscribers with a professional software, comprised of features specific to the Sport and Exercise Nutritionist, which allows them to manage clients, deliver nutrition education programmes, advertise and accept payments for their nutrition, fitness and/or health services (“Software Service”). For more information on the Software Service, please refer to our information page (http://senprofessional.com/).

Other end-user terms will apply between us and the individual Authorised End Users.

We have agreed to grant you a non-exclusive licence to access the Software Service, on the terms set out below.

These terms should be read in conjunction with the Confirmation Email (which sets out the basic terms of your subscription or use of our Software Service) which together with these terms, comprise the contract between you and us for the use of the Software Service.

1. Definitions

In this Agreement the following expressions have the meanings stated, unless the context otherwise requires:

“Authorised End User” means any individual or athlete authorised by you to access the Software Service;

“Confirmation Email” means the email sent by us to you confirming the details of your subscription to the Software Service;

“Fees” means the fees payable in order to access or use the Software Service;

“Initial Subscription Term” means the initial term of your subscription as specified in the Confirmation Email;

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

“Party” means SEN Professional Software LTD or the Subscriber and collectively are the “Parties”.

“Start Date” the date on which the Software Service is made available to the Subscriber;

“Software Service” the service to which you have subscribed as described in the Confirmation Email;

"Software" refers to the software which operates the Software Service;

“Subscriber” refers to a nutrition, health and/or fitness professional or organisation, or sports team academy or organisation (otherwise referred to as a “Sport and Exercise Nutritionist”), who has registered to use our Software Service on a subscription basis. To “subscribe” is to be interpreted accordingly;

"Subscription Fee" the fee for the subscription set out in the Confirmation Email, as may be varied in accordance with clause 4 below;

“Subscriber’s Group” shall be the Subscriber, Subscriber’s parent company holding a majority interest in the Subscriber, any such parent company’s majority owned subsidiaries, and the Subscriber’s majority owned subsidiaries;

“Subscriber Materials” means all data information, material or other content that is uploaded or stored on the Software Service by the Subscriber or otherwise supplied by the Subscriber to SENPRO for uploading to, transmission by or storage on the Software Service. This may include recipes, foods, images, documents, resources, and personal data;

“Subscription Term” means the term of your subscription to the Software Service;

“Third Party Software” means any third party which may be used in conjunction with the Software Service including the third party software identified in the Confirmation Email;

"Use" the use, copying or transmission of the Software Service in any manner whatsoever;

“We” or “we” means SEN Professional Software Limited (registered number: 12693245) whose registered office is at 85 Great Portland Street, First Floor, London, W1W 7LT (“SENPRO”);

“You” or “you” means the Subscriber.

2. The Software Service

2.1. In order to subscribe to our Software Service, you must be a “Subscriber” as defined above and comply with the terms set out in this Agreement. You accept sole responsibility for obtaining appropriate local or national accreditations, memberships, affiliations, insurances (or other relevant requirements) for conducting your business as a Subscriber. For the avoidance of doubt, you are only permitted to subscribe to the Software Service in your professional capacity and are not otherwise permitted to subscribe to the Software Service if you are acting in your capacity as a consumer.

2.2. In using the Software Service as a Subscriber, you warrant and undertake you will do and perform any related services with a high degree of skill and care as would reasonably be expected of a good and competent person engaged in a professional business the same as or similar to the Subscriber’s.

2.3. You will be required to register an account with us in order to access the Software Service. Your account is strictly for your individual use and you are therefore not authorised to share or otherwise permit any other individual to have access to or use your account, including members of your Subscriber’s Group. If as a Subscriber you are registering on behalf of an organisation and you would like the Subscriber’s Group or other third party users to have access to the Software Services, additional nutritionist/admin account holders may be requested at an additional fee by contacting senpro@theiopn.com.

2.4. Notwithstanding the above, we hereby grant to you a non-exclusive, non-transferable right to allow those users authorised by you in accordance with these terms (“Authorised End Users”) to access the Software Service during the agreed Subscription Term in exchange for the payment of the applicable Fees. For the avoidance of doubt, such Authorised End Users are not permitted to have access to your account with us but can access the Software Service via the activation link that we will provide to you for their use.

2.5. In relation to the Authorised End Users, you undertake that:

(a) the maximum number of Authorised End Users you will authorise to access and use the Software Service shall not exceed the number of permitted user licences as agreed by us from time to time. Generally this will be on a “Pay per Licence basis”, i.e. one licence per one Authorised End User;

(b you will not allow any individual licence to be used by more than one individual Authorised End User;

(c) if you exceed the permitted number of Authorised End Users then you agree to pay us an amount equal to the underpayment.

2.6. Each Authorised End User will be required to register with us to access the Software Service, via the activation link that you send them once you have registered your subscription account with us. On registration we will collect certain personal data belonging to each Authorised End User and we will process the relevant data in accordance with our Privacy Notice and/or our data processing terms with the Subscriber (as the case may be). Each Authorised End User will also be required to comply with the Online Terms of Use (https://senprofessional.com/end-user-terms) in order to have access to and use the Software Service.

2.7. You may agree with us, from time to time during the term of this Agreement, to purchase additional Authorised End User licences and we shall grant access to the Software Service to such additional Authorised End Users in accordance with the provisions of this Agreement and the applicable Fees shall be automatically increased.

2.8. We may offer differing levels of subscription with access to different levels of functionality or services. Accordingly access to certain features may be restricted or limited, depending on your subscription type.

2.9. We reserve the right to add or remove services and functionality from any subscription type or to add or remove subscription types.

2.10. Authorised End Users may be subject to differing permission or access levels depending on their role which we will specify. We reserve the right to change the level of access or permissions applicable to any given role.

2.11. You agree (i) to prevent unauthorised access to, or use of, the Software Service and will notify us as soon as possible if you become aware of any unauthorised access or use. You agree to only use the Software Service for lawful purposes and not to violate any law of any country or the intellectual property rights of any third party.

2.12. We will provide you with our standard customer support services during Normal Business hours by email, phone or web portal (at our discretion). The Software Service and any support services will be available as set out in Schedule 1 however we may from time to time and at our discretion, vary our support services in. If you require enhanced support please contact us at senpro@theiopn.com.

2.13. Otherwise than as set out these terms, this Agreement does not permit you to use the Software Service in order to supply similar services to any third party. If you are a Subscriber seeking to use the Software Service as a “white label” solution please see below.

3. Restrictions

3.1. You agree that you will not, except (i) as may be allowed by any applicable law which is incapable of exclusion by this Agreement between the Parties, (ii) to the extent expressly permitted under these terms or (iii) as agreed between us in writing:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software or Software Service in any form or media or by any means;

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or Software Service;

(c) access all or any part of the Software or Software Service in order to build a product or service which competes with the Software Service;

(d) provide the Software Service to third parties other than in the context of allowing use of the Software Service to Authorised End Users to enable them to access services through the app;

(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit or make the Software Service available to any third party except the Authorised End Users or as otherwise permitted pursuant to the Confirmation Email,

(f) make available in any way for the use or benefit of any unauthorised party, any information, materials, software, or other proprietary information received from us, in whole or in part, unless we agree in writing;

(g) unless we otherwise agree remove, deface, obscure, or alter our or any third party's copyright notices, trademarks or other proprietary rights notices affixed to or provided as part of the Software Service;

(h) modify, incorporate into or use the Software Service or Software with other software, or create a derivative work;

(i) use any robot, spider, scraper, or other automated means to access the Software or Software Service for any purpose without our written consent; or

(j) attempt to obtain, or assist third parties in obtaining, access to the Software Service other than in accordance with these terms.

3.2. We will not be responsible for your integration of the Software Service within your systems and are not liable for any loss, damage or liability that may arise as a result of this.

3.3. You shall use commercially reasonable endeavours to prevent any unauthorised access to, or use of, the Software Service and, in the event of any such unauthorised access or use, promptly notify us.

4. Fees & Payment

4.1. You agree to pay all applicable Fees (including the Subscription Fee) in accordance with the Confirmation Email (e.g. monthly or annually). The Subscription Fee shall be payable in advance of the Start Date. All fees unless otherwise stated do not include VAT.

4.2. For details on current Fees payable by Subscribers for the Software Service please see app.senprofessional.com/pricing. For professional sports teams, academies and organisations, we will have communicated the prices payable for our services separately via email as determined by your requirements.

4.3. A valid debit/credit card will be required from you in order to register an account that incurs a monetary subscription fee. Fees will be collected from the card holder’s account generally on a monthly or annual basis for the Subscription Term. SENPRO does not handle any payments itself and accordingly payments will be collected via our payment processor using Third Party Software. You may therefore be required to register an account with such third party payment processor and are responsible for reading and complying with their terms and conditions. You are also responsible for ensuring that your contact information, billing information and debit/credit card information is accurate and kept up to date. We will have no liability or responsibility with respect to this.

4.4. We reserve the right to charge you interest in respect of the late payment of any sum due under this Agreement (after as well as before judgment) at the rate of 4 per cent per annum above the base rate from time to time of the Bank of England from the due date until payment.

4.5. We may at our discretion suspend access to the Software Service immediately in the event that any Fees due from you are outstanding and, we may delete your account with SENPRO including any Subscription Materials uploaded or otherwise inputted into the Software Service where sums are outstanding for 14 days or more from the payment due date.

4.6. In the event this Agreement is terminated by you under clause 10.4, we will refund a pro rata proportion of any Subscription Fees paid in advance by you. In the event we terminate this Agreement under clause 10.4 or you terminate other than under clause 10.4 then no Subscription Fees paid in advance by you will be refundable to you. However other than as set out in this clause or elsewhere in this Agreement, Fees will only be refundable at our sole discretion and we are unlikely to refund or provide credits for partial use of our Services within a given month, in the event that our Software Service is unused, or in the event that you terminate, or downgrade your account.

4.7. Discount codes (where applicable) cannot be used in conjunction with any other discount or offer. SENPRO reserves the right to withdraw or cancel any discount codes without notice. To activate a discount code, you must enter the code during the purchasing process. Discount codes cannot be exchanged for cash or other payment and cannot be re-sold. By using a discount code, we may restrict access to certain features of the Software Service.

4.8. We may at our sole discretion offer a free fourteen (14) day trial to help you determine whether our Software Service is right for you and your business. A valid debit/credit card is required to commence your free trial and the debit/credit card provider will automatically be billed the agreed amount at the end of the free trial. If you do not wish to continue using our Software Service, we recommend that you terminate your account before the completion of the free trial period. Please contact senpro@theiopn.com should you require assistance terminating your account. SENPRO reserves the right to restrict you to one free trial per person.

4.9. We reserve the right to change or amend our Subscription Fees at any time. You will receive notice of these changes at least thirty (30) days before any changes take effect. If you do not wish to continue your subscription at the new service cost, you must terminate your account prior to these changes taking effect. Failure to do so will result in you being billed in full for the relevant subscription you signed up to, in agreement with these terms and such Fees will be non-refundable.

5. Data Protection

5.1. SEN Professional Software LTD agrees to process the personal data for which it is a controller in accordance with its Privacy Notice (https://senprofessional.com/privacy).

5.2. If and to the extent that SENPRO processes personal data on behalf of the Subscriber for which the Subscriber is the controller, SEN Professional Software LTD’s standard Data Processing Agreement (“DPA”) will need to be entered into between the Parties and this DPA will govern the terms under which we collect and process the relevant Subscriber personal data. SENPRO will provide such DPA to the Subscriber as necessary. To the extent the Subscriber refuses or otherwise fails to enter into such DPA, SENPRO will be entitled to cease providing the Software Service to the Subscriber and terminate the subscription and Agreement without any further liability to the Subscriber or other party.

6. Intellectual Property and Third Party Licence

6.1. You acknowledge that all Intellectual Property Rights in the Software and Software Service belong and shall belong to us or our licensors (as the case may be), and you shall have no rights in or to the Software or Software Service other than the right to access the Software Service in accordance with the terms of this subscription.

6.2. You agree to comply with the terms of any third party end-user licence agreement to the extent that we incorporate third party elements into the Software Service, and communicate these terms to you prior to the commencement of your subscription.

6.3. You or the relevant licensors (as the case may be) shall retain all Intellectual Property Rights and ownership in the Subscriber Materials and to the extent that you register an account with us or otherwise upload Subscriber Materials to the Software Service, the additional terms of the “Content Upload Terms” as set out in Schedule 2 will apply. By uploading any Subscriber Materials to our Software or Software Service, you acknowledge and agree that you are validly licensed to use any such Subscriber Materials and we will have no liability for any misuse of data by you. You also hereby grant SENPRO a non-exclusive, unlimited license to use, reproduce, publicly display, distribute, modify (so as to better showcase your content, for example), and/or translate your Subscriber Materials as we see fit. This is subject to any restrictions you have designated at the time of upload via the Software Service or in relation to your personal data (as the case may be).

6.4 We may also analyse Subscriber Materials using techniques such as machine learning. This analysis might occur as the Subscriber Materials are sent, received, or when they are stored. This analysis is used to improve the Services provided by SENPRO. To learn more about the machine learning and how we are using machine learning to provide innovative nutrition solutions please email senpro@theiopn.com.

7. Warranty

7.1 Subject to the exceptions set out below and the limitations on our liability we warrant that we have the right power and authority to authorise access to the Software Service upon the terms and conditions of this Agreement and that the Software Service will comply in material respects with the functionality described on our website or other marketing materials when you register for the Software Service.

7.2 The Software Service is provided “as is” and we do not warrant that the use of the Software Service will be uninterrupted, error-free or 100 % accurate.

7.3 The Software Service may be unavailable during:

7.3.1 planned maintenance carried out during the planned maintenance windows; and

7.3.2 unscheduled maintenance performed outside Normal Business Hours (as defined in Schedule 1), provided that we have used reasonable endeavours to give you notice in advance.

7.4 You accept responsibility for the selection of the Software Service to achieve your intended results and acknowledge that the Software Service has not been developed to your specific requirements.

7.5 We will have no liability to remedy a breach of warranty where such breach arises as a result of any breach by you of the terms of this Agreement.

7.6 All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to including but not limited to the warranties of satisfactory quality, merchantability, fitness for a particular purpose and non-infringement, to the fullest extent permitted by law.

7.7 We may, at our discretion, remedy any breach of warranty by the provision of technical support free of charge.

8. Limitation of Liability

8.1 SENPRO has the capacity to generate recipes and meal plans automatically, based on the Subscriber’s and Authorised End Users’ interaction with our Software Services and machine learning and whilst we used reasonable efforts to keep all nutritional facts, including nutrient data, allergens, recipe and diet information up to date and accurate, we will not be held liable for any reasonable errors or inaccuracies in its information output. As such, you are responsible for ensuring all ingredients and/or recipes used are free from the allergens of interest.

8.2 In addition, if a user (including a Subscriber or Authorised End User) generates any kind of nutrition-related item using the Software Service, including recipes, meal plans, nutrition analysis and other reports, SEN Professional Software LTD will not be responsible for and will not be liable for any consequences of implementing the suggestions in the given item(s) by any Subscriber, Authorised End User or other third party.

8.3 Except as expressly stated in this clause 8:

8.3.1 We shall not in any circumstances have any liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, and which fall within any of the following categories:

(a) loss of profits;

(b) loss of revenue;

(d) loss of business opportunity;

(e) loss of goodwill;

(f) loss or corruption of data; or

(g) indirect or consequential losses.

8.4 While we take reasonable technical steps to verify and authenticate Subscribers and Authorised End Users, we do not offer any guarantee they are the person they purport to be and we cannot guarantee that the Software Service will not be fraudulently used to potentially gain access to your systems or services. We will therefore not be liable for fraudulent use of the Software Service by any third party save in circumstances arising directly from our negligence.

8.5 We will use reasonable endeavours to ensure that the Software Service operates within applicable regulatory requirements as reported to us, but we will not otherwise be responsible for or liable for any regulatory requirements or obligations which apply to you or your business. We are not in a position to evaluate risks associated with your use of the Software Service for regulatory compliance. Accordingly, if you propose to use the Software Service to comply with your regulatory obligations it is your responsibility to ensure that the Software Service meets such requirements.

8.6 We will not be liable for any losses arising from the integration of the Software Service with any other software or systems used by you.

8.7 Our total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to 100% of the Subscription Fees paid by you in the period leading up to the claim.

8.8 The exclusions in this clause 8 shall apply to the fullest extent permissible at law, but we do not exclude liability for:

8.8.1 death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;

8.8.2 fraud or fraudulent misrepresentation;

8.8.3 any other liability which may not be limited or excluded by law.

8.9 All dates supplied by us for delivery of any Software Services shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

9. Confidentiality

9.1 The Parties will keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:

9.1.1 trivial or obvious;

9.1.2 already in its possession other than as a result of a breach of this clause; or

9.1.3 already in or subsequently enters the public domain other than as a result of a breach of this clause.

9.2 You acknowledge and hereby grant consent to SENPRO to disclose such confidential information to its employees/staff, professional advisers, insurers, agents and subcontractors, as required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, as deemed appropriate.

9.3 Each of the Parties will take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees/staff, professional advisers, insurers, agents and subcontractors (as the case may be). For the avoidance of doubt, these Terms apply throughout the Subscription Term and shall continue following termination of this Agreement. In addition, any information relating to the running of SENPRO, such as processes relating to technology, methodologies, machine learning and/or other items relating to our Software Service will also remain confidential beyond the Subscription Term.

10. Term, Renewals & Termination

10.1 The Agreement shall, unless otherwise terminated as provided in this clause, commence on the Start Date and shall continue for the minimum subscription term as specified in the Confirmation Email (“Initial Subscription Term”) and, thereafter this Agreement shall be automatically renewed for successive periods equivalent to the Initial Subscription Term (each a “Renewal Period”).

10.2 Notwithstanding the above or anything to the contrary in these terms, you are free to cancel your subscription at any time. Upon cancelling your subscription, you will have access to our Software Service for the remainder of the Subscription Term however all Fees will still be due and payable by the Subscriber for the full Initial Subscription Term or Renewal Period as the case may be and SENPRO reserves the right to collect all outstanding Fees from you, whether as one or several payments. At the end of the applicable Subscription Term, you will not be able to use our Software Service and access to your data or personal information will be denied.

10.3 For instance and in accordance with the clauses above:

10.3.1 Where the Subscription Term is 1 month, the Subscriber may cancel their subscription at any time via their account settings however if a Subscriber enters a new billing period, the Fees in respect of that month will still be payable by the Subscriber and will not be refunded.

10.3.2 Where the Subscription Term is 12 months, you will be provided with sixty (60) days’ notice prior to it automatically renewing for a further 12 months. Should the Subscriber not wish to renew their subscription they must provide at least thirty (30) days’ notice in writing by contacting customer service at senpro@theiopn.com before the end of the Subscription Term, in which case this Agreement shall terminate upon the expiry of the Subscription Term. If the Subscriber does not cancel their subscription in time and they enter a new billing period, the Fees in respect of that 12 month period will still be payable by the Subscriber and will not be refunded.

10.4 In addition to, but without prejudice to the other rights and remedies of each Party under this Agreement, in the event that:

10.4.1 either Party fails to perform or comply with any of its material obligations under this Agreement and such failure is not remedied within thirty (30) days of written notification;

10.4.2 either party commits a persistent breach of the terms of more than four (4) times during the relevant Subscription Term; or

10.4.3 either Party enters into insolvency.

Then the other Party may terminate this Agreement immediately by written notice.

10.5 For the purposes of clause 10.4, a Party shall be regarded as entering into insolvency if:

10.5.1 it suspends or ceases or threatens to suspend or cease all or a substantial part of its operations;

10.5.2 a meeting is convened, an order made or a resolution passed for its winding-up (except for the purposes of a reconstruction or amalgamation whilst solvent);

10.5.3 a petition is presented for its winding up and not stayed, dismissed or withdrawn within 10 days (unless it is demonstrated to the other party’s satisfaction that the petition is frivolous or vexatious and it is dismissed before the petition is advertised and in any event within 14 days of presentation);

10.5.4 a petition is presented for the appointment of an administrator in relation to it and is not dismissed within two days or in the case of a petition presented by a creditor, within two days of actual service by that creditor on it;

10.5.5 a distress, execution or other legal process is levied against any of its assets and is not discharged or paid out in full within three days;

10.5.6 an encumbrancer takes possession of or a receiver or an administrator or similar official is appointed in respect of the whole or any part of its assets or undertaking;

10.5.7 it ceases or suspends generally the payment of its debts or is unable to pay its debts or is deemed unable to pay its debts within the meaning of s123 Insolvency Act 1986; or

10.5.8 if any event occurs which, under the applicable law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events mentioned above.

11. Non-Solicitation

11.1 You undertake that during the term of this Agreement and for a period of six (6) months following termination or expiry of this Agreement neither you, nor any member of the Subscriber’s Group will, directly or indirectly (whether on your own account or on behalf of another) employ or engage; solicit or entice away from us; or endeavour to solicit or entice away from us any person who was employed or otherwise engaged by us in developing, supporting or maintaining the Software Service or delivering services to you or any member of the Subscriber’s Group.

12. Customisation and White Label Solutions

12.1 Subject to the rest of the provisions in this clause 12, SENPRO may (at its discretion) offer the Software Service to you as a white label solution, thereby allowing for the customisation of the SENPRO website and/or app in accordance with your business’ “look and feel”, visual layout and design.

12.2 The customisation features shall be implemented by us, within the parameters as defined by us, and may be subject to change from time to time. For the avoidance of doubt, the core functionalities of the Software Service will not be affected by such customisation features. For more information on the different tiers available to you, customisation features and pricing in respect of the white label offering, please contact us at senpro@theiopn.com.

12.3 The white label solution offering described above is subject to additional Subscriber Fees and a minimum twelve (12) month Subscription Term. Please note that you will not be entitled to use the customised website and/or app without a subscription to the Software Service.

12.4 Should you wish to subscribe to this white label solution offering, you will be required to enter into a separate order form, in addition to this Agreement, which shall set out the relevant details of the solution.

13. General

13.1 Entire Agreement: This Agreement constitutes the whole agreement and understanding of the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud.

13.2 No Waiver: The Parties agree that a failure by either Party to enforce the performance of any provision in this Agreement shall not constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

13.3 Severance: If any provision of this Agreement (or part of a provision) 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 the minimum modification necessary to make it legal, valid and enforceable.

13.4 Variation: Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only in writing by both of the Parties. A reference to “writing” or “written” in this Agreement includes email.

13.5 Notices: All notices or communication given under this Agreement shall be in writing (a reference to writing or written includes email). Notices shall be deemed to have been duly given:

o when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;

o when sent, if transmitted e-mail and a successful transmission report or return receipt is generated;

o on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid;

o on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case notices should be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

13.6 Assignment: You are not entitled to assign or otherwise transfer this agreement of any of your rights or obligations, nor are you permitted to sub‑license the use (in whole or in part) of the Software without our prior written consent.

13.7 Force Majeure: Neither Party will be liable to the other for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under this Agreement as a result of any cause outside its reasonable control. Subject to the affected Party promptly notifying the other Party in writing of the cause and the likely duration of the delay or non-performance and provided that the affected Party shall use reasonable endeavours to limit the effect of such event on such other Party, such delay or failure, to the extent affected by the cause will not constitute a breach of the Agreement.

13.8 Rights & Remedies: except as otherwise expressly provided in this Agreement, all rights contained in this Agreement and all remedies available to either Party for breach of this Agreement are cumulative and may be exercised separately or concurrently. The exercise of any one right or remedy shall not be deemed an election of such right or remedy to the exclusion of other rights and remedies. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.

13.9 Contracts (Rights of Third Parties) Act 1999: except as otherwise expressly provided in this Agreement, a person who is not a Party to this Agreement or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

13.10 Governing Law and Jurisdiction: 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 and the Parties irrevocably submit to the exclusive jurisdiction of the English courts in respect thereof.

SCHEDULE 1 – SOFTWARE SERVICE LEVEL AGREEMENT (“SLA”)

“Software Service Levels” shall mean the uptime levels and/or target response times that we will aim to deliver in supplying the Software Service support services.

“Normal Business Hours” shall mean 08.30 to 17.30 Monday to Friday, (excluding bank holidays in the UK).

Uptime

Subject to the exclusions below, the Software Service support services will be available for the amount of time during Normal Business Hours in each month outlined in the table below.

Uptime

Measure: Software Service available and operational

Target: >95%

Incidence response

Remote support will be available as follows:

· Email support: Operational during Normal Business Hours

· Web-chat: Operational during Normal Business Hours

· Telephone support: Operational during Normal Business Hours

We will endeavour to respond to incidents within the following target response times:

Priority level

Target response

P0 - Catastrophic

The Software Service is not operational

We will communicate with the reporter to establish the actions required to trigger the event. We will then attempt to replicate the issue internally and use reasonable efforts to resolve the issue within 72 hours.

P1 – Critical

Material functionality is not available and there is no temporary work around.

P2 – Serious

Important but non-material or non-critical functionality is unavailable and there is no temporary work around.

P3 – Normal

Important but non-material or non-critical functionality is unavailable and there is no temporary work around.

P4 – Minor

Any other incident

Development of the solution or workaround including gathering information from you and agreeing the target timescale will be recorded between us.
Response times apply during Normal Business Hours unless the parties specifically include provisions for out-of-hours support.
We will include support for general enquiries up to two (2) hours per user per calendar month. After that we reserve the right to charge fees at our consulting rates.
Planned downtime will typically occur on a Sunday evening and we will use reasonable efforts to notify Subscribers if we intend to have downtime for maintenance purposes.

Response times do not apply:

when the incident has been caused by using equipment, software or service(s) for a use other than as permitted;
if you have made unauthorised changes to the configuration or set up of affected equipment, software or services;
if you have prevented us from performing required maintenance and update tasks; or
in circumstances that could be reasonably said to be beyond our reasonable control.

SCHEDULE 2 - CONTENT UPLOAD TERMS

Permitted uses and restrictions to uploading content

By uploading any content to the Software Service, you acknowledge and agree:

· You will upload your files d in the correct file format as requested by us. Formats we accept include word, excel, powerpoint, PDF, JPEG and PNG files.

· You acknowledge that you have undergone all appropriate procedures to ensure that you have not infringed on any copyright or other Intellectual Property Rights.

· Content uploaded is professional and is intended to add value to the end user.

· Where applicable, content is based on credible scientific rationale.

· Where content expresses opinions of the contributor/author, this is to be clearly stated and they shall not be expressed or otherwise portrayed as opinions of SENPRO in any way.

· Content will not deliberately harass, cause upset to, harm, offend or demean end users of the Software Service.

· You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the uploaded content.

· You will not upload illegal, offensive, inaccurate, misleading, defamatory or fraudulent content. If any such content is published by you or if in our opinion any content is published by you which damages our goodwill or the goodwill attaching to the Software Service we reserve the right at our discretion and without notice to take such action as we deem necessary including removing the content from the Software Service and terminating your registration.

Private upload

You acknowledge that uploading your content for private use means that your uploaded files can only be distributed to those Authorised End Users directly linked to your account.

Public upload

You acknowledge that uploading your content for public use, may result in public, worldwide distribution of your work. This has the potential to be viewed by anyone. In the case that you upload any content and mark this as public, we may allow users of the Software Service to post or share your content to social media sites to promote your work. SENPRO will not be held liable for any terms of use or rules that govern the use of any social media third party site, and shall not be held liable for the actions of any third party entity.

Monitoring of content

We do not monitor or control what others do with your content. You are responsible for determining the limitations that are placed on your content and for applying the appropriate level of access to your content. If you do not choose the access level to apply to your content, the system may default to its most permissive setting. It is your responsibility to let other users know how your content may be shared and adjust the setting related to accessing or sharing of your content. Please therefore consider carefully what content you choose to share or make public.

Termination or removal of your content

We may from time to time review content uploaded to the Software Service and reserve the right at our discretion and without notice to take such action as we deem necessary including removing the content from the Software Service and terminating your registration. You are responsible for ensuring your content has been backed up appropriately and we will not be liable for any loss of such data.

Subscription Terms

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