TERMS AND CONDITIONS
Read our up to date terms below.
Terms and Conditions
The following words and expressions have the meanings set out below:
This agreement including the Terms and Conditions.
A person or group of people who acts or act on behalf of a Customer and are set up by the Customer to receive communications via email or mobile notification with each separate email address to which emails are sent being deemed to be one Agent.
A person or company that receives the Services and Software from the Supplier, as detailed in the Agreement.
The meaning as set out in Section 3(6) of the Data Protection Act 2018.
Data Protection Legislation:
Means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018.
A non-emergency issue at a Property that requires reactive or planned work to be carried out in order to remedy or prevent it, respectively.
The meaning set out in Section 3(2) of the Data Protection Act 2018 and relates only to personal data, or any part of such personal data, of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under this Agreement.
A property that from time to time is being managed by the Customer on behalf of itself or a third party.
An Issue that has been entered into the System.
A person who (from time to time) uses the Reporter Portal to raise Issues to the Customer.
An online portal which comprises either the FaultFixers Reporter mobile app or the FaultFixers Web Reporter, or both, that allows Reporters (amongst others) to enter Issues into the System.
The Reporter Portal and the Web Dashboard.
The software products owned or distributed by the Supplier to which the Supplier grants the Customer access as part of the Services, including program documentation (if any), and any program updates provided as part of the Services. This includes (but is not limited to) the Web Dashboard and Reporter Portal.
Any entity which provides processing services to the Supplier in furtherance of the Supplier’s processing on behalf of the Customer.
FaultFixers Technologies Limited incorporated and registered in England and Wales with company number 08328746 whose registered office is at 128 Harborough Road, London, United Kingdom, SW16 2XW.
The electronic system for the provision of the Services.
Value added tax as defined in the Value Added Tax Act 1994 and any tax of a similar nature substituted for, or levied in addition to, such value added tax.
An online portal that allows the Customer (amongst others) to add its logo to the Reporter Portal and allows the Customer to receive emailed notifications of Reported Issues.
A day (other than a Saturday or a Sunday) on which banks are generally open for business in the City of London.
1. The headings in this Agreement do not affect its interpretation.
2. Unless the context otherwise requires:
(a) references to the Supplier and the Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted;
(c) references to one gender includes a reference to the other gender;
(d) references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them; and
(e) references to a clause are references to the numbered paragraphs contained in these Terms and Conditions.
3. Words in the singular include the plural and visa versa.
4. A reference to writing or written excludes faxes but includes e-mail unless explicitly provided for to the contrary elsewhere in the Agreement or Term and Conditions.
1. Term of Agreement
1.1 This Agreement shall run until the date (if any) which is 1 full calendar month from and including the date on which either party provides notice in writing to the other to terminate this Agreement, but no earlier than the end of the Minimum Term.
2. Payment of Fee
2.1 The Supplier shall invoice the Customer monthly in advance for a monthly Agreement, or annually in advance for an annual Agreement.
2.2 The Customer shall pay the Fee to the Supplier monthly in advance during the Term for a monthly Agreement or annually in advance for an annual agreement.
2.3 The Fee shall be paid by the Customer in full and without deduction or set-off save for any set-off required by law.
2.4 The Fee is valid until the Service Expiry Date. Any revised pricing will be communicated by the Supplier to the Customer in advance of this expiry date. In the absence of notification these prices will remain. The Customer will be deemed to accept the new price by continuing to use the Services after the price change takes effect. If the Customer does not agree with the price changes, the Customer has the right to reject the changes by terminating this Agreement prior to the price change going ahead.
2.5 The Customer will pay all applicable fees in accordance with these Terms and Conditions and, if applicable, any their related Agreement. Agreements are deemed accepted upon receipt of payment or written acceptance, whichever is dated earliest. Except as otherwise specified in these Terms and Conditions or, if applicable, any related Agreement, all payment obligations are final, non-cancellable and non-changeable. Any refunds made are at the sole discretion of the Supplier and are subject to an administration fee equivalent to the lesser amount of 3 months pro-rata subscription or time incurred by the Supplier to facilitate the Agreement. Time incurred by the Supplier is charged at £200.00 per hour (ex-VAT) and will be reviewed annually.
2.6 Credit Card Payments. If the Customer elects to pay fees by credit card, the Customer agrees and warrants to the Supplier that the credit card information provided by the Customer to the Supplier is, and will be maintained as, true, complete, accurate and up to date, and that the Customer is authorised to use such payment instrument in connection with its subscription for the Service. The Customer agrees to pay and hereby authorises the Supplier to bill the Customer’s credit card in advance on a periodic basis in accordance with the Terms and Conditions and the applicable Agreement, if any, during the Term. The Customer will not chargeback any amounts paid to the Customer and will reimburse the Supplier for any chargeback fees associated with the foregoing.
2.7 Annual contract terms are to be paid by either Direct Debit or Credit/Debit Card for amounts less than £5,000 (excluding VAT). For balances over this amount the Supplier will accept BACS payments free of charge. If the Customer wishes to pay their fee below £5,000 (excluding VAT) via BACS this is at the Suppliers discretion and will be subject to a 10% Finance Administration Fee.
3.1 Subject to the provisions of clauses 3.2 to 3.5 (inclusive) and to the Customer fully complying with its obligations under this Agreement the Supplier shall use all reasonable endeavours to make the System available to the Customer throughout the Term.
3.2 The Supplier shall not be responsible to the Customer for any loss suffered by the Customer in the event that the System is unavailable to the Customer at any time or times during the Term due to any reason which is beyond the reasonable control of the Supplier including, without limitation:
(a) defects of the Customer’s equipment;
(b) an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the Supplier; and
(c) non-supply by any third party upon whom the System, the Customer or the Supplier relies.
3.3 The Supplier is only responsible for making the System available to the Customer on the terms of this Agreement and is not responsible for the participation of the Customer or any other party in the System.
3.4 In the event that the Customer fails to pay the Fee in accordance with the terms of this Agreement the Supplier may suspend any one or more of the following functions of the System: (i) the Customer’s access to the Web Dashboard; and (ii) the Reporters’ access to the Reporter’s Portal; and in the event of any such suspension the Customer indemnifies the Supplier for any loss, claims, actions or proceedings that may be brought against the Supplier (whether by the Customer or by any other party) arising by reason of such suspension. Any such suspension does not excuse the Customer from its obligation to pay the Fee pursuant to this Agreement.
3.5 The Customer acknowledges that the System may be temporarily unavailable from time to time due to work that is carried out by the Supplier (or those authorised by the Supplier) to maintain and/or to upgrade the System. Except in the case of emergency including (without limitation) a material failure of the System or any functionality of the System the Supplier shall use its reasonable endeavours to ensure that such works do not render the System unavailable to the Customer during the hours of 9am to 6pm (inclusive) on any Working Day.
3.6 The Customer acknowledges that the scope of the Services may be amended from time to time with or without notice.
4. Customer Responsibilities
4.1 As soon as is reasonably practicable after the Service Start Date the Customer shall notify the Reporters of the availability of the Reporter Portal.
4.2 The Customer shall use all reasonable endeavours to keep the details on the System accurate and current from time to time including (without limitation) promptly:
(a) notifying Reporters not to report Issues through the Reporter’s Portal upon the expiry (or sooner determination) of this agreement of the end of the Customer’s valid receipt of the Services; and
(b) informing Reporters of the availability of the Reporter Portal upon the commencement of this Agreement.
4.3 The Customer shall comply with all applicable requirements relating to data protection including (without limitation) the Data Protection Act Legislation and the Customer shall (to the extent possible) also promptly delete a Reporter’s information from the System upon request by that Reporter.
4.4 The Customer must not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, the Supplier’s programs or materials available to any third party unless expressly permitted under the terms of this Agreement.
4.5 Subject only to limitations imposed by law the Supplier retains the right to view all data held in the System.
5. Data Retrieval
5.1 At the Customer’s request (which must be received on or before the expiry or sooner determination of this Agreement) the Supplier may permit the Customer to access the Web Dashboard for a period of 60 days after the termination or expiry of this Agreement for the sole purpose of reviewing (and only to the extent necessary to retrieve) a file of the Customer’s data in the System. The Customer acknowledges and agrees that the Supplier has no obligation to retain the Customer’s data nor to provide a copy of that data to the Customer or to any other party and that the Customer’s data may be deleted after 60 days following the expiry or sooner determination of this Agreement.
6. Liability and Warranties
6.1 The Supplier shall use a commercially reasonable level of skill and care to provide the Services.
6.2 Except as expressly set out in this Agreement the Supplier does not make any warranty or representation to the Customer about the Services and (without limitation) the Supplier does not provide any representation or warranty regarding any of the following: (1) the storage of data; (2) the scope of the Services; (3) the function reliability or availability of the Services; (4) that the Services will be uninterrupted, timely, secure or error-free; (5) that the Services are appropriate for the Customer’s needs; (6) that errors in the Services or the System will be corrected.
6.3 The Customer acknowledges and agrees that subject to the Supplier complying with its obligations as set out in clause 6.1:
(a) the Supplier provides the Service “as is” and “as available”; and
(b) to the extent permitted by law all warranties whether express or implied (including those that are implied by law) are excluded; and
(c) to the extent permitted by law the Supplier is not liable for any lost profits, revenues or data, financial losses or indirect, special, consequential, exemplary or punitive damages suffered by the Customer; and
(d) any material that is downloaded or otherwise obtained through the Customer’s use of the System is done so at the Customer’s own discretion and risk and the Customer is solely responsible for any damage to the Customer’s computer or other device or loss of data that results from the download of any such material.
6.4 Notwithstanding any provision to the contrary (save in each case as set out at clause 6.5) the liability of the Supplier to the Customer shall be limited to the aggregate amount of the Fee paid by the Customer in the then current term of this Agreement and the Supplier shall not be liable to the Customer for any and all of the following:
(a) indirect loss of the Customer;
(b) consequential loss of the Customer;
(c) loss of profit of the Customer;
(d) loss of business of the Customer; and
(e) loss of revenue of the Customer.
6.5 Nothing in this Agreement shall be construed as attempting to limit or exclude the liability of any party in respect of injury to, or the death of, any person caused by any wilful or negligent act or omission of any party, its officers, employees, agents or subcontractors, or for fraud or fraudulent misrepresentation or the deliberate default or wilful misconduct of that party, its employees or agents or subcontractors.
6.6 Except for actions for non-payment or breach of the Supplier’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
6.7 The Customer warrants and undertakes that its use of the System and the use by those granted access to the System by the Customer:
(a) will not infringe any third party’s intellectual property rights;
(b) will not violate any applicable law, statute or subordinate legislation; and
(c) will not introduce onto the System any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information.
The Customer indemnifies the Supplier for any losses it may incur (including legal costs and expenses) as a result of a breach by the Customer of this clause 6.7.
6.8 The Customer acknowledges that as between the Customer and the Supplier, the internet subdomain (“Subdomain“) on which (amongst others) the Web Dashboard and the Reporter Portal are hosted remains the absolute property of the Supplier and the Customer has no right to assign, sublet or to otherwise transfer the Subdomain. The Customer indemnifies the Supplier for any losses that it may incur (including legal costs and expenses) as a result of a breach by the Customer of this clause 6.8.
7. Law Prevails
7.1 Nothing in these Terms is intended to exclude or to limit any condition, warranty, right or liability that may not be lawfully excluded or limited. Accordingly only those limitations that are lawful in England and Wales will apply and the Supplier’s liability is limited to the maximum extent permitted by law.
8. Third Parties
8.1 From time to time the Supplier may engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to the Customer, and the Customer agrees that such third party involvement is acceptable. Without limitation the Customer acknowledges and agrees that any translation of the Service is carried out by third party software and that the Supplier to the extent permitted by law has no liability in relation to the accuracy or completeness of any translated information or documentation provided by the System.
8.2 The parties do not intend that any of the provisions of this Agreement shall be enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
8.3 The Supplier may from time to time include as part of the Services and/or the Software computer software that is supplied by third parties which is utilised by permission of the respective licensors and/or copyright holders on the terms provided by such parties. The Supplier expressly disclaims any warranty or other assurance to the Customer regarding such third party software.
8.4 Except as required by law or pursuant to any regulation or as requested or required by any competent authority the Supplier will not make details of the Property or Reporter available to any third party without the prior written consent of the Customer.
8.5 If the Customer uses the System as part of software provided by a third party the Supplier expressly disclaims any warranty or other assurance to the Customer regarding such third party software.
8.6 If the System is integrated into any other software system (“Other System“) owned or used by the Customer by the Supplier, the Supplier shall use its reasonable endeavours to ensure that the System works with the Other System but the Supplier is neither responsible for:
(i) the functioning or availability of the Other System; nor
(ii) any effect of the integration on the Customer’s use of the Other System including (without limitation) any data held on the Other System.
9. Data Transmission
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation (“Data Protection Requirements”). This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
Appendix 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject (both as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement including, without limitation, the provision of a notice to each data subject which complies with Article 13 of the GDPR.
9.4 Without prejudice to the generality of clause 9.1, the Customer agrees to:
(a) provide instructions to the Supplier and determine the purposes and general means of the Supplier’s processing of Personal Data in accordance with the Agreement; and
(b) comply with its protection, security and other obligations with respect to Personal Data prescribed by Data Protection Legislation for data controllers by: (a) establishing and maintaining a procedure for the exercise of the rights of the individuals whose Personal Data are processed on behalf of the Customer; (b) processing only data that has been lawfully and validly collected and ensuring that such data will be relevant, up to date and proportionate to the respective uses; and (c) ensuring compliance with the provisions of this Agreement by its personnel or by any third-party accessing or using Personal Data on its behalf
9.5 Without prejudice to the generality of clause 9.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures 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, 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);
(c) ensure that all personnel of the Supplier who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject in respect of access to or the rectification, erasure, restriction, portability, blocking or deletion of Personal Data that the Supplier processes for the Customer. In the event that a Data Subject sends such a request directly to the Supplier, the Supplier will promptly send such request to the Customer.
(f) assist the Customer 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;
(g) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(h) as soon as reasonably practicable on or after the date that is 60 days after the termination of the data processing services or upon the Customer’s reasonable request, anonymise all the Personal Data unless Data Protection Requirements prevent the Supplier from anonymising all or part of the Personal Data disclosed. In such case, the Supplier agrees to preserve the confidentiality of the Personal Data retained by it and that it will only actively process such Personal Data after such date in order to comply with applicable laws;
(i) the Customer may request a copy of the Personal Data from the Supplier up to but excluding the date that is 60 days after the termination of the data processing services.
(j) maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the Customer or the Customer’s designated auditor; and
(k) inform the Customer immediately upon becoming aware of being asked to do anything that would infringe the Applicable Laws.
9.6 The Supplier intends to engage Subprocessors to delegate part of its processing activities and the Customer consents to the appointment of those Subprocessors which are included in the list of Subprocessors the Supplier maintains online (at such website address as the Supplier may notify to the Customer from time to time) and the Supplier must inform the Customer of any intended changes to this list which, for the avoidance of doubt, may be done inter alia via in-system notifications.
9.7 The Supplier confirms that for those Subprocessors referred to in clause 9.6, it has entered or (as the case may be) will enter into a written agreement substantially on that Subprocessor’s standard terms of business with each agreement with a Subprocessor being in accordance with the Data Protection Requirements. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any Subprocessor appointed by it pursuant to clause 9.6.
9.8 The Customer acknowledges that the Supplier’s system may integrate into other software systems that are owned by third party data processors being systems that the Customer has contracted with for the provision of services. The Supplier, on receipt of instructions from the Customer, may transfer Personal Data to and otherwise interact with third party data processors. The Customer agrees that if and to the extent such transfers occur, the Customer is responsible for entering into separate contractual arrangements with such third party data processors binding them to comply with obligations in accordance with Data Protection Requirements. For the avoidance of doubt, such third party data processors are not Subprocessors.
9.9 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Legislation the responsibility for complying with a subject access request lies with the Customer as Data Controller. The Supplier will pass on any subject access request to the Customer as soon as is reasonably practicable and will notify the data subject that has made the subject access request once this has been done.
9.10 The Supplier may, at any time on not less than 30 days notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement) provided that any such revised clause shall comply with the Data Protection Requirements.
9.11 The Supplier’s data protection officer at the date of this Agreement is Tom O’Neill (firstname.lastname@example.org) and the Supplier may, from time to time, notify the Customer of any change in the identity of its data protection officer.
9.12 Nothing in this clause 9 removes or precludes any of the Customer’s or the Supplier’s obligations pursuant to the Data Protection Legislation.
9.13 The Supplier’s liability pursuant to this clause 9 is limited to £1,000,000 (one million pounds).
10. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties to this Agreement each irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising in any way in relation to this Agreement.
11. Entire Agreement
(a) This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements (written or oral) between the parties in relation to its subject-matter.
(b) 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.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
12 Intellectual Property
12.1 The Customer acknowledges and agrees that all intellectual property rights in the Services and the Software and anything developed and delivered under this Agreement belong absolutely to the Supplier.
12.2 The Customer agrees not to modify, copy or create derivative works of, decompile or otherwise attempt to reverse engineer or to extract source code from the Services or Software or any part of the Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), nor to access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Supplier unless (in each case) laws prohibit these restrictions or unless the Customer has the Supplier’s prior written consent to do so. For the purposes of this clause 12.2 in order for written consent of the Supplier to be valid it must be provided by a director of the Supplier by fax or letter to the Customer. The Customer indemnifies the Supplier for all costs, damages and losses arising directly or indirectly from the Customer’s breach of this clause 12.2.
The Fees payable by the Customer under this Agreement are expressed to be exclusive of VAT and the Customer shall simultaneously pay any VAT chargeable in respect of all taxable supplies to it under this Agreement.
14. Assignment etc.
14.1 The Supplier may at any time assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Customer.
14.2 The Customer may not assign this Agreement or give or transfer the services or an interest in them to another individual or entity and if the Customer grants a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or the System.
15.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
15.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16. No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
17. Limitations on Use
17.1 Except as expressly provided for in this Agreement the Customer shall not copy, reproduce, distribute, republish, download, display, post or transmit any part of the Services or Software in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.
17.2 Pursuant to this Agreement the Services are only being made available to the Customer and the Agents that are authorised by the Customer. The Customer shall make every reasonable effort to prevent unauthorised third parties from accessing the Services.
18. Customer Logo and Name
18.1 The Customer hereby grants to the Supplier a non-exclusive licence to use the Customer’s logo and name on its websites and general marketing materials for marketing purposes for the duration of the Term and for 1 month after the expiry of the Term.
18.2 The Customer consents to the Supplier using its Personal Data (being only the Agent’s email address) to contact the Customer by electronic means (email only) with information about goods and services provided by the Supplier or any affiliate from time to time of the Supplier.
19.1 This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
20. Terms Apply
20.1 This Agreement shall apply save in the case (and to the extent) that the terms of this Agreement are disapplied or modified by a written agreement that has been signed by at least one director of each of the Customer and the Supplier.
21. Further Assurance
21.1 Each party shall at its own cost execute such further documents and do any and all such further things as may be necessary to implement and carry out the intent of this Agreement.
Without prejudice to any other rights or remedies which the Customer or Supplier may have, either party may terminate this Agreement without liability to the other, subject to clause 1, on giving the other not less than 1 full calendar months written notice if:
22.1 The other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment; or
22.2 The other party commits a breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
22.3 The other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
22.4 The other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
22.5 The other party commences negotiations with all, or any class or, 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; or
22.6 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or on 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; or
22.7 An application is made to the court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or
22.8 A floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or
22.9 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; or
22.10 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 its assets and such attachment or process is not discharged within 14 days; or
22.11 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 this clause; or
22.12 The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
22.13 On termination of this Agreement (however arising) references to the following shall survive and continue in full force and effect: Client Obligations for Payments, Data Protection, Confidentiality, Intellectual Property, Governing Law and Jurisdiction.
23. Web Browsers
The Supplier makes every effort to ensure web-browser-based Software is designed to be viewed by the majority of visitors. The websites are designed to work with the most popular current browsers. The Customer agrees that the Supplier cannot guarantee correct functionality with all browser software across different operating systems.
The Supplier will make their best effort to support all Software functionality in the latest versions of the following browsers: Chrome (https://www.google.com/chrome), Firefox (https://www.mozilla.org/firefox), Safari (https://www.apple.com/safari), Edge (https://microsoft.com/edge).
Processing, Personal Data and Data Subjects
1. PROCESSING BY THE SUPPLIER
Personal Data about Reporters in properties managed by the Customer will be processed by the FaultFixers system using a number of sub-processors. The Personal Data is used to process maintenance requests and/or maintenance delivery depending on the services used.
The Supplier agrees to process Personal Data received under this Agreement only for the purposes set out in this Appendix 1. For the avoidance of doubt, the categories of Personal Data processed and the categories of data subjects subject to this Agreement are described in paragraphs 2 and 3 below.
1.3 Purpose of processing
The processing of Personal Data is done to protect Reporters and the customers of Customers’ legitimate interest(s) in maintaining its property or properties that are managed using the services offered by the Supplier.
1.4 Duration of the processing
During the Term of this Agreement, the Supplier intends to store Personal Data for a period of 5 years from completion of the relevant transaction (being completion of a repair request in FaultFixers). This is to tie back to the Customer’s interest in retaining full records during the limitation period for claims.
2. Types of personal data
The Personal Data processed may include:
- Name: agent(s), occupier(s), contractor(s), external user(s), reporter(s)
- Email address: agent(s), occupier(s), contractor(s), external user(s), reporter(s)
- Telephone number: agent(s), occupier(s), contractor(s), external user(s), reporter(s)
- Address: occupier(s), contractor(s), customer(s)
3. Categories of data subject
The categories of data subject are agents, occupiers, contractors, external users, reporters and customers.
Service Level Agreement
Version 1.6 – September 2019
This FaultFixers Service Level Agreement (“SLA”) between FaultFixers Technologies Ltd. (“FaultFixers”, “us” or “we”) and users of the FaultFixers Services (“you”) governs the use of the FaultFixers Services under the provisions of the FaultFixers Terms of Service (the “Terms”).
Unless otherwise provided herein, this SLA is subject to the provisions of the Terms.
- FaultFixers Service Commitment: 99.0% Uptime
FaultFixers will use commercially reasonable efforts to make your FaultFixers Services available with a Monthly Uptime Percentage of at least 99.0% during any monthly billing cycle (the “Service Commitment”). Subject to the SLA Exclusions, if we do not meet the Service Commitment, you will be eligible to receive a Service Credit.
“Maintenance” means scheduled Unavailability of the Services, as announced by us prior to the Services becoming Unavailable.
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the FaultFixers Services were Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion.
“Service Credit” means a credit denominated in pound sterling, calculated as set forth below, that we may credit to an eligible account.
“Unavailable” and “Unavailability” mean, for any app or web-based FaultFixers interface, when your service or database is not running or not reachable due to FaultFixers’ fault.
- Service Commitments and Service Credits
Service Credits are calculated as a percentage of the total charges due on your FaultFixers invoice for the monthly billing cycle (or monthly prorated invoice if you are on an annual billing cycle) in which the Unavailability occurred, applied proportionally to the Services that were Unavailable, in accordance with the schedule below:
- For Monthly Uptime Percentage less than 99.0% but equal to or greater than 98.0%, you will be eligible for a Service Credit of 10% of the charges attributable to the affected resources.
- For Monthly Uptime Percentage less than 98.0%, you will be eligible for a Service Credit of 20% of the charges attributable to the affected resources
We will apply any Service Credits only against future payments for the Services otherwise due from you. Service Credits will not entitle you to any refund or other payment from FaultFixers. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar (£1 GBP). Service Credits may not be transferred or applied to any other account.
- Sole Remedy
Unless otherwise provided in the Terms, your sole and exclusive remedy for any unavailability, non-performance, or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
- Credit Request and Payment Procedures
To receive a Service Credit, you must submit a claim by emailing email@example.com. To be eligible, the credit request must be received by us no later than 60 days after which the incident occurred and must include:
- the words “SLA Credit Request” in the subject line;
- the dates and times of each Unavailability incident that you are claiming;
- the account; and
- logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).
If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then we will issue the Service Credit to you within 30 days following the month in which your request is confirmed by us. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.
- SLA Exclusions
The Service Commitment does not apply to any Unavailability:
- Caused by factors outside of our reasonable control, including any force majeure event, Internet access, or problems beyond the demarcation point of the FaultFixers network;
- That results from any actions or inactions of you or any third party;
- That results from the equipment, software or other technology of you or any third party (other than third party equipment within our direct control);
- That results from failures of FaultFixers Services not attributable to Unavailability; or
- That results from any Maintenance.
If availability is impacted by factors other than those used in our Monthly Uptime Percentage calculation, then we may issue a Service Credit considering such factors at our discretion.