Terms & Conditions of Service Close

Terms and Conditions

Please read these Terms and Conditions carefully. All contracts that the Supplier may enter into from time to time for the provision of the Cloud Services and related services shall be governed by these Terms and Conditions.

1. Definitions

1.1 In these Terms and Conditions:

"Account" means an account enabling a person to access and use the Cloud Services;

"Administrator Account" means any Account enabling an End User to configure or manage any element of the Cloud Services;

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Billing Period" means the period of time specified in the Services Order Form, beginning upon the later of:

(a) the end of the Trial Period; and

(b) the Effective Date;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 08:30 to 17:30 GMT/BST on a Business Day;

"Charges" means:

(a) the amounts specified in Services Order Form; and

(b) such other amounts to be paid by the Customer to the Supplier in connection with the Services as may be set out in the Agreement or otherwise agreed in writing by the parties from time to time;

"Cloud Services" means the hosted service or services specified in the Services Order Form and in Schedule 1 (Cloud Services), which will be made available by the Supplier to the Customer as a service via the internet in accordance with these Terms and Conditions;

"Cloud Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the functionality or performance of the Cloud Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Cloud Services;

(b) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(c) an incompatibility between the Platform or Cloud Services and any other system, network, application, program, hardware or software not specified as compatible in the Cloud Services Specification;

"Cloud Services Specification" means the specification for the Cloud Services set out in Schedule 1 (Cloud Services);

"Confidential Information" means the Customer Confidential Information and the Supplier Confidential Information;

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer" means the person or entity identified as such in the Services Order Form;

"Customer Confidential Information" means:

(a) any information disclosed by the Customer to the Supplier during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked as "confidential"; or

(ii) should have been reasonably understood by the Supplier to be confidential;

(b) the Customer Data; and

(c) the Customer Personal Data;

"Customer Data" means all data, works and materials uploaded to or stored on the Platform by the Customer, or supplied by the Customer to the Supplier for uploading to, transmission by or storage on the Platform;

"Customer Personal Data" means any Personal Data that is processed by the Supplier on behalf of the Customer in relation to the Agreement, but excluding analytics information concerning the use of the Platform with respect to which the Supplier is a data controller;

"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679) and the Data Protection Act 2018;

"Effective Date" means the date upon which the parties execute a hard-copy Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by the Supplier on the Supplier's website, the date upon which the Supplier sends to the Customer an order confirmation;

"End User" means an individual making direct or indirect use of the Cloud Services, including individuals using the Cloud Services by means of an Account and individuals using the Cloud Services without an Account;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;

"Platform" means the platform managed by the Supplier and used by the Supplier to provide the Cloud Services, including the application and database software for the Cloud Services, the system and server software used to provide the Cloud Services, and the computer hardware on which that application, database, system and server software is installed;

"Services" means any services that the Supplier provides to the Customer, or has an obligation to provide to the Customer, under the Agreement;

"Services Order Form" means an online order form published by the Supplier and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

"Set Up Services" means any configuration, implementation and/or integration of the Cloud Services specified in the Services Order Form;

"Supplier" means Up Hotel Agency Ltd, a company incorporated in England and Wales (registration number 09209453) having its registered office at The Old Telephone Exchange, Albert Street, Rugby, Warwickshire, CV21 2SA;

"Supplier Confidential Information" means:

(a) any information disclosed by the Supplier to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked as "confidential"; or

(ii) should have been reasonably understood by the Customer to be confidential; and

(b) the financial terms of the Agreement;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Cloud Services, but shall not include the provision of training services;

"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

"Trial Period" means the period of 30 days following the Effective Date.

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17.

2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract between the parties.

3. Set Up Services

3.1 The Supplier shall provide the Set Up Services to the Customer.

3.2 The Customer acknowledges that a delay in the Customer performing its obligations under Clause 7 or elsewhere in the Agreement may result in a delay in the performance of the Set Up Services.

3.3 Subject to Clause 15.1 the Supplier will not be liable to the Customer in respect of any failure to meet any Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

4. Trial Period

4.1 There shall be a Trial Period at the start of the Agreement.

4.2 No Charges shall be payable with respect to the use of the Cloud Services during the Trial Period. Subject to this, all the other provisions of the Agreement shall apply during the Trial Period.

5. Cloud Services

5.1 The Supplier shall create an Administrator Account for the Customer and shall provide to the Customer login details for that Administrator Account (or shall ensure that the Platform creates an Administrator Account for the Customer and provides login details for that Administrator Account) on or promptly following the Effective Date.

5.2 The Supplier hereby grants to the Customer a worldwide, non-exclusive licence:

(a) to use the Administrator Account to manage the Cloud Services for the business purposes of the Customer during the Term; and

(b) to use the Cloud Services, and to enable End Users to use the Cloud Services, during the Term.

5.3 The licence granted by the Supplier to the Customer under Clause 5.2 is subject to the following limitations:

(a) Administrator Accounts may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and

(b) each Administrator Account may only be used by the named users identified in the relevant Administrator Account, providing that the Customer may be permitted to change, add or remove designated Administrator Account users from time to time.

5.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Supplier to the Customer under Clause 5.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Cloud Services by means of an Administrator Account;

(b) the Customer must not permit any unauthorised person to access or use the Cloud Services by means of an Administrator Account; and

(c) the Customer must not republish or redistribute any content or material from the Cloud Services (excluding Customer Data).

5.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Administrator Account access details, to ensure that no unauthorised person may gain access to the Cloud Services using an Administrator Account.

5.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Cloud Services.

5.7 The Customer must not use the Cloud Services in any way that causes, or may cause, damage to the Cloud Services or Platform or impairment of the availability or accessibility of the Cloud Services.

5.8 The Customer must not use the Cloud Services:

(a) in any way that is unlawful, illegal, fraudulent, immoral, offensive or harmful; or

(b) in connection with any unlawful, illegal, fraudulent, immoral, offensive or harmful purpose or activity.

5.9 Without prejudice to the generality of Clause 5.8(b), the Customer must not use the Cloud Services in relation to the operation of any premises that are used in connection with escort services or prostitution.

5.10 The Customer must not use the Cloud Services in any way or for any purpose which is liable to cause damage to the reputation or goodwill of the Supplier.

5.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

5.12 The Supplier may suspend the Cloud Services in the event that, as a result of a denial of service attack against the Customer, the performance or availability of the Platform is adversely affected.

5.13 If the total number of page views, widget views, chat messages or other interactions arising out of the Customer's use of the Cloud Services exceeds any amount specified in the Services Order Form during any calendar month, the Supplier shall notify the Customer of this with a view to increasing the Charges; and if the parties are unable, acting reasonably, to agree to a corresponding increase in the Charges within the period of 30 days following the Supplier sending that notice to the Customer, the Supplier may thereafter use technological measures to limit the use of the Cloud Services in accordance with the amount specified in the Services Order Form.

6. Support Services

6.1 The Supplier shall provide the Support Services to the Customer during the Term in accordance with Schedule 3 (Support SLA).

7. Customer obligations

7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Supplier, or procure for the Supplier, such:

(a) co-operation, support and advice; and

(b) information and documentation, as are reasonably necessary to enable the Supplier to perform its obligations under the Agreement.

7.2 The Customer acknowledges that use of the Cloud Services may require configuration changes to the Customer's computer hardware, software, networks and systems.

8. Customer Data

8.1 The Customer hereby grants to the Supplier a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Supplier's obligations and the exercise of the Supplier's rights under the Agreement. The Customer also grants to the Supplier the right to sub-license these rights to its hosting, connectivity, telecommunications and data processing service providers to the extent reasonably required for the performance of the Supplier's obligations and the exercise of the Supplier's rights under the Agreement, subject always to any express restrictions elsewhere in the Agreement.

8.2 The Customer warrants to the Supplier that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

8.3 Without prejudice to the generality of Clause 8.2, the Customer warrants to the Supplier that the Customer Data will not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off or other intellectual property right;

(d) infringe any right of confidence, right of privacy or right under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g) be in contempt of any court or in breach of any court order;

(h) constitute a breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) constitute a breach of official secrets legislation; or

(k) constitute a breach of any contractual obligation owed to any person.

8.4 The Customer warrants to the Supplier that the Customer Data is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

8.5 The Supplier shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Supplier to restore the Cloud Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days. The Customer acknowledges that, if the Supplier agrees to restore Customer Data to the Cloud Services at the request of the Customer, and the requirement does not arise out of any breach of the Agreement by the Supplier, the Supplier may charge the Customer for such restoration at its standard time-based charging rates.

9. Charges

9.1 The Customer shall pay the Charges to the Supplier in accordance with these Terms and Conditions.

9.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Supplier.

9.3 The Supplier may elect to vary any element of the Charges upon and from the end of a Billing Period by giving to the Customer not less than 28 days' prior written notice of the variation.

10. Payments

10.1 The Supplier shall issue invoices for the Charges to the Customer in accordance with the Services Order Form.

10.2 The Customer must pay the Charges to the Supplier in advance of the period of Services to which the Charges relate or, if the Services Order Form provides that Charges shall be invoiced in arrears, within the period of 30 days following the issue of an invoice in accordance with the Services Order Form.

10.3 The Customer must pay the Charges by direct debit, bank transfer or cheque, or such other means as the Supplier may approve from time to time (using such payment details as are notified by the Supplier to the Customer from time to time).

10.4 If the Customer does not pay any amount properly due to the Supplier under these Terms and Conditions, the Supplier may:

(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10.5 ‌The Supplier may suspend the provision of any Services if any amount due to be paid by the Customer to the Supplier under the Agreement is overdue.

11. Confidentiality obligations

11.1 The Supplier must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions; and

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Supplier uses to protect the Supplier's own confidential information of a similar nature, being at least a reasonable degree of care.

11.2 The Customer must:

(a) keep the Supplier Confidential Information strictly confidential;

(b) not disclose the Supplier Confidential Information to any person without the Supplier's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions; and

(c) use the same degree of care to protect the confidentiality of the Supplier Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care.

11.3 Notwithstanding Clauses 11.1 and 11.2, the Confidential Information of a party may be disclosed by the other party to the other party's officers, employees, professional advisers, insurers and subcontractors, who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information disclosed.

11.4 This Clause 11 imposes no obligations upon a recipient party with respect to the Confidential Information of the other party that:

(a) is known to the recipient party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the recipient party; or

(c) is obtained by the recipient party from a third party in circumstances where the recipient party has no reason to believe that there has been a breach of an obligation of confidentiality.

11.5 The restrictions in this Clause 11 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of a party on any recognised stock exchange.

11.6 The provisions of this Clause 11 shall continue in force indefinitely following the termination of the Agreement.

12. Data protection

12.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

12.2 The Customer warrants to the Supplier that it has the legal right to disclose all Personal Data that it does in fact disclose to the Supplier under or in connection with the Agreement.

12.3 The Customer shall only supply to the Supplier, and the Supplier shall only process, in each case under or in relation to the Agreement, the Personal Data of data subjects falling within the categories specified in Schedule 1 (Cloud Services) and of the types specified in Schedule 1; and the Supplier shall only process the Customer Personal Data for the purposes specified in Schedule 1.

12.4 The Supplier shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 12.

12.5 The Supplier shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

12.6 The Supplier shall promptly inform the Customer if, in the opinion of the Supplier, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

12.7 Notwithstanding any other provision of these Terms and Conditions, the Supplier may process the Customer Personal Data if and to the extent that the Supplier is required to do so by applicable law. In such a case, the Supplier shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

12.8 The Supplier shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

12.9 The Supplier and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

12.10 The Supplier must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Supplier shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor by updating the list of third party processors published on the Supplier website, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days' written notice to the Supplier, providing that such notice must be given within the period of 7 days following the date that the Supplier informed the Customer of the intended changes. The Supplier shall ensure that each third party processor is subject to equivalent legal obligations to those imposed on the Supplier by this Clause 12.

12.11 As at the Effective Date, the Supplier is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the third parties, and third parties within the categories, identified in Schedule 1 (Cloud Services).

12.12 The Supplier shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

12.13 The Supplier shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Supplier shall report any breach relating to the Customer Personal Data to the Customer within 24 hours following the Supplier becoming aware of the breach. The Supplier may charge the Customer at its standard time-based charging rates for any work performed by the Supplier at the request of the Customer pursuant to this Clause 12.13.

12.14 The Supplier shall make available to the Customer all information necessary to demonstrate the compliance of the Supplier with its obligations under this Clause 12 and the Data Protection Laws.

12.15 The Supplier shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

12.16 The Supplier shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Supplier's processing of Customer Personal Data with the Data Protection Laws and this Clause 12. The Supplier may charge the Customer at its standard time-based charging rates for any work performed by the Supplier at the request of the Customer pursuant to this Clause 12.16.

12.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under these Terms and Conditions, then the parties shall use their best endeavours promptly to agree such variations to these Terms and Conditions as may be necessary to remedy such non-compliance.

13. Warranties

13.1 The Supplier warrants to the Customer that:

(a) the Supplier has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b) the Supplier will comply with all applicable legal and regulatory requirements applying to the exercise of the Supplier's rights and the fulfilment of the Supplier's obligations under these Terms and Conditions;

(c) the Supplier has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions;

(d) the Supplier shall use reasonable endeavours to ensure that the Platform and Cloud Services will conform in all material respects with the Cloud Services Specification;

(e) the Supplier shall use reasonable endeavours to ensure that the Cloud Services will be free from Cloud Services Defects; and

(f) the Platform will incorporate security features reflecting the requirements of good industry practice.

13.2 The Supplier warrants to the Customer that the Cloud Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person under English law.

13.3 If the Supplier reasonably determines, or any third party alleges, that the use of the Cloud Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Supplier may at its own cost and expense:

(a) modify the Cloud Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b) procure for the Customer the right to use the Cloud Services in accordance with these Terms and Conditions.

13.4 The Customer warrants to the Supplier that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

13.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

14. Acknowledgements and warranty limitations

14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Supplier gives no warranty or representation that the Cloud Services will be wholly free from defects, errors and bugs.

14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Supplier gives no warranty or representation that the Cloud Services will be entirely secure.

14.3 The Supplier shall use reasonable endeavours to maintain the compatibility of the Cloud Services with that software and those systems specified as compatible in the Cloud Services Specification; the Customer acknowledges that:

(a) changes to that software and those systems may result in temporary incompatibility;

(b) the Supplier does not warrant or represent that the Cloud Services will be compatible with any website or application of the Customer that is integrated with the Cloud Services; and

(c) the Supplier does not warrant or represent that the Cloud Services will be compatible with software or systems not specified as compatible in the Cloud Services Specification.

14.4 The Customer acknowledges that the Supplier will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Cloud Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Supplier does not warrant or represent that the Cloud Services or the use of the Cloud Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

15. Limitations and exclusions of liability

15.1 Nothing in these Terms and Conditions will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(c) limit any liabilities in any way that is not permitted under applicable law; or

(d) exclude any liabilities that may not be excluded under applicable law.

15.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in these Terms and Conditions:

(a) are subject to Clause 15.1; and

(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

15.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

15.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

15.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.

15.6 Neither party shall be liable to the other party in respect of any loss of use.

15.7 Neither party shall be liable to the other party in respect of any loss of bookings, business, contracts or opportunities.

15.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 15.8:

(a) shall not protect the Supplier unless the Supplier has fully complied with its obligations under Clause 8.5; and

(b) shall not apply with respect to any liabilities of either party under Clause 12.

15.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

15.10 The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of:

(a) GBP 5,000; and

(b) the total amount paid and payable by the Customer to the Supplier under the Agreement in the 12-month period preceding the commencement of the event or events, providing that this Clause 15.10 shall not affect any obligation to pay Charges under the Agreement and shall not apply with respect to any liability of a party under Clause 8.2, 8.3, 8.4, 11, 12 or 13.2.

15.11 The aggregate liability of each party to the other party under the Agreement shall not exceed the greater of:

(a) GBP 100,000; and

(b) the total amount paid and payable by the Customer to the Supplier under the Agreement.

16. Force Majeure Event

16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

17. Termination

17.1 Either party may terminate the Agreement at the end of any Billing Period by giving to the other party not less than 14 days' prior written notice of termination.

17.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party commits any material breach of the Agreement, and the breach is not remediable; or

(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.

17.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

17.4 The Supplier may terminate the Agreement immediately by giving written notice to the Customer if:

(a) any amount due to be paid by the Customer to the Supplier under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b) the Supplier has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 17.4.

17.5 The Agreement may only be terminated in accordance with its express provisions.

18. Effects of termination

18.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 5.11, 10, 11, 12, 15, 18, 21, 22, 23, 24, 25, 26 and 27.

18.2 Except to the extent that these Terms and Conditions expressly provide otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

18.3 Within 30 days following the termination of the Agreement for any reason:

(a) the Customer must pay to the Supplier any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b) the Supplier must refund to the Customer any Charges paid by the Customer to the Supplier in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties' other legal rights.

19. Notices

19.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Clause 19.2 (in the case of notices to the Supplier) or the Services Order Form (in the case of notices to the Customer)):

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;

(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or

(c) sent by email, in which case the notice shall be deemed to be received upon delivery to the email server of the recipient, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

19.2 The Supplier's contact details for notices under this Clause 19 are as follows: Up Hotel Agency Ltd, info@uphotel.agency, The Old Telephone Exchange, Albert Street, Rugby, Warwickshire, CV21 2SA.

19.3 The addressee and contact details set out in Clause 19.2 and the Services Order Form may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 19.

20. Subcontracting

20.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Supplier may subcontract any of its obligations under the Agreement.

20.2 The Supplier shall remain responsible to the Customer for the performance of any subcontracted obligations.

21. Assignment

21.1 The Supplier must not assign, transfer or otherwise deal with the Supplier's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Supplier may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Supplier or to any successor to all or a substantial part of the business of the Supplier from time to time.

21.2 The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

22. No waivers

22.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

22.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

23. Severability

23.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

23.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

24. Third party rights

24.1 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

24.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

25. Variation

25.1 The Agreement may not be varied except in accordance with this Clause 25.

25.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.

25.3 The Supplier may vary the Agreement by giving to the Customer at least 28 days' written notice of the proposed variation, expiring at the end of a Billing Period.

26. Entire agreement

26.1 The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

26.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

26.3 The provisions of this Clause 26 are subject to Clause 15.1.

27. Law and jurisdiction

27.1 These Terms and Conditions shall be governed by and construed in accordance with English law.

27.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.Schedule 1 (Cloud Services)

1. Internet Booking Engine

1.1 This Paragraph 1 applies to the use of the Supplier's Internet Booking Engine ("IBE").

1.2 If the IBE is used by the Customer with respect to less than 50 rooms during a Billing Period, then for the purpose of calculating the Charges it shall be assumed that it is used with respect to 50 rooms.

1.3 With respect to the references to this Schedule 1 in Clause 12, the data protection information applicable to the IBE is as follows:

Categories of data subject

Administrative users of the IBE, and individuals using the IBE

Types of Personal Data

Names, email addresses, telephone numbers, postal addresses and booking information

Purposes of processing

Operation and monitoring of the IBE

Sub-processors of Personal Data

Hosting services providers (the appointed provider as at the Effective Date is Amazon Web Services, Inc)

Analytics services providers (the appointed provider as at the Effective Date is Sumo Logic, Inc)

1.4 In addition to any appointed sub-processors, the Customer acknowledges that Customer Personal Data will be transferred to third party data processors acting on behalf of the Customer, and the Customer shall be responsible for ensuring that it has in place appropriate data processing agreements with those third parties. These third parties may include hotel booking management software and payments services providers.

1.5 The Customer indemnifies the Supplier and undertakes to keep the Supplier indemnified against any liabilities, damages, costs, losses and expenses (including legal expenses) arising out of any third party claims and/or proceedings alleging that any transfer of Customer Personal Data in accordance with Paragraph 1.4 constitutes a breach of:

(a) the Data Protection Laws;

(b) any obligations of confidentiality; or

(c) any rights of privacy.

1.6 The Supplier shall use reasonable endeavours to ensure that the IBE is and remains during the Term compatible with the latest versions of the Chrome, Firefox and Safari web browser software (as updated from time to time).

2. Sweetnr

2.1 This Paragraph 2 applies to the use of the Supplier's Sweetnr system ("Sweetnr").

2.2 With respect to the references to this Schedule 1 in Clause 12, the data protection information applicable to Sweetnr is as follows:

Categories of data subject

Administrative users of Sweetnr, and individuals using the Customer website on pages with Sweetnr tracking code

Types of Personal Data

IP addresses and website usage information

Purposes of processing

Operation and monitoring of Sweetnr

Sub-processors of Personal Data

Hosting services providers (the appointed provider as at the Effective Date is Amazon Web Services, Inc)

2.3 The Customer acknowledges that it is responsible for complying with the information and disclosure requirements under the Data Protection Laws with respect to data subjects. In the event that the Supplier supplies template text for use in relation to such information and disclosure requirements, the Customer shall nonetheless be responsible for adapting such text and taking professional legal advice to ensure that the Customer meets those requirements, and the Customer acknowledges that the Supplier does not and does not purport to provide any legal advice or compliance services under the Agreement.

2.4 The Supplier shall use reasonable endeavours to ensure that Sweetnr is and remains during the Term compatible with the latest versions of the Chrome, Firefox and Safari web browser software (as updated from time to time).

3. Sweetnr Chatbot

3.1 ‌This Paragraph 3 applies to the use of the Supplier's Sweetnr Chatbot (the "Chatbot").

3.2 With respect to the references to this Schedule 1 in Clause 12, the data protection information applicable to the Chatbot is as follows:

Categories of data subject

Administrative users of the Chatbot, and individuals using the Chatbot

Types of Personal Data

Names, email addresses, chat content and Chatbot usage information

Purposes of processing

Operation and monitoring of the Chatbot

Sub-processors of Personal Data

Hosting services providers (the appointed provider as at the Effective Date is Amazon Web Services, Inc)

Natural language processing services providers (the appointed provider as at the Effective Date is Google Ireland Limited (DialogFlow))

3.3 The Supplier shall use reasonable endeavours to ensure that the Chatbot is and remains during the Term compatible with the latest versions of the Chrome, Firefox and Safari web browser software (as updated from time to time).

Schedule 2 (Availability SLA)

1. Introduction to availability SLA

1.1 This Schedule 2 sets out the Supplier's availability commitments relating to the Cloud Services.

1.2 In this Schedule 2, "uptime" means the percentage of time during a given period when the Cloud Services are available at the gateway between public internet and the network of the hosting services provider for the Cloud Services.

2. Availability

2.1 The Supplier shall use reasonable endeavours to ensure that the uptime for the Cloud Services is at least 99.90% during each calendar month, subject to Paragraphs 3 and 5 below.

2.2 Uptime is calculated as the total number of minutes during a month when there was no unavailability divided by the total number of minutes in that month. The Supplier shall be responsible for measuring uptime and shall do so using any reasonable methodology.

2.3 Promptly following receipt of a written request from the Customer, the Supplier shall report to the Customer in writing uptime measurements for the calendar month immediately preceding the date of the request.

3. Scheduled maintenance

3.1 The Supplier shall where practicable give to the Customer at least 5 Business Days' prior written notice of scheduled maintenance that is likely to affect the availability of the Cloud Services or is likely to have a material negative impact upon the Cloud Services.

3.2 The Supplier shall ensure that all scheduled maintenance is carried out outside Business Hours.

4. Service credits

4.1 In respect of each calendar month during which the Cloud Services uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with the provisions of this Paragraph 4.

4.2 The service credits earned by the Customer shall be as follows:

Uptime

Service credits

4.3 In order to be entitled to service credits, the Customer must report the failure to meet the uptime commitment to the Supplier before the end of the month following the month during which that commitment was not met. Following such a report, the Supplier shall deduct an amount equal to the service credits due to the Customer from amounts invoiced in respect of the Charges for the Cloud Services. Service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.

4.4 Service credits shall be the sole remedy of the Customer in relation to any failure by the Supplier to meet the uptime commitment in Paragraph 2.1, except where the failure amounts to a material breach of the Agreement.

4.5 Upon the termination of the Agreement, the Customer's entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Supplier in respect of Cloud Services following such termination.

5. Exceptions

5.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Supplier has met the uptime commitment given in Paragraph 2.1:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(c) a fault or failure of the Supplier's hosting infrastructure services provider or data processing services provider, unless such fault or failure constitutes an actionable breach of the contract between the Supplier and that company;

(d) a fault or failure of the Customer's computer systems or networks;

(e) any breach by the Customer of the Agreement; or

(f) scheduled maintenance carried out in accordance with the Agreement.

Schedule 3 (Support SLA)

1. Helpdesk

1.1 The Supplier shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 3.

1.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

1.3 The Supplier shall ensure that the helpdesk is accessible by email.

1.4 The Supplier shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

1.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

2. Response and resolution

2.1 Issues raised through the Support Services shall be categorised as follows:

(a) critical: the Cloud Services are inoperable or a core function of the Cloud Services is unavailable;

(b) serious: a core function of the Cloud Services is significantly impaired;

(c) moderate: a core function of the Cloud Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Cloud Services is significantly impaired; and

(d) minor: any impairment of the Cloud Services not falling into the above categories or any cosmetic issue affecting the Cloud Services.

2.2 The Supplier shall determine, acting reasonably, into which severity category an issue falls.

2.3 The Supplier shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

(a) critical: 1 Business Hour;

(b) serious: 4 Business Hours;

(c) moderate: 1 Business Day; and

(d) minor: 5 Business Days.

2.4 The Supplier shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

2.5 The Supplier shall use reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods:

(a) critical: 2 Business Hours;

(b) serious: 8 Business Hours;

(c) moderate: 4 Business Days; and

(d) minor: 10 Business Days.

3. Provision of Support Services

3.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.