1.1 Aside from the terms in this Agreement in bold, other capitalised terms shall have the following meanings: “Authorised Employees” means each of the Company’s employees who is authorised to use the Pebble Discounts; “Booking” means confirmed bookings on the Pebble Platform of activities and services aimed at children, made by an Authorised Employee; “Company Materials” means any other intellectual property rights, information and materials provided by the Company to Pebble (including without limitation a list of Authorised Employees and information relating to such individuals); “Data Protection Laws” means any data protection, privacy or similar laws that apply to Personal Data Processed in connection with the Agreement, and “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing” and “Processor” shall be as defined under Data Protection Laws; “Pebble Platform” means Pebble’s online marketplace which allows care seekers to book, reschedule, check the availability of activities and other services which are targeted at children and send enquiries relating to such activities and services (and any related Pebble-owned or licensed technology); “Pebble Services” means the provision of the Pebble Platform, and services which support the provision of the Pebble Platform; and “Term” means the period from the Effective Date until the date on which the Agreement is terminated in accordance with clause 8.
1.2 The terms “Licence Fee”, “Live Date”, “Payment Date” and “Pebble Discounts” shall have the meanings set out in the Commercial Terms of this Agreement.
1.3 In this Agreement, unless the context otherwise so requires, “including” means “including, without limitation”.
1.4 In the event that there is any conflict between the terms of the Schedule (Terms and Conditions) and the Pebble DPA, the order of priority will be as follows:
1.4.1 the Pebble DPA; and
1.4.2 the Schedule (Terms and Conditions).
2. COMPANY OBLIGATIONS
2.1 The Company shall promptly following the Effective Date, and in accordance with the instructions outlined by Pebble:
2.1.1 complete a direct debit form;
2.1.2 promptly comply with any instructions from Pebble in relation to the sign-up and onboarding process;
2.1.3 complete certain onboarding activities, as notified to the Company by Pebble; and
2.1.4 submit and provide any information requested by Pebble from time to time (including without limitation during the sign-up and onboarding process).
2.2 During the Term, the Company shall (and, where applicable, promptly and without undue delay):
2.2.1 provide Pebble with any assistance, Company Materials and information that Pebble reasonably requires to provide the Pebble Services;
2.2.2 in the event of a material breach of this Agreement by the Company, notify Pebble as soon as reasonably practicable and provide any assistance requested by Pebble;
2.2.3 ensure that any information it provides to Pebble, or uploads to the Pebble Platform, is accurate, updated no less frequently than on a weekly basis and monitored on an ongoing basis;
2.2.4 notify Pebble in advance of any Authorised Employees leaving the Company;
2.2.5 comply with any applicable policies, terms, requirements and agreements (as notified to the Company by Pebble from time to time), and all applicable laws in relation to the Pebble Services;
2.2.6 not provide (or offer to provide) childcare benefits to its employees other than via the Pebble Platform;
2.2.8 not use the Pebble Platform and any other of its intellectual property rights which may come into the possession of the Company under this Agreement from time to time (the “Pebble IPR”) to:
(a) provide services to third parties other than care seekers; or
(b) build a product or service which competes with Pebble’s business.
2.3 Each Authorised Employee shall not, and the Company shall procure that they shall not (without Pebble’s prior written consent):
2.3.1 exceed the maximum amount of Pebble Discounts;
2.3.2 be permitted to transfer any of the maximum allocated Pebble Discount to another individual (whether or not they are an Authorised Employee); and
2.3.3 be permitted to use any Pebble Discounts, which are unused at the end of a calendar month, in any proceeding calendar months.
3. PEBBLE SERVICES AND PEBBLE PLATFORM
3.1 Subject to the Company’s compliance with its obligations under clause 1.2, Pebble shall from the Live Date provide:
3.1.1 the Pebble Services to the Company; and
3.1.2 the Pebble Discounts to the Authorised Employees.
3.2 Pebble will not be liable for any losses suffered by the Company if Pebble’s
performance of its obligations under this Agreement is (directly or indirectly)
prevented or delayed by an act of omission of the Company.
3.3 Pebble may modify, suspend or discontinue any part of the Pebble Platform or otherwise make any changes it considers desirable to the Pebble Platform.
4. INTELLECTUAL PROPERTY
4.1 For the Term, the Company hereby grants to Pebble a non-exclusive, royalty free, worldwide licence to use the intellectual property rights in the Company Materials.
4.2 From the Live Date until termination of the Term, Pebble hereby grants to the Company a personal non-exclusive, non-sublicensable, non-transferable, royalty free worldwide licence to use the Pebble Platform to the extent necessary for the Company to perform its obligations and enjoy its rights under this Agreement.
4.3 Save as set out in this Agreement, Pebble reserves all of its right, title and interest in the Pebble IPR, and Pebble does not grant the Company any intellectual property rights in respect of the Pebble IPR, the Pebble Services, any intellectual property rights created pursuant to this Agreement or any related content or materials.
4.4 The Company will not (or attempt to), without Pebble’s prior written consent:
4.4.1 change, alter, disassemble, create derivative works of or reverse engineer any of the Pebble IPR; or
4.4.2 decompile any prototypes or software or other tangible objects in the Pebble Platform nor use any similar means to discover its underlying composition, structure, source code or trade secrets.
4.5 The Company will indemnify, defend and hold harmless Pebble, from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Pebble arising out of or related in any way to:
4.5.1 Pebble’s use of the Company Materials in accordance with the Company’s instructions and the terms of this Agreement; and
4.5.2 the Company’s use of the Pebble IPR, and the limits and exclusions of liability in clause 9 will not apply to this indemnity.
5.1 Pebble shall collect the Licence Fee by direct debit on the Payment Date.
5.2 If the number of Company employees using the Pebble Discounts exceeds the maximum number of Authorised Employees specified under the Commercial Terms, in a given calendar month, Pebble shall:
5.2.1 notify the Company of this fact prior to the Payment Date; and
5.2.2 collect an increased amount of total Licence Fees on the Payment Date following the relevant calendar month, reflecting the additional Company employees using the Pebble Discounts and charged at the Licence Fee rate specified in the Commercial Terms.
5.3 All amounts payable under this Agreement are exclusive of VAT.
5.4 Pebble may set off any liability of the Company to Pebble against any liability of Pebble to the Company.
5.5 Pebble may vary the Licence Fees at the end of the Initial Term, or each subsequent Renewal Term, on at least sixty (60) days’ written notice to the Company.
6. DATA PROTECTION
6.1 Where Pebble Processes Personal Data:
6.1.1 on the Company’s behalf to provide the Services, the Company is a Controller and Pebble is a Processor (and clauses 6.2 to 6.5.3 apply); and
6.1.2 for its own legitimate business purposes, Pebble is an independent Controller (and only clause 6.3 applies).
6.2 The Processing activities under clause 6.1.1 apply in respect of the following categories of the Authorised Employees’ Personal Data: (together, “Employee Personal Data”):
6.2.2 contact information (including home address, telephone number and email address)
6.2.3 information relating to Bookings made on the Pebble Platform by the Authorised Employee;
6.2.4 children in respect of whom the Bookings are made (and the Authorised Employee’s relationship to such children); and
6.2.5 any other information submitted to the Pebble Platform (including enquiries and requests).
6.3 Both Parties will comply with all applicable requirements of Data Protection Laws.
6.4 Pebble shall (taking into account the nature of the applicable Processing activities):
6.4.1 only Process Employee Personal Data on the Company’s documented instructions, unless Processing is required by applicable laws in which case Pebble shall, to the extent permitted by applicable laws, inform the Company of that legal requirement prior to the relevant Processing of Employee Personal Data;
6.4.2 immediately inform the Company if, in its opinion, an instruction given by the Company infringes Data Protection Laws;
6.4.3 ensure that staff who have access to Employee Personal Data are subject to confidentiality undertakings;
6.4.4 implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk;
6.4.5 assist the Company: (i) by implementing appropriate technical and organisational measures to fulfil the Company’s obligations to respond to requests to exercise Data Subject rights; and (ii) in ensuring compliance with the Company’s obligations pursuant to Articles 32 to 36 of the GDPR;
6.4.6 notify the Company without undue delay on becoming aware of a Personal Data Breach relating to the Employee Personal Data;
6.4.7 at the choice of the Company, delete or return all Employee Personal Data to the Company after the end of the provision of the Pebble
Services and delete existing copies of such Employee Personal Data unless required by applicable laws;
6.4.8 make available to the Company information strictly necessary to demonstrate compliance with the obligations in this clause 6; and
6.4.9 only transfer Employee Personal Data outside of the UK after implementing appropriate safeguards if required under Data Protection Laws.
6.5 The Company hereby grants a general authorisation to Pebble to engage sub-Processors, and Pebble shall:
6.5.1 inform the Company of any intended changes concerning the addition or replacement of sub-Processors;
6.5.2 ensure that the arrangement between Pebble and each sub-Processor is governed by a contract which includes terms which offer at least the same level of protection for Employee Personal Data as those set out in this clause 6; and
6.5.3 where sub-Processors fail to fulfil their data protection obligations, remain fully liable to the Company for the performance of those obligations.
7.1 Each Party will only use confidential information shared pursuant to this Agreement to enjoy its rights and comply with its obligations under this Agreement. Each Party will keep all confidential information strictly confidential and not disclose any part of any confidential information, except where the confidential information to the extent that it is:
7.1.1 already in the receiving Party’s possession or is in the public domain (except due to a third party’s breach of a duty of confidentiality); or
7.1.2 required to be disclosed by law or an order of a court of competent jurisdiction.
7.2 The obligations under this clause 6.1 will continue until the information enters the public domain except through the fault of the receiving Party.
8. TERM AND TERMINATION
8.1 The Agreement will start on the Live Date and continue for three (3) months (the “Initial Term”), following which the Agreement shall, subject to clause 8.2, automatically renewal for consecutive periods of twelve (12) months (each a “Renewal Term”).
8.2 The Company may terminate this Agreement at the end of the Initial Term, or each subsequent Renewal Term, on at least thirty (30) days’ written notice to the other Party.
8.3 Pebble may terminate this Agreement at any time on at least thirty (30) days’ written notice to the other Party.
8.4 Pebble may suspend this Agreement:
8.4.1 immediately on written notice to the Company if the Company fails to comply with its obligations under this Agreement; or
8.4.2 on at least thirty (30) days’ written notice to the Company.
8.5 Upon expiry or termination of this Agreement:
8.5.1 each Party shall return or destroy all of the other Party’s confidential information in its possession or control within thirty (30) days of such expiry or termination (unless reasonably required to retain certain confidential information by law);
8.5.2 all rights and licences in and to the Pebble Platform and the Pebble Services shall automatically cease and the Company shall immediately stop using the Pebble Services;
8.5.3 the Company shall provide a written certificate to the Pebble to confirm that it has complied with the obligations under this clause 8; and
8.5.4 clauses 1, 2.2.8, 4.3, 4.4, 4.5, 6, 7, 8, 9 and 10 shall continue in full force and effect.
9. WARRANTIES AND LIABILITY
9.1 Each Party represents, warrants and undertakes that it has: (i) the requisite rights, consents, power and authority to enter into this Agreement and to perform fully its obligations hereunder; and (ii) not entered into and will not enter into any arrangement which would restrict or inhibit the exercise by the other Party of its rights under this Agreement.
9.2 This clause 9 sets out the entire liability of each Party (and their employees, agents, consultants, and subcontractors) to the other, in respect of any breach of the Agreement, any use by the Company of the Pebble IPR, the Pebble Services or the Pebble Platform, and any representation, statement or tortious act or omission (including negligence) arising in connection with the Agreement.
9.3 Nothing in this Agreement limits or excludes the liability of either Party for death, personal injury, fraud, fraudulent misrepresentation or fraudulent misstatement.
9.4 Subject to clause 9.3, Pebble shall not be liable to the Company for loss of profits, business, goodwill, anticipated savings, goods, contract, use or data, or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5 The total liability of Pebble to the Company arising in connection with the performance, or contemplated performance, of the Agreement, will be limited to the total amount of Fees paid or payable to Pebble under this Agreement.
9.6 Except as expressly provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.7 The Pebble IPR, the Pebble Services, their use and the results of such use are provided “as is” to the fullest extent permitted by law, and Pebble disclaims all express or implied warranties which may be implied in respect of them. The performance of the Pebble Services and the Pebble IPR rely on third parties beyond Pebble’s control. Pebble specifically disclaims any warranty:
9.7.1 that the use of the Pebble Services will be uninterrupted or error-free, that defects will be corrected and that there are no viruses or other harmful components;
9.7.2 that the security methods employed will be sufficient; or
9.7.3 regarding correctness, accuracy, or reliability.
10.1 This Agreement shall be binding upon and inure for the benefit of the successors in title of the Parties hereto.
10.2 Any termination of this Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party.
10.3 This Agreement sets out the entire understanding between the Parties with respect to the subject matter and supersedes all prior oral and written representations, arrangements and understandings between the Parties relating thereto.
10.4 Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties.
10.5 If any part of this Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the Parties’ intentions and the remainder of the provisions will remain in full force and effect.
10.6 No forbearance, delay or indulgence by either Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
10.7 This Agreement is made and shall be construed in accordance with the laws of England and the Parties submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising therefrom.
10.8 A person who is not a Party to this Agreement shall not have any rights under or in connection with it other than to the extent permitted by law.
10.9 The Company may not without the prior written consent of Pebble transfer, assign or novate its rights or obligations under this Agreement.
10.10 All notices to be given under this Agreement must be in English, in writing and sent to the other Party at the address stated at the head of this Agreement (or using such other contact details as either Party has notified to the other).