Provider Service Agreement v3

THIS AGREEMENT is made on Effective Date.

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BETWEEN:

(1) SPROUT CARE LIMITED (trading as "Pebble") whose registered office is situated at Treviot House, 186-192 High Road, Ilford, Essex, United Kingdom, IG1 1LR with registered company number 13045499 (“Pebble”); and 

(2) Yourself (if the Provider is an individual) or the company or organisation that you are submitting on behalf of, as described in the information that you have provided during the course of the sign-up and onboarding process (“Provider”), each a “Party” and together the “Parties”.

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BACKGROUND

A. Provider has requested and Pebble has agreed to grant Provider use of the Pebble Services, upon and subject to the terms and conditions in this agreement.

B. This agreement (Pebble T&Cs, the Pebble DPA and any Confirmation Order Forms) forms an agreement between Pebble and the Provider (the “Pebble Service Agreement”). This Pebble Service Agreement will become effective on the Effective Date. 

C. The Pebble T&s are available here. As soon as possible after agreeing to this Pebble Service Agreement, please ensure that you print a copy of the Pebble T&Cs for your records.

THIS PEBBLE SERVICE AGREEMENT (INCLUDING THE PEBBLE T&Cs, THE PEBBLE DPA AND ANY CONFIRMATION ORDER FORMS) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN PEBBLE AND THE PROVIDER. ‍BY APPLYING TO ENTER INTO THIS PEBBLE  SERVICE AGREEMENT, THIS CONSTITUTES AN OFFER BY YOU, OR THE COMPANY  OR ORGANISATION WHO YOU ARE MAKING THIS OFFER ON BEHALF OF, TO  ENTER INTO AN AGREEMENT WITH SPROUT CARE LIMITED (TRADING AS  “PEBBLE”) ON THE TERMS OUTLINED IN THIS PEBBLE SERVICE AGREEMENT.  SUBJECT TO PEBBLE CONFIRMING THAT YOU HAVE COMPLETED ITS SIGN-UP  AND ONBOARDING PROCESS AND THAT YOUR APPLICATION HAS BEEN  VALIDATED, PEBBLE WILL ACCEPT YOUR OFFER, AND THIS PEBBLE SERVICE  AGREEMENT WILL BE EXECUTED BY PEBBLE AND YOU, OR THE COMPANY OR  ORGANISATION WHO YOU ARE MAKING THIS OFFER ON BEHALF OF, AS  APPLICABLE.

1. DEFINITIONS

1.1 Aside from the terms in this Pebble Service Agreement in bold, other capitalised terms shall have the following meanings:

“Booking Fees” means any fees actually received by Pebble from care seekers via the Pebble Platform when booking Children’s Activities bookings; 

“Children’s Activities” means certain activities, childcare and services aimed at children; 

“Commission Fees” means as stated by Pebble in any Confirmation Order Forms (where applicable), or amended by Pebble in accordance with clause 5.4;

“Confirmation Order Form” means the order form(s) issued by Pebble to Provider  prior to the Effective Date which vary the terms of the Schedule  (Terms and Conditions); Pebble T&Cs;

“Data Protection Laws” means any data protection, privacy, direct marketing 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; 

“Effective Date” means the date on which both Parties signed the relevant Confirmation Order Form;

“Fees” any fees which are payable pursuant to this Pebble Service Agreement (including without limitation Booking Fees, Commission Fees and Subscription Fees);  

“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstances seeking to meet its obligations to the fullest extent possible;

“Initial Term” shall be as stated by Pebble in the relevant Confirmation Order Form;

“Pebble DPA” means the data processing addendum which governs the processing activities which relate to this Pebble Service Agreement, which can be accessed here

“Pebble Platform” means Pebble’s online marketplace which allows care seekers to book, reschedule, check the availability of Children’s Activities and send enquiries relating to Children’s Activities (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; 

“Provider Materials” means any other intellectual property rights, information and materials provided by the Provider to Pebble; 

“Renewal Term” shall be as stated in the relevant Confirmation Order Form;  

“Start Date” means the date on which Pebble commences the provision of Pebble Services to the Provider;  

“Subscription Fees” shall be as stated in the relevant Confirmation Order Form, or as amended by Pebble in accordance with clause 5.4; and

“Term” means the period commencing on the Effective Date and ending on the date on which the Pebble Service Agreement is terminated in accordance with clause 8.

1.2 In this Pebble Service Agreement, unless the context otherwise so requires, “including” means “including, without limitation”.

1.3 In the event that there is any conflict between the terms of the Pebble T&Cs, the Pebble DPA and any Confirmation Order Forms, the order of priority will (unless otherwise expressly stated in the Confirmation Order Forms, the Pebble DPA or the Pebble T&Cs) be as follows:

1.3.1 any Confirmation Order Forms; 

1.3.2 the Pebble DPA; and 

1.3.3 the Pebble T&Cs

2. PROVIDER OBLIGATIONS

2.1 The Provider shall promptly following the Effective Date pay any Fees, to the extent that it is required in accordance with the relevant Confirmation Order Form.

2.2 Following the payment of any Fees pursuant to clause 2.1, the Provider shall, in accordance with the instructions outlined by Pebble:

2.2.1 sign-up to Pebble’s payment provider and promptly comply with any instructions from Pebble in relation to the sign-up and onboarding process; 

2.2.2 complete certain onboarding activities, as notified to the Provider by Pebble; and

2.2.3 submit and provide any information requested by Pebble from time to time (including without limitation during the sign-up and onboarding process).

2.3 During the Term, the Provider shall (and, where applicable, promptly and without undue delay):

2.3.1 provide Pebble with any assistance, Provider Materials and information that Pebble reasonably requires to provide the Pebble Services;

2.3.2 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;

2.3.3 notify Pebble of any actual or anticipated downtimes of the Provider’s information technology for which the Pebble Services are to be provided; 

2.3.4 comply with Pebble’s Code of Conduct, any applicable policies, terms, requirements and agreements (as notified to the Provider by Pebble from time to time), and all applicable laws in relation to the Pebble Services; and

2.3.5 not offer activities to care seekers outside of the Pebble Platform where those care seekers have been introduced to the Provider via the Pebble Platform.

2.4 The Provider must ensure that its personnel comply with the Provider’s terms of use (as notified by Pebble to the Provider from time to time) (the “Terms of Use”) and, where the Provider reasonably believes that the Provider’s personnel are in material breach of the Terms of Use, the Provider shall notify Pebble as soon as reasonably practicable and provide any assistance requested by Pebble. 

2.5 The Provider shall not use the Pebble Platform and any other of its intellectual property rights which may come into the possession of the Provider under this Pebble Service Agreement from time to time (the “Pebble IPR”) to:

2.5.1 provide services to third parties other than care seekers; or

2.5.2 build a product or service which competes with Pebble’s business.

2.6 The Provider shall maintain in force a reasonable and appropriate insurance policy for the Term, taking into account the nature of the Children’s Activities that they are providing.   

2.7 During the Term, the Provider:

2.7.1 acknowledges that Pebble will not provide any insurance cover in respect of the Provider or the Children’s Activities that the Provider is providing; and 

2.7.2 shall maintain in force insurance policies against all risks that would normally be insured against by a prudent businessperson in connection with the risks associated with this Pebble Service Agreement.

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3. PEBBLE SERVICES AND PEBBLE PLATFORM

3.1 Subject to the Provider’s compliance with its obligations under clause 1.2, Pebble shall provide the Pebble Services to the Provider from the Start Date until the end of the Term.

3.2 The Provider may enjoy the benefit of the Pebble Services, provided that:

3.2.1 the Provider complies with this Pebble Service Agreement; and

3.2.2 in the event of a material breach of this Pebble Service Agreement by the Provider, the Provider shall notify Pebble as soon as reasonably practicable and provide any assistance requested by Pebble. 

3.3 Pebble will not be liable for any losses suffered by the Provider if Pebble’s performance of its obligations under this Pebble Service Agreement is prevented or delayed by an act of omission of the Provider or any care seeker.

3.4 Pebble may modify, suspend or discontinue any part of the Pebble Platform or otherwise make any changes it considers desirable to the Pebble Platform. 

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4. INTELLECTUAL PROPERTY

4.1 For the Term, the Provider hereby grants to Pebble a non-exclusive, royalty free, worldwide licence to use the intellectual property rights in the Provider Materials.

4.2  From the Start Date until the end of the Term, Pebble hereby grants to the Provider  a personal non-exclusive, non-sublicensable, non-transferable, royalty free  worldwide licence to use the Pebble Platform to the extent necessary for the  Provider to perform its obligations and enjoy its rights under this Pebble Service  Agreement. 

4.3 Save as set out in this Pebble Service Agreement, Pebble reserves all of its right,  title and interest in the Pebble IPR, and Pebble does not grant the Provider any  intellectual property rights in respect of the Pebble IPR, the Pebble Services, any  intellectual property rights created pursuant to this Pebble Service Agreement or  any related content or materials.  

4.4 The Provider 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 Provider 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 Provider Materials in accordance with the Provider’s  instructions and the terms of this Pebble Service Agreement; and

4.5.2 the Provider’s use of the Pebble IPR,

and the limits and exclusions of liability in clause 9 will not apply to this indemnity.

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5. PAYMENT

5.1 Pebble will invoice the Provider:  

5.1.1 on or shortly after the Effective Date, for the first payment of Subscription  Fees; and 

5.1.2 no later than two (2) weeks prior to the relevant payment due date, in  respect of each subsequent payment of Subscription Fees. 

5.2 The Subscription Fees and Commission Fees shall be collected and paid in  accordance with the relevant Confirmation Order Form.  

5.3 All amounts payable under this Pebble Service Agreement are exclusive of VAT.  

5.4 Pebble may set off any liability of the Provider to Pebble against any liability of  Pebble to the Provider. 

5.5 Pebble may vary the Commission Fees or Subscription Fees on at least 30 days’  written notice to the Provider, following which the Provider may terminate this  Pebble Service Agreement by exercising its termination rights set out in clause 8.  

5.6 If the Provider fails to make any payment of Fees to Pebble within 30 days of the  due date of payment under this Pebble Service Agreement, Pebble may:  

5.6.1 suspend or terminate the Pebble Service Agreement with immediate  effect; and 

5.6.2 withhold any payments of Booking Fees due to the Provider pursuant to  this Pebble Service Agreement, and collected by Pebble from care seekers  via the Pebble Platform from 15 days following the relevant due date of  payment under this Pebble Service Agreement until full payment of the  relevant Fees.  

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6. DATA PROTECTION

Where Pebble Processes Personal Data, the terms of the Pebble DPA shall apply.

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7. CONFIDENTIALITY

7.1 Each Party will only use confidential information shared pursuant to this Pebble  Service Agreement to enjoy its rights and comply with its obligations under this  Pebble Service 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 7 will continue until the information enters the public domain except through the fault of the receiving Party.

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8. TERM AND TERMINATION

8.1 Where an Initial Term and Renewal Term are included within the relevant  Confirmation Order Form, the Pebble Service Agreement will start on the Effective  Date and continue for the Initial Term, following which the Pebble Service  Agreement shall automatically renew for consecutive Renewal Terms, until:  

8.1.1 either Party terminates this Pebble Service Agreement on at least 30  days’ written notice to the other Party, and the Pebble Service Agreement  shall terminate at the end of the then current Initial Term or Renewal  Term (as applicable); or  

8.1.2 Pebble terminates this Pebble Service Agreement otherwise in  accordance with this clause 8.  

8.2 Where an Initial Term is stated within the relevant Confirmation Order Form, but  a Renewal Term is not stated, the Pebble Service Agreement will start on the  Effective Date and continue for the full duration of the Initial Term, and:  

8.2.1 either Party can terminate this Pebble Service Agreement on at least 30  days’ written notice to the other Party, and such notice shall not expire  earlier than the end of the Initial Term; or  

8.2.2 Pebble can terminate this Pebble Service Agreement otherwise in  accordance with this clause 8.  

8.3 Where an Initial Term and Renewal Term are not included within the relevant  Confirmation Order Form, the Pebble Service Agreement will start on the  Effective Date and continue until either Party terminates this Pebble Service  Agreement:  

8.3.1 either Party terminates this Pebble Service Agreement on at least 30  days’ written notice to the other Party; or  

8.3.2 Pebble terminates this Pebble Service Agreement otherwise in  accordance with this clause 8. 

8.4 Pebble may suspend this Pebble Service Agreement: 

8.4.1 immediately on written notice to the Provider if the Provider fails to  comply with its obligations under this Pebble Service Agreement; or 

8.4.2 on at least 30 days’ written notice to the Provider. 

8.5 Pebble may immediately suspend or terminate this Pebble Service Agreement  where: 

8.5.1 (if applicable) the Provider is at any time during the Term rated either  “Satisfactory” or “Inadequate” by the Office for Standards in Education,  Children’s Services and Skills (or “Ofsted”);  

8.5.2 the Provider does not provide Children’s Activities in accordance with  Good Industry Practice; andor

8.5.3 Pebble reasonably believes that the Provider has deliberately  circumvented its payment obligations under the Pebble Platform or this  Pebble Service Agreement (including without limitation where the  Provider is providing Children’s Activities to a care seeker outside of the  Pebble Platform, having been introduced to that care seeker via the Pebble  Platform),  

provided that Pebble notifies the Provider in advance of suspending or terminating,  and explains the reason (s) for suspending or terminating. 

8.6 Upon expiry or termination of this Pebble Service Agreement: 

8.6.1 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);  

8.6.2 all rights and licences in and to the Pebble Platform and the Pebble  Services shall automatically cease and the Provider shall immediately stop  using the Pebble Services;  

8.6.3 any benefits or incentives provided by Pebble to the Provider, in  relation to the Pebble Platform, will no longer be valid; 

8.6.4 the Provider shall provide a written certificate to the Pebble to  confirm that it has complied with the obligations under this clause 8; and 

8.6.5clauses 1, 4, 4.1, 6, 8.5, 9 and 10 shall continue in full force and  effect.

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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 Pebble Service 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 Pebble Service 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 Pebble Service Agreement, any use by the Provider 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  Pebble Service Agreement. 

9.3 Nothing in this Pebble Service 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 Provider 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 Provider arising in connection with the  performance, or contemplated performance, of the Pebble Service Agreement, will  be limited to the total amount of Fees paid or payable to Pebble under this Pebble  Service Agreement.

9.6 Except as expressly provided in this Pebble Service 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.

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10. GENERAL

10.1 This Pebble Service 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 Pebble Service 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 Pebble Service 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 Pebble Service Agreement shall be deemed to constitute a  partnership or agency relationship between the Parties. 

10.5 If any part of this Pebble Service 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 Pebble Service 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  Pebble Service Agreement. 

10.7 This Pebble Service 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 Pebble Service Agreement shall not have any  rights under or in connection with it other than to the extent permitted by law. 

10.9 The Provider may not without the prior written consent of Pebble transfer, assign  or novate its rights or obligations under this Pebble Service Agreement. 

10.10 All notices to be given under this Pebble Service Agreement must be in English, in  writing and sent to the other Party at the address stated at the head of this Pebble  Service Agreement (or using such other contact details as either Party has notified  to the other).