TERMS OF SERVICE
1. ABOUT US
Thanks Ben Limited (company number 12335851) (“Ben”) is a company registered in England whose registered office is at 73 Cornhill, London, United Kingdom, EC3V 3QQ.
To contact us, telephone us at +44 20 4538 1407 or email us at email@example.com. How to give us formal notice of any matter under this Agreement is set out in clause 9.
2. SCOPE OF AGREEMENT:
- The terms and conditions of this Agreement shall apply to all Services ordered by in the purchase order (“Purchase Order”) and provided to you and your affiliates by Ben during the Initial Term and any Renewal Term of this Agreement.
- The Purchase Order constitutes an offer by you to purchase the services specified in the Purchase Order (“Services”) and to be delivered by Ben to you, and your employees (“Users") through an online software application (“Ben Platform").
- Ben’s acceptance of your Purchase Order takes place when Ben sends an email to you to accept it or if earlier commences provision of the Services (“Order Confirmation”) at which point and on which date (“Effective Date”) the Agreement between you and Ben will come into existence.
3. TERM OF AGREEMENT:
- This Agreement shall commence on the Effective Date and shall, unless terminated early as provided in clause 8, for the initial term specified in the Purchase Order (“Initial Term”) and thereafter this Agreement shall be automatically renewed for successive 12 month terms (each a “Renewal Term”), unless:
i) either Party notifies the other Party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term; or
ii) otherwise terminated in accordance with the provisions of this Agreement;
- You shall pay the fees for the Services provided by Ben in accordance with this clause 4 and the Purchase Order.
- Ben shall invoice you the initial fee for all Services delivered under this Agreement on or after the Effective Date. Thereafter, the monthly fee shall be invoiced at the end of every month.
- You shall pay each invoice within thirty (30) days from the date of the relevant invoice (“Due Date”).
- You shall be responsible for all taxes associated with its use of the Services that are attributable or due by you. If an applicable tax authority requires Ben to pay any taxes that should have been payable by you, Ben shall advise you in writing of such request, and you shall either settle the amount with the tax authority or, if necessary, reimburse Ben for the amounts paid.
- If Company has agreed in advance to use Services that require payment of additional fees, it shall pay the additional fees in the manner provided herein. This may happen where you unlock certain modules or additional services, such as Ben’s benefits management service.
- If Ben has not received payment by the Due Date, and without prejudice to any other rights and remedies Ben may have, Ben may:
i) without liability to you, disable your and any User’s password, account and access to all or part of the Ben Platform or the Services and Ben shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
ii) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the Due Date and continuing until fully paid, whether before or after judgment.
- Ben shall be entitled to increase the fees once in any 12 month period in line with the percentage increase in the Consumer Prices Index in the preceding 12 month period or at any time upon written notice to you to cover any additional cost as a result of a change in law.
- Payments for Ben shall be invoiced directly to your Ben Wallet.
- Both Parties shall maintain as confidential and shall not disclose, copy, nor use for purposes other than the performance of this Agreement, any information which relates to the other Party's business affairs, trade secrets, technology, research and development, pricing, commercial, technical, financial, marketing, personnel or creative information or materials, or the terms of this Agreement (“Confidential Information”).
- Both Parties agree to protect the other Party’s Confidential Information with the same degree of care it exercises to protect its own confidential information and to prevent the unauthorised, negligent, or inadvertent use, disclosure, or publication thereof.
- No Party shall use the other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
- Information shall not be deemed Confidential Information if such information:
i) is known to the receiving Party prior to receipt from the disclosing Party or becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party;
ii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or
iii) the receiving Party can demonstrate with evidence that is independently developed by the receiving Party.
- Each Party may disclose the other Party’s Confidential Information where it is required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that the receiving Party, to the extent that is legally permissible, provides prompt written notice to the disclosing Party of such impending release, and the releasing Party cooperates fully with the disclosing Party to minimise such release.
- Upon expiration or termination of this Agreement, both Parties agree to return respective to each other, or at the disclosing party’s request destroy, all such Confidential Information.
- The provisions of this clause 4 shall survive the termination or cancellation of this Agreement.
6. WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION:
a) Ben warrants and undertakes that:
i) it shall comply with all applicable laws and regulations with respect to its obligations under this Agreement;
ii) it has and will maintain all necessary permits, licenses and third party consents to provide the Services; and
b) You warrants and undertakes that:
i) you have the right, power and authority to enter into this Agreement and grant to Ben the rights (if any) contemplated in this Agreement;
ii) you shall comply with all requirements of the Data Protection Laws and the obligations set out in the Appendix to this Agreement;
iii) you are entitled to transfer any personal data to Ben in accordance with of the Appendix to this Agreement.
iv) any documentation, pictures, logos, trademarks, Confidential Information and any other materials you provide to Ben, including but not limited to the licence set out in clause 7, do not infringe the intellectual property of any third party.
Limitation of Liability
c) Except as expressly and specifically provided in this Agreement:
i) Ben makes no other representations or warranties as to the completeness, accuracy, adequacy, currency or reliability of any products or services or any information provided by third party vendors who supply products and services, benefits offers and discounts, to the Users through the Ben Platform (“Suppliers”) and shall not be liable for any lack of the foregoing or for any losses of data, programs, breaches of security, viruses and disabling or harmful devices that Users may download or otherwise experience as a direct result of their use of the Services other than as permitted under the Agreement and the Platform Terms of Service. Descriptions of or references to products or services offered as part of the Services does not imply Ben’s endorsement of those products or services; and
ii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
d) Nothing in this Agreement shall exclude or limit either Party’s liability to the other for any liability which cannot legally be limited including liability for personal injury or death caused by negligence, or for fraud or fraudulent misrepresentation.
e) Subject to clause 6(d), neither Party shall be liable, (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any:
i) indirect or consequential loss;
ii) loss of profits;
iii) loss of sales or business;
iv) loss of agreements or contracts;
v) loss of anticipated savings;
vi) loss of use or corruption of software, data or information; and
vii) loss of or damage to goodwill,
howsoever caused arising out of or in connection with any breach of this Agreement even if advised of the possibility of such damages.
- Subject to clause 6(d) and clause 6(e), each Party’s aggregate liability under this Agreement shall be limited to one hundred and twenty five percent of the Fees paid or payable to Ben pursuant to this Agreement in the 12 month period prior to the event that gave rise to the liability or if less than 12 months has expired the amount payable by you to Ben in the first 12 months of the Agreement.
- You accept and acknowledges that any products and services purchased or accessed by Users are sourced directly from Suppliers. All claims and actions relating to such products or services shall be raised against the Suppliers.
- Each Party warrants that they shall comply with the laws, rules and regulations of all applicable jurisdictions, including but not limited to all anti-money laundering laws, and anti-corruption laws, including as applicable the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and laws and regulations promulgated under the OECD Convention on Combating Bribery of Foreign Public Officials. Neither Party shall, directly or indirectly, make, authorise or provide any payments, gifts or things of value, or make offers or promises thereof, to any person or to an official or employee of any national, state, regional or local government or of any agency or instrumentality thereof, or to any candidate for public office, or to any political party, or any officer or employee thereof, nor make or offer, or agree to make any political contributions.
- The provisions of clauses 6(c) to (g) shall survive the termination or cancellation of this Agreement.
- You acknowledges that save for any documentation, pictures, logos, trademarks, Confidential Information and any other materials provided by you, all documentation, pictures, logos and trademarks and other materials on the Ben Platform (“Materials”) shall be owned or licensed by Ben and nothing in this Agreement shall confer any ownership or other intellectual property rights in such Materials to you.
- With respect to Materials obtained through, exported, or created for you by the Ben Platform, Ben grants you a non-exclusive, non-transferable, non-sublicensable licence to use such Materials only in connection with the Services limited to the time you is a Ben subscriber.
- You hereby grant Ben a licence to use its logos and graphics to operate the Services for the Users.
- This Agreement may be terminated by either Party giving a minimum of 30 days notice in writing to the other Party.
- Either Party may terminate this Agreement at any time by giving notice in writing to the other party if:
i) the other Party commits a material breach of this Agreement and such breach is not remediable; or
ii) the other Party commits a material breach of this Agreement which is not remedied within 14 days of receiving written notice of such breach;
- Either Party may terminate this Agreement at any time by giving notice in writing to the other Party if:
i) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9. GENERAL PROVISIONS:
- Any modification or waiver of any provision in this Agreement must be made in writing and signed by authorised representatives of both Parties.
- This Agreement may not be assigned by you without the prior written consent of Ben. Ben may transfer and assign any of its rights and obligations without consent. This Agreement shall bind and continue for the benefit of the Parties and their respective successors and permitted assigns.
- If any clause, term or provision of this Agreement shall be judged to be invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other clause, term or provision in this Agreement.
- Failure of either Party at any time to enforce any of the provisions of this Agreement shall not be deemed to be a waiver of such or any other provision.
- Neither Party shall be liable under this Agreement by reason of any failure or delay or for the consequences of any failure or delay in performance of its obligations (except for any payment obligations as are due and payable at the time of the following events) if it is due to natural disasters, war, governmental action or any other cause beyond the reasonable control of such Party. The Party delayed shall be entitled to a reasonable extension of time in performing such obligations, provided it has notified the other Party in writing of the cause and the likely duration of the delay or non-performance and provided that the affected Party shall use reasonable endeavours to limit the effect of such event on such other Party.
- Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office.
i) Any notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the proper address; if sent by email at the time of transmission, or, if this time falls outside 9am to 5pm on a business day in the place of receipt, 9am on the next business day.
ii) This clause 9(g) does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- The Parties to this Agreement do not intend any of its terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
- This Agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
DATA PROTECTION (Appendix)
Data Protection Laws
All applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Responsibilities in relation to personal data
1.1 The parties agree that you are a controller and that Ben is a processor for the purposes of processing personal data pursuant to this Agreement. You shall at all times comply with all Data Protection Laws in connection with the processing of personal data. You shall ensure all instructions given by you to Ben in respect of personal data (including the terms of this Agreement) shall at all times be in accordance with all Data Protection Laws.
1.2 Ben shall process personal data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.
1.3) The parties agree:
1.3.1) Ben shall only process (and shall ensure Ben personnel only process) the personal data in accordance with your instructions in this Appendix and this Agreement (including with regard to any transfer to which paragraph 1.10 relates), except to the extent:
- that alternative processing instructions are agreed between the parties in writing; or
- otherwise required by applicable law (and shall inform you of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
1.3.2) If Ben believes that any instruction received by it from you is likely to infringe the Data Protection Laws it shall be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing. The Charges payable to Ben shall not be discounted or set-off as a result of any delay or non-performance of any obligation in accordance with this paragraph 1.3.2.
1.4) Ben shall implement and maintain adequate technical and organisational measures to protect the personal data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
Sub-processing and personnel
1.5) Ben shall:
1.5.1) not permit any processing of personal data by any sub-processor without your prior specific written authorisation;
prior to any sub-processor carrying out any processing activities in respect of the personal data, ensure such sub-processor is appointed under a binding written contract containing materially the same obligations as under this Appendix (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) and ensure such sub-processor complies with all such obligations;
- remain fully liable to you under this Agreement for all the acts and omissions of each sub-processor as if they were its own; and
- ensure that all [natural] persons authorised by Ben or any sub-processor to process personal data are subject to a binding written contractual obligation to keep the personal data confidential.
- You authorise the appointment of the sub-processors used by Ben as at the date of this Agreement. Ben shall notify you before appointing any new sub-processors.
- You shall reply to any communication from Ben requesting any further prior specific authorisation of a sub-processor pursuant to paragraph 1.5.1 promptly and in any event within  Business Days of request from time to time. You shall not unreasonably withhold, delay or condition any such authorisation.
Ben shall (at your cost and expense):
- assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the UK GDPR taking into account the nature of the processing and the information available to Ben; and
- taking into account the nature of the processing, assist you (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of your obligations to respond to requests for exercising the data subjects’ rights under Chapter III of the UK GDPR in respect of any personal data.
- Ben shall refer to you all requests it receives for exercising any data subjects’ rights under Chapter III of the UK GDPR which relate to any personal data. It shall be your responsibility to reply to all such requests as required by applicable law.
- Ben shall not process and/or transfer, or otherwise directly or indirectly disclose, any personal data in or to any country or territory outside the United Kingdom without the prior written authorisation of you except where required by applicable law (in which case the provisions of paragraph 1.3.1 shall apply).
Audits and processing
- Ben shall, in accordance with Data Protection Laws, make available to you on request such information that is in its possession or control as is necessary to demonstrate Ben’s compliance with the obligations placed on it under this Appendix and to demonstrate compliance with the obligations on each party imposed by Article 28 of the UK GDPR, and allow for and contribute to audits, including inspections, by you (or another auditor mandated by you) for this purpose (subject to a maximum of one audit request in any 12 month period under this paragraph 1.11).
- Ben shall notify you without undue delay and in writing on becoming aware of any personal data breach in respect of any personal data.
Deletion/return and survival
- On the end of the provision of the Services relating to the processing of personal data, at your cost and expense and your option, Ben shall either return all of the personal data to you or securely dispose of the personal data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Ben to store such personal data.
- This Appendix shall survive termination or expiry of this Agreement:
- indefinitely in the case of paragraph 1.13; and
- in the case of all other provisions of this Appendix, until the later of:
- the termination or expiry of this Agreement; or
- return or secure deletion or disposal of the last of the personal data in Ben’s (or any of its sub-processor’s) possession or control in accordance with this Agreement.