Terms and Conditions
- Acceptance of these terms
- These terms are between Breedr Limited (“we“, “us“, “our“) and our customer (“you“, “your“). Your access to and use of the Service is conditional upon your acceptance of these terms.
- If you are not a Premium Member then your consideration for receiving the licence to use the Service in clause 4.1 is the recording of your Customer Data using the Service.
- If you are accepting these terms on behalf of another person (such as your business, your employer or an organisation you represent) then you warrant that you have obtained that person’s agreement to these terms and that you are authorised to accept these terms on their behalf.
- We may update these terms from time to time. We will notify you of any changes and you will be prompted to accept our updated terms next time you log in to the Services. If you are a Premium Member and do not agree to our updated terms then you may contact us to terminate your membership subscription.
- The following definitions and rules of interpretation apply in these terms:
- “Authorised Users” your employees, agents and independent contractors who are authorised by you to use the Service in the ordinary course of your business.
- “Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- “Conclusion” or “Concluded” or such other variation of the word means the earlier of (i) payment of the Transaction purchase price by the purchaser under the Sale Agreement; and (ii) confirmation that the livestock sold and/or purchased under the Sale Agreement has been received either through in-app confirmation by the purchaser or, as recorded on the Cattle Tracing System (CTS) maintained by the British Cattle Movement Service (BCMS) (or equivalent services in other jurisdictions).
- “Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.
- “Controller“, “processor“, “data subject“, “personal data“, “personal data breach“, “processing” and “appropriate technical and organisational measures“: as defined in the Data Protection Legislation.
- “Customer Data” the data inputted by you, your Authorised Users, or us on your behalf (whether supplied by you or an authorised third party) for the purpose of using the Service or facilitating your use of the Service.
- “Data Protection Legislation” the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
- “Enterprise Membership Letter” if you are an Enterprise Member, the letter we may send to you varying these Terms.
- “Membership Fee” the fee payable to receive access to additional features of the Service. Our current Membership Fees are set out on our Website, unless varied by an Enterprise Membership Letter.
- “Membership Term” the duration of your Premium Member subscription, which renews automatically in accordance with clause 3.2.
- “Normal Business Hours” 8.00 am to 6.00 pm local UK time, each Business Day.
- “Premium Members” Enhanced Members and Enterprise Members who pay a Membership Fee to receive access to additional features of the Service.
- “Renewal Period” has the meaning given in clause 3.2.
- “Sale Agreement” means, as appropriate: (i) the Breedr standard sale agreement between you and a seller or purchaser of livestock under which a Transaction is Concluded; and/or (ii) any other third party sale agreement which you choose to upload to via the Breedr platform to Conclude the Transaction.
- “Service” the services provided by us to you under these terms via our Website and the Breedr app. The features of the Service which are available to you will vary depending on whether you are a Premium Member or not, and your level of membership. Further details on the features of the Service are available on our Website and (if applicable) in your Enterprise Membership Letter.
- “Service Fee” the percentage fee payable to us upon Conclusion of a Transaction. Our current Service Fees are set out on our Website, unless varied by an Enterprise Membership Letter.
- “Software” the Breedr online software applications provided by us as part of the Service.
- “Term” means:
- for Premium Members, your Membership Term; and
- for all other users, until such time as you or we terminate your access to the Service.
- “Transaction” means the sale and/or purchase of livestock Concluded under the Sale Agreement.
- “UK Data Protection Legislation“: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- “Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- “Website” www.breedr.co or such other web address as we notify you from time to time.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these terms under that statute or statutory provision.
- A reference to writing or written excludes fax but includes e-mail.
- References to clauses are to the clauses of these terms.
- Any words following the terms “including“, “include“, “in particular“, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- These terms take effect on the earlier of:
- your access to the Service; and
- (if applicable) the commencement of your Membership Term,
and shall continue for the Term unless terminated earlier in accordance with clause 14 or clause
- If you are a Premium Member then your Membership Term will extend automatically for successive one (1) year periods unless another period is stated in your Enterprise Membership Letter (each a “Renewal Period“) unless:
- being an Enhanced Member, you give us thirty (30) days’ written notice to terminate, such notice to take effect at the end of the current Membership Term or Renewal Period (as applicable); or
- being an Enterprise Member, you give us three (3) months’ written notice to terminate unless another notice period is set out in your Enterprise Membership Letter.
4. Access to the service
- Subject to clause 4.3 and your continued compliance with these terms, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sublicences, to permit your Authorised Users to use the Service during the Term solely for your internal business operations.
- Certain features of the Service are only available to Premium Members. Please refer to our Website for a description of the Service features available at each membership level. You can upgrade your membership level at any time using our Website, the Breedr app, or by contacting us at email@example.com.
- The rights provided under clause 4.1 are granted to you only, and shall not be considered granted to any subsidiary or holding company of yours without our prior express written agreement signed by our authorised representative. If you require access for a company within your corporate group then we would be pleased to discuss these requirements with you.
5. Our Obligations
- We will provide the Service to you, on and subject to these terms.
- We undertake that the Service will be performed substantially in accordance with the specification applicable to your level of membership, and with reasonable skill and care, save to the extent that any non-conformance is caused by your use of the Service contrary to our instructions, or modification or alteration of the Service by any party other than us (or our duly authorised contractors or agents).
- If the Service does not conform to the undertaking in clause 5.2 then, at our expense, we will use reasonable commercial endeavours to promptly correct the non-conformance, or provide you with an alternative means of accomplishing the desired performance or terminate your access to the service and provide a refund for your current subscription. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 5.2.
- We shall use commercially reasonable endeavours to make the Service available twenty four (24) hours a day, seven (7) days a week, except for:
- planned maintenance carried out during the maintenance window of 10.00pm to 2.00am UK time;
- unplanned non-critical maintenance where we have given you at least six (6) Normal Business Hours’ notice in advance; and
- critical maintenance where it is not commercially reasonable to give you at least six (6) Normal Business Hours’ notice in advance.
- We will, as part of the Service, provide you access to our online technical support documentation and our online web chat support service during Normal Business Hours. We may amend these support services at our sole and absolute discretion from time to time. You can purchase enhanced support services from us separately, please contact us at firstname.lastname@example.org.
- We do not warrant that:
- your use of the Service will be uninterrupted or error-free; or the Service and/or the information obtained by you through
- the Service will meet your requirements.
- We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- These terms shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these terms.
- We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under these terms.
- Where we receive funds on your behalf in relation to a contract for the sale or purchase of livestock with another user of the Service, we hold such funds as your agent but we shall have no obligation to account to you for any interest or other benefit (financial or otherwise) which we receive as a result of us holding such funds.
6. Your obligations
- You shall:
- provide us with:
- all necessary co-operation in relation to these terms; and
- all necessary access to such information as may be required by us, in order to provide the Service, including but not limited to Customer Data, security access information and configuration services;
- without affecting your other obligations under these terms, comply with all applicable laws and regulations with respect to your activities under these terms;
- carry out your other responsibilities set out in these terms in a timely and efficient manner. If you delay in providing assistance to us then we may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that your Authorised Users use the Service in accordance with these terms. You are responsible for any Authorised User’s breach of these terms;
- obtain and maintain all necessary licences, consents, and permissions necessary for you and your Authorised Users to perform your obligations under these terms;
- access and the Service, and information or data provided via the Service, for your internal business operations only. For the avoidance of doubt, you must not extract, share, sell or distribute any information or data obtained from the Service unless expressly permitted by these terms;
- ensure that your network and systems comply with the relevant specifications provided by us from time to time;
- be, to the extent permitted by law and except as otherwise expressly provided in these terms, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and
- ensure all Customer Data is lawful, reliable, accurate and up to date.
- provide us with:
7. Restrictions on your use of the Service
- You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Service that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
- is otherwise illegal or causes damage or injury to any person or property; or
- otherwise contravenes any conduct rules published on our Website, as may be updated from time to time,
and we reserve the right, without liability or prejudice to our other rights to you, to disable your access to any material that breaches the provisions of this clause.
- You shall not:
- deliberately or negligently submit or distribute false, misleading or inaccurate Customer Data using the System;
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these terms:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Service or documentation made available by us in order to build a product or service which competes with the Service; or
- use the Service or documentation made available by us to provide services to third parties without our prior express agreement; or
- subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except your Authorised Users, or
- attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under these terms; or
- introduce or permit the introduction of, any Virus into our network and information systems.
- You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, notify us immediately.
- You may not use information you have obtained through the Service to buy or sell livestock outside of the Service. You agree to pay us the Service Fee for each Concluded Transaction arranged through the Service, even if the Transaction is ultimately not Concluded using the Service.
8. Charges and payment
- If you are a Premium Member or you upgrade to become a Premium Member, you shall pay us the Membership Fee in accordance with this clause 8.
- You shall pay your Membership Fee by way of direct debit or credit card or such other method as we agree with you at the point of your registration. Enhanced Members’ Membership Fees are payable annually in advance. Enterprise Members’ Membership Fees are payable monthly in advance.
- We may increase the Membership Fee upon giving thirty (30) days’ prior notice to you but no more than annually.
- Your use of certain features of the Service will entitle us to the Service Fee. This is principally where you use the Service to sell or purchase livestock to/from another user. You will be informed of the amount of the Service Fee before the Sale Agreement is entered into. You must pay the Service Fee when you Conclude the Transaction. If we receive sale proceeds on your behalf then we will deduct the applicable Service Fee from the funds we hold before remitting the balance to you.
- All amounts and fees stated or referred to in these terms:
- shall, unless otherwise indicated, be payable in pounds sterling;
- are, subject to clause 13.2, non-cancellable and non-refundable;
- are exclusive of value added tax, which shall be added to our invoice at the appropriate rate.
- If we have not received payment of any sums due from you within thirty (30) days after the due date, and without prejudice to any other rights and remedies we have:
- we may, without liability to you, disable your access to all or part of the Service and we shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to four percent (4%) over the then current base lending rate of HSBC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- Interacting and contracting with other Service users
- The Service enables you to correspond, and enter into legally binding contracts for the sale and purchase of livestock, with other users. You accept that you do so at your own risk. Unless expressly stated in these terms, we make no representation, warranty or commitment, and shall have no liability or obligation whatsoever in relation to your correspondence or contracts with other users of the Service. Subject to clause 13.2, we disclaim any liability whatsoever relating to accuracy of data or descriptions submitted by other users of the Service. You are advised to take independent advice as to the description or quality of the livestock listed on the Breedr App.
- For the avoidance of doubt, any contract you enter into with another user of the Service is between that user and you, only. We are not a contractual party to that contract.
- All commercial transactions carry a degree of risk and you should conduct appropriate commercial and legal due diligence before entering into a contract with another user through the Service. You must read such contractual terms carefully before accepting them and we recommend you obtain specialist legal advice should you have any questions. We are unable to advise you on the terms of third party contracts. For the avoidance of doubt, other users’ contractual terms have not been approved or endorsed by us.
- Certain features of the Service may result in you receiving a suggestion of users or livestock which meet your chosen criteria. These suggestions are provided for your convenience only and are based on automated statistical analysis. These suggestions are not endorsements by us of a proposed transaction, or particular users or qualities of livestock. You must read and independently assess all supplied information carefully before committing to a contract with another user, even if the counterparty has been automatically suggested to you by the Service.
- Unless expressly stated otherwise in these terms, we accept no liability as a result of your failure to comply with this clause 9.
- Proprietary rights
- You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Service. Except as expressly stated herein, these terms do not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Service.
- We confirm that we have all the rights in relation to the Service that are necessary to grant all the rights we purport to grant to you under these terms.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. Our Confidential Information includes all information made available to you through the Service which does not fall within the scope of clause 11.2 and which is not Customer Data.
- A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 11.5, you and we each agree to hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these terms (which on our part, includes the provision of the Services).
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms.
- Each party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- We acknowledge that Customer Data is your Confidential Information.
- Please be aware that you may receive access to other users’ confidential information, or grant access to your confidential information to other users, through the Service. This typically includes information relating to tracked livestock and may give rise to separate duties of confidentiality between you and that other user. You hereby agree to respect that duty of confidentiality.
- The above provisions of this clause 11 shall survive termination of these terms, however arising.
- You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Service, provided that:
- we give you prompt notice of any such claim;
- we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
- you are given sole authority to defend or settle the claim.
- We shall defend you, your officers, directors and employees against any claim that your use of the Service in accordance with these terms infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
- you give us prompt notice of any such claim;
- you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
- we are given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, we may procure the right for you to continue using the Service, replace or modify the Service so that they become non-infringing or, if such remedies are not reasonably available, terminate these terms on two (2) Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
- In no event shall we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
- a modification of the Service by anyone other than us; or
- your use of the Service in a manner contrary to our instructions to you; or
- your use of the Service after notice of the alleged or actual infringement from us or any appropriate authority.
- This clause 12, which is subject to clause 13, states your sole and exclusive rights and remedies, and our (including our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- Limitation of liability
- Except as expressly and specifically provided in these terms:
- you assume sole responsibility for results obtained from your use of the Service, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, or any actions taken by us at your direction;
- 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 these terms;
- the Service are provided to you on an “as is” basis; and
- we accept no liability whatsoever or howsoever caused arising from any Sale Agreement.
- Nothing in these terms excludes our liability for:
- death or personal injury caused by our negligence; or
- fraud or fraudulent misrepresentation.
- Subject to clause 13.1 and clause 13.2:
- we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms; and
- our total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms shall be limited to:
- one hundred and ten percent (110%) of the total Membership Fees and Service Fees paid during the twelve (12) months immediately preceding the date on which the claim arose; or
- if you have not been a Premium Member in any of the twelve (12) months preceding the date of the claim arising, the greater of:
- 110% of Service Fees received from you in the preceding twelve (12) months; and
- five thousand pounds (£5,000).
- Without affecting any other right or remedy available to it, either party may terminate these terms with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under these terms on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of these terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified in writing to do so;
- the other party repeatedly breaches any of these terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these terms;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1.4 to clause 14.1.11 (inclusive).
- On termination of these terms for any reason:
- all licences granted to you under these terms shall immediately terminate and you shall immediately cease all use of the Service;
- you shall return and make no further use of any property, documentation and other items (and all copies of them) belonging to us;
- subject to clause 14.2.4, we may destroy or otherwise dispose of any of Customer Data in our possession unless we receive, no later than ten (10) days after the effective date of the termination of these terms, a written request for the delivery to you of the then most recent back-up of Customer Data. We shall use reasonable commercial endeavours to deliver the back-up to you within thirty (30) days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data;
- you agree that our right to anonymise, aggregate and retain Customer Data set out in clause 15.3 below remains unaffected and shall survive termination for any reason; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Customer Data
- You are solely responsible for ensuring that all Customer Data is lawful, reliable, accurate and up to date. Each time Customer Data is inputted into the Service, you warrant your compliance with this clause 15.1.
- To the extent that any intellectual property rights subsist in your Customer Data, you hereby irrevocably and perpetually licence our global use of such data (excluding any personal data) in order for us to provide the Service and otherwise use in the course of our business.
- You agree that we are permitted to aggregate and retain Customer Data for our own purposes (such as but not limited to benchmarking and analytics purposes) provided that such Customer Data is anonymised at the point of aggregation (at which point it ceases to be Customer Data) and that at no time do we attempt to re-identify any anonymised such data in the future. This is necessary in order to provide the Service and to enhance your experience of the Platform.
- We shall take commercially reasonable steps to archive Customer Data. In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up maintained by us in accordance with our archiving procedure. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up for which we shall remain fully liable under clause 15.10).
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- You and we acknowledge that:
- if we process any personal data on your behalf when performing our obligations under these terms, you are the controller and we are the processor for the purposes of the Data Protection Legislation;
- clause 15.12 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject; and
- in accordance with clause 15.8.2, the personal data may be transferred or stored outside the EEA or the country where you and your Authorised Users are located in order to carry out the Service and our other obligations under these terms.
- Without prejudice to the generality of clause 15.5, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of these terms so that we may lawfully use, process and transfer the personal data in accordance with these terms on your behalf.
- Without prejudice to the generality of clause 15.5, we shall, in relation to any personal data processed in connection with the performance by us of our obligations under these terms:
- process that personal data only on your documented written instructions unless we are required to process that personal data by (for so long as and to the extent that they apply to the Provider) the laws of any member of the European Union, the laws of the European Union, and/or Domestic UK Law (whereby “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK) (“Applicable Laws“). Where we are relying on Applicable Laws as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
- not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
- you or we have provided appropriate safeguards in relation to the transfer;
- we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- we comply with reasonable instructions notified to us in advance by you with respect to the processing of the personal data;
- as data processor assist you (as the ultimate data controller), at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify you without undue delay on becoming aware of a personal data breach;
- at your written direction, delete or return personal data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
- maintain complete and accurate records and information to demonstrate our compliance with this clause 15 and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
- Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
- You hereby consent to us appointing the parties listed on our Website from time to time at [link] as third-party processors of personal data under these terms. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in either case which we confirm reflect and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 15.10.
- Either party may, at any time on not less than thirty (30) days’ notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these terms).
- Processing of personal data by us
- Scope – As specified by these terms.
- Nature – Processing necessary for the provision of the Service, including features which allow you to share your personal data with other users.
- Purpose of processing – To provide the Service, being the Breedr software platform and related functionality.
- Duration of the processing – For the duration of these terms, subject to any overriding requirements for us to process the data for a longer period for administrative, compliance or audit purposes.
- Types of personal data – Names, addresses and contact information, payment information such as bank details, plus any personal data incidentally disclosed by you (including in communications with other users).
- Categories of data subject – Primarily staff and representatives of your business.
16. Force majeure
We shall have no liability to you under these terms if we are prevented from or delayed in performing our obligations under these terms, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that we notify you of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of these terms and the Schedules, the provisions in the main body of these terms shall prevail.
No variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. Rights and remedies
Except as expressly provided in these terms, the rights and remedies provided under these terms are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these terms.
- If any provision or part-provision of these terms is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
- These terms (plus our app EULA, Enterprise Membership Letter and any agreement for enhanced support services) constitute the entire agreement between you and us, and supersede and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to their subject matter.
- Each party acknowledges that in entering into these terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms.
- You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these terms.
- We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these terms.
24. No partnership or agency
Except as provided in clause 5.10, nothing in these terms is intended to or shall operate to create a partnership between you and us, or authorise either party to act as agent for the other, and neither you nor we shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. Third party rights
These terms does not confer any rights on any person or party (other than you, us and, where applicable, your and our respective successors and permitted assignees) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Any notice required to be given under these terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address or principal place of business. Notices may also be sent by email:
- to us at email@example.com; and
- to you at the email address you have nominated at the point of registration for service of notices or as otherwise notified to us from time to time at firstname.lastname@example.org.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause “business hours” means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
27. Governing law
These terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or their subject matter or formation (including non-contractual disputes or claims).
If you have any questions about these Terms, please contact us.