IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
IF YOU DO NOT PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR ON GOING USE OF THE LIMITED SUBSCRIPTION SERVICES AVAILABLE FOR FREE FROM The Deaf Gym.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are The Deaf Gym’s direct competitor, except with The Deaf Gym’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is between the entity or individual entering into this Agreement (“Customer”) and The Deaf Gym Limited (“The Deaf Gym”). It is effective between Customer and The Deaf Gym as of the date of your acceptance of this Agreement (“the Effective Date”).
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMISATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING THE THIRTY DAY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING THE THIRTY DAY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with The Deaf Gym or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications and associated reference, user and technical guides as named and described in Schedule 1 of this Agreement.
1.3 "Customer Data" means all electronic data or information submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer.
1.4 “Order” means (i) the agreed ordering document for the purchase of the Services, (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase and fees to be paid.
1.5 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order.
1.6 “User Guide” means the online documentation for the Subscription Service, which includes functional guides and technical specifications, as updated by The Deaf Gym from time to time.
Subject to Customer’s payment of applicable fees, The Deaf Gym will provide Customer with access to the Subscription Service as set forth in this Agreement and the applicable Order. An Order may be entered into under this Agreement by and between (a) The Deaf Gym or an Affiliate of The Deaf Gym; and (b) the Customer or an Affiliate of Customer. With respect to an Order, the terms “The Deaf Gym” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and The Deaf Gym will separately invoice the Customer named in the Order for the associated subscription fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order.
3.1 Access Rights. Subject to the terms of this Agreement, The Deaf Gym hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to access and use the Subscription Services (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the Order.
3.2 The Deaf Gym Responsibilities. The Deaf Gym will (i) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) use commercially reasonable efforts to maintain the security of Customer passwords; (iii) provide the support described on The Deaf Gym’s website (“Support”) to Customer for the Subscription Services, which may be changed by The Deaf Gym upon prior notice to Customer. For more information, please visit our support portal and knowledge base.
3.3 Customer Responsibilities and Restrictions.
3.3.1 Customer will (i) prevent unauthorised access to, or use of, the Subscription Services, and notify The Deaf Gym promptly of any such unauthorised access or use, and (ii) comply with all applicable laws in using the Services.
3.3.2 Customer will not (i) modify, copy or create derivative works based on the Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks; (ix) use any components provided with the Services separately from the Services; or (x) distribute, rent, lease, sublicense or provide the Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
FEES AND PAYMENT.
4.1 Fees. The fees payable and method of payment for the Subscription Services will be set out in the Order and are incorporated into this Agreement by reference and are legally binding.
4.2 Timing of Payment.
4.2.1 Monthly Account. Customer’s credit/debit card (details of which are provided in the Order) will be charged the fees set out in the Order on the same date of each month beginning with the date the Subscription Services were first purchased.
4.2.2 Yearly Account. Customer’s credit/debit card (details of which are provided in the Order) will be charged the fees set out in the Order on the same date each year beginning with the date the Subscription Services were first purchased.
4.2.3 No refunds. Once a Customer has made a payment (including any additional services, custom apps and add-on features), pursuant to clause 4.2.1 or 4.2.2, the Customer has purchased the Subscription Services for the corresponding period of time and The Deaf Gym will be under no obligation to refund any payment made if the Customer then chooses to terminate this Agreement or no longer wishes to use the Subscription Services at an earlier date than the end of such period of time.
4.3 Auto Renewal. If the Customer does not terminate this Agreement in accordance with clause 5 below, then the Agreement will continue and payments will continue to be taken from the Customer’s credit/debit card as per this clause 4 and the Order until such time as this Agreement is properly terminated. All services automatically renew at the standard* rate using the same payment method, unless you request a change or choose to cancel. Prices ex. VAT. *The Deaf Gym often offers promotions and special offers to Customers during their initial term. These special offers are limited-time promotional prices that are available to new Customers only and are valid for the initial term only. Upon renewal, the Customer will be billed at the regular rates, as are set out in the Order.
4.4 Taxes. Customer will pay or reimburse The Deaf Gym or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on The Deaf Gym’s net income or arising from the employment relationship between The Deaf Gym and its personnel) imposed in connection with the fees paid for the Services, which are exclusive of these taxes.
4.5 Suspension of Subscription Services. In addition to its other rights and remedies, The Deaf Gym reserves the right, without liability to the Customer, to suspend any and all access to the Subscription Services if Customer’s account becomes more than thirty (30) days past due until all accounts are paid in full. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
TERM AND TERMINATION.
5.1.1 Agreement. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Clause 5.2 below.
5.1.2 Order(s). Each Order will begin on the start date specified in the relevant Order and continue for the subscription term as specified in this Agreement.
5.2.1 Termination for Convenience.
188.8.131.52 Monthly Account. Upon 3 day's written notice, either party may terminate this Agreement for its convenience.
184.108.40.206 Yearly Account. Upon 30 days’ advance written notice, either party may terminate this Agreement for its convenience. An Order may not be terminated for convenience unless otherwise agreed.
5.2.2 Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.2.3 Suspension of Services for Cause. In addition to its other rights and remedies, The Deaf Gym reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of this Agreement or an Order until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within 30 business days, then The Deaf Gym may immediately terminate the Agreement and/or the Order.
5.3 Effects of Termination. Upon termination pursuant to 5.2above, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to The Deaf Gym. Upon written request by Customer made within 30 days after the effective date of termination, The Deaf Gym will make available to Customer a file containing the Customer Data. After such 30 day period, The Deaf Gym shall have no obligation to maintain or provide any Customer Data and may thereafter delete Customer Data.
LIMITED WARRANTY. The Deaf Gym warrants to Customer that the Subscription Service (i) will perform in substantial accordance with the then-current on-line user guide available via the Subscription Service and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and The Deaf Gym’s sole obligation for breach of the warranty in this Clause 6 will be The Deaf Gym’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the applicable user guide, or replace the non-conforming portion of the Subscription Service within a reasonable period of time, or if The Deaf Gym cannot have the Subscription Service perform in substantial accordance with the user guide or replace the Subscription Service within such time period, then The Deaf Gym will refund the amount paid by Customer for the Subscription Service, pro-rated from the date of the notice of the claim. Customer’s rights and The Deaf Gym’s obligations in this Clause 6 are conditioned upon Customer’s providing The Deaf Gym with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, The Deaf Gym, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. The Deaf Gym, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. The Deaf Gym, its Affiliates or licensors retain all right, title and interest to the Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. The Deaf Gym owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. The Deaf Gym reserves any rights not expressly granted to Customer.
7.2 “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to The Deaf Gym , and its licensors, the Services; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.3 Notice Obligation. If the Recipient becomes aware of any unauthorised use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, requests for information, or documents in legal proceedings, summons , or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding the foregoing, Customer agrees that The Deaf Gym may refer to Customer as a customer of The Deaf Gym, both internally and in externally published media.
7.4 Customer Data. As between The Deaf Gym and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data are deemed Confidential Information under this Agreement. The Deaf Gym will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including applicable privacy laws and regulations and its agreements with third parties who generate and/or process the Customer Data, relating to the collection, use, processing and transfer of Customer Data. Customer acknowledges and consents that Subscription Services provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated. Customer is solely responsible for the transmission of Customer Data to The Deaf Gym and to the Subscription Services.
DISCLAIMERS AND LIMITS ON LIABILITY.
8.1 Disclaimer Customer acknowledges that, except as otherwise expressly provided herein, The Deaf Gym, its affiliates and licensors make no warranty, express, implied or statutory with respect to the Subscription Services or use thereof. The Deaf Gym, its affiliates and licensors hereby expressly disclaim all other warranties, including, without limitation, any warranty that services will be uninterrupted, error free or without delay, and the implied warranties of merchantability, fitness for a particular purpose, non-interference, non-infringement and information content.
8.2 Disclaimer of Damages. Except for a breach of Clause 3.3 and each party’s responsibilities in Clause 9, neither party or its affiliates are liable for any special, indirect, incidental, punitive or consequential damages relating to or arising out of this Agreement or the Subscription Services (including, without limitation, lost profits, lost computer usage time, and damage to, or loss of use of, data), even if advised of the possibility of such damages, and irrespective of any negligence of a party or whether such damages result from a claim arising under tort or contract law.
8.3 Limits on Liability. Except for a breach of Clause 3.3 and each party’s responsibilities in Clause 9, neither party or its affiliates shall have aggregate liability arising out of or related to this agreement or the services, whether in contract, tort or under any other theory of liability, exceeding the amounts actually paid by and due from customer pursuant to the order giving rise to liability.
9.1 Indemnification by The Deaf Gym. If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then The Deaf Gym will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Services. If The Deaf Gym believes the Services may violate a right, then The Deaf Gym will, at its expense: (a) modify the Services, or (b) procure the right to continue using the Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Services and issue a pro-rata refund for the unexpired pre-paid portion of such Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against The Deaf Gym asserting that the Customer Data or Customer’s use of the Subscription Service in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify The Deaf Gym for any damages finally awarded against The Deaf Gym based on the Claim.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defence of the Infringement Claim/Claim and all negotiations for its settlement or compromise, (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and any disputes arising here from shall be exclusively subject to the jurisdiction of the Courts of England and Wales.
The Deaf Gym and Customer specifically agree that when Customer is located in the European Economic Area (“EEA”) the terms “Personal Data”, “Process”, “Data Controller”, “Special Categories of Data”, “Processing”, “Data Subject”, “Third Party Processing” and “Data Processor” will have the meanings given to them in the EU Directive 95/46 EC. In respect of Personal Data processed under this Agreement, the parties agree that the Customer is the Data Controller and The Deaf Gym is the Data Processor. Customer and The Deaf Gym both agree that they will process data in accordance with the local data protection laws. In addition, the Data Processor agrees that it will only collect, process and use Personal Data for the sole purpose of performance of the Subscriptions Services described hereunder and in accordance with the Data Controller’s instructions. Customer acknowledges that Personal Data shall not include Special Categories of Data. The Deaf Gym shall have no liability arising from the processing of Personal Data in accordance with Customer’s instructions. The Data Processor shall take appropriate technical and organizational measures to adequately protect Personal Data against (i) unauthorized access, (ii) unauthorized disclosure, (iii) misuse, (iv) corruption, and (v) loss, in accordance with the requirements of the EU Directive 95/46 EC as implemented under each local law and industry best practices.
MONITORING. Customer agrees that The Deaf Gym or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement.
MISCELLANEOUS. The Deaf Gym is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond The Deaf Gym 's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from The Deaf Gym and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including any Order constitutes the entire agreement between Customer and The Deaf Gym and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with The Deaf Gym’s licensors and The Deaf Gym’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both The Deaf Gym and Customer. Customer may not assign or transfer this Agreement or the Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by The Deaf Gym and do not apply. Any additional documents presented to a The Deaf Gym representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.