(1) 123Comms Limited whose registered office is Litton House, Saville Road, Peterborough, PE3 7PR and whose registration number is 4336436 hereinafter referred to as ‘123Comms Ltd’;
(2) You the community described below and hereinafter referred to as the ‘Community’ or ‘You’.
WHEREAS: (A) 123Comms Ltd agrees to provide Communication/Payment/training services to the Community, in consideration the Community is willing to acquire and pay for those Services, subject to the provisions of this Agreement.
1) Definitions and status of terms
- 1.1 The following terms shall have the following meanings:
“Acknowledgement” means the email confirmation that confirms your order;
“Account holders” refers to Parents/Community users who register directly via the ParentMail system to receive
emails/SMS messages and access the ParentMail service in order to interact with the other services provided such as
Payment, Parents evening manager, Permissions/forms/surveys and other services provided by 123Comms limited from
time to time;
“Admintools” means administration and reporting tools made available to the Community via online access as part of the Service delivery;
“Attendees” refers to the staff members nominated by Customer to receive training;
“Card processing agreement” means the agreement signed by you prior to provision/activation of the +Pay payment service;
“Community members” refers to pupils (specifically, Name, Date of Birth, Class and Year), Staff (Name, Date of birth and email address) and imported/registered parent details (Specifically, Name, DOB, mobile number and email address) of the community (School or club).
“Communication Services” means email and SMS services provided via the ParentMail service that enables schools to communicate with parents and staff;
“Community” means the purchaser/operator of the service, who has been allocated a ParentMail account/facility by 123Comms ltd;
“Community Information” means the data requested by 123Comms Ltd and/or information requested by 123Comms Ltd/Payment Scheme Facilitators (Visa/MasterCard/HMRC) to satisfy Know-Your-Client (KYC) requirements in force at the time;
“Data Protection Laws” means the Data Protection Act 1998 and any other applicable data protection or privacy laws or regulations, including laws governing use of personal data in connection with electronic communications and equivalent applicable laws in any jurisdiction, in each case as amended, replaced or updated from time to time;
“Fee” means the charges set out on the relevant Schedule, Order Form, Quotation or Website, payable by you the Customer, which in all cases exclude VAT;
“Intellectual Property Rights” means all vested contingent and future intellectual property rights including goodwill, reputation, rights in confidential information, copyright, trademarks, logos, service marks, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, design rights, patents, know-how, trade secrets, inventions, set-up, database rights (whether registered or unregistered) and any applications or registrations for the protection of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created;
“On-site Training” means the delivery of product specific end user training at the school premises on the services provided by 123Comms, hereby referred to as ‘OST’
“Password(s)” means such personal identification name(s) or number(s) as may be allocated to the Community initially by 123Comms Ltd on commencement of the Services to allow access by the Community to the Admintools which should be changed thereafter and from time to time the Community administrator;
“Payment Services” means the provision of online and in school (optional) transactional services that allows parents to purchase school products/services using Debit/Credit card, Cash, Cheque, voucher or PayPal payment methods;
“Payment scheme facilitator” refers to Visa/MasterCard/PayPal and card acquirer.
“Renewal Date” refers to the renewal date specified in the order confirmation email sent to the community upon first subscription;
“Services” means those services provided by 123Comms Ltd to the Community, including, without limitation, communication services, online payment processing and related maintenance services;
“Usernames” means usernames for the use of the Services as allocated to the Community by 123Comms Ltd from time to time;
“Text Credits” means the purchase by the community of SMS text messages to be used as an additional communication tool to parents;
“Websites” meaning the sites owned and operated by 123Comms Limited, including but not limited to www.parentmail.co.uk
- 1.2 By ordering Services from 123Comms Ltd you agree to abide by and accept these terms and conditions. Our current terms for use of the Services are displayed at http://www.parentmail.co.uk/community-terms-and-conditions/ and also copied for reference on our Service order forms. We may update and amend the terms for use on these websites and your continued use of the Services will constitute your acceptance of such updated or amended terms. In the event of any conflict between these terms and the terms on our websites the terms on our websites shall prevail. Accepting these terms and conditions shall form a binding contract between you and 123Comms Ltd and your acceptance shall be deemed to have occurred upon you ordering or using any of the 123Comms Ltd services.
2) Usernames and Passwords
- 2.1 123Comms Ltd shall allocate such Username(s) and Password(s) to the Community as deemed necessary in order to allow access to and use of the Admintools. The Community shall at all times comply with the conditions of use of Usernames and Passwords as specified herein or as otherwise notified to the Community from time to time.
- 2.2 123Comms Ltd may withdraw a Username and Password and allocate a new Username and Password to the Community where there is reason to believe such Username or Password has been discovered and/or used by a person without the knowledge, consent or permission of the Community and on such other occasion as 123Comms Ltd shall deem necessary in its reasonable opinion.
- 2.3 123Comms Ltd shall change the Username(s) and Password(s) where the Community requests a change to the Username(s) and Password(s) and reserves the right to withdraw the Username(s) and Password(s) from the Community where in its opinion there are reasonable grounds for believing the Community has not complied or is not complying with this Agreement or if this Agreement or any part of this Agreement is terminated or suspended for any reason.
- 2.4 It is the Community’s responsibility to keep any Username and Password allocated to the Community safeguarded and to treat the same confidential and personal to the Community. The Community undertakes to notify 123Comms Ltd forthwith upon it become aware that any Username(s) or Password(s) have or may have become known to an unauthorised third party.
- 2.5 Access to the Admintools by the Community may only be gained through the use of the Community’s Username and Password. The Community is responsible for all access and use of the Admintools where such access and use is obtained through the use of the Community’s Username and Password, irrespective of whether such access and use has been authorised by the Community.
3) Your Protection/Privacy
- 3.1 123Comms Limited guarantees that it will not sell or rent any community or parent information as defined under the Data Protection Act 1998 (“Personal Data”) to any third party for any reason, outside of the use of its Websites.
- 3.4 All calls made to and from ParentMail are recorded for training and monitoring purposes.
4) Your responsibilities
You hereby agree:
- 4.1 To accept full responsibility for all information provided by you or under your Username(s) and Password(s);
- 4.2 To maintain the confidentiality of your Username(s) and Password(s);
- 4.3 NOT to allow your Username(s) and Password(s) to be used by any third party for the purposes of accessing and copying the ParentMail website or functionality, or for using it for the development of a competitive product or reverse engineering any part of the Services;
- 4.4 To use the Services strictly in accordance with this Agreement;
- 4.5 Not to use the Services outside of the educational & club marketplace i.e. for any business or commercial purposes;
- 4.6 Not to publish any information found on the Websites without the written permission of 123Comms Limited.
5) Our rights
- 5.1 123Comms Ltd reserves the right to suspend and/or terminate your use of and access to any or all of the Services for any breach or suspected of this Agreement at its sole discretion without liability to you;
- 5.2 Information from the Websites may only be reproduced with the prior written consent of the authorised personnel of 123Comms Ltd.
- 5.3 The website designs, software code, graphics, the trade marks, banners, logos and other marks appearing on the website are and shall remain the property of 123Comms Ltd and any rights not expressly granted to you in respect of such rights are hereby reserved.
6) Operation of Services
- 6.1 123Comms Ltd reserves the right to withdraw or modify any and all elements of the Services where there are legal or technical reasons to do so.
- 6.2 123Comms Ltd also reserves the right to require you to change your Username(s), Password(s) or other information facilitating access to the Websites whether for security or any other reasons.
- 6.3 Additional Services:
- 123Comms Limited, its partners and associates may from time to time add to the services offered pursuant to this Agreement and via the website from time to time.
- Use of any additional services may be subject to additional terms and conditions which you will be required to agree to before you are able to access such services.
- Such terms and conditions will be notified to you either by being made available on the Websites or in such other manner as 123Comms Ltd may at its sole discretion reasonably determine (email, postal mail, fax or other electronic delivery mechanism).
- 123Comms Ltd reserves the right to discontinue, delete and change the content or purposes of the Website(s) from time to time.
- 123Comms Ltd may also from time to time offer new and separate services via the website. Use of such additional services may be subject to separate service descriptions and terms and conditions.
7) Community obligations, +Pay Payment services
- 7.1 The Community shall comply with 123Comms Ltd.’s “Card processing agreement” and shall take all relevant steps as recommended in relation to (without limitation) Payment Transactions to minimise the risk of fraud.
- 7.2 Indemnify 123Comms Ltd against any claims arising out of the misuse of the +Pay service as defined in the “Card processing agreement”
- 7.3 The community will maintain true and accurate records to enable 123Comms Ltd and/or the Payment Scheme Facilitator to ensure the Merchant’s compliance with the terms of this Agreement.
- 7.4 The Merchant will permit 123Comms Ltd and/or the Payment Scheme Facilitator to have access to all of the Merchant’s records that may reasonably be required for the purpose of verifying the Merchant’s compliance with the terms of this Agreement.
8) Community obligations, On Site Training
- 8.1 123Comms Ltd will acknowledge orders for OST by email; this acknowledgement will detail training dates, times and venues.
- 8.2 123Comms Ltd will use reasonable endeavours to ensure that the OST provided is delivered with reasonable skill and care and to a professional standard.
- 8.3 The time period scheduled for each OST Session is as detailed on the acknowledgement from 123Comms Ltd and includes reasonable time for questions on the content as requested by the customer. In the event that the training is completed within the allocated time period resulting in an early finish; no adjustment will be made to the Fee.
- 8.4 123Comms Ltd reserves the right to cancel or re-arrange any allocated dates for OST at any time. If agreement on rescheduled dates cannot be reached with the Customer, 123Comms Ltd shall provide the Customer with a full refund of the relevant Fee.
- 8.5 The Customer may reschedule the OST by providing a minimum of two (2) FULL working days notice. Failure to provide such notice will result in the full Fee remaining due for the original training date. Alternative dates can be agreed subject to availability and the minimum notice as above.
- 8.6 Cancellation ‘on the day’ of training will result in the full amount being payable and loss of the training. In this event a further order for training will be required prior to any re-booking.
- 8.7 The customer shall ensure that all Attendees have adequate competence, knowledge and skill to interpret and benefit from the OST provided by 123Comms Ltd.
- 8.8 the number of Attendees may not exceed a maximum of 10 unless previously agreed.
- 8.9 123Comms Ltd is not responsible for any travel arrangements, accommodation requirements and other costs incurred by Attendees relating to attendance.
- 8.10 123Comms ltd shall have no responsibility for any costs arising due to cancellation howsoever arising.
9) Intellectual property
- 9.1 123Comms Ltd is the non-exclusive licensee of all Intellectual Property Rights in the Services (and any product of the Services).
- 9.2 Neither this Agreement nor any licence or sub-licence granted under this Agreement shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Services (or any product of the Services) to the Community or any third party.
- 9.3 The Community shall not:
- decompile or reverse-engineer any software used to provide the Services, or assist or procure any person to decompile or reverse-engineer software used to provide the Services, or provide information to any person about de-compilation of the that software for any purpose; or
- embed any part of the software forming part of the Services into any other product or software, without 123Comms Ltd’s prior written consent.
- 9.4 The Community agrees that:
- it will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Services in any manner to third parties; and
- Safeguard access to the service through the appropriate use of systems not limited to software firewalls, virus control systems, wireless security and physical access control systems.
- 9.5 The Community undertakes throughout the Term:
- not to misuse any Intellectual Property Rights in the Services (or in any product of the Services);
- not to cause or permit anything which may damage or endanger the Intellectual Property Rights in the Services (or in any product of the Services) or assist or allow others to do so; and
- to indemnify 123Comms Ltd for any liability incurred by 123Comms Ltd to third parties for any use by the Community of the Intellectual Property Rights in the Services (or in any product of the Services) otherwise than in accordance with this Agreement.
- 10.1 123Comms Ltd does not warrant that the functions of the Services will meet any particular requirements or that their operation will be entirely error-free or that all defects are capable of correction or improvement. Except as set out in this Agreement, all conditions, warranties and representations, expressed or implied by (i) statute, (ii) common law or (iii) otherwise, in relation to the Services are excluded. In the absence of fraud, no oral or written information or advice given by 123Comms Ltd or its agents or licensees shall create a warranty or give rise to any other liability other than as is given in this Agreement.
- 10.2 The Community acknowledges that the operation of the Services depends on services provided by telecom and internet connection operators and, by their nature, may from time to time be adversely affected by data traffic volumes, atmospheric conditions, causes of interference and may fail or require maintenance without notice. 123Comms Ltd does not warrant third party services.
11) Data protection
- 11.1 To the extent that 123Comms Ltd processes personal data of Account Holders, members and any prospective customers of the Community on behalf of the Community, 123Comms Ltd shall:
- do so only on the instructions of the Community (except to the extent that it is required to do otherwise by law or regulation); and
- have in place appropriate technical and organisational security measures to protect those data against unauthorised or unlawful processing and accidental loss, destruction or damage.
- 11.2 The Community shall comply with the Data Protection Laws in processing personal data of Account Holders, members and any prospective customers of the Community in connection with this Agreement and shall indemnify 123Comms Ltd against each loss, liability and cost arising as a result of a failure to do so.
- 11.3 Terms defined in the Data Protection Act 1998 have the same meanings when used in this clause 11.
- 12.1 123Comms Ltd shall not be liable for any content or information created or transmitted by the Community.
- 12.2 Neither party is liable to the other party (excluding clause 12.7), whether for negligence, breach of contract, misrepresentation or otherwise, for:
- loss or damage incurred by the other party as a result of third party claims;
- loss of profit, goodwill, business opportunity or anticipated saving suffered by the other party; or
- indirect or consequential loss or damage suffered by the other party.
- 12.3 Subject to clauses 12.2 and 12.4, the entire liability of 123Comms Ltd in aggregate in any 12 month period under or in connection with this Agreement, whether for negligence, breach of contract, misrepresentation or otherwise, is limited to the total charges (excluding VAT) paid by the Community to 123Comms Ltd in respect of the Services in the 12 month period preceding the date of the breach.
- 12.4 Neither party limits its liability with respect to any claim for death and/or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or in any other circumstances where liability may not be limited under any applicable law.
- 12.5 Neither party shall be liable to the other in respect of any breach of this Agreement caused by revocation or alteration of any licence, permission or authorisation governing the operation of the Services, or Internet and telephone connections.
- 12.6 The invalidity, illegality or unenforceability of a provision of any clause of this Agreement does not affect or impair the continuation in force of the remainder of the clauses of this Agreement.
- 12.7 The Community shall indemnify and keep indemnified 123Comms Ltd from and against all losses, costs (including legal and other professional costs and expenses), penalties, payments or liabilities whatsoever arising out of or in connection with:
- any claim being made or defence raised against 123Comms Ltd by any third party where such a claim or defence is a direct or indirect result of any act or omission on the part of the Community;
- the Community’s negligence, default or breach of the terms of this Agreement;
- a breach by the Community of Data Protection Laws;
- any fraud or attempted fraud by the Community or any of the Community’s employees or agents;
- any loss of goodwill, business, or reputation suffered by 123Comms Ltd as a result of a Community’s default or negligence; or
- any community’s access or abuse of the Admintools.
- 12.8 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE WEBSITE AND ITS CONTENT ARE PROVIDED “AS IS” AND 123COMMS LIMITED DISCLAIMS, AND YOU WAIVE, ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE COMMUNITY ABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY, CONDITION, GUARANTEE, OR REPRESENTATION RELATED TO THE WEBSITE AND ITS CONTENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
- 12.9 THE FUNCTIONS, MATERIALS AND CONTENT OF THE WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR, AND 123COMMS LIMITED AND ITS PROVIDERS DO NOT WARRANT THE ACCURACY, CURRENCY OR RELIABILITY OF INFORMATION ON THE WEBSITE.
- 12.10 YOU ASSUME THE ENTIRE RISK AND COST OF REPAIRS OR CORRECTIONS TO YOUR HARDWARE OR SOFTWARE DUE TO THE USE OF THE WEBSITE.
- 12.11 YOUR USE OF THE WEBSITE IS ENTIRELY AT YOUR OWN RISK.
- 12.12 123COMMS LIMITED AND THE DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AGENTS OR AFFILIATES OF 123COMMS LIMITED SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR ANY DAMAGE TO YOUR COMPUTER FROM USE OF THE WEBSITE OR FROM ANY VIRUSES, OR FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION LOST PROFITS), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WHICH YOU MAY INCUR IN CONNECTION WITH THE USE OR NONPERFORMANCE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUES, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS EVEN IF 123COMMS LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
13) Subscriptions, payments, trials and refunds
- 13.1 Upon receipt of order an invoice will be issued to the Community for the subscription (annual or multi-year) plus any other charges due from the Community to 123Comms Ltd.
- 13.2 Payment is required within 30 days of the date of the invoice.
- 13.3 123Comms Ltd offers no refunds of subscriptions for unused or cancellations.
- 13.4 Should the Service not be used for whatever reason, 123Comms Limited shall not be responsible for this lack of use and no refund will be payable.
- 13.5 Subscription renewal invoices will be automatically sent to the Community on or around the renewal date.
- 13.6 The core service is provided free of charge to parents including use of the iOS and Android apps for parents.
- 13.7 Details of charges can be found on the appropriate sections of the Website.
- 13.8 We reserve the right to revise or introduce charges for any service provided at our discretion, but any intent to charge will be notified 30 days prior to any introduction or variation unless enforced by a 3rd party i.e. legal requirement.
- 13.9 From time to time, we may offer trials of our services for a specified period without payment (a “Trial”). 123Comms limited reserves the right, in its absolute discretion, to determine customer eligibility for a Trial, and to withdraw or to modify a Trial at any time without prior notice and with no liability.
- 13.10 You may cancel the trial at any time by contacting us in writing before it concludes, at which point your account will be closed and no charges will be made. In the event that no cancellation is received your account will automatically upgrade to an annual subscription and an invoice will be issued for such on the first day following the end of the Trial.
14) Late Payment Surcharge
- 14.1 Unless otherwise agreed in writing 123Comms Limited operates a strict 30 days payment term. Where payment of invoices is made later than 30 days we reserve the right to levy additional charges according to the following schedule;
- Invoices paid between 31 days and 60 days from invoice date will incur a surcharge of 5% of the invoice total.
- Invoices paid between 61 days and 90 days from invoice date will incur a surcharge of 10% of the invoice total.
- Invoices paid between 91 days and 120 days from invoice date will incur a surcharge of 15% of the invoice total.
- Invoices paid more than 121 days after invoice date will incur a surcharge of 25% of the invoice total.
15) Subscription Cancellation
- 15.1 Notice of cancellation must be made in writing on school letterhead paper and sent Recorded Delivery giving notice as follows:
- for annual subscription no less than 30 days written notice in advance of the Renewal Date.
- for monthly direct debit subscription no less than 90 days written notice in advance of the annual Renewal Date and thereafter 90 day written notice.
- 15.2 Failure to provide the required notice will mean that the subscription for the following year(s) will be payable in full.
- 15.3 Upon cancellation any unused text credits remaining will be lost and no refunds are payable.
- 15.4 We may terminate this Agreement at any time if you are in breach or we reasonably suspect that you are in breach of any of the terms of this Agreement.
- 16.1 You warrant and represent that:
- you shall abide by the terms of this Agreement;
- you are entitled to register for and use the Service;
- you will not take any action which would derogate 123Comms Ltd’s rights in and to their Intellectual Property Rights or content;
- you will not infringe the Intellectual Property Rights of third parties when using the Services;
- you will not violate any laws in your use of information on the Websites;
- you will not interfere in the business of 123Comms Ltd’s by posting information that violates the rules outlined above or by attempting to divert traffic from the website;
- 16.2 you shall indemnify and hold harmless and, at 123Comms Limited request, defend 123Comms Limited its directors, officers, shareholders, employees, agents, affiliates and owners (each an “Indemnified Party”) from and against all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable legal costs) arising out of any claim by any third party resulting from any breach of your obligations, representations, warranties or covenants set forth in this agreement. You shall reimburse each Indemnified Party on demand for any reasonable costs, expenses and liabilities incurred by such Indemnified Party to which this indemnity relates.
- 17.1 The Websites may contain links to other websites. 123Comms Ltd does not endorse any other website and is not liable for any loss or damages related to the content, products or services available through those websites. If you have any problems or concerns regarding other websites, please contact their website administrator or Web master directly.
- 17.2 This Agreement shall for all purposes be governed by and construed in accordance with the laws of England and Wales and you hereby submit to the exclusive jurisdiction of the courts of England.
- 17.3 These terms and conditions are severable. In the event that any provision of these terms and conditions is determined to be unenforceable or invalid, such determination shall not affect the validity and enforceability of any other remaining provisions.
- 17.4 The licence to use the websites granted in these terms and conditions shall terminate automatically without notice if you fail to comply with any of the provisions.
- 17.5 Save as expressly provided in this Agreement the Contract (Rights of Third Parties) Act 1999 shall not apply.
- 17.6 This Agreement is the entire understanding between us regarding your access to, license and use of the Websites and their content and supersedes any prior agreements, statements or representations with respect to the same. Nothing in this clause shall be construed as excluding liability for fraudulent misrepresentation.