Plumm Partner Services Terms And Conditions

These Terms and Conditions apply to the Order entered into between the Partner (as defined below) and Plumm Limited, a company incorporated and registered in England and Wales with company number 11034943 whose registered office is at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ (“Plumm”). These Terms and Conditions together with the Order Details form an agreement between the Partner and Plumm (the “Agreement”).

Agreed Terms

1. Interpretation click here to copy this link

   The following definitions and rules of interpretation apply in this Agreement.

   1. Definitions.

      Authorised User: each employee or other person authorised by the Partner to access or use the Subscribed Services, as specified in the relevant Order Details.

      Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

      Charges: the sums payable for the Subscribed Services, as set out in the relevant Order Details and clause 6, including, where relevant, the User Charges and/or any Top Up Charges.

      Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

      Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

      Data Protection Legislation: the UK Data Protection Legislation 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) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

      Effective Date: (a) if the parties have executed an Order Form or written agreement incorporating these Terms and Conditions, the date such Order Form or written agreement is executed by the parties; or (b) if the Partner places the Order through the Plumm Website(s), the date of the Online Order Confirmation.

      Initial Order Details: : the Order Details attached, to or specified in, these Terms and Conditions or, if none, the Order Details relating to the first Order.

      Initial Period: the initial period for the performance of specific Subscribed Services, as set out in the relevant Order Details, or 12 months if no such period is set out in the relevant Order Details.

      Initial User Numbers: where relevant, the User Numbers set out in the Order Details.

      Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

      Losses: liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).

      Notice Period: the applicable notice period set out in the Order Details or, if no such period is set out in the Order Details, 30 days.

      Order: the order by the Partner and the supply of the Subscribed Services by Plumm, as set out in the Order Details.

      Online Order Confirmation: an email from Plumm to the Partner stating that Plumm accepts an Order placed by the Partner through the Plumm Website(s).

      Order Details: the description of the Subscribed Services, Charges, Subscribed Services Start Date, Initial Period, Renewal Period, Notice Period, the details of any Trial Period, and other material terms relating to the Subscribed Services as (a) set out in an Order Form or (b) if the parties have executed a written agreement incorporating these Terms and Conditions, as attached, to or specified in, such written agreement or (c) where Plumm enables the Partner to place an Order through the Plumm Website(s), as set out in the relevant Online Order Confirmation.

      Order Form: an order form which has been agreed and executed by both Parties, setting out the Order Details for Subscribed Services ordered by the Partner or changes to the Order Details for Subscribed Services ordered by the Partner.

      Parties (or “parties”): Plumm and the Partner, and Party (or “party”) shall mean one of the Parties, as determined by the context.

      Partner: the organisation which purchases Subscribed Services from Plumm by entering into one or more Orders subject to these Terms and Conditions.

      Partner Materials: all documents, information, items and materials in any form, whether owned by the Partner or a third party, which are provided by the Partner to Plumm in connection with the Subscribed Services, including the items provided pursuant to 4.1(d).

      User Charges: the component of the Charges for a Subscribed Service calculated on the basis of the number of Authorised Users, where a Price Per User Per Month is specified in the Order Details.

      Price Per User Per Month: where specified in the relevant Order Details, the monthly charge (after applying any discount) for each user of the Subscribed Services which is used to calculate the relevant Charges in accordance with clause 6.

      Plumm Materials: any output of the Subscribed Services to be provided by Plumm and any other documents, products and materials provided by Plumm in relation to the Subscribed Services (excluding Plumm’s Equipment).

      Plumm Platform: the software systems through which the relevant Subscribed Services are delivered.

      Plumm Terms of Use: the terms of use at https://www.heyplumm.com/terms-of-use and the privacy policy at https://www.heyplumm.com/privacy-policy.

      Plumm Website(s): the Plumm websites athttps://www.heyplumm.com and/or such other address(es) as may be notified to the Partner from time to time.

      Provider: any third party provider of the Subscribed Services (e.g. a coach or therapist)

      Renewal Period: the period for which the Subscribed Services will renew under clause 2.7, as set out in the Order Details or, if no such period is set out in the Order Details, the same duration as the Initial Period.

      Service Description: the description of the Subscribed Services as set out in, or referred to from, the relevant Order Details.

      Session/Other Entitlement: shall have the meaning given in clause 6.

      Service Terms of Use: (i) the Plumm Terms of Use; and (ii) any terms of use and/or privacy policy for the relevant Subscribed Services (which shall take priority over the Plumm Terms of Use in the event of any conflict), as may be referred to in the Order Details or the Service Description or made available on the relevant Plumm Platform.

      Session: where included in the Subscribed Services, a session with a therapist, coach or such other Provider delivering services remotely.

      Subscribed Services: the services to be provided by Plumm as set out in the Order Details and the relevant Service Description.

      Current Subscription Period: the current period for the relevant Subscribed Services, being the Initial Period or the current Renewal Period, whichever is implied by the context.

      Subscribed Services Start Date: the commencement date of the relevant Subscribed Services as set out in the Order Details.

      Subscription Term: the Initial Period plus any Renewal Period in respect of the relevant Subscribed Services, or such shorter term in accordance with clause 12 (Termination for Cause) or clause 14 (Force Majeure).

      Terms and Conditions: these terms and conditions.

      Top Up Charge: shall have the meaning given in clause 6.

      Trial Period: any trial period for the Subscribed Services, if set out in the Order Details.

      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.

      User Numbers: the number of users with access to the relevant Subscribed Services.

      VAT: value added tax or any equivalent tax chargeable in the UK.

   2. The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.

   3. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement or any Order Details.

   4. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2. Commencement And Duration click here to copy this link

   1. This Agreement shall commence on the Effective Date and shall, subject to clause 12 (Termination for Cause) and clause 14 (Force Majeure), continue for a period of 12 months or until the expiry of all unexpired Subscription Terms, if later.

   2. The parties may agree one or more Orders under the terms of this Agreement in order to:

      1. add Subscribed Services to the Agreement; and/or

      2. amend any Order Details in relation to existing Subscribed Services.

   3. Where an Order is placed using an Order Form:

      1. Once executed, an Order Form shall form a part of this Agreement.

      2. In the event of any inconsistency between an Order Form and these Terms and Conditions, the Order Form shall prevail in respect of the relevant Order Details.

   4. Where an Order is placed through the Plumm Website(s) (if this is enabled by Plumm):

      1. The Partner must follow the onscreen prompts.

      2. Each “order” is an offer by the Partner to buy the Subscribed Services selected, subject to these Terms and Conditions (a “Request For Services”).

      3. The Partner must check the Request For Services carefully before submitting it. The Partner is responsible for ensuring that the information it has provided and the selections it has made are complete and accurate.

      4. After the Partner places the Request For Services, the Partner will receive an email from Plumm acknowledging that Plumm has received it, but this does not mean that Plumm has accepted the Request For Services. Plumm’s acceptance of the Request For Services will take place as described in clause 2.4(f).

      5. Plumm may need to arrange meetings or calls with the Partner to discuss the Request For Services and the proposed Order Details prior to deciding whether to accept or reject the Request For Services.

      6. Plumm’s acceptance of the Request For Services takes place when Plumm sends the Online Order Confirmation, at which point the Agreement between Plumm and the Partner will come into existence. The Agreement will relate only to those Subscribed Services confirmed in the Online Order Confirmation. If the Partner reasonably considers that the Online Order Confirmation does not accurately reflect its Request For Services, the Partner must inform Plumm immediately and must not make or allow use of the Subscribed Services.

      7. Prior to Plumm issuing an Online Order Confirmation for a Request For Services, Plumm may reject the Request For Services for any reason (the “Rejected Order”). In this situation (i) no contract shall be formed in relation to the relevant services, (ii) Plumm will not issue an Online Order Confirmation for the Rejected Order, and (iii) if the Partner has already paid for the Rejected Order, Plumm will refund the relevant amount paid.

   5. If the Order Details include a Trial Period:

      1. Plumm grants to the Partner a non-exclusive, non-transferable, revocable right to use (and to permit Authorised Users to use) the Subscribed Services during the Trial Period for the limited purpose of assessing whether to proceed to a subscription for the relevant Subscribed Services;

      2. upon expiry of the Trial Period, the licence under clause 2.5(a) shall terminate and unless and until the Partner pays the relevant Charges for the Initial Term for any Subscribed Services (i) the licence under clause 2.6 and the Initial Term shall not commence in respect of such Subscribed Services; (ii) the Partner and any Authorised Users must cease using the Subscribed Services except for the limited purpose of paying the Charges; and (iii) the Partner hereby instructs Plumm to retain any data stored within the Plumm Platform for a period of 60 days (or such shorter period instructed by the Partner at the time) and then to delete the data.;

   6. Subject to the Partner paying the relevant Charges, Plumm grants the Partner a worldwide, non-exclusive, non-transferable right to use (and to permit Authorised Users to use) the Subscribed Services during the relevant Subscription Term.

   7. Following expiry of the Initial Period of any Subscribed Services, the Subscription Term for the relevant Subscribed Services shall automatically renew for the Renewal Period unless either party gives the other written notice of termination at least equal to the Notice Period to prevent renewal in relation to the specific Subscribed Services.

3. Plumm’s Responsibilities click here to copy this link

   1. Plumm shall use reasonable endeavours to supply the Subscribed Services in accordance with this Agreement in all material respects, from the relevant Subscribed Services Start Date.

   2. Plumm shall use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Partner’s premises to which it requires access in order to perform the Subscribed Services, provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement.

   3. Plumm’s obligations at Clause 3.1 shall not apply to the extent of any non-conformance which is caused by use of the Subscribed Services contrary to Plumm’s instructions, or modification or alteration of the Subscribed Services by any party other than Plumm or the Plumm’s duly authorised contractors or agents. If the Subscribed Services do not conform with the terms of clause 3.1, Plumm will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Partner’s sole and exclusive remedy for any breach of the undertaking set out in Clause 3.1.

   4. Plumm does not warrant that:

      1. the Partner’s use of the Subscribed Services will be uninterrupted or error-free;

      2. the Subscribed Services, Plumm Materials and/or the information obtained by the Partner through the Subscribed Services will meet the Partner’s requirements; or

      3. the Subscribed Services will be free from vulnerabilities or viruses.

   5. Plumm is 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 the Partner acknowledges that the Subscribed Services and Plumm Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

   6. The Partner acknowledges that the Subscribed Services may integrate with or link to third party services which may be subject to additional terms and conditions and accordingly:

      1. the Parties shall each provide all reasonable co-operation to facilitate the use of such third party services;

      2. Plumm shall use commercially reasonable endeavours to integrate with relevant API(s) made available by the Partner’s third-party service providers for the purposes of configuring the Subscribed Services. Accordingly, Plumm shall not be liable for any inability to provide the relevant Subscribed Services as a result of (i) the Partner failing to agree to or comply with any relevant third-party terms and conditions; (ii) the availability of the relevant service; and (iii) any failure of the Partner’s service providers to facilitate the use of their services in relation to the relevant Subscribed Services; and

      3. Plumm makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party service, or any transactions completed, and any contract entered into by the Partner, with any such third party. Any contract entered into and any transaction completed via any third-party service is between the Partner and the relevant third party, and not Plumm. Plumm does not endorse or approve any third-party service integrated with or linked to from the Subscribed Services.

4. Partner’s Obligationsclick here to copy this link

   1. The Partner shall:

      1. co-operate with Plumm in all matters relating to the Subscribed Services and this Agreement;

      2. appoint a manager for each of the Subscribed Services. That person shall have the authority to contractually bind the Partner on matters relating to the Subscribed Services;

      3. (only if the Subscribed Services require it) provide, for Plumm, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Partner’s premises, office accommodation, data and other facilities as required by Plumm;

      4. provide to Plumm in a timely manner all documents, information, items and materials in any form (whether owned by the Partner or third party) reasonably required by Plumm in connection with the Subscribed Services and ensure that they are accurate and complete in all material respects;

      5. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Plumm to provide the Subscribed Services before the relevant Subscribed Services Start Date;

      6. comply with the Service Terms of Use; and

      7. ensure that all Authorised Users are made aware of and comply with the Service Terms of Use and the restrictions in clause 4.4.

   2. If Plumm’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Partner, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Plumm shall be allowed an extension of time to perform its obligations equal to the delay caused by the Partner.

   3. The Partner:

      1. accepts responsibility for the selection of the Subscribed Services to achieve its intended results and acknowledges that the Subscribed Services have not been developed to meet the individual requirements of the Partner;

      2. acknowledges that the Subscribed Services and any Plumm Materials are provided “as is" and are expressly subject to the disclaimer in clause 20.3;

      3. acknowledges that Plumm is a technology supplier and does not provide any legal, compliance, financial, tax, healthcare or professional advice and that the Partner should seek professional advice on any of these matters;

      4. is solely responsible for complying with its own legal and regulatory duties, including in relation to the use of the Subscribed Services and any Plumm Materials; and

      5. acknowledges that where the Subscribed Services include access to Providers: (i) those Providers are independent parties and are not Plumm’s employees nor agents nor representatives; and (ii) Plumm is not responsible for the services, information or advice delivered by the Providers.

   4. The Partner authorizes Plumm to communicate any Session/Other Entitlement to Authorised Users.

   5. The Partner shall not (and shall procure that Authorised Users shall not):

      1. 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 this agreement:

         1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscribed Services and/or Plumm Materials (as applicable) in any form or media or by any means; or

         2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscribed Services; or

      2. access all or any part of the Subscribed Services and Plumm Materials in order to build a product or service which competes with the Subscribed Services and/or the Plumm Materials; or

      3. build a product or service which competes with the Subscribed Services and/or the Plumm Materials; or

      4. use the Subscribed Services and/or Plumm Materials to provide services to third parties; or

      5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscribed Services and/or Plumm Materials available to any third party except the Authorised Users; or

      6. attempt to obtain, or assist third parties in obtaining, access to the Subscribed Services and/or Plumm Materials, other than as provided under this Agreement; or

      7. introduce or permit the introduction of, any virus or vulnerability into the Subscribed Services or Plumm's network and information systems.

   6. The Partner shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscribed Services and/or the Plumm Materials and, in the event of any such unauthorised access or use, promptly notify Plumm.

5. Non-solicitation click here to copy this link

   1. The Partner shall not, without the prior written consent of Plumm, at any time from the date of this Agreement to the expiry of 24 months after the termination of this Agreement, solicit or entice away from Plumm or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Plumm in the provision of the Subscribed Services.

   2. Plumm reserves the right to require a payment from the Partner in relation to any consent given by Plumm in accordance with clause 5.1 and such consent shall be subject to the Partner making such payment.

6. Charges And Payment click here to copy this link

   1. In consideration of the provision of the Subscribed Services by Plumm in accordance with this Agreement, the Partner shall pay the Charges.

   2. Subject to clause 6.3, unless otherwise stated in the relevant Order Details, Plumm shall invoice the Partner for the Charges for the Subscribed Services in advance for the Invoice Period during the Subscription Term and the Partner shall pay each invoice submitted to it by Plumm immediately upon receipt to a bank account nominated in writing by Plumm. In this clause “Invoice Period” means the invoice period specified in the Order Details (e.g. monthly, quarterly, annually) or, if no such period specified, monthly.

   3. Where an Order is placed through the Plumm Website(s) (if this is enabled by Plumm), the Partner shall pay for the Charges for the Subscribed Services as indicated on the Plumm Website at the time of the Order.

   4. If the User Numbers change in respect of any Subscribed Services, the Partner must notify Plumm as soon as reasonably practical either via the Partner’s administrator access on the relevant Plumm Platform(s), where relevant, or by contacting Plumm in writing, including the date(s) that the User Numbers changed.

   5. Unless otherwise specified in the relevant Order Details, any User Charges for a month shall be calculated by the sum of:

      1. the Price Per User Per Month multiplied by the greater of (i) the Initial User Numbers for the relevant Subscribed Services; and (ii) the current User Numbers for the relevant Subscribed Services (which the Partner has communicated to Plumm); and

      2. a pro-rata calculation for any retrospective increases in User Numbers for the relevant Subscribed Services prior to the invoice date (i.e. the relevant Price Per User Per Month applied pro-rata from the date each user was added).

   6. Where the Subscribed Services include an entitlement to a specified or calculated number of any service element (e.g. Sessions), as set out in the Order Details (Session/Other Entitlement):

      1. the total Session/Other Entitlement shall be made available to Authorised Users from the start of the relevant Entitlement Period;

      2. the Partner may increase the Session/Other Entitlement for the relevant Entitlement Period at the price indicated in the Order Details (Top Up Charge) ;

      3. on expiry of the relevant Entitlement Period, if the Authorised Users have used the relevant service element in excess of the Session/Other Entitlement for that Entitlement Period, the Partner shall pay the Top Up Charges to Plumm for the excess;

      4. on termination of the relevant Subscribed Services at any point earlier than the relevant Entitlement Period, if the Authorised Users have used the relevant service element in excess of the Accrued Session/Other Entitlement, the Partner shall pay the Top Up Charges to Plumm for the excess; and

      5. for the purposes of this clause:

         1. “Entitlement Period” shall mean the relevant period for the Session/Other Entitlement stated in the Order Details, or if no such period is stated, the relevant Current Subscription Period; and

         2. “Accrued Session/Other Entitlement”shall mean a reduced Session/Other Entitlement calculated on a straight-line pro rata basis (and rounded down to the nearest whole number) to reflect that the relevant period is shorter than the Entitlement Period.

   7. The Charges for any Subscribed Services for any month shall not be reduced or refunded at any time to reflect: (a) any decreases in User Numbers which take place during the relevant month; or (b) low or no usage of the relevant Subscribed Services or any service elements during the relevant month.

   8. The Partner shall be liable to pay the Charges for the full Subscription Term, whether or not the Partner or Authorised Users choose to make use of the relevant Subscribed Services during the Subscription Term.

   9. Where the Order Details for any Subscribed Services contains Initial User Numbers:

      1. the Partner acknowledges that, the Charges and, where relevant, the Top Up Charges and any Session/Other Entitlement(s) may have been calculated on the basis of such Initial User Numbers; and

      2. where the User Numbers change from the Initial User Numbers, Plumm reserves the right to amend the Charges including, where relevant, the Price Per User Per Month (and/or any relevant discount), the Top Up Charges (and/or any relevant discount) and/or the Session/Other Entitlement(s); in all cases to reflect changes to the User Numbers.

   10. Plumm may increase the Charges in respect of Subscribed Services on an annual basis with effect from the start of each Renewal Period for the relevant Subscribed Services.

   11. Without prejudice to any other right or remedy that it may have, if the Partner fails to pay Plumm any sum due under this Agreement on the due date:

       1. the Partner shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment, together with the reasonable costs of recovering the debt including, without limitation, debt collection agency charges, legal costs, administrative and internal costs. Interest under this Clause 6.11(a) will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and

       2. Plumm may suspend all or part of any and all Subscribed Services until payment has been made in full.

   12. All sums payable to Plumm under this Agreement:

       1. are exclusive of VAT, and the Partner shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice;

       2. are exclusive of any bank charges, fees or other transaction costs, which shall be paid in full by the Partner; and

       3. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

   13. Where the Partner wishes to cancel a workshop or training session (“Workshop”) it must give Plumm at least 30 days’ written notice. If the Partner does not give the required notice, Plumm may, in its sole discretion treat the Workshop as though it had taken place and, accordingly: (a) charge the Partner for the Workshop (for chargeable Workshops); or (b) deduct the Workshop from the Partner’s entitlement to receive such Workshops (for Workshops included in the general price of the Subscribed Services).

   14. Where the Partner wishes to buy excess Session(s) [Top Up Session], any payment for such top up session(s) is to be made upfront before the top up session(s) can be added to the account.

7. Intellectual Property Rights And Indemnitiesclick here to copy this link

   1. In relation to the Plumm Materials:

      1. Plumm and its licensors shall retain ownership of all Intellectual Property Rights in the Plumm Materials, excluding the Partner Materials;

      2. Plumm grants the Partner and each Authorised User, or shall procure the direct grant to the Partner of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the relevant Subscription Term to use the relevant Plumm Materials (excluding the Partner Materials) via the Plumm platform for the purpose of receiving and using the Subscribed Services; and

      3. the Partner shall not, and shall procure that each Authorised User shall not, sub-license, assign or otherwise transfer the rights granted in Clause 7.1(b) and shall not make any copies of the Plumm Materials without our written consent.

   2. In relation to the Partner Materials, the Partner:

      1. and its licensors shall retain ownership of all Intellectual Property Rights in the Partner Materials;

      2. grants Plumm a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Partner Materials for the term of this Agreement for the purpose of providing the Subscribed Services to the Partner; and

      3. authorises Plumm to display the name and logo(s) of the Partner on the Plumm Website(s), Plumm Platform(s) and other promotional material to identify the Partner as a customer of Plumm.

   3. Plumm:

      1. warrants that the receipt and use of the Subscribed Services by the Partner shall not infringe the Intellectual Property Rights of any third party;

      2. shall, subject to Clause 11 (Limitation of liability), indemnify the Partner in full against all Losses suffered or incurred by the Partner arising out of or in connection with any claim brought against the Partner for actual or alleged infringement of a third party's Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt, use or supply of the Subscribed Services; and

      3. shall not be in breach of the warranty at Clause 7.3.1, and the Partner shall have no claim under the indemnity at Clause 7.3.2, to the extent the infringement arises from:

         1. the use of the Partner Materials in the development of, or the inclusion of the Partner Materials in the Subscribed Services;

         2. any modification of the Deliverables or Subscribed Services, other than by or on behalf of Plumm;

         3. compliance with the Partner’s specifications or instructions;

         4. the Partner's use of the Subscribed Services or Plumm Materials after notice of the alleged or actual infringement from Plumm or any appropriate authority; or

         5. the Partner's breach of this Agreement.

   4. The Partner:

      1. warrants that the receipt and use of the Partner Materials in the performance of this Agreement by Plumm, its agents, subcontractors or consultants shall not infringe any rights of third parties; and

      2. shall indemnify Plumm in full against all Losses suffered or incurred by Plumm arising out of or in connection with any claim brought against Plumm, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Partner Materials.

   5. The Partner shall defend, indemnify and hold harmless Plumm against all Losses arising out of or in connection with the use of the Subscribed Services and or any Plumm Materials by the Partner or any Authorised Users.

   6. If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnifying Party) under this clause 7, the Indemnified Party shall:

      1. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnities at Clause 7.3(b), Clause 7.4(b) or Clause 7.5 (as applicable) (Claim);

      2. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;

      3. provide the Indemnifying Party with such reasonable assistance regarding the Claim as is required by the Indemnifying Party, subject to reimbursement by Plumm of the Indemnified Party’s costs so incurred; and

      4. not, without prior consultation with the Indemnifying Party, make any admission relating to the Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

   7. In the defence or settlement of any Claim, Plumm may procure the right for the Partner to continue using the Subscribed Services, replace or modify the Subscribed Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Partner without any additional liability or obligation to pay liquidated damages or other additional costs to the Partner.

   8. The foregoing and clause 11 states the Partner's sole and exclusive rights and remedies, and Plumm's (including Plumm's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

8. Compliance With Laws And Policies click here to copy this link

   1. In performing its obligations under this Agreement, each party shall comply with all applicable laws and regulations.

   2. Plumm may make changes to the Subscribed Services which are reasonably required in order to comply with any applicable laws.

9. Data Protection click here to copy this link

   1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 (Data protection) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

   2. The parties acknowledge that for the purpose of the Data Protection Legislation (and subject to the relevant Service Description, which shall take priority over this clause):

      1. where the Partner passes its Authorised Users’ personal data to Plumm to enable Plumm to create accounts for those Authorised Users, the Partner is the controller and Plumm is the processor;

      2. where the parties intend that the Authorised Users will make use of the Subscribed Services for their own private purposes (e.g. mental health support), as set out in the relevant Service Description, Plumm and/or the relevant Provider shall be the controller(s) in relation to any personal data arising from such use;

      3. for all other uses of the Subscribed Services, including: (i) the Partner making use of the dashboard and administrative features of the Subscribed Services; and (ii) the Partner using the Subscribed Services to collect, store and/or process personal data; the Partner is the controller and Plumm is the processor.

   3. Without prejudice to the generality of clause 9.1, the Partner will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of all personal data from the Partner to Plumm, the collection of personal data by Plumm on behalf of the Partner and the processing of such personal data for the duration and purposes of this Agreement.

   4. Without prejudice to the generality of clause 9.1, Plumm shall, in relation to any personal data processed by Plumm as a processor in connection with the performance of its obligations under this Agreement:

      1. process that personal data only on the documented written instructions of the Partner or the relevant Authorised User unless Plumm is required by law to otherwise process that personal data. Where Plumm is relying on such law as the basis for processing personal data, Plumm shall promptly notify the Partner of this before performing the processing required by such law unless the law prohibits Plumm from so notifying the Partner;

      2. 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);

      3. without prejudice to clause 10 (Confidentiality), ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

      4. assist the Partner, at the Partner's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

      5. notify the Partner without undue delay on becoming aware of a personal data breach; and

      6. without prejudice to clause 9.1, at the written direction of the Partner, delete or return personal data and copies thereof to the Partner on termination of the Agreement unless required by law to store the personal data.

   5. The Partner hereby provides its prior, general authorisation for Plumm to:

      1. appoint processors to process the Partner’s personal data provided that Plumm: (i) shall ensure that the terms on which it appoints such processors comply with Data Protection Legislation, and are consistent with the obligations imposed on Plumm in this clause; (ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Plumm; and (iii) shall inform Partner of any intended changes concerning the addition or replacement of the processors, thereby giving the Partner the opportunity to object to such changes provided that if the Partner objects to the changes and cannot demonstrate, to Plumm’s reasonable satisfaction, that the objection is due to an actual or likely breach of the Data Protection Legislation, the Partner shall indemnify Plumm for any Losses suffered by Plumm in accommodating the objection.

      2. transfer the Partner’s personal data outside of the UK and EEA as required for the performance of this Agreement, provided that Plumm shall ensure that all such transfers are effected in accordance with the Data Protection Legislation. For these purposes, the Partner shall promptly comply with any reasonable request of Plumm, including any request to enter into standard data protection clauses.

10. Confidentiality click here to copy this link

    1. Each party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 10.2

    2. Each party may disclose the other party's confidential information:

       1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10; and

       2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

    3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

11. Limitation Of Liability click here to copy this link

    1. References to liability in this clause 11 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

    2. Nothing in this this clause 11 shall limit the Partner's payment obligations under this Agreement.

    3. Nothing in this Agreement shall limit the Partner's liability under clause 7.4 (IPR indemnities).

    4. Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for:

       1. death or personal injury caused by negligence;

       2. fraud or fraudulent misrepresentation; and

       3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

    5. Subject to clauses 11.4 and 11.5 (liabilities which cannot legally be limited), Plumm’s total liability to the Partner shall not exceed the higher of £100 or 50% of the Charges for the affected Subscribed Service(s) paid by the Partner to Plumm under this Agreement in the calendar year immediately preceding the year in which the breach giving rise to any such liability.

    6. Subject to clause 11.2 (No limitation on the Partner's payment obligations), clause 11.3 (liability under identified clauses) and clause 11.4 (Liabilities which cannot legally be limited), this clause 11.6 specifies the types of losses that are excluded:

       1. loss of profits;

       2. loss of sales or business;

       3. loss of agreements or contracts;

       4. loss of anticipated savings;

       5. loss of use or corruption of software, data or information;

       6. loss of or damage to goodwill; and

       7. indirect or consequential loss.

    7. Plumm has given commitments as to compliance of the Subscribed Services with relevant specifications in clause 3 (Plumm’s responsibilities). In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

    8. Unless the Partner notifies Plumm that it intends to make a claim in respect of an event within the notice period, Plumm shall have no liability for that event. The notice period for an event shall start on the day on which the Partner became, or ought reasonably to have become, aware of the event having occurred and shall expire 24 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

12. Termination For Cause click here to copy this link

    1. Neither party has the right to terminate this Agreement or any Subscribed Services for convenience. This clause sets out the limited circumstances in which the parties may terminate any of the Subscribed Servies or the Agreement at any time (other than by giving notice to prevent renewal under clause 2.7).

    2. Without affecting any other right or remedy available to it, either party may terminate any or all Subscribed Services and/or this Agreement with immediate effect by giving written notice to the other party if:

       1. the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

       2. 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;

       3. 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 any of 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;

       4. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

       5. 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 (being a company) 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;

       6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

       7. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

       8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

       9. 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 14 days;

       10. 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 12.2(b) to clause 12.2(i) (inclusive);

       11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

       12. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

    3. Without affecting any other right or remedy available to it, Plumm may terminate any or all Subscribed Services and/or this Agreement with immediate effect by giving written notice to the Partner if:

       1. the Partner fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified to make such payment; or

       2. there is a change of Control of the Partner.

13. Obligations On Termination And Survival click here to copy this link

    1. On termination or expiry of any Subscription Term for any reason:

       1. the Partner shall immediately pay to Plumm all of Plumm’s outstanding unpaid invoices in respect of the relevant Subscribed Services and, where relevant, interest;

       2. in respect of any of the relevant Subscribed Services supplied but for which no invoice has been submitted, Plumm may submit an invoice, which shall be payable immediately on receipt;

       3. Plumm shall on request return any of the Partner Materials not used up in the provision of the relevant Subscribed Services; and

       4. all licences granted under this Agreement in respect of the relevant Subscribed Services shall immediately terminate and the Partner shall immediately cease all use of the relevant Subscribed Services and any relevant Plumm Materials and the Partner shall procure that each Authorised User shall immediately cease all use of the relevant Subscribed Services and any relevant Plumm Materials.

    2. On termination or expiry of this Agreement any Subscribed Services which have not reached the termination or expiry of the relevant Subscription Term shall immediately terminate, triggering the obligations under clause 13.1.

    3. Survival

       1. On termination or expiry of this Agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 5 (Non-solicitation), clause 7 (Intellectual property rights), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 13 (Consequences of termination), clause 17 (Waiver), clause 19 (Severance), Clause 25 (Governing law) and clause 26 (Jurisdiction).

       2. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

14. Force Majeure click here to copy this link

    1. Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:

       1. acts of God, flood, drought, earthquake or other natural disaster;

       2. epidemic or pandemic;

       3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

       4. nuclear, chemical or biological contamination or sonic boom;

       5. any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

       6. collapse of buildings, fire, explosion or accident; and

       7. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);

       8. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and

       9. interruption or failure of utility service.

    2. Provided it has complied with clause 14.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

    3. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.

    4. The Affected Party shall:

       1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and

       2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

    5. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 9 weeks, the party not affected by the Force Majeure Event may terminate this Agreement by giving 6 weeks' written notice to the Affected Party.

15. Assignment And Other Dealings click here to copy this link

    1. This Agreement is personal to the Partner and the Partner shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

    2. Plumm may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.

16. Variation click here to copy this link

    1. No variation of an Order Form or any written agreement incorporating these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

    2. Plumm may update these Terms and Conditions from time to time.

    3. Each Order Form and any written agreement incorporating these Terms and Conditions shall be subject to the Terms and Conditions referred to in the Order Form or written agreement at the time it is entered into and any subsequent variations to these Terms and Conditions shall not have any effect in relation to such pre-existing Order Forms or written agreement unless the parties so agree under clause 16.1.

17. Waiver click here to copy this link

    1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

    2. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

    3. A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.

18. Rights And Remediesclick here to copy this link

    The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19. Severance click here to copy this link

    1. If any provision or part-provision of this Agreement 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 this Agreement.

    2. If any provision or part-provision of this Agreement is deemed deleted under clause 19.1 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.

20. Entire Agreement click here to copy this link

    1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

    3. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

21. No Partnership Or Agency click here to copy this link

    1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

    2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. Third Party Rightsclick here to copy this link

    1. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

    2. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.

23. Notices click here to copy this link

    1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:

       1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

       2. sent by email to the address specified from time to time by such party.

    2. Any notice shall be deemed to have been received:

       1. if delivered by hand, at the time the notice is left at the proper address;

       2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

       3. if sent by email, 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 23.2(c), business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

    3. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

24. Counterparts click here to copy this link

    1. This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

    2. No counterpart shall be effective until each party has executed and delivered at least one counterpart.

25. Governing lawclick here to copy this link

    This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

26. Jurisdictionclick here to copy this link

    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

This document was last updated on 11th June 2024.