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HeyHub SaaS Licence Agreement
Dated: 26 March 2023, 05:28
IMPORTANT – read carefully:
This subscription use agreement (the “agreement”) is a legal agreement between you and any company you represent (collectively, “you” and “customer”) and HeyHub Ltd (collectively, “Provider” and “HeyHub”).
This agreement applies to (1) all subscriptions for HeyHub hosted software as a service (SaaS) solutions (including but not limited to branded mobile applications and website provided to businesses, venues, events and brands - creating engaged digital communities) and (2) any other related services that HeyHub may provide to you in connection with such SaaS solutions.
Please read the agreement carefully before continuing your subscription registration. By clicking the “I accept” button or otherwise accepting this agreement as set forth in any online or printed form referencing this agreement, you and any company you represent agree to follow and be bound by the terms and conditions of this agreement. If you are agreeing to this agreement on behalf of your company, you are representing to us that you have the authority to bind your company to this agreement, and the term “you” or “customer” shall refer to your company. If you do not have such authority, or if you do not agree to all terms and conditions of this agreement, you must choose the “cancel” button and you shall not be permitted to use any HeyHub services.
HeyHub Ltd provides branded mobile applications and websites to businesses, venues, events and brands - creating engaged digital communities and You wish to license HeyHub’s technology in the form of branded mobile applications or websites, as specified within the already mutually agreed proposal.
1.1 In this Agreement (except to the extent expressly provided otherwise):
"Account" means an account enabling a person to access and use the Hosted Services (including both administrator accounts and user accounts);
"Agreement" means this agreement including any Schedules, Signed Proposals and any Amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST] on a Business Day;
"Costs" means the following amounts:
(a) the amount specified in a mutually agreed Proposal;
(b) such amounts as may be agreed in writing by the parties from time to time
"Customer Confidential Information" means:
(a) any information disclosed by, or on behalf of the Customer to the Provider, during the Term, or at any time before the termination of this Agreement, whether disclosed in writing, orally or otherwise that at the time of disclosure:
(i) was marked, or described, as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;
"Customer Data" means data, works and materials: uploaded to or stored on the Platform by the Customer; supplied by the Customer to the Provider for uploading to, transmission to or storage on the Platform; excluding analytics data relating to the use of the Platform and server log files); the Provider is the data processor for this customer data, with the Customer being the data controller;
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding data with respect to which the Provider is a data controller;
“User Data" means any data, whether personal or not, supplied to the Provider by users of the Mobile Applications.
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means the software provided to the Customer by the Provider, as specified in the Proposal, which will be made available by the Provider to the Customer and their users as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect OR a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Mobile Applications" means the mobile applications that are made available by the Provider through the Google Play Store and the Apple App Store in relation to the Proposal;
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the mobile applications and websites for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Proposal” means the mutually agreed specification that defines the features included in the Hosted Services that are being supplied to the Customer and the costs for such features and services.
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force until either of following;
(a) any termination date specified within a mutually agreed proposal
(b) any term or clause of this agreement, which when enforced relates to a termination of this agreement
3.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account promptly following the Effective Date.
3.2 The Provider hereby grants to the Customer a non-exclusive Licence to use the Hosted Services in accordance with the Proposal, during the Term.
3.3 The Licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Hosted Services may be used by the officers, employees, agents of the Customer;
(b) the Hosted Services may be used by any users as identified in the Proposal
(c) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Proposal
3.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not use the Hosted Services to provide services to third parties;
(c) the Customer must not republish or redistribute any content or material from the Hosted Services;
(d) the Customer must not make any alteration to the Platform, except as permitted by the Documentation]; and
(e) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services, without the prior written consent of the Provider.
3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
3.6 The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
3.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 14 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement.
6.2 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.
7.1 The parties acknowledge and agree that the use of the Mobile Applications, the parties' respective rights and obligations in relation to the Mobile Applications and any liabilities of either party arising out of the use of the Mobile Applications shall be subject to separate terms and conditions.
7.2 The parties acknowledge and agree that the use of any HeyHub website, the parties' respective rights and obligations in relation to the websites and any liabilities of either party arising out of the use of the websites shall be subject to separate terms and conditions.
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer.
8.2 Any Intellectual property, and intellectual property rights, arising from any work created under the agreed activities of this agreement and in relation to the use of the Provider’s technology; and any work completed by the Provider , in editing, altering or adding to their existing technology stack, software, apps, SDK’s, codebase, services, computer programs, software development kits, shall belong to and be the sole property of HeyHub Ltd ONLY.
9.1 The Customer shall pay the Costs to the Provider as stated within the Proposal
9.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, inclusive of any applicable value added taxes
10.1 The Provider shall issue invoices for the Costs to the Customer from time to time during the Term.
10.2 The Customer must pay the Costs to the Provider within the period of 14 days following the issue of an invoice in accordance with this Clause 10
10.3 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
11.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent and then only under conditions of confidentiality;
(c) act in good faith at all times in relation to the Customer Confidential Information; and
(d) not use any of the Customer Confidential Information for any purpose other than required and specified to the customer or user
11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors, who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 11 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
23.1 Each party shall comply with all necessary Data Protection Laws with respect to the terms specified within this agreement.
12.2 The Customer warrants to the Provider that it has the legal right to disclose all Customer Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
12.3 The Provider shall only process the Customer Personal Data during the Term, subject to the other provisions of this Clause 12.
12.4 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.5 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as processors with respect to Customer Personal Data
12.6 The Provider shall, at the choice of the Customer, delete all of the Customer Personal Data after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant data.
12.7 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
12.8 The Provider warrants to the Customer that it has the legal right to disclose any and all User Data that it does in fact disclose to the Customer under or in connection with this Agreement.
12.9 The Customer shall ensure that persons authorised to process the User Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.10 The Provider and Customer shall, at the sole discretion of any user, delete all of the User Data held by that party and shall delete existing copies save to the extent that applicable law requires storage of the relevant data.
13.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
13.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform with the Hosted Services Specification
13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
13.4 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
13.5 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Proposal; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
14.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
15.2 Neither party shall be liable to the other in respect of any losses arising out of a Force Majeure Event; any loss of profits or anticipated savings; any loss of revenue or income; any loss of use or production; any loss of business, contracts or opportunities; any loss or corruption of any data, database or software or any special, indirect or consequential loss or damage.
15.9 The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or
19.3 Within 14 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Costs in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Costs paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties' other legal rights.
20.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by [recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting;
(c) sent digitally via e-mail to e-mail addresses that are being used for consistent and regular communication
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may be amended by the Provider from time to time based on the services offered by the Provider. The Provider will inform the Customer of any such amendments as and when they are made.
22.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 This Agreement along with any Proposal or Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with English law.
22.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.