Terms of service
Terms of Service (Software as a Service Agreement)
Parties
(1) TOTAL FOOTBALL LIMITED incorporated and registered in England and Wales with company number 11906184 whose registered office is at Ashbury Works, Gorton Road, Manchester, England, M12 5AD (Total Football)
(2) You (Customer)
BACKGROUND
(A) Total Football has developed the Services, which it makes available to subscribers via a browser and/or app.
(B) The Customer wishes to use Total Football's Services in its business operations.
(C) Total Football has agreed to provide and the Customer has agreed to take and pay for Total Football's Services subject to the terms and conditions of this agreement.
Agreed terms
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Additional Services: additional services which may be provided to the Customer from time to time by Total Football, including those set out in out in paragraph 2 of Schedule 1.
Additional Service Subscription Fees: the subscription fees payable by the Customer to Total Football for any Additional Services, which shall be in the amount notified by Total Football from time to time. The current Additional Service Subscription Fees are as set out in paragraph 2 of Schedule 1.
Applicable Data Protection Laws: means:
a) To the extent the UK GDPR applies, the laws of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) To the extent the EU GDPR applies, the laws of the European Union or any member state of the European Union to which Total Football is subject, which relates to the protection of personal data.
Authorised Users: those employees, agents, independent contractors, or other individuals of the Customer who are authorised by the Customer to use the Services in accordance with this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Control: shall be the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.
Customer Data: the data inputted by the Customer, Authorised Users, or Total Football on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Customer Personal Data: any personal data which Total Football processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
Effective Date: the date of this agreement.
End User: means any individual or entity who accesses the Services or purchases goods or services from a Customer via the Software.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Free Tier Services: the free tier services provided by Total Football to the Customer under this agreement via the Software as set out in paragraph 1 of Schedule 1.
Grassroots Football: non-professional, semi-professional, and non-elite football leagues or activities in England, Wales, Jersey, Guernsey and the Isle of Man.
Mandatory Policies: Total Football's policies listed in Schedule 2, as amended by notification to the Customer from time to time.
Marketplace: means the marketplace made available on the Software in which the Customers and/or other third parties are able to offer goods or services to End Users.
Marketplace Addendum: means the addendum that, if applicable, will be entered into by Total Football and the Customer relating to Marketplace Functionality.
Marketplace Functionality: means functionality within the Services enabling Customers and/or other third parties to offer goods or services to End Users via the Software.
Payment Service Provider: means any regulated third-party provider engaged by Total Football to process payments. The Payment Service Providers that Total Football uses at the date of this agreement and their respective terms and conditions are set out at Schedule 4 and in the Payment Services Addendum.
Payment Services: means functionality within the Services enabling the Customer to accept payments from End Users via third-party Payment Service Providers.
Payment Services Addendum: means the addendum that, if applicable, will be entered into by Total Football and the Customer relating to Payment Services.
Purpose: the purposes for which the Customer Personal Data is processed, as set out in clause 9.8.
Seller: has the meaning given in the Marketplace Addendum.
Services: the Free Tier Services and any Additional Services provided by Total Football to the Customer from time to time.
Software: the online web-based and app-based software applications provided by Total Football as part of the Services.
Subscription Term: has the meaning given in clause 13.1.
Total Football Personal Data: any personal data which Total Football processes in connection with this agreement, in the capacity of a controller.
Transaction Fees: means fees payable in respect of Payment Services as further described in Schedule 1 or the Payment Services Addendum.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written excludes fax but not email.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2.1 Subject to the Customer paying any applicable Subscription Fee, the restrictions set out in this clause 2, and the other terms and conditions of this agreement, Total Football hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business and operational purposes.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) it will not allow any party other than the Authorised Users to access and use the Services;
(b) it will not allow or suffer any login details to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for their use of the Services, that such password shall be changed no less frequently than annually and that each Authorised User shall keep their password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Total Football within 5 Business Days of Total Football's written request at any time or times;
(e) it shall permit Total Football or Total Football's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at Total Football's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; and
(f) if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Total Football's other rights, the Customer shall promptly disable such passwords and Total Football shall not issue any new passwords to any such individual.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property,
and Total Football reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
(a) 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:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Services in order to build a product or service which competes with the Services;
(c) use the Services to provide services to third parties, except where such use is expressly enabled through Marketplace Functionality;
(d) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users;
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or
(f) introduce or permit the introduction of any Virus into Total Football's network and information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Total Football.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Free Tier Services and Additional Services
3.1 Total Football shall, during the Subscription Term, provide the Free Tier Services to the Customer at no charge on and subject to the terms of this agreement.
3.2 Total Football shall use commercially reasonable endeavours to make the Free Tier Services available at all times except for required maintenance, provided that Total Football has used reasonable endeavours to give the Customer reasonable notice in advance.
3.3 Total Football may also, during the Subscription Term, provide Additional Services to the Customer, including but not limited to Payment Services and/or Marketplace Functionality. The availability and use of such Additional Services shall always be subject to the Customer’s prior acceptance of the relevant additional terms, addenda or policies notified to the Customer from time to time, such as the Payment Services Addendum in relation to the Payment Services and the Marketplace Addendum in relation to the Marketplace Functionality.
3.4 Subject to clause 3.6, the Customer may, from time to time during the Subscription Term, request Additional Services offered by Total Football. Total Football shall evaluate such request for Additional Services and respond to the Customer with approval or rejection of the request. Where Total Football approves the request, Total Football shall provide a time estimate for activation of the Additional Services, but such time estimate shall be an estimate only and shall not be binding on Total Football. The Customer acknowledges that where Additional Services require bespoke development, it cannot be certain how long such development work will require.
3.5 The Additional Services Subscription Fees shall be at the current price list of Total Football in force at the time of such order.
3.6 If Total Football approves the Customer's request to purchase Additional Services, the Customer shall pay to Total Football the relevant Additional Services Subscription Fees in accordance with clause 7 and Schedule 1.
3.7 Total Football shall be entitled to update the Services, and any functionality or specification relating to the same, provided that such updates shall not result in the Customer losing substantially all of the benefit of the Services.
3.8 The Customer hereby grants to Total Football the exclusive rights to record, broadcast and otherwise publish content in any form relating to the Customer’s Grassroots Football matches (including live, after the event and highlights) in any and all media around the world (including the right to re-sell or licence such broadcast rights to any third parties).
4.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and make arrangements with, third parties including third-party websites and that it does so solely at its own risk. Total Football 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 or third-party website, or any transactions completed, or arrangements made, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Total Football. Total Football recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Total Football does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services. Without limitation, Payment Services may rely on third-party Payment Service Providers. Total Football is not responsible for the acts or omissions of such providers and does not control their services.
5. Total Football's obligations
5.1 Total Football undertakes that the Services will be performed with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Total Football's instructions, or modification or alteration of the Services by any party other than Total Football or Total Football's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Total Football will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.
(i) the Customer's use of the Services will be uninterrupted or error-free;
(ii) that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Viruses.
(b) 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.4 This agreement shall not prevent Total Football from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
5.5 Total Football warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
5.6 Total Football shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, as such document may be amended by Total Football in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Total Football shall be for Total Football to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Total Football in accordance with the archiving procedure described in its Back-Up Policy. Total Football shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
(a) provide Total Football with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Total Football,
in order to enable Total Football to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Total Football may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any breach of this agreement by or caused by an Authorised User;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Total Football, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Total Football from time to time;
(g) if utilising any Additional Services, comply at all times with any relevant terms in relation to those Additional Services, including but not limited to the terms of the Payment Services Addendum in relation to the Payment Services, the Marketplace Addendum in relation to the Marketplace Functionality, the terms of any relevant Payment Services Provider and any other terms that the Customer may be subject to, including the terms of this agreement; and
(h) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Total Football's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
6.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
7.1 Total Football shall provide the Free Tier Services at no charge to the Customer.
7.2 The Customer shall pay the Additional Services Subscription Fees to Total Football for any Additional Services approved pursuant to clause 3 above in accordance with this clause 7 and Schedule 1.
7.3 Unless agreed otherwise in writing, the Customer shall pay the Additional Services Subscription Fees to Total Football monthly in advance before the beginning of each month during the Subscription Term.
7.4 If Total Football has not received payment of any sums due within 14 days after the due date, or in the case of Additional Services Subscription Fees in advance of the month to which they relate, and without prejudice to any other rights and remedies of Total Football:
(a) Total Football may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Total Football shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.5 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 12.3(b), non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to Total Football's invoice(s) at the appropriate rate.
7.6 Total Football shall be entitled to charge the Customer for access to the Free Tier Services and/or increase the Additional Services Subscription Fees, at any time upon giving 12 weeks’ prior notice to the Customer, save where pricing is expressly agreed in a pricing addendum or applicable payment services addendum, in which case such agreed pricing shall prevail for the duration stated therein.
7.7 Fees payable in respect of Payment Services or Marketplace Functionality (including Transaction Fees) shall be charged in accordance with Schedule 1 and/or any applicable addendum, including the Marketplace Addendum and the Payment Services Addendum.
8.1 The Customer acknowledges and agrees that Total Football and/or its licensors own all intellectual property rights in the Services and any content delivered or displayed through it. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
8.2 Total Football confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.1 For the purposes of this clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
9.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
9.3 The parties have determined that, for the purposes of Applicable Data Protection Laws Total Football shall process the personal data provided to it by the Customer as a processor on behalf of the Customer in respect of the processing activities set out in this agreement.
9.4 By entering into this agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Total Football in connection with the processing of Total Football Personal Data, provided these are in compliance with the then-current version of Total Football's privacy policy available at www.centrecircleapp.com/Privacy (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
9.5 Without prejudice to the generality of clause 9.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Total Football Personal Data and Customer Personal Data to Total Football for the duration and purposes of this agreement.
9.6 In relation to the Customer Personal Data, the Privacy Policy and Schedule 3 sets out the scope, nature and purpose of processing by Total Football, the duration of the processing and the types of personal data and categories of data subject.
9.7 Without prejudice to the generality of clause 9.2 Total Football shall, in relation to Customer Personal Data:
(a) process that Customer Personal Data only on the documented instructions of the Customer, unless Total Football is required by Applicable Data Protection Laws to otherwise process that Customer Personal Data. Total Football shall inform the Customer if, in the opinion of Total Football, the instructions of the Customer infringe Applicable Data Protection Laws;
(b) implement the technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are 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;
(c) ensure that any personnel engaged and authorised by Total Football to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Total Football), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless Total Football is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 9.7(f) Customer Personal Data shall be considered deleted where it is put beyond further use by Total Football; and
(g) maintain records to demonstrate its compliance with this clause 9.
9.8 The Customer hereby provides its prior, general authorisation for Total Football to:
(a) appoint processors to process the Customer Personal Data, provided that Total Football:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Total Football 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 Total Football; and
(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Total Football's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Total Football for any losses, damages, costs (including legal fees) and expenses suffered by Total Football in accommodating the objection.
(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Total Football shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Total Football, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
9.9 For the avoidance of doubt, where personal data is provided directly by an Authorised User or End User to Total Football, Total Football shall be a data controller in respect of such data and may process it in accordance with its Privacy Policy.
9.10 The Customer acknowledges and agrees that Total Football may create, use, and commercially licence aggregated and anonymised data derived from the Customer's use of the Services and from data provided by Authorised Users and End Users, provided that such data cannot reasonably be used to identify any individual. Total Football shall ensure that recipients of such data are contractually prohibited from attempting re-identification.
10.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this agreement, including but not limited to:
(a) the terms of this agreement;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party; and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; and
(c) any information developed by the parties in the course of carrying out this agreement and the parties agree that:
(i) details of the Services, and the results of any performance tests of the Services, shall constitute Total Football Confidential Information; and
(ii) Customer Data shall constitute Customer Confidential Information.
10.2 Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
10.3 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
(d) the parties agree in writing is not confidential or may be disclosed; or
(e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
10.4 Each party shall keep the other party's Confidential Information secret and confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.5 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
10.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
10.7 On termination or expiry of this agreement, each party shall:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information, except for the Customer Data which shall be stored by Total Football in a safe, secure and accessible manner for a period of at least 7 years from such Customer Data being obtained or until the Customer requests Total Football to destroy or return it, whichever is earlier; and
(b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable).
10.8 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
10.9 The above provisions of this clause 10 shall survive for a period of five years from termination or expiry of this agreement.
10.10 In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.
11.1 The Customer shall defend, indemnify and hold harmless Total Football against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, Software and/or any breach of this agreement by the Customer and/or its Representatives.
11.2 In the defence or settlement of any claim that the Services infringe the intellectual property rights of any third party, Total Football may procure the right for the Customer to continue using the Services, replace or modify the 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 Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall Total Football, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Total Football; or
(b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by Total Football; or
(c) the Customer's use of the Services after notice of the alleged or actual infringement from Total Football or any appropriate authority.
11.4 The foregoing and clause 12.3(b) state the Customer's sole and exclusive rights and remedies, and Total Football's (including Total Football's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Total Football shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Total Football by the Customer in connection with the Services, or any actions taken by Total Football at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services are provided to the Customer on an "as is" basis.
12.2 Nothing in this agreement excludes the liability of Total Football:
(a) for death or personal injury caused by Total Football's negligence; or
(b) for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.1 and clause 12.2:
(a) Total Football shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
(b) subject to clause 12.3(c), Total Football's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the lesser of £1,000 or the total Additional Services Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose; and
(c) if only Free Tier Services are used, Total Football’s liability shall be limited to a maximum of £100, except for liabilities which cannot be excluded under UK law
12.4 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Total Football’s Intellectual Property Rights”.
13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue until either party gives to the other party not less than 12 weeks’ written notice to terminate (Subscription Term).
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any other 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;
(b) 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 (IA 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 IA 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(g) 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;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) 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;
(j) 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 13.2(b) to clause 14.2(j) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(l) 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.
13.3 Total Football shall be entitled to terminate this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
13.4 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
(b) each party shall return and make no further use of any equipment, property, Software and other items (and all copies of them) belonging to the other party;
(c) Total Football shall retain its latest back-up of the Customer Data for a period of at least 7 years from such Customer Data being obtained, or until the Customer requests Total Football to destroy or return it, whichever is earlier, and if Total Football receives a written request from the Customer for the delivery of the then most recent back-up of the Customer Data within 7 years from such Customer Data being obtained, Total Football shall use reasonable commercial endeavours to deliver the back-up of the Customer Data to the Customer within 30 days of receipt of such request, provided that the Customer has, at that time, paid all fees and charges outstanding under this agreement. The Customer shall pay all reasonable expenses incurred by Total Football in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14. Anti-bribery and anti-corruption
14.1 Total Football shall during the term of this agreement:
(a) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010;
(b) establish, maintain and enforce its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements;
(c) within 12 months of the date of this agreement, and annually thereafter, certify to the Customer in writing, compliance with this clause. Total Football shall provide such supporting evidence of compliance as the Customer may reasonably request.
14.2 Total Football shall ensure that any of its agents, consultants, contractors, subcontractors or other persons engaged in performance of Total Football's obligations under this agreement do so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on Total Football in this clause (Relevant Terms). Total Football shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Customer for any breach by such persons of any of the Relevant Terms.
14.3 Breach of this clause 14 shall be deemed a material breach under clause 13.
14.4 For the purpose of this clause 14, the meaning of adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
17.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives), except as provided in clause 17.2.
17.2 Total Football may update the Mandatory Policies listed in Schedule 2 by giving the Customer not less than 14 days' written notice before the updated policy takes effect. The Customer's continued use of the Software after the effective date of any such update constitutes acceptance of the updated policy. If the Customer does not accept a material update to a Mandatory Policy, the Customer may terminate this agreement in accordance with clause 13 by giving written notice before the effective date of the update.
18.1 A waiver of any right or remedy is only effective if given in writing.
18.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 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.
20.2 If any provision or part-provision of this agreement is deemed deleted under clause 20.1 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.
21.1 This agreement (and the terms included in any addenda relating to the Additional Services) constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
22.1 The Customer shall not, without the prior written consent of Total Football, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22.2 Total Football may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23.1 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23.2 Nothing in this agreement shall be deemed to create any partnership, agency or fiduciary relationship in any respect, save as may be expressly agreed in writing between the parties. Nothing in this clause prevents the appointment of Total Football as a limited commercial agent solely for payment collection purposes, where expressly set out in the Payment Services Addendum or Marketplace Addendum.
24.1 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) 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
(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):
(i) Total Football: legals@centrecircleapp.com.
(ii) You: the email address you used when creating an account with Total Football.
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) 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.
25.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be exclusively governed by and interpreted in accordance with the laws of England and Wales.
27.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
· The Centre Circle system for organisations to manage appointments, availability & match reports of referees.
· The Centre Circle system for referees to manage availability, confirm fixtures & submit match reports.
· The Centre Circle system to access organisation documents & contact information.
· The Centre Circle system for organisations to add meetings and events.
· The Centre Circle system for guardians to oversee their children’s administration.
· The Centre Circle system for County FAs to confirm guardian relationship to children.
2. Additional Services and Additional Service Subscription Fees
Access to Payment Services, including Open Banking and card payment functionality, subject to applicable Transaction Fees and additional terms. The Transaction Fees are set out in the Pricing Page in the Payment Services Addendum. Total Football may, however, from time to time notify the Customer or other relevant third party of the relevant Transaction Fees if they are different to the Transaction Fees set out in the Pricing Page.
The Mandatory Policies are:
· The Privacy Policy
· Cookie Policy
· Acceptable Use Policy
Schedule 3 Particulars of the processing
1.1 Scope and nature – to process personal data in order to provide administrative support to grassroots football
1.2 Purpose of processing – to deliver service under the agreement
1.3 Duration of the processing – the term of the agreement.
2. Types of Personal Data – identity data; contact data; football and participation data; financial and transaction data; bank account credentials (Payees); payment method tokens and references; communications data; technical and usage data; special category data (health, equality, biometric).
3. Categories of Data Subject – referees, match officials, observers and mentors; team managers, coaches, volunteers; club administrators; league administrators; County FA administrators; players; parents and guardians; End Users of the Software; Payees receiving payments through the Software.
Schedule 4 – Payment Service Providers
|
Payment Service Provider name |
Link to terms and conditions |
|
Stripe Payments Europe Limited |
https://stripe.com/gb/legal/connect-account |
|
Stripe Payments UK Ltd |
https://stripe.com/gb/legal/connect-account |
|
Ryft Pay Ltd |
https://ryftpay.com/legal/terms-conditions |
|
TrueLayer Limited |
https://truelayer.com/legal/enduser_tos/ |
|
GoCardless Ltd |
https://gocardless.com/legal/payers/ |