Company details: Therapy Fairground Limited incorporated and registered in England and Wales with company number 14188723 whose registered office is at Pound Farm House, Horse Road, Hilperton, Wiltshire, BA14 7PD (Us, Our, We)
Contacting us: To contact Us, email Us at [email protected] or write to Us at our address set out above. How to provide Us with formal notice under this agreement is set out in clause 13.10.
Background: We have developed the Services on the Platform which We make available to members via the internet on a membership basis for the purpose of facilitating therapeutic and supervision services to children, young people and mental health professionals. You wish to use the Services as part of Your therapeutic offering, and in return for You taking out and paying for membership on the terms set out below, We agree to provide You, and Your Clients, access to and use of the Platform. In using the Platform and our Services, You acknowledge that these are intended as a support tool and resources, and not a replacement for traditional psychotherapy practices.
Purchasing your Membership: Please follow the onscreen prompts to purchase your Membership. Each request from You is an offer by You to buy a Membership subject to the terms of this agreement.
Please check carefully before confirming Your order of a Membership. You are responsible for ensuring that the information You provide is complete and accurate.
Acknowledging Your order: After Your purchase You will receive an acknowledgement email from Us, at which point and on which date Your Membership with Us will come into existence in accordance with the terms of this agreement.
1.1 We use a number of specific terms in this agreement which have the following meaning:
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 Unless the context otherwise requires, words in the singular shall include the plural and vice versa, and references to one gender includes all other genders.
1.5 A reference to writing or written excludes fax but not email.
References to clauses and schedules are to the clauses and schedules of this agreement.
2.1 Subject to You paying the Membership Fee, and complying with the terms and conditions of this agreement, We grant to You a non-exclusive and non-transferable right to use, and permit Clients to use, the Services for the duration of the Membership that You have paid for (Term).
2.2 In relation to the Clients, You undertake that:
(a) You will not allow Your Log In, or any Client Access, to be used by any Client or individual not present with You in Your session;
(b) You shall remain in full control of all Clients at all times during their use of the Services, you will not leave any Client unattended at any time and You are solely responsible for their actions and use of the Services. You acknowledge that We have not visibility of the actions or use by individual Clients;
(c) You are solely responsible for the supervision, safeguarding, behaviour, welfare, and expectations of Clients in relation to their use of the Services, including obtaining parental consent (where appropriate);
(d) the Services are provided by Us as a facilitating tool only, and You are solely responsible for any use of the Services by You and Clients and all therapeutic outcomes and support; and
(e) some Services are identified as appropriate only for Clients above certain ages, and You are solely responsible for ensuring that no Client below the age stated is granted access to any such item.
2.3 You are qualified, registered and appropriately insured to provide and engage Clients in the Services. You agree that neither You nor Your Clients shall access, store, distribute or transmit any material during the use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, racially ethnically or sexually offensive or discriminatory or otherwise promotes or facilitates illegal activity.
2.4 We reserve the right, without liability or prejudice to Our other rights to You, to disable Your access and/or the access of Clients in the event of a breach of the provisions of this clause 2.
2.5 Neither You nor your Clients may:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or Platform in any form or media or by any means;
(b) attempt to de-compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or Platform; or
(c) use or copy the Services or Platform to build a competing product or service; or
(d) introduce, or permit the introduction of, any virus or other vulnerability that does or may affect the Services or Platform.
2.6 We may from time to time make available resources on the Platform for You to use in Your therapeutic sessions, but for no other purpose.
2.7 You 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 Us.
2.8 Unless otherwise stated, the rights provided under this clause 2 are granted to You only.
2.9 As part of Your Membership You agree to:
(a) co-operate with Us and provide information that we reasonably need from time to time;
(b) maintain all necessary licences, insurance, consents and permissions, including all relevant regulatory requirements to operate as a provider of services offered, such as HCPC, BACP and UKCP if You are a therapist in the United Kingdom;
(c) carry out Your services and all other responsibilities set out in this agreement in a timely and efficient manner; and
(d) be solely responsible for procuring, maintaining and securing appropriate network connections and telecommunications links from Your systems and the systems of Clients to the Services and Platform.
3.1 Whilst your Membership is current, We shall make the Services available to You on and subject to the terms of this agreement. We will try to keep the Services operational, but reserve the right for the Services to be unavailable for planned and unscheduled maintenance. We will try to notify You in advance when the Services or the Platform will be unavailable, but you acknowledge that is not always possible in unforeseen circumstances.
3.2 We will provide limited support services to facilitate password resets or access issues as described on our Website from time to time. We do not guarantee that Our limited support services will be sufficient, or that We will be able to assist with any and all issues that may arise. We provide no guarantee in relation to the time taken to resolve any and all issues that may arise.
3.3 You acknowledge that We reserve the right without incurring any liability to You or Clients, to suspend or terminate Your Membership and access to the Services and Platform, should We become aware of any threatened or actual breach of the terms of this agreement by You or any of Your Clients.
4.1 For the purposes of this clause, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
4.2 Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
4.3 For the purposes of Applicable Data Protection Laws We are controller of personal data processed to enable access to the Platform and Services, and You are controller of all data relating to your Clients. We do not need to process any personal data relating to your Clients in order to provide the Services and You take sole responsibility for all data shared through the Platform.
4.5 You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of personal data for the duration and purposes of this agreement, including all required consents from Your personnel, representatives, and Clients and their parents or legal guardians.
4.6 Schedule 1 sets out the scope, nature and purpose of processing by Us, the duration of the processing, and the types of personal data and categories of data subject.
4.7 We shall, in relation to personal data:
(a) process personal data only for the purposes set out in Schedule 1;
(b) implement 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;
(c) ensure that any personnel engaged and authorised by Us to process personal are subject to confidentiality obligations;
(d) assist You insofar as possible, and at Your cost, to comply with Your obligations with regards to security, breach notifications, impact assessments and consultations with supervisory authorities;
(e) notify You without undue delay on becoming aware of a personal data breach involving personal data;
(f) at Your written direction, delete or return personal data and copies thereof to You on termination of this agreement unless We are required by law to continue to process that personal data; and
(g) maintain records to demonstrate Our compliance with this clause.
4.8 You provide prior, general authorisation for Us to:
(a) appoint processors to process the personal data, provided that We comply with the Applicable Data Protection Laws in managing such processors; and
(b) transfer personal data outside of the UK as required for the purposes set out in Schedule 1, provided that We ensure that all such transfers are effected in accordance with Applicable Data Protection Laws.
4.9 In the event of any loss or damage to personal data, Your sole and exclusive remedy against Us shall be for Us to use reasonable commercial endeavours to restore the lost or damaged data from Our latest back-up, and We are not responsible for any loss, destruction, alteration or disclosure of personal data caused by Your or any third party You permit to access the Platform.
You acknowledge that the Services may enable You and Clients to access and purchase products and services from third parties, and You do so solely at Your own risk. We make no commitments and have no liability in relation to the content or use of such third-party websites, or if any such third-party website, product, or service is no longer available. If You have any feedback on third-party websites, please use the First Aid tent.
6.1 We will take care to provide the Services substantially in accordance with these terms and with reasonable skill and care. If something goes wrong, We will use reasonable efforts to resolve it, but we do not guarantee availability of the Services.
(a) do not warrant that use of the Services and Platform will be uninterrupted, error-free or free from vulnerabilities, or that it meets Your requirements or the therapeutic needs of Your Clients; and
(b) are 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 You acknowledge that the Services and Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 We have and will maintain all necessary licences, consents, and permissions necessary for the performance of Our obligations under this agreement.
7.1 You shall pay the Membership Fee to Us in accordance with this clause 7 and as stated on Our website.
7.2 You shall provide to Us valid, up-to-date and complete payment details, and You hereby authorise Us to bill such payment details on the Effective Date, and each period thereafter, the applicable Membership Fee payable by You during the Term as set out on Our website.
7.3 If We have not received payment on the due date, and without prejudice to other rights and remedies available to Us, We may, without liability to You, disable Your Log In and all Client Access while payment remains unpaid.
7.4 All amounts and fees stated or referred to in this agreement and on Our website are payable in pounds sterling, non-cancellable and non-refundable, and expressed exclusive of VAT which shall be added at the appropriate rate.
7.5 On renewal of the Term, We shall be entitled to charge the then current Membership Fee as set out on Our website.
8.1 You acknowledge and agree that We and/or Our licensors own all intellectual property rights in the Services and Platform. This agreement does not grant You any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or Platform.
8.2 We confirm that We have all the rights necessary to grant You access to the Services and Platform on the terms of this agreement.
9.1 ‘Confidential Information’ means all confidential information disclosed by a party to the other party in connection with this agreement, including but not limited to any information that would be regarded as confidential relating to the business, assets, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party. Confidential Information shall not include that which, (i) is or becomes generally available to the public (other than as a result of its disclosure by a breach of an obligation of confidentiality); ii) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; iii) is or becomes available to the receiving party on a non-confidential basis; or iv) is developed by or for the receiving party independent of the information disclosed by the disclosing party.
9.2 Each party shall keep the other party’s Confidential Information secret and confidential and shall only use it to exercise or perform obligations under this agreement and shall not disclose it to third parties except as expressly permitted.
9.3 The other party’s Confidential Information may be disclosed to representatives who need to know such Confidential Information, provided that they are subject to an appropriate duty of confidentiality, and:
(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.
9.4 A party may disclose Confidential Information to the extent required by law or regulatory requirement.
9.5 Each party reserves all rights in its Confidential Information, and no express or implied warranties are given concerning Confidential Information.
9.6 The above provisions of this clause 9 shall continue to apply after termination of this agreement.
10.1 You shall defend, indemnify and hold Us harmless against 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 Your use of the Services and Platform, and the use of the Service and Platform by Clients, provided that:
(a) We give You prompt notice of any such claim;
(b) We provide reasonable co-operation to You in the defence and settlement of such claim, at Your expense; and
(c) You are given sole authority to defend or settle the claim.
WARNING: You are strongly advised to read this clause.
11.1 Except as expressly and specifically provided in this agreement:
(a) You assume sole responsibility for Your use, and the use by Clients, of the Services and Platform, and for conclusions drawn from such use and all therapeutic benefits or impacts;
(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 and Platform are provided to You and Clients on an “as is” basis.
11.2 Nothing in this agreement excludes Our liability for death or personal injury, or any other liability that cannot be excluded by law.
11.3 Subject to clause 1 and clause 11.2:
(a) We shall not be liable whether in tort (including negligence for 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; and
(b) Our 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 total Membership Fee paid by You in the Term immediately preceding the date on which the claim arose.
11.4 Nothing in this agreement excludes Your liability, or the liability of Clients, for any breach, infringement or misappropriation of Our and/or Our licensors intellectual property rights.
12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Term.
12.2 Without affecting any other right or remedy available to Us, We may terminate this agreement with immediate effect if:
(a) You fail to pay any amount due under this agreement on the due date for payment;
9b) You or a Client commit a material breach of any term of this agreement;
(c) where You are a business, You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or You admit inability to pay Your debts or are deemed unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986). Or, where You are an individual, You are deemed either unable to pay Your debts or as having no reasonable prospect of so doing, within the meaning of section 268 of the IA 1986. Or, if You are a partnership, any of the foregoing apply to any partner; and
(d) You suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of Your business.
12.3 On termination of this agreement for any reason:
(a) the Membership granted under this agreement shall immediately terminate and You shall immediately cease all use of the Services and Platform;
(b) whilst you may retain resources downloaded during sessions to continue to support Your individual Clients including any therapeutic notes and records, You must destroy or otherwise dispose of any other information relating to the Services and/or Platform; and
(c) any rights or remedies of Ours 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.
13.1 We shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of Our obligations if such delay or failure result from events, circumstances or causes beyond Our reasonable control. If the period of delay or non-performance continues for 2 weeks, We may terminate this agreement by giving 5 days’ written notice to You.
13.2 No variation of this agreement shall be effective unless it is in writing and signed by the parties.
13.3 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 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.
13.4 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.
13.5 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. If any provision or part-provision of this agreement is deemed deleted under this clause 13.5 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.
13.6 These terms constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements and terms however arising. 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.
13.7 This agreement is personal to You, and you may not transfer or assign it without Our consent. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under this agreement.
13.8 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.
13.9 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.
13.10 Any notice given to a party under or in connection with this agreement shall be in writing and shall be sent by email to Our email address provided at the outset of this agreement, or to Your email address provided to Us in relation to Your Membership (or another email address communicated by You or Us from time to time). Any notice shall be deemed to have been received, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume. 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.
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 governed by and interpreted in accordance with the law of England and Wales. 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).
Processing, personal data and data subjects
Particulars of processing:
We will process Your personal data in order to fulfil the contractual obligations specified in this agreement. This includes Your obligations to Us as well as Our obligations to You. We will also process your personal data for our legitimate business interests and for reasons related to legal compliance.
Nature and purpose of the processing
We will process your personal data so that:
· We may provide You with Your Membership;
· You can use the Services on the Platform;
· You pay the Membership Fee; and
· To develop our Services and other business activities.
Duration of the processing
Your personal data will be processed during the Term, and will be retained by Us in accordance with our retention policy of 6 (six) years following the end of the Term.
Types of personal data
We will process the following types of Your personal data:
· Your name;
· Your email address;
· Your Log In;
· Your payment details; and
· Your interactions with Us via email.
Categories of data subject
You as a Member.