Qminder Terms of Service

Last updated: February 19, 2019

Introduction

Qminder operates a customer service management software platform that it makes available as a service, which enables users to manage waiting lines and walk-in appointments at physical locations, which it makes available through the Qminder Apps (as defined below) and online at www.qminder.com (the “Qminder Service”).

These Terms of Service set out the terms and conditions upon which you may use the Qminder Service and any application or functionality that Qminder makes available through the Qminder Service, or any related services that Qminder performs in connection with your use of the Qminder Service, whether on a trial basis or a paid subscription basis (as identified in the Subscription Form).

By using the Qminder Service or signing a Subscription Form, you agree to and accept these Terms of Service.

1. Information about Qminder

The Qminder Service is provided by Qminder Limited, a company incorporated and registered in England with registration number 07858892, whose registered office is at 20-22 Wenlock Road, London, N1 7GU (“Qminder”).

2. Interpretation

In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:

“Agreement” means the agreement between the Client and Qminder, comprising the relevant Subscription Form and these Terms of Service, for the provision of the Qminder Service;

“Apple Appstore” means a marketplace for applications on the Apple platform;

“Authorised User” means a Clerk User, Location Manager User or Senior Manager User;

“Clerk Account” means an account set up by the Client that a Clerk User uses to access the Qminder Service;

“Clerk User” means a person who is authorised by the Client to access the Qminder Service to view information relating to Customers in order to provide the Client’s services to those Customers;

“Client” or “you” means the person identified in the Subscription Form;

“Client Account” means a Clerk Account, Location Manager Account or Senior Manager Account;

“Client Data” means the content and data that the Client or any Authorised Users make available to Qminder and that is hosted by Qminder in connection with the provision of the Qminder Service;

“Confidential Information” means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary;

“Customer” means a customer of the Client;

“Data Protection Laws” means any applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of personal data, including (without limitation) the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and any national implementing or supplementary legislation; the ePrivacy Directive 2002/58/EC and any national implementing or supplementary legislation; the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN- SPAM) Act 2003; and the Telephone Consumer Protection Act (TCPA) 1991;

“Device” means a television, digital media player, tablet, smartphone, mobile or other handheld device, in each case which is capable of supporting the relevant Qminder App;

“DPA” has the meaning given to it in clause 15.1;

“Extended Subscription Period” has the meaning given to it in clause 5.2;

“Location” means a branch, office, establishment, facility, department or any other location of the Client (or a member of the Client’s Group) where the Client provides a distinct set of customer services and uses the Qminder Service to manage the provision of such customer services;

“Location Manager Account” means an account set up by the Client that a Location Manager User uses to access the Qminder Service;

“Location Manager User” means a person who is authorised by the Client to access the Qminder Service to view Client Data related to a specific Location and to grant Clerk Users access to the Qminder Service;

“Group” means, in relation to a company, that company, any subsidiary or holding company (each having the meanings in sections 1161 and 1162 of the Companies Act 2006) from time to time of that company, and any subsidiary from time to time of a holding company of that company;

“Initial Subscription Period” means: a period of one (1) month where the client has selected monthly renewal in the Paid Subscription Form; or a period of one (1) year where the client has selected annual renewal in the Paid Subscription Form; “Paid Subscription Form” means the subscription form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Client, the Service Plan, and sets out the Service Fees;

“Pro Service Plan” means the version of the Qminder Service having the features and functionalities agreed between the parties in accordance with clause 7.1(a);

“Qminder Apps” means any applications for a Device that Qminder makes available to the Client in order to enable the Client to manage Customer queuing at Locations using the Qminder Service;

“Senior Manager Account” means an account set up by the Client that a Senior Manager User uses to access the Qminder Service;

“Senior Manager User” means a person who is authorised by the Client to access the Qminder Service to view all Client Data and to add or remove Locations on the Qminder Service and to grant Location Manager Users and Clerk Users access to the Qminder Service;

“Service Fee” means the fee payable by the Client in relation to the provision of the relevant Service Plan of the Qminder Service (and, where applicable, any Set-up Services) to the Client as identified in the Paid Subscription Form or as otherwise agreed between the parties;

“Service Plan” means either the Standard Service Plan or Pro Service Plan, as identified in the Paid Subscription Form;

“Service Start Date” means the date from which the Client will be granted access to the Qminder Service, in accordance with clause 6;

“Set-up Services” means any customisation to the Qminder Service as required to set up and configure the Qminder Service to meet the Client’s branding and taxonomy;

“Standard Service Plan” means the version of the Qminder Service having the features and functionalities set out in respect of the “Standard” plan at https://www.qminder.com/pricing/;

“Subscription Form” means a Trial Subscription Form or Paid Subscription Form;

“Subscription Period” means the Initial Subscription Period and any Extended Subscription Periods;

“Support Services” has the meaning given to it in clause 18.2;

“Terms of Service” means these terms and conditions of service, as amended from time to time;

“Third Party Sites” has the meaning given in clause 10.3;

“Trial” has the meaning given to it in clause 4.1;

“Trial Subscription Form” means the subscription form signed (whether electronically or otherwise) by the parties which identifies the Client;

“Trial Period” means a period of 14 days, or such other period as the parties may agree in writing;

“Upgrades” means new versions of, and updates to, the Qminder Apps, whether for the purpose of fixing an error, bug or other issue in the Qminder Apps or enhancing the functionality of the Qminder Apps.

“VAT” means value added tax (and any equivalent tax payable in any jurisdiction);

“Virus” means any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.

3. Commencement and Duration

The Agreement shall commence on the date on which the Client agrees to these Terms of Service and signs (electronically or otherwise) a Subscription Form and shall continue until the end of the Trial or Paid Subscription (as applicable) unless terminated earlier in accordance with clause 19.

4. Trial

Qminder offers a free trial of the Qminder Service during the Trial Period (the “Trial”). If the parties sign a Trial Subscription Form, the Trial will start on the Service Start Date and will terminate (subject to earlier termination in accordance with clause 4.3 or clause 19) at the end of the Trial Period.
The Client may not, without Qminder’s prior consent (such consent to be granted or withheld at Qminder’s discretion) use the Qminder Service on Trial for more than one Trial Period.
If the Client uses the Qminder Service on a trial basis, either party may terminate the Trial with immediate effect during the Trial Period on written notice to the other party.
Notwithstanding any other term in these Terms of Service, during the Trial Period the Client may only use the Qminder Service for non-commercial testing purposes. The parties acknowledge that any breach of this clause 4.4 will be a material breach of the Agreement.

5. Subscription

If the Client orders a paid subscription to access and use the Qminder Service (a “Paid Subscription”), the Paid Subscription shall commence on the relevant Service Start Date and shall, subject to earlier termination in accordance with clause 19, continue for an Initial Subscription Period.
The Paid Subscription shall automatically extend for a further Initial Subscription Period (an “Extended Subscription Period”) at the end of the Initial Subscription Period and at the end of each Extended Subscription Period thereafter, unless:

either party gives written notice to the other party to terminate the Paid Subscription at the end of the Initial Subscription Period or Extended Subscription Period, such notice to be given no later than one (1) day prior to the expiry of the Initial Subscription Period or then- current Extended Subscription Period; and
any Service Fees or other amounts are outstanding at such time.

6. Service Start Date

Qminder shall grant the Client access to the Qminder Service promptly following:

with respect to a Trial, the date on which the Client signs (whether electronically or otherwise) the Trial Subscription Form; or
with respect to a Paid Subscription, the date on which:
- the Client signs (whether electronically or otherwise) the Paid Subscription Form and the Client has paid the Service Fees with respect to the Initial Subscription Period; and
- where the Client has ordered a Pro Service Plan, Qminder notifies the Client that it has completed the Set-up Services in accordance with clause 7.5.

7. Confirmation and Set-Up Services

Where the Client has selected to use the Pro Service Plan:

Qminder shall not be deemed to have accepted and entered into a Paid Subscription Form unless and until:
- Qminder notifies to the Client the features and functionalities of the Qminder Service that it is able to provide to the Client;
- the Client agrees in writing to the features and functionalities of the Pro Service Plan proposed by Qminder;
subject to clause 7.1(a), Qminder shall provide the Set-up Services to the Client with reasonable diligence and dispatch, and with reasonable skill and expertise, in accordance with these Terms of Service.

In performing the Set-up Services, Qminder shall comply with the Client’s reasonable instructions, and the Client shall provide Qminder with access to any of the Client’s systems or services as Qminder may reasonably require in order to provide the Set-up Services.
Subject to clause 7.4, Qminder shall use the Client’s name, logo and related trade marks to rebrand the Qminder Service in connection with providing the Set-up Services, and the Client hereby grants Qminder such rights as are necessary to use its name, logo and related trade marks for the purpose of this clause 7.3.
Qminder may configure the Qminder Service so that Qminder’s name, logo or related trade marks are displayed on each page viewable on the Qminder Service, in a manner and in a position determined by Qminder in its absolute discretion.
Qminder shall inform the Client in writing upon completion of the Set-up Services.
Qminder may sub-contract the provision of any of the Set-up Services without obtaining the consent of the Client.

8. Access to the Qminder Service

Qminder grants the Client (and to each member of the Client’s Group that agrees to these Terms of Service) a non-exclusive, non-transferable licence from the Service Start Date for the Trial Period or Subscription Period (as applicable) to access, use, and permit Authorised Users to access and use the Qminder Service, in accordance with and subject to the Agreement.
The Client may not sublicence the rights granted in clause 8.1 other than to allow Authorised Users to access and use the Qminder Service.
The Client may grant Authorised Users access to the Qminder Service provided that the Client:

does not make or give any representations, warranties or other promises concerning the Qminder Service unless agreed by Qminder in writing from time to time;
ensures that all Authorised Users are aware of the terms of the Agreement and act in compliance with them;
ensures that the terms on which the Authorised User is granted access to the Qminder Service protect Qminder and its proprietary rights in the Qminder Service to the same extent as set out in the Agreement including, in particular, clause 14 and clause 16 (and the Client will take reasonable steps to enforce such terms at Qminder’s request); and
ensures that Qminder is not liable to the Authorised Users in any way.

The Client must treat any username and password used to access the Qminder Service or a Client Account as Confidential Information, and must not disclose such information to any third party (other than to Authorised Users) and must take appropriate safeguards in accordance with good industry practice to prevent unauthorised access to the Qminder Service.
The Client shall procure that each Authorised User keeps secure and confidential any username and password provided to, or created by, that Authorised User for their use of the Qminder Service, and that they will not disclose such username and password to any third party, including any other Authorised Users or persons within the Client’s organisation, company or business.
The Client is responsible for maintaining the confidentiality of its login details for its Client Accounts and for any activities that occur under its Client Accounts, including the activities of Authorised Users.
Qminder encourages the Client to use, and to encourage Authorised Users to use “strong” passwords (using a combination of upper and lower case letters, numbers and symbols) with its Client Accounts.
The Client must prevent any unauthorised access to, or use of, the Qminder Service, and must promptly notify Qminder in the event of any such unauthorised access or use. If the Client has any concerns about the login details for any Client Account, or thinks any of them may have been misused, the Client shall notify Qminder at support@qminder.com. The Client must immediately notify Qminder and disable the relevant Client Account if the Client becomes aware that the login details of any Authorised User are lost, stolen, or otherwise compromised.
The Client is responsible for making all arrangements necessary for Authorised Users to gain access to the Qminder Service, using the appropriate features and functionalities of the Qminder Service.
The Client shall not at any time, whether during or after the Trial Period or Subscription Period, accept any commission or payment for, or otherwise seek to profit financially or otherwise from granting access to the Qminder Service to Authorised Users.
The Client shall indemnify and defend Qminder, and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of or in connection with any regulatory fines or penalties, or any claim brought by an Authorised User, Customer, or third party relating to the Client’s or any Authorised User’s use of the Qminder Service (except to the extent caused by Qminder’s negligence) including any alleged or actual infringement of any Data Protection Laws.

9. Qminder Apps

Qminder grants the Client a non-exclusive, non-transferable, non-sublicensable licence to download and use the Qminder Apps in order to access the relevant functionalities of the Qminder Service from the Client’s Devices.
The Client may not sublicense the rights granted in clause 9.1 other than to allow Authorised Users and Customers to use the Qminder Apps in order to use and access the applicable functionalities of the Qminder Service.
Qminder may, from time to time, provide the Client with Updates and the Client shall, upon reasonable notice, download and install such Updates on each Device on which the Qminder Apps are downloaded and installed.

10. Client’s Obligations

The Client

must comply with all applicable laws and regulations with respect to its use of the Qminder Service and its activities under the Agreement;
must use the Qminder Service and Qminder Apps in accordance with the terms of the Agreement and shall be responsible for any acts and omissions in connection with the use of the Qminder Service by its Authorised Users;
must ensure that the Client ends an Authorised User’s right to access and use the Qminder Service, if the Authorised User ceases its employment or other relationship with the Client;
must notify Qminder in writing if there are any changes to any of the Client’s contact details as set out in the Subscription Form;
must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant specifications provided by Qminder in writing (including e-mail) from time to time;
is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Qminder Service;
shall comply with any manuals or documentation provided by Qminder in relation to the use of the Qminder Service and Qminder Apps; and must not do, or allow any Authorised Users or other persons to do, any of the following:
- access, store, distribute, or transmit any Virus through the Qminder Service;
- use the Qminder Service:
  - to gain unlawful access to private computer and/or phone networks or systems;
  - to access the personal data of any individual in breach of any applicable laws and/or the Client’s policies or procedures;
  - to engage in spamming or phishing activities over computer and/or phone networks or systems;
  - to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive; or otherwise in a manner that is illegal or causes damage or injury to any person or property;
- use any automated system, including without limitation “robots”, “spiders”, or “offline readers”, to access the Qminder Service in a manner that sends more request messages to the Qminder Service than a human can reasonably produce in the same period of time by using a conventional online web browser;
- attempt to interfere with or compromise the integrity or security of the Qminder Service,

and Qminder reserves the right, without liability or prejudice to its other rights under the Agreement, to disable any Client Account or any Authorised User’s access to all or any part of the Qminder Service, for any breach of any provision of this clause 10.1(h).

Qminder may monitor the Client’s and its Authorised Users’ use of the Qminder Service to ensure the quality of, and improve, the Qminder Service, and verify the Client’s compliance with the Agreement.
The Qminder Service may contain links to, or call the servers of, third party websites, data or services that are not under Qminder’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites”). As such, Qminder is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk.

11. Apple AppStore Provisions

The Client acknowledges and agrees that this Agreement is solely between the Client and Qminder and not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Qminder Apps or content thereof. The Client’s use of the Qminder Apps must comply with the Apple Appstore terms of service.
The Client acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Qminder Apps. In the event of any failure of the Qminder App to conform to any applicable warranty, the Client may notify Apple, and (where applicable) Apple will refund the purchase price for the Qminder App to the Client; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Qminder App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Qminder as provider of the Qminder Apps.
The Client acknowledges that Apple is not responsible for addressing any claims of the Client or any third party relating to the Qminder Apps or the Client’s possession and/or use of the Qminder Apps, including, but not limited to:

product liability claims;
any claim that the Qminder App fails to conform to any applicable legal or regulatory requirement;
claims arising under consumer protection or similar legislation,

and all such claims are governed solely by this Agreement and any law applicable to Qminder as provider of the software.

The Client acknowledges that, in the event of any third-party claim that the Qminder Apps or the Client’s possession and use of that Qminder App infringes that third party’s intellectual property rights, Qminder, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
The Client represents and warrants that:

it is not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
it is not listed on any U.S. Government list of prohibited or restricted parties.

The Client and Qminder acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as relates to the Client’s licence of the Qminder App, and that, upon the Client’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as relates to the Client’s license of the Qminder App against the Client as a third-party beneficiary thereof.

12. Changes to the Service Plan

If the Client wishes to change to a different Service Plan, it shall submit details of the requested change in writing to Qminder (a “Change Request”).
Following receipt of a change request, Qminder shall, within a reasonable time, provide the Client with a written estimate of:

the time required to implement the change;
the impact the proposed changes would have on the Service Fees, and any other additional costs to be paid by the Client in order to implement the change;
any other material impact of the requested change to the Qminder Service or the terms of the Agreement,

(the “Change Plan”).

The Client shall notify Qminder within two (2) weeks of receiving the Change Plan whether it wishes to proceed with the changes set out in the Change Request in accordance with the Change Plan.
Subject to clause 22, Qminder shall not make any changes to the Qminder Service unless it receives confirmation from the Client in accordance with clause 12.3.

13. Audit

Qminder may, on reasonable notice to the Client, during normal business hours, access any Location or the Client’s business premises in order to audit its use of the Qminder Service and its compliance with the Agreement.
The Client will grant to Qminder, or its agent or representative, all necessary access rights to the Client’s premises, records or to any computer hardware belonging to or under the control of the Client to allow such audit to be carried out and shall furnish Qminder, its agent or representative, with such information in respect of the use of the Qminder Service as Qminder may reasonably require.
If any audit pursuant to clause 13.1 or otherwise reveals any use of the Qminder Service not in accordance with the Agreement, without prejudice to any remedies Qminder may have in respect of a breach by the Client of its obligations under the Agreement, the Client shall, within twenty one (21) days of receipt of an invoice for the same, pay to Qminder its reasonable fees and expenses incurred in carrying out the audit.

14. Important Note on Intellectual Property Rights

Qminder is the owner or licensee of all intellectual property rights in the Qminder Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved. Except as expressly set out in the Agreement, Qminder does not grant to the Client any rights to or licenses in respect of the Qminder Service.
The Client will not, when using the Qminder Service or Qminder Apps:

attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Qminder Service or Qminder Apps in any form or media or by any means;
attempt to adapt, modify, duplicate, create derivative works from, record or otherwise reproduce any part of the Qminder Apps;
attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Qminder Service or Qminder Apps;
access all or any part of the Qminder Service or Qminder Apps in order to build a product or service which competes with the Qminder Service, or use or attempt to use the Qminder Service or Qminder Apps to directly compete with Qminder; or
erase or remove any proprietary or intellectual property notice contained in the Qminder Service or Qminder Apps;
make any copies of the Qminder Apps other than such copies as are reasonably necessary for the purpose of backup and security (provided that any such copies shall at all times be owned by Qminder).

The Client grants Qminder a licence to access, download and use the Client Data for the purpose of:

providing the Qminder Service to the Client, including analysing the Client Data in accordance with the functionalities of the Qminder Service;
developing, testing, improving and altering the functionality of the Qminder Service; and
producing anonymised or anonymised and aggregated statistical reports and research.

The Client represents and warrants to Qminder that it has the necessary right, title, interest and consent, in each case as necessary to allow Qminder to use the Client Data in accordance with the Agreement. The Client shall maintain a backup of the Client Data and Qminder shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Client Data.
Qminder may use the Client’s name, logo, and related trade marks in any of Qminder’s publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Client uses the Qminder Service and alongside any testimonials that the Client has agreed to give. The Client grants Qminder such rights as are necessary to use it name, logo, related trade marks and testimonials for the purpose of this clause 14.5.
The Client agrees to provide regular feedback to Qminder in relation to its use of the Qminder Service. By submitting feedback, the Client acknowledges that Qminder may use and allow others to use this feedback in the Qminder Service or otherwise without any restriction and without payment of any kind to the Client.

15. Data Protection

The Client shall, and shall procure that its Authorised Users shall, comply with applicable Data Protection Laws with respect to:

the processing of any personal data contained in Client Data;
all communications (electronic or otherwise) with Customers.

To the extent that Qminder processes any personal data on behalf of the Client as a processor or subprocessor as a result of hosting the Client Data or otherwise as a result of the Client’s use of the Qminder Service, it shall do so in accordance with the data processing addendum in Schedule 1 (the “DPA”).
For the purpose of this clause 15 the terms “controller”, “processor”, “data subject”, “personal data”, and “process” shall have the same meaning as set out in the GDPR.

16. Confidential Information

Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:

is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party’s lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence;
is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body; or
the parties agree in writing that the information is not confidential.

Each party shall hold the other party’s Confidential Information in confidence and, unless required by law, shall not make the other party’s Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.
Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction, alteration, or disclosure of Confidential Information.

17. Fees and Payment

The Client will:

in respect of the Initial Subscription Period, pay to Qminder the Service Fees in advance on or before the Service Start Date; and
in respect of each Extended Subscription Period thereafter, pay to Qminder the Service Fees in advance on or before the commencement of the applicable Extended Subscription Period.

The Client shall provide Qminder with its bank details and any other information reasonably requested by Qminder. The Client hereby authorises Qminder to debit the Service Fees to the Client’s bank account on the Service Start Date and the first day of each Extended Subscription Period, and the Client shall execute any additional documentation, or provide such other confirmation or authorisation, as reasonably required in order for Qminder (or any service provider engaged by Qminder for this purpose) to collect any Service Fees due directly from the Client’s bank.
If the Client adds any new Locations, Qminder shall charge the Client, in accordance with clause 17.2, any Service Fees due but unpaid in respect of any new Locations added by the Client during the previous Extended Subscription Period, calculated on a pro-rata basis.
If Qminder is unable to collect any Service Fees on the due date for payment (as set out in clause 17.2), and without prejudice to any other rights and remedies available to Qminder, Qminder may, without liability to the Client, suspend or temporarily disable all or part of the Client’s access to the Qminder Service and Qminder shall be under no obligation to provide any access to the Qminder Service while the relevant sum remains unpaid.
If Qminder has not received payment in full within thirty (30) days of the date of the relevant invoice, and without prejudice to any other rights and remedies available to Qminder:

interest shall accrue on such due amounts at an annual rate equal to 3% over the Bank of England base rate from time to time at the due date for payment of the relevant Service Fees, commencing on the due date for payment and continuing until the Service Fees have been paid in full, whether before or after judgment; and
the Client shall reimburse Qminder for all reasonable costs and expenses (including reasonable lawyers’ fees) incurred by Qminder in collecting any overdue amounts.

All amounts stated or referred to in the Agreement:

are payable in US dollars; and
are exclusive of VAT unless otherwise expressly stated, which shall be paid at the same time as payment of the Fees.

Qminder shall, upon request, provide the Client with a VAT invoice setting out the Service Fees payable.
Unless otherwise agreed between the parties in writing, Qminder may increase any of the Service Fees upon giving at least thirty (30) days’ notice in writing to the Client, such increase to take effect from the commencement of the Extended Subscription Period following expiry of such notice. If the Client is unhappy with the increase, the Client may give notice to terminate the Agreement at the end of the Initial Subscription Period or the then-current Extended Subscription Period (as applicable) by providing at least fifteen (15) days’ written notice to Qminder, such notice to expire no later than the end of the Initial Subscription Period or the then-current Extended Subscription Period (as applicable). The Service Fees will not increase during the notice period.

18. Availability and Support

Qminder will use commercially reasonable endeavours to make the Qminder Service available with an uptime rate of ninety eight per cent (98%), except for:

planned maintenance for which twenty four (24) hours’ notice will be given; and
unscheduled maintenance during normal business hours (UK time) or otherwise, for which Qminder will use reasonable endeavours to give the Client advance notice.

Qminder will:

use reasonable commercial efforts to respond to Client queries regarding technical issues with the Platform within thirty four (34) hours from receipt of a 4 query, such query to be sent by Client to Qminder at: support@qminder.com.
use reasonable endeavours to provide a level of support and advice on the use of the Qminder Service that is appropriate to the nature of any issues requiring support or advice during normal working hours (UK),

(the “Support Services”)

The Client shall provide all support reasonably required by Qminder to perform its obligations under this clause 18, including providing reasonably detailed descriptions of issues and updates on the performance of the Qminder Service.
Qminder shall not be under any obligation to provide support or advice in accordance with clause 18.2(b) if:

the request for assistance does not relate to the functionalities or use of the Qminder Service;
the request for assistance is unlawful or otherwise in breach of the Agreement, or relates to an act that, if carried out would be unlawful or otherwise in breach of the Agreement;
the request relates to an issue caused by a failure by the Client to install an Update; or
the request for assistance otherwise falls outside the scope of Qminder’s competence.

19. Suspension and Termination

Without prejudice to any other rights or remedies available to Qminder, if the Client fails to pay any sum due to Qminder and such sum remains outstanding for a further seven (7) days following notice requiring such sum to be paid, Qminder may immediately terminate the Agreement on giving notice to the Client, without liability for Qminder to the Client.
Without prejudice to any other rights and remedies available to Qminder, Qminder may terminate the Agreement by notice with immediate effect, or such notice as Qminder may in its sole discretion elect to give, if the Client:

infringes Qminder’s intellectual property rights in the Qminder Service;
is in breach of clause 4.4;
is in breach of clauses 14.2 and 16; or
is in breach of any applicable law.

Without prejudice to any other rights and remedies available to Qminder, Qminder may immediately suspend any Authorised User right to access and use the Qminder Service without giving prior notice to the Client, if:

the Client is in material or persistent breach of any of the terms of the Agreement; or
in Qminder’s reasonable determination, the Client is suspected of being in material breach of any of the terms of the Agreement,

and for the purposes of this clause 19.3, the parties acknowledge that any breach of clauses 14.2 and 16 will be a material breach of the Agreement.

Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:

is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or
is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

On termination of the Agreement for any reason:

any current Trial or Paid Subscription shall terminate;
all rights and licenses granted under the Agreement shall immediately terminate and the Client’s right to access and use, and grant Authorised Users the right to access and use the Qminder Service will end;
each party shall return to the other party or (at the other party’s request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).

Where the Agreement is terminated by the Client under clause 19.4(a), Qminder shall refund any Service Fees paid for the remainder of the Initial Subscription Period or the then-current Extended Subscription Period on a pro rata basis.
Qminder shall permit the Client to download any Client Data from the Qminder Service for a period of fourteen (14) days after the expiry or termination of the Agreement. Qminder may thereafter:

delete any Client Data at any time;
retain Client Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Qminder may deem necessary to prosecute or defend any legal claim (in which case Qminder may retain Client Data for a reasonable period of time pending resolution of such obligation or issue),

in each case subject to the DPA.

Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.
Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of the Agreement shall survive and continue in full force and effect.

20. Limited Warranty

Qminder undertakes to make the Qminder Service available as set out in clause 18.1, and the Client’s sole and exclusive remedy, and Qminder’s sole liability, with respect to any failure by Qminder to provide the Qminder Service in accordance with clause 18.1 is for Qminder to use commercially reasonable efforts to repair the affected part of the Qminder Service so that it is available in accordance with clause 18.1.
Other than as set out in clause 20.1, the Qminder Service is provided on an “AS IS” basis and Qminder gives no representations, warranties, conditions or other terms of any kind in respect of the Qminder Service, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement.
Except as expressly provided for in the Agreement:

all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
Qminder will not be responsible for any interruptions, delays, failures, or non- availability affecting the Qminder Service or the performance of the Qminder Service which are caused by third party services (including Third Party Sites), errors or bugs in third party software, hardware, or the Internet on which Qminder relies to provide the Qminder Service, or any changes to the Qminder Service made by or on behalf of the Client, and the Client acknowledges that Qminder does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.

21. Qminder’s Liability

Subject to clause 21.2, Qminder will not be liable to the Client, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement in conditions that fall into any of the following categories: loss (whether direct or indirect) of profit, goodwill, business, business opportunity, revenue, turnover or reputation; loss (whether direct or indirect) of anticipated saving or wasted expenditure; loss of or damage to data; or any special, indirect or consequential damage or loss, costs or expenses.
Nothing in the Agreement excludes or limits Qminder’s liability for death or personal injury caused by Qminder’s negligence, or for fraud or fraudulent misrepresentation.
Qminder’s total liability in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, arising under or in connection with the Agreement shall in all circumstances be limited to the Service Fees payable by the Client in respect of the twelve (12) months prior to the event giving rise to the claim.

22. Changes to the Qminder Service

The Client recognises that Qminder is always innovating and finding ways to improve the Qminder Service with new features and services. The Client therefore agrees that the Qminder Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Qminder Service.

23. General

Written communications
Applicable laws may require that some of the information or communications that Qminder sends to the Client should be in writing. When using the Qminder Service, the Client accepts that communication with Qminder will mainly be electronic. Qminder will contact the Client by e-mail or provide the Client with information by posting notices on the Qminder Service. For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Qminder provides to the Client electronically comply with any legal requirement that such communications be in writing.
Notices
All notices given by the Client to Qminder must be submitted to support@qminder.com. Qminder may give notice to the Client at either the e-mail or postal address the Client provides to Qminder, or any other way that Qminder deems appropriate. Notice will be deemed received and properly served immediately when posted on the Qminder Service or 24 hours after an e- mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
Transfer of any rights and obligations
The Client may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Client’s rights or obligations arising under the Agreement, without Qminder’s prior written consent.
Events outside a party’s control
Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Qminder, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse the Client from any payment obligation under the Agreement.
Third party rights
Other than as expressly stated in the Agreement, a person who is not a party to the Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
Waiver
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
Severability
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.
Law and jurisdiction
This Agreement shall be governed by, and construed in accordance with, English law, and each party hereby submits to the exclusive jurisdiction of the courts of England.

Schedule 1

Data Processing Schedule

1. Background

This DPA applies as set out in clause 15.1 of the Agreement.
In the event of a conflict between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.

2. Definitions

Unless otherwise set out below, each capitalised term in this DPA shall have the meaning set out in the Agreement and the following capitalised terms used in this DPA shall be defined as follows:

“Client Personal Data” means any personal data contained in the Client Data, including:

with respect to Customers, the names and contact details of Customers and any other information that the Client elects to collect in relation to its Customers through the Qminder Service;
with respect to any other Authorised Users the names and contact details of Authorised Users;
any other personal data that Qminder Processes on behalf of the Client or a member of the Client’s Group during the Trial or Paid Subscription in connection with the Client’s use of and access to the Qminder Service;

“European Economic Area” or “EEA” means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;

“Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Client Personal Data;

“Subprocessor” means any Processor engaged by Qminder who agrees to receive from Qminder Client Personal Data.

3. Data Processing

Qminder will only process Client Personal Data in accordance with:

the Agreement, to the extent necessary to provide the Qminder Service to the Client; and
the Client’s written instructions,unless Processing is required by European Union or Member State law to which Qminder is subject, in which case Qminder shall, to the extent permitted by applicable law, inform the Client of that legal requirement before processing that Client Personal Data.

The Agreement (subject to any changes to the Qminder Service) and this DPA shall be the Client’s complete and final instructions to Qminder in relation to the processing of Client Personal Data.
Processing outside the scope of this DPA or the Agreement will require prior written agreement between the Client and Qminder on additional instructions for processing.
The Client shall provide all applicable notices to data subjects required under applicable Data Protection Laws for the lawful processing of Client Personal Data by Qminder in accordance with the Agreement.
The Client will obtain any consents required under applicable Data Protection Laws for the lawful processing of Client Personal Data by Qminder in accordance with the Agreement.

4. Subprocessors

The Client agrees that Qminder may use Subprocessors to process Client Personal Data, provided it enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their processing of Client Personal Data as are imposed on Qminder under this DPA.
Qminder shall provide the Client with fourteen (14) days’ notice of any proposed changes to the Subprocessors it uses to process Client Personal Data (including any addition or replacement of any Subprocessors). If the Client (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, the Client may request that Qminder moves the Client Personal Data to another Subprocessor and Qminder shall, within a reasonable time following receipt of such request, use all reasonable endeavours to ensure that the Subprocessor does not Process any of the Client Personal Data.
Qminder shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Client for the acts and omissions of any Subprocessor as if they were the acts and omissions of Qminder.

5. International Transfers

Qminder shall not transfer the Client Personal Data to a recipient in a country or territory outside the EEA unless:

the recipient, or the country or territory in which it processes or accesses the Client Personal Data, ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of Client Personal Data as determined by the European Commission; or
the transfer is based on the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593, or any subsequent version thereof released by the European Commission (which will automatically apply), or (where relevant) the EU-U.S. Privacy Shield, or another legally recognised transfer method.

6. Data Security, Audits and Security Notifications

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Qminder shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the measures set out in Schedule 2 and (as appropriate) any other measures listed in Article 32(1) of the GDPR.
The Client may, upon reasonable notice and at reasonable times, audit (either by itself or using independent third party auditors) Qminder’s compliance with ‘the security measures set out in this DPA (including the technical and organisational measures as set out in Schedule 2), including by conducting audits of Qminder’s data processing facilities. Qminder shall assist with, and contribute to any audits conducted in accordance with this paragraph 6.2, provided that such audits are not carried out more than once a year.
Upon the Client’s request, Qminder shall make available all information reasonably necessary to demonstrate compliance with this DPA.
Where required under Article 28(3)(h) of the GDPR, Qminder shall immediately notify the Client in the event that Qminder believes the Client’s instructions conflict with the requirements of the GDPR or other EU or Member State laws.
If Qminder or any Subprocessor becomes aware of a Security Incident, Qminder will

notify the Client of the Security Incident promptly,
investigate the Security Incident and provide such reasonable assistance to the Client (and any law enforcement or regulatory official) as required to investigate the Security Incident, and
take steps to remedy any non-compliance with this DPA.

Qminder shall treat the Client Personal Data as the Client’s Confidential Information, and shall ensure that any employees or other personnel that have access to the Client Personal Data have agreed in writing to protect the confidentiality and security of the Client Personal Data and do not process such Client Personal Data other than in accordance with this DPA.

7. Access Requests and Data Subject Rights

Save as required (or where prohibited) under applicable law, Qminder shall notify the Client of any request received by Qminder from a data subject, whether directly or through a Subprocessor, in respect of their personal data included in the Client Personal Data, and shall not respond to the data subject.
Qminder shall provide the Client with the ability to correct, delete, block, access or copy the Client Personal Data in accordance with the functionality of the Qminder Service.
Qminder shall notify the Client of any request for the disclosure of Client Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.

8. Assistance

Where applicable, taking into account the nature of the processing, and to the extent required under applicable Data Protection Laws, Qminder shall:

use all reasonable endeavours to assist Client by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR; and
provide reasonable assistance to the Client with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Client, in each case solely in relation to processing of Client Personal Data and taking into account the information available to Qminder.

9. Duration and Termination

Subject to paragraphs (a) and (b) below, Qminder shall, within fourteen (14) days of the date of termination of the Agreement:

if requested to do so by the Client, return a complete copy of all Client Personal Data by secure file transfer in such a format as notified by Client to Qminder; and
delete and use all reasonable efforts to procure the deletion of all other copies of Client Personal Data Processed by Qminder or any Subprocessors.

Qminder and its Subprocessors may retain Client Personal Data to the extent required by applicable law, or as Qminder may deem necessary to prosecute or defend any legal claim, provided that such Client Personal Data is retained only to the extent and for such period as required by applicable laws or pending resolution of any issue, and always provided that Qminder shall ensure the confidentiality of all such Client Personal Data.

Schedule 2

Technical And Organisational Security Measures

Qminder maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:

secure any personal data processed by Qminder against accidental or unlawful loss, access or disclosure;
identify reasonably foreseeable and internal risks to security and unauthorised access to the personal data processed by Qminder;
minimise security risks, including through risk assessment and regular testing.

Qminder will, and will use reasonable efforts to procure that its Subprocessors conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.
Qminder will, and will use reasonable efforts to procure that its Subprocessors periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.