This agreement is between The User of Powered Now and The Company (“The Agreement”).
The Agreement sets out the entire agreement between the parties and supersedes all previous agreements.
The Company grants The User a revocable license to use Powered Now on a limited time free trial and subsequently use Powered Now subject to payment of fees as stated in The Documentation provided they are sixteen years of age or more and The User warrants they are sixteen years of age or more by agreeing to This Agreement.
Where fees can be paid through an in-App purchase.
Specific terms and conditions that apply when Powered Now is obtained through the Apple Inc. (“Apple”) App store or is run on a device supplied by Apple can be found in section 9.
In this Agreement the following terms shall have the following meanings:
1.1 “The Company” means Powered Now Limited, Newlands, Higher Woodway Road, Teignmouth TQ14 8RB, United Kingdom;
1.2 “The User” means a business that installs or uses The Application or uses The Services and where the person installing or using The Application or The Service is duly authorised both to do so and to agree to The Agreement. In cases where an authorised person from the business employing or contracting The User has already agreed to The Agreement then The User’s agreement is restricted to those things that they are able to agree to.
1.3 The User and The Company are collectively “The Parties”;
1.4 “The Application” means any smartphone, tablet, desktop, laptop or web-based application (App) developed by The Company;
1.5 “The Services” means the web-based services that The Company makes available through The Application or directly through the web;
1.6 “Powered Now” means the combination of The Application and The Services provided to The User;
1.7 “The Documentation” means all text, images, videos and similar materials describing the operation and fees for the use of Powered Now and embedded in the latest version of Powered Now and at The Company’s Web Site and where if there is any contradiction the web site shall prevail;
1.8 “User Content” means anything capable of being stored on a computer related to Powered Now and which has been created or supplied by The User.
1.9 “Intellectual Property Rights” means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same anywhere in the world.
1.11 “GDPR” means the General Data Protection Regulation which is law in both the European Union and the United Kingdom.
1.12 “PII” means personally identifiable information being information that can distinguish one natural person from another.
1.13 “Privacy Notice” means the notice explaining how PII is used by The Company and which The Company believes is GDPR compliant and which is available at The Company’s Web Site.
2. Warranty and disclaimer
2.1 The Company warrants that it has made reasonable endeavours consistent with the size of The Company and its revenue flow to provide Powered Now and The Documentation to a good standard.
2.2 The Company warrants that the operation of Powered Now is substantially in accordance with the documentation provided with Powered Now and on The Company’s Web Site.
2.3 The Company makes no warranty or representation that Powered Now will definitely meet any particular requirements, will be of satisfactory quality, will be fit for any particular purpose, will be compatible with all systems, will be totally secure, will always be available, will be completely bug free or that all information provided will be completely accurate.
2.4 Powered Now should not be solely relied upon by The User when making any business decision.
3. Intellectual Property
3.1 The User grants The Company a royalty-free, irrevocable and perpetual license to store and use the User Content subject to their rights under GDPR.
3.2 Intellectual Property Rights and User Content from the Application may be re-used without written permission outside of The Documentation where any of the exceptions detailed in Chapter III of the Copyright Designs and Patents Act 1988 apply.
3.3 All Intellectual Property Rights relating to Powered Now are the property of The Company or are properly licensed to The Company for use in Powered Now. The Company warrants that no intellectual property rights have been breached by Powered Now and indemnifies The User against any claims made by third parties arising out of such alleged breaches provided that The User: informs The Company within 30 days of any allegation of such a breach and cedes the defence of any such claim wholly to The Company at the time of reporting it and; uses its best endeavours in helping The Company conduct the defence against the claim; and uses reasonable endeavours in co-operating with The Company in mitigating the claim.
4. Data protection, privacy and GDPR
4.1 The purpose of the processing of data in Powered Now is to enable The User to run The User’s business efficiently and provide an excellent administration service in relation to work that The User does for their customers.
4.2 The Company will act as The User’s processor in processing customer, supplier and employee data through Powered Now and on The User’s or The User’s employees instructions as communicated through Powered Now or otherwise to The Company by The User in their role as data controller. It is The User’s responsibility as the controller to inform The User’s customers, suppliers and employees of The User’s processing and their rights, and to conform with the General Data Protection Regulations (GDPR) as this contract does not relieve The User of that responsibility.
4.3 The PII held for The User, The User’s employees, suppliers and customers will be as explained in the Privacy Notice.
4.4 The length of time that PII will be held is as explained in the Privacy Notice.
4.5 User Content containing PII will only be used for the operation and marketing of Powered Now in accordance with The Privacy Notice.
4.6 The Company will use sub-processors as explained in the Privacy Notice and The User gives permission for this sub-processing. Each sub-processor will agree to keep the data controller’s PII confidential as does The Company except where required otherwise by law.
4.7 The Company will assist in meeting The User’s GDPR responsibilities including fulfilling all valid requests coming from data subjects where The Company holds the data and submitting to audits and inspections including of The Company’s processing records and co-operating with the ICO and informing The User of breaches of the GDPR regulations. The Company will also explain on request obligations and actions in relation to security measures and supply notification of PII breaches and provide help as required with data protection impact assessments.
4.8 The User acknowledges that The Company will monitor Powered Now and will aggregate User Content to improve Powered Now and for its commercial benefit while keeping such data anonymous.
4.9 The Company retains the right at its sole discretion to delete, move or change User Content as it deems fit without the consent of The User but subject to GDPR.
5.1 The User will not input into Powered Now PII relating to race, religion, political affiliation, trade union membership, sexual orientation, medical or genetic history nor will The User create User Content that is ageist, sexist, racist, phobic about sexual orientation, obscene, vulgar, abusive, threatening, harassing, defamatory, is intended to promote or incite violence, is in violation of any law that The User is subject to or contains links to web sites containing any such content.
5.2 The User will ensure that all User Content is accurate, up to date and not intended to mislead, including provision of names, email addresses and phone numbers.
5.3 The User will ensure that all prevailing logins, passwords and other security tokens are kept confidential and all reasonable security measures communicated by The Company are fully obeyed. The User agrees that The Company will act on all instructions provided electronically using The User’s logins and passwords and that this is reasonable in all cases.
5.4 The person installing The Application and The User understands and agrees that some versions of The Application allow other users of The Application within The User’s company or to whom The User subcontracts to determine their location and to see a track of them on a map and to record their location at points in time.
5.5 The Company will provide The User with education and training materials to enable them to use Powered Now delivered by email, in-app notification, text, telephone or on The Company’s Web Site and in written, video or podcast form.
5.6 The Company will inform The User of additional features added to Powered Now and will tell The User prior to deleting The user’s account with Powered Now and before deleting transactional data related to The User’s employees, customers and suppliers.
6. Termination and variation
6.1 Either party may terminate this agreement at any time with no notice but all obligations already accrued shall survive termination. Where The Company exercises its right of termination it will provide a pro-rated refund to The User for any payments related to Powered Now made in advance. The User has no right to a pro-rated refund where they exercise their right to terminate as payments in advance for more than one month include a discount reflecting their longer commitment but subject to 6.3.
6.2 The Company reserves the right to refuse future access to Powered Now by The User at its sole discretion.
6.3 The Company may vary the terms of The Agreement or The Privacy Notice or the fees payable with 30 days notice and The User agrees that this is reasonable given that they are able to cancel without notice at any time. Notwithstanding clause 6.1 The User will receive a pro-rated refund for any payment made in advance where such variation is applied and as a result The User chooses to cancel during the notice period.
7.1 Nothing in these terms and conditions excludes or restricts The Company’s liability for death or personal injury resulting from any negligence or fraud on the part of The Company.
7.2 The Company assumes no responsibility for the content of third party web sites linked from Powered Now including by users, customers or suppliers and protection is the sole responsibility of The User when accessing such sites.
7.3 The User acknowledges that due to the low cost of Powered Now, it is not reasonable to be entitled to significant damages arising from any malfunction in Powered Now.
7.4 The Company will take reasonable commercially viable steps to make Powered Now available at all times. The User acknowledges that it is impossible to develop software and provide a service without occasional planned maintenance and bugs, it is impossible to provide a web based service without occasional outages, the Internet depends on many parties and as a result will not be available at all times and the operation of Powered Now depends on the operation of data networks, location services and other services all of which may be inaccurate and unavailable at times. The User therefore acknowledges that Powered Now will not function fully at all times.
7.5 To the maximum extent permitted by law, The Company accepts no liability for any indirect or consequential loss or damage arising from the use of Powered Now.
7.6 To the maximum extent permitted by law, The Company accepts no liability for any direct loss or damage arising from the use of Powered Now.
7.7 The Company does not screen User Content and will not be liable in any way or under any circumstances for any loss or damage incurred by any parties as a result of using the User Content. Use of and reliance upon the User Content is entirely at The User’s, their employees, customers and suppliers risk.
7.8 If a court rules that The Company is liable for a direct or indirect loss or damage arising from the use of Powered Now, then the amount of damages will be limited to ten times the total aggregate amount paid by The User to The Company in the preceding 12 months for one claim or a series of claims in aggregate and The User agrees that this limitation is reasonable.
8.1 This agreement shall be governed by the Laws of England and Wales and The Parties agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
8.2 In the event that either of The Parties fails to exercise or fully exercise any right or remedy, this shall not be construed as any waiver of that right or remedy.
8.3 No party who is not a party to The Agreement shall have any right to enforce any part of The Agreement under the Contracts (Rights of Third Parties) Act 1999.
8.4 In the event of any conflict between The Agreement and any prior version of The Agreement, the provisions of The Agreement shall prevail.
8.5 Notices can be given to The Company using the prevailing methods of communication documented at www.PoweredNow.com. Notices can be given to The User using the contact details provided by The User to Powered Now. Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if by email on a business day and on the next business day if the email is sent on a weekend or public holiday.
8.6 The Parties must bring any claim against the other party within two years of the occurrence that might give rise to a claim. After this period any right to redress is lost.
8.7 The Parties shall notify the other party within 30 Business Days of any claim made against it by a third party which might give rise to a claim against the other party.
8.8 The Parties shall notify the other party within 30 Business Days of becoming aware of any occurrence related to Powered Now which might allow the other party to make a claim against a third party.
8.9 The Agreement shall be binding upon the successors of The Parties.
8.10 The Agreement may not be assigned by The User to a third party without the written agreement of The Company.
8.11 The Agreement may be assigned by The Company to a third party without the agreement of The User.
8.12 If any court or competent authority finds that any provision of The Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of The Agreement shall not be affected.
8.13 If any invalid, unenforceable or illegal provision of The Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR all of The Parties to The Agreement shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves The Parties’ original commercial intention.
8.14 The User’s use of Powered Now includes the ability to enter into agreements and/or to make transactions electronically. The User acknowledges that their electronic submissions constitute their agreement and intent to be bound by and pay for such agreements and transactions. The User’s agreement and intent to be bound by electronic submissions applies to all records relating to all transactions The User enters into using Powered Now, including notices of cancellation, policies, contracts, and applications. In order to access and retain electronic records, The User may be required to have certain hardware and software, which is The User’s sole responsibility.
9. Apple Inc related terms and conditions
9.1 The Company and The User acknowledge that The Agreement is concluded between The Company and The User only, and not with Apple, and The Company, not Apple, are solely responsible for Powered Now and the content thereof.
9.2 Nothing in The Agreement provides any usage rules for Powered Now that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise be in conflict with, the App Store Terms of Service as of the Effective Date (which The User acknowledges they have had the opportunity to review) and which are supplied by Apple and available from the Apple web site.
9.3 The license granted to The User for Powered Now is limited to a non-transferable license to use the Licensed Application on any iPhone or iPod touch that an individual end-user owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.
9.4 The Company is solely responsible for providing any maintenance and support services with respect to Powered Now as specified in The Agreement, or as required under applicable law. The Company and The User acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Powered Now.
9.5 The Company is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of Powered Now to conform to the warranty, The User may notify Apple, and Apple will refund the purchase price (if any) for Powered Now to The User and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Powered Now, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be The Company’s sole responsibility.
9.6 The Company and The User acknowledge that The Company not Apple, are responsible for addressing any claims of The User or any third party relating to the Powered Now or the end-user’s possession and/or use of Powered Now including, but not limited to: (i) product liability claims; (ii) any claim that Powered Now fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection required by law.
9.7 The Company and The User acknowledge that, in the event of any third party claim that Powered Now or The User’s possession and use of Powered Now infringes that third party’s intellectual property rights, The Company, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
9.8 The User represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
9.9 Powered Now has been developed by The Company and any questions, complaints or claims from The User with respect to the Powered Now should be directed to The Company. The Company may be contacted at the mailing address listed in 1.1 above, by email at firstname.lastname@example.org or by phone at +44 7971 191859.
9.10 The Company and The User acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of The Agreement and that, upon The User’s acceptance of The Agreement Apple will have the right (and will be deemed to have accepted the right) to enforce The Agreement against the end-user as a third party beneficiary thereof.