Terms and conditions of contract for the provision of services, goods and software by Habyts Limited to you through this website, Habyts.com
The terms set out below (combined with the Website Terms defined below) constitute a legal agreement (“Contract”) between you and Habyts Limited, a company registered in England and Wales with number 09304326 having its registered office at Bankside, 300 Peachman Way, Broadland Business Park, Norwich NR7 0LB, England (email: firstname.lastname@example.org) (“Habyts”). These Website Terms govern your taking of the Habyts Service, Licence, Software and Goods, all as defined below.
Please read this Contract thoroughly before deciding to agree and proceed. To agree to the Contract, please click “Continue” button on the ‘Your Parent Account’ webpage for you to agree to take our Service, Licence, Software and/or Goods. If you do not agree to all the terms in this Contract then please do not proceed and you shall not obtain or receive the Service, Licence, Software or Goods.
This Contract is made in, performed in and domiciled in England.
|1.1||In this Contract:|
“Functionality” means the functionality of the Software as is described for it on the Website. “Goods” means content, products and other services (other than the Service) having the description and specification for supply given on the Website at the time of your purchase that Habyts offers to sell on the Website and which you agree to purchase by clicking the “I Agree” button in relation thereto.
“Licence” means the licence granted to you subject to the terms of this Contract as described in clause 4.
“Service” means provision by Habyts of its proprietary software and related content as described on the Website relating to the management of the time of various people on the various electronic devices (including but not limited to computers, laptops, tablets and mobile telephones) nominated by you (including to minors over whom you have parental or other authority) and use by you under the Licence through your downloading and utilising the Software.
“Software” means the software that Habyts provide to you which you can download after you have entered into this Contract.
“Website” means Habyts’ proprietary website at www.habyts.com and all its sub-domains.
|1.2||Please note that the terms of this Contract may be amended by Habyts at any time. If Habyts make such amendments, they will be published on the Website and shall take effect from the date of such publication. You agree that the terms of the Contract applying will be those prevailing and published on the Website at any particular time. You should visit the page on the Website with these Contract terms regularly to check you are still in agreement with them. If for any reason you do not agree such applicable terms then you have the right for a period of 30 days following their initial publication on the Website to cancel your Contract in totality. This means you can terminate all of (and not part only of) the Licence and end your (and others Connected with you, as defined below) receipt of the Service and use of Software.|
|2.1||This Contract shall start and shall be formed and binding on you and Habyts when you click the “Continue” button on the ‘Your Parent Account’ webpage. It shall end when either Habyts terminate it (which it can do at any time, with or without notice and with or without cause, and with no liability) or when you cease using the Service or Software. Your continued use of the Software and Service and your registration with us as a user is, you agree, continuing acceptance by you of this Contract.|
|2.2||Any purchase by you of any Goods connected with your use of the Service shall be deemed to be part of and incorporated into this single Contract and shall not for the purposes of clause 8 in particular be deemed to be separate contracts, irrespective of when any Licence of the Software or purchase of Goods takes place.|
Habyts agrees to provide the Software by download to your nominated devices in accordance with this Contract. Habyts shall not be obliged to provide any maintenance, updates or new releases of the Software.
Habyts grants you a License, upon the terms of this Contract and subject to your compliance with this Contract, to use the Software to receive and use the Service on your specific nominated devices only, such Licence being non-exclusive, non-transferable and not sub-licensable.
|5.1||Where you purchase Goods, such Goods shall be delivered to you in accordance with the details concerning them provided by Habyts on the Website.|
|5.2||All Goods are sold subject to their description, specification and functionality as is described on the Website at the time of your purchase of them and as such you agree that Habyts gives no warranty as to their fitness for any particular purpose.|
|6.1||You shall pay Habyts a continuing monthly subscription which shall include the fee for the grant of the Licence and for your continued use of the Software and the Service. Where you purchase Goods, you shall pay Habyts the stated price for the Goods purchased by you as detailed on the Website. All purchases by you, the Licence fee and subscription fee shall be exclusive of Value Added Tax or any other sales or other tax applicable (if appropriate) and due which shall be added and payable by you. The Licence fee is payable at the time you agree this Contract on the Website. A receipted invoice will be sent to the email address you give to the Website in your registering for the Service and entering into the Contract.|
|6.2||Please note that the method of payment chosen by you is entirely at your risk and that you will be liable to pay all charges, fines or penalties levied by your choice of payment provider.|
7. Use of the Software and your responsibilities
|7.1||You agree not to use the Software in any other way to that expressly permitted by this Contract. You agree that you shall not:|
|7.1.1||distribute, licence, sell or deal in the Software;|
|7.1.2||translate, adapt, publish, disassemble, reverse engineer or decompile the Software or any part of it, nor make any modifications, additions or enhancements to it;|
|7.1.3||combine or merge or permit the Software to become incorporated in any other program, nor arrange or create derivative works from it;|
|7.1.4||copy it; or|
|7.1.5||use the Software on behalf of or make it available to any third party or allow or permit a third party to do so.|
|7.2||You agree that you will use the Software and the Service for your personal and non-commercial lawful use only and that you will do so responsibly and accept and be liable for all the consequences of your actual usage of the Software and taking of the Services; and that you acknowledge that it is fair and reasonable in the circumstances that this is the case, as you control such usage, not Habyts.|
|7.3||You agree that you shall indemnify Habyts against all claims, demands, liabilities, costs and expenses incurred (including professional fees) howsoever and wheresoever arising out of or from your (or those users and recipients of the Service and Software) acts and omissions in connection with the actual use and control by you (or them) of the Software and Service.|
|7.4||You agree that you shall be responsible for maintaining the security of the devices used and the use of the Software and Service by you or those using them and for the security of the password and users’ details.|
|7.5||You agree that you have read, understood and agree the Website Terms which are incorporated into this Contract.|
8. Limits on Habyts’ liability
|8.1||Subject to sub-clause 8.4, in no event shall the total annual aggregate liability of Habyts to you (whether in contract, tort, including negligence, or otherwise) in respect of all claims, losses and damages arising under or in connection with this Contract exceed £100 in respect of any one claim or series of claims in any calendar year.|
|8.2||Each party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Contract shall not extend to:|
|8.2.1||any loss of or damage to i) profits, ii) goodwill, iii) business opportunity, iv) data, v) revenue, or vi) anticipated savings; or|
|8.2.2||or any special, indirect or consequential loss or damage whatsoever.|
|8.3||The parties agree that the limitations on liability in this Contract are reasonable given their respective circumstances, the Licence fee, the autonomy of use of the Software by you and the usage of the Service and Goods by you and others.|
|8.4||Notwithstanding the above or other limitations and exclusions of liability set out in this Contract, neither party excludes or limits any liability for:|
|8.4.1||personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or|
|8.4.2||fraud or fraudulent misrepresentation; or|
|8.4.3||any other liability to the extent the same cannot be excluded or limited by law.|
|8.5||You acknowledge that:|
|8.5.1||Habyts is not and cannot be aware of the extent of any potential loss or damage to you resulting from any failure of the Software to conform to its specification to provide the Service or any failure by Habyts to discharge its obligations under this Contract; and|
|8.5.2||the Software has not been prepared to meet your individual requirements and that it cannot be tested in every operating environment so as to produce software which is error free or operates without interruption; and|
|8.5.3||the Software is not designed to be used in iMacs, Amazon Fire tablets and certain other hardware and operating systems and no guarantee in relation to the functionality of the Software, Service or Goods is given in relation to their use with such hardware and operating systems; and|
|8.5.4||you will be liable (and you accept that Habyts will not be liable) for the actual use to which the Service, Software and/or the Goods are put by yourself and any other person (child or adult) and consequences thereof in connection with the Licence, Service, Software and Goods; and that you will indemnify and hold Habyts harmless against all losses, costs, damages, expenses, claims and proceedings (including legal costs) made against, incurred or sustained by Habyts arising out of such use; and|
|8.5.5||it is your responsibility to ensure the facilities and functions of the Software and the Service described meets your requirements and is compatible with the electronic devices you wish to load the Software onto and to use the Software on.|
|8.6||You agree that Habyts shall not be liable to you for any loss, damage, cost or expense you incur that is caused by any event or circumstances beyond Habyts’ reasonable control and other normal Force Majeure events.|
9. Intellectual Property Rights
|9.1||Except for your licence right to use the Software as expressly granted above, you shall not acquire in any way, any title, rights of ownership, or any intellectual property rights of whatever nature in the Software or the Goods or in any copies of either and no intellectual property rights of Habyts (or others) are transferred or licensed as a result of this Contract except as expressly provided.|
|9.2||You acknowledge and understand that the Software and the Goods contains confidential and proprietary information and that it and the Service, their copyright, style, structure, features and functionality are and remain the property of Habyts. The authors of the same assert their moral rights.|
|9.3||You agree that you shall not conceal, modify, remove, destroy or alter in any way any of Habyts’ proprietary markings on or in the Software (or any related materials and documentation).|
|10.1||Habyts warrants only to you, the person who has entered into this Contract, that the Service will be provided with reasonable skill and care, that the Software shall in material respects have the Functionality and that the Goods shall be of their stated description as given on the Website and the date of your purchase thereof. Habyts makes no warranty whatsoever to any other person in relation to whom you may use or link the Software or Service.|
|10.2||Habyts is constantly updating its offerings of products and services shown as available on the Website. However, it is possible that products or aspects of the Service or Goods may occasionally be priced incorrectly, delayed or unavailable and you agree that Habyts shall not be liable for such matters to you.|
|10.3||Habyts does not warrant that the Software or the Service is virus or error free.|
11. Data Protection
|11.3||Habyts shall comply with the Data Protection Act 1998 (as amended) as a data controller.|
|11.4||Habyts shall not transmit or send any personal data outside the European Union unless to do so complies with the United Kingdom data protection laws.|
|12.1||Each of you and Habyts shall maintain the confidentiality of the other’s personal and confidential information and shall not without the prior written consent of the other use, disclose, copy or modify the other’s confidential information other than as necessary for the performance of its rights and obligations under this Agreement.|
|12.2||Each of you and Habyts shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other’s confidential information immediately upon becoming aware of the same.|
|13.1||Habyts provides a free trial period for you to test the suitability of the Service. If you are not happy with Habyts at anytime during or after your free trial, you can remove the Software at any time. After the free trial has ended, you may decide to subscribe to Habyts. Habyts will not refund a subscription once purchased. This applies to both Annual and Monthly subscriptions.|
|13.2||To cancel your subscription to the Service, you must either cancel through the Service itself, or with a period of 5 working days notice send an email stating your name, address, email address and any other relevant information to Habyts at the email address given above. Your cancellation will begin from the moment it has been accepted; Habyts controls will cease and the Service will be unavailable. You agree that this is fair and reasonable in all the circumstances.|
Notices relating to this Contract must be in writing or sent by email to the address and email for you and Habyts given at the head of this Contract or as inputted by you when accepting this Contract.
|15.1||Time of delivery of the Software or Goods is not of the essence under this Contract.|
|15.2||If you wish to raise any complaint about Habyts or the Software, Service or Goods then please do so by sending an email to the email address given at the heading of this Contract. Habyts takes complaints seriously. We will try to resolve the complaint or dispute within 20 days of notification.|
|15.3||For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Contract is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.|
|15.4||You may not assign, subcontract or encumber any right or obligation under this Contract, in whole or in part, without the other’s prior written consent or except as expressly permitted in this Contract.|
|15.5||No amendment or variation of this Agreement will be valid unless agreed in writing by you or a Habyts authorised signatory.|
|15.6||If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.|
|15.7||Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.|
|15.8||The Website Terms shall be deemed incorporated into this Contract and in the event of any inconsistency between these terms of the Contract and any of the Website Terms, then these terms of the Contract shall prevail and take precedence.|
16. Governing law and jurisdiction
You and Habyts agree that as Habyts is domiciled in England and that the Software and origin of Service provision and supply of Goods occurs in England then it is fair and reasonable that this Contract (as may be amended as published on the Website) is to be governed by the laws of England and Wales. It is also agreed by you that all disputes under this Agreement shall be subject to the exclusive jurisdiction of the High Court of England.