Effective from 01/05/2023
Your Childcare Business FZCO
Terms & Conditions
Childcare Marketing, flourish, Your Childcare Business are trading names of Your Childcare Business FZCO.
UAE Registered Address: Dubai Silicon Oasis, Platinum Towers, Dubai, UAE
UK Contact Address: Childcare Marketing HQ, Star Lodge, Montpellier Dr, Cheltenham GL50 1TY
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
1 Business Day: a day other than a Friday, Saturday, Sunday or public holiday in England when banks in London are open for business. Business hours 8am – 7pm UK Time on a business day.
2 Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5 (Charges and payment).
3 Client: the person or firm who purchases Services from the Supplier.
4 Client Default: has the meaning set out in clause 4.2
5 Commencement Date: has the meaning given in clause 2.2.
6 Conditions: these terms and conditions as amended from time to time in accordance with clause 12.5.
7 Contract: the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.
8 Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
9 Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
10 Deliverables: the deliverables set out in the Order produced by the Supplier for the Client.
11 Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
12 Order: The Proposal agreed by the Client constituting its order for Services as set out in the Proposal, a signature is not required and confirmation will be taken via confirming the proposal on the system or recorded verbal or written notice.
13 Proposal: the description or specification of the Services provided in writing by the Supplier to the Client.
14 Services: the marketing, business development and branding services and any Deliverables that the Supplier has agreed to provide to the Client, as set out in the Proposal.
15 Supplier: Your Childcare Business. (Or trading names Childcare Marketing, flourish, Your nursery business, your nursery mastermind).
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
2.1 The Order constitutes an offer by the Client to purchase the Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in any documentation provided by the Supplier, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 5 Business Days from its date of issue.
3.1 The Supplier shall supply the Services to the Client in accordance with the Proposal in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
3.4 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
3.5 The Supplier’s Fair Use Policy at fair use policy viewable here, forms part of these Conditions. The Supplier may make non-material updates on thirty (30) days’ notice.
4.1 The Client shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to any premises as reasonably required by the Supplier to supply the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) comply with all applicable laws, including health and safety laws; and (g) comply with any additional obligations as set out in the Proposal.
(h) ensure its IT systems are up to date and functioning;
(i) ensure the platform is accessed only by nominated users;
(j) ensure any data passed to a third party is appropriately protected
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
5.1 The Charges for the Services are as set out in the Proposal.
5.2 Advertising/media spend, third-party platform fees and other pass-through costs (“Pass-Through Costs”) require prior recorded verbal or written approval from the Client and will be billed from Your Childcare Business to the client. Your Childcare Business does not provide any direct invoices from 3rd party platforms. The Client may set a monthly cap in the Proposal, which the Supplier will not exceed without further written approval.
5.3 The Client shall pay to the Supplier such deposit or monthly fee in advance as specified in the Proposal prior to the commencement of the Services. Upon cancellation of services, the final fee for the whole notice period shall be paid within 7 working days.
5.4 In respect of all charges, the Client shall pay these within 7 days of the date of each invoice submitted by the Supplier in the manner set out in the invoice and time for payment shall be of the essence of the Contract.
5.5 Late Payment. On overdue sums the Supplier may charge statutory interest and fixed charges under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), or 8% per annum above the Bank of England base rate (whichever is higher), plus reasonable recovery costs. A £50 admin fee applies at 21 days overdue and again at 40 days.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.8 Price Changes. Subscription fees may change at renewal only, with at least 30 days’ prior written notice. Any in-term price change is a material variation and requires the Client’s written consent under clause 12.5. Any change to pricing at renewal will be highlighted in the renewal notice.
5.9 Right to Withhold/Suspend. If undisputed sums remain unpaid seven (7) days after notice, the Supplier may suspend Services.
6.1 Ownership (Supplier Materials). The Supplier retains all intellectual property rights in its pre-existing materials, software, templates, data models, systems and processes (“Supplier Materials”).
6.2 Deliverables. Except as stated in 6.5, all intellectual property rights in Deliverables created for the Client (“Deliverables”) remain the Supplier’s property until all fees due are paid.
6.3 Licence. The Supplier grants the Client a worldwide, royalty-free, non-exclusive licence to use the Deliverables and Supplier Materials for the Client’s internal business purposes during the term and for thirty (30) days following termination solely to facilitate migration.
6.4 Branding. The Client must not remove Supplier branding or footer credits from websites or materials during the term the term without written consent.
6.5 Website Model & Buy-Out. Websites are provided on a leased basis during the subscription. On termination the Client may elect to purchase ownership of the site design and site content (excluding platform code and Supplier Materials) by either: (a) paying the accumulated £50/month credit against a £4,000 buy-out price (Marketing Partner & Marketing Essentials only); or (b) paying the then-current buy-out price agreed in the Proposal. On receipt, the Supplier will assign all assignable IP in the specified Deliverables and provide a standard export (files and database dump), excluding third-party/licensed components that are non-transferable.
6.6 Client Materials & Portfolio Use. The Client retains ownership of Client Materials and licenses the Supplier to use them to provide the Services and for portfolio case-study use (without confidential details) after termination.
7.1 Roles. The Client is Controller and the Supplier is Processor.
7.2 Instructions. Supplier will process personal data only on the Client’s documented instructions.
7.3 Security. Supplier will maintain appropriate technical and organisational measures.
7.4 Personnel. Supplier ensures confidentiality undertakings for personnel.
7.5 Breach. Supplier will notify the Client of a personal data breach without undue delay and within 72 hours of becoming aware.
7.6 Sub-processors. Client authorises the sub-processors listed at [URL]. Supplier will give 7 days’ notice of additions or replacements; the Client may reasonably object.
7.7 International Transfers. Supplier will not transfer personal data outside the UK/EEA without (a) Client’s written authorisation; and (b) an appropriate safeguard (e.g., UK IDTA or UK Addendum to EU SCCs) in place.
7.8 Assistance. Supplier will assist with data subject requests, DPIAs and consultations as reasonably needed.
7.9 Return/Deletion. Within 30 days after termination, on written request Supplier will return or delete personal data (save for secure backups retained for up to 90 days and data retained as required by law).
7.10 Audit. On reasonable prior notice (no more than once per 12 months), Supplier will make available information necessary to demonstrate compliance and allow audits, subject to confidentiality and reasonable time/place limits.
7.11 Liability. The Supplier’s aggregate liability for data protection claims shall not exceed the cap in 8.4 (subject to 8.2).
8.1 Insurance. Supplier will maintain professional indemnity insurance of at least £500,000 and cyber insurance of at least £250,000 and provide certificates on request.
8.2 No Limit on Liability. Nothing limits liability for death/personal injury caused by negligence, fraud, or any liability that cannot be limited by law.
8.3 Cap. Subject to 8.2, the Supplier’s total aggregate liability in any Contract Year shall not exceed the greater of £5,000 or 100% of the total Charges paid in that Contract Year.
8.4 Exclusions. Subject to 8.2, the Supplier is not liable for: loss of profits, business, goodwill, anticipated savings, or any indirect or consequential loss; or loss/corruption of data except to the extent caused by Supplier’s failure to maintain agreed backups.
8.5 Statutory Terms. To the fullest extent permitted by law, any terms implied by statute (including the Supply of Goods and Services Act 1982) are excluded, save for section 13 (reasonable care and skill).
8.6 Claim Notification. The Supplier has no liability for an event unless the Client gives written notice with reasonable particulars within six (6) months of becoming aware, and the delay has materially prejudiced the Supplier’s ability to investigate or mitigate.
9.1 The Subscription Term is the initial period stated in the Proposal (“Initial Term”).
9.2 The Contract will automatically renew for a further term equal in duration to the Initial Term (“Renewal Term”) unless the Client provides written notice of non-renewal at least thirty (30) days before the end of the then-current term.
9.3 Either party may terminate the agreement by giving the required written notice on the contract via email as per 9.2. Termination will take effect at the end of the current Renewal term with a three-month notice period. Examples for clarification:
9.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under the Contract on the due date for payment. Following 7-day notice → suspend; lift within 5 Business Days of funds; if 30 days suspended, terminate for breach.
10.1 On termination of the Contract:
(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) Once all invoices are settled across the notice period the handover will be marked as completed. The responsibility is with the client to ensure that all services are handed over prior to this date.
(c) Further fees may apply for additional costs involved in performing the full handover process. These will be made clear to the client once notice is given.
11.1 The Client will not during the term of the contract and for 12 (twelve) months after termination of the contract entice, solicit or engage any person who was an employee or a consultant or otherwise engaged by the Supplier during such period and worked on the contract.
11.2 If the restriction in clause 11.1 shall be held to be void but would be valid if part of its wording was deleted, the restriction shall apply with such deletion as may be necessary to make it valid or effective.
12.1 Force majeure.
Neither party shall be liable for any delay or failure in performance caused by events beyond its reasonable control, including but not limited to platform outages, network failures, strikes, fire, epidemic, or government restrictions.
If such event continues for more than thirty (30) days, either party may terminate the affected Services on ten (10) days’ written notice without penalty.
12.2 Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
12.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, clients/customers or suppliers of the other party, except as permitted by clause 12.3 (b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause12.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
12.5 Variations
12.5.1 The Supplier may make minor administrative or technical updates to these Conditions or to its policies where such updates do not materially affect the Client’s rights or obligations. Any such updates shall take effect thirty (30) days after written notice to the Client.
12.5.2 The Supplier may not make any material variation — including changes to pricing, liability, intellectual property ownership, or termination rights — without the Client’s prior written consent.
12.5.3 Where the Supplier proposes a material variation, the Client shall have thirty (30) days from the date of notice to accept or reject it. Rejection shall not constitute breach; in such case, the Contract shall continue under the previous terms until expiry of the current term. Any variation agreed under this clause shall be recorded in writing and signed or confirmed electronically by both parties.
12.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.8 Notices.
((a) Any notice shall be in writing and delivered by: (i) hand; (ii) pre-paid first-class post; or (iii) tracked email to the addresses specified in the Proposal.
(b) Notices by tracked email shall be deemed received when transmission is confirmed by server receipt, provided no delivery failure notice is received within two (2) hours.
(c) Each party shall ensure that its designated contact email is monitored during Business Hours.
(d) The Supplier may rely on email delivery logs as conclusive evidence of service.
12.9 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
12.12 Dispute Resolution
(a) The parties shall use reasonable endeavours to resolve any dispute amicably.
(b) If not resolved within ten (10) Business Days of written notice, the dispute shall be escalated to each party’s Managing Director (or equivalent) for good-faith discussion.
(c) If unresolved after a further ten (10) Business Days, the dispute shall be referred to mediation in London under the CEDR Model Mediation Procedure.
(d) Only if mediation fails may either party commence proceedings in the courts of England and Wales.
13. Website Buy Back Scheme
13.1 This scheme applies to Marketing Partner and Marketing Essentials tiers only and is an alternative method of exercising the buy-out in clause 6.5.
13.2 A credit of £50 per paid month accrues against a £4,000 buy-out price for the site design and site content (excluding platform code and non-transferable third-party components).
13.3 If a site is re-designed, accrual toward the buy-out price restarts from the date of the new build.
13.4 On buy-out completion the Supplier will provide a standard export and assign assignable IP in the specified Deliverables.
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