TOGGLE SERVICE AGREED TERMS

Your attention is particularly drawn to the provisions of clause and 5 (Service Levels) and 13 (Limitation of liability).

1. About us

1.1 Company details. Toggle is a trading name of Airship Services Limited (company number 4225467) a company registered in England and Wales and our registered office is at 16 South Street, Park Hill, Sheffield, S2 5QX. Our main trading address is 16 South Street, Park Hill, Sheffield, S2 5QX. Our VAT number is 772422337. We operate the website usetoggle.com. For the purposes of these terms and your contract we will refer to us as Toggle, we and us.

1.2 Contacting us. To contact us e-mail support@usetoggle.com. How to give us formal notice of any matter under the Contract is set out in clause 16.2.

2. Our contract with you

2.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply of Services by us to you (Contract). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 Entire agreement. The Contract is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.

3. Placing an order and its acceptance

3.1 Placing your order. Please follow the onscreen prompts to place an order. You may only submit an order using the method set out on the site. Each order is an offer by you to buy the services specified in the order (Services) subject to these Terms.

3.2 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order and any specification request submitted by you is complete and accurate.

3.3 Acknowledging receipt of your order. After you click to accept our Terms of Service, your order will have been automatically accepted by us, at which point and on which date (Commencement Date) the Contract between you and us will come into existence. The Contract will relate only to those Services you clicked to Order.

3.4 If we cannot accept your order. If we are unable to supply you with the Services for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Services, we will refund you the full amount.

4. Cancelling your order and obtaining a refund

4.1 You may cancel the Contract at anytime by emailing us at support@usetoggle.com. Your Contract with us will then end 30 days from the date of your cancellation notice.

4.2 If you cancel the Contract and have pre-paid any charges we will refund you in full for the price you pre-paid for the Services, by the method you used for payment. We may deduct from any refund an amount for the supply of the Services for the period up to the time when you give notice of cancellation in accordance with clause 4.1.

5. Our services

5.1 Descriptions and illustrations. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of the Contract or have any contractual force.

5.2 Compliance with specification. Subject to our right to amend the specification (see clause 5.3) we will supply the Services to you in accordance with the specification for the Services appearing on our website at the date of your order in all material respects.

5.3 Changes to specification. We reserve the right to amend the specification of the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services, and we will notify you in advance of any such event.

5.4 Reasonable care and skill. We warrant to you that the Services will be provided using reasonable care and skill.

5.5 Time for performance. We will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate the Contract.

5.6 Service Level. Toggle will make all reasonable effort to ensure our service and platform is error free, fit for purpose, and available to The Client at all times but this cannot be guaranteed and in accordance with 12.3 our liability is limited.

6. Your obligations

6.1 It is your responsibility to ensure that:
(a) the terms of your order are complete and accurate;
(b) you co-operate with us in all matters relating to the Services;
(c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) you 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;
(e) your EPOS system including all connected software, hardware or internet connections are operational at all times to enable your customers to redeem value the value downloaded as a voucher on their cards

6.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 6.1 (Your Default):
(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate the contract under clause 15 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.

7. Services in UK only

7.1 Unfortunately, we are unable to perform the Services at addresses outside the UK.

7.2 You may place an order for the Services from an address outside the UK, but this order must be for performance of the Services to an address in the UK.

8. Charges

8.1 In consideration of us providing the Services you must pay our charges (Charges) in accordance with this clause 9.

8.2 The Charges are the prices displayed on our site at the time you submit your order.

8.3 If you wish to change the scope of the Services after we accept your order, and we agree to such change, we will modify the Charges accordingly.

8.4 We take all reasonable care to ensure that the prices stated for the Services are correct at the time when the relevant information was entered into the system. However, please see clause 8.7 for what happens if we discover an error in the price of the Services you ordered.

8.5 Our Charges may change from time to time, but changes will not affect any order you have already placed.

8.6 Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.

8.7 It is always possible that, despite our reasonable efforts, some of the Services on our site may be incorrectly priced. Where the correct price for the Services is less than the price stated on our site, we will charge the lower amount and if the correct price for the Services is higher than the price stated on our site, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Services and refund you any sums you have paid.

8.8 Toggle operate a fair use policy with a revenue limit per subscribed unit of £200,000 in any 12 month contract period. If the limit is exceeded, we reserve the right to charge £0.50 per transaction for all transactions processed after the limit is exceeded.

9. How to pay

9.1 Payment for the Services is in advance. We will take your first payment the day after the first purchase is made on your Toggle store and will take subsequent payments monthly in advance.

9.2 You can pay for the Services using a debit card or credit card. Once you register a card with Toggle we will automatically charge your card each month in accordance with your order. If you make an alteration to the quantity of sites on your account we will automatically amend the charges accordingly. We accept the following cards:
Visa, Mastercard and American Express.

9.3 We will send you an electronic invoice within seven days of the beginning of your monthly billing period following payment.

9.4 If you fail to make a payment under the Contract by the due date, then, without limiting our remedies under clause 14 (Termination), you will have to pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.4 will accrue according to the Late Payment of Commercial Debts (Interest) Act 1998.

9.5 All amounts due under the Contract must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10. Intellectual property rights

10.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by you) will be owned by us.

10.2 We agree to grant you a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the the deliverables to enable your order to be fulfilled (excluding materials provided by you) for the purpose of receiving and using the Services. You may not sub-license, assign or otherwise transfer the rights granted in this clause 10.2.

10.3 You agree to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you.

11. How we may use your personal information

11.1 Details of how we will process personal information are set out in https://usetoggle.com/privacy-policy.

12. Limitation of liability: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

12.1 We have obtained insurance cover in respect of our own legal liability for individual claims not exceeding 20,000 per claim. The limits and exclusions in this clause reflect the insurance cover we have been able to arrange and you are responsible for making your own arrangements for the insurance of any excess loss.

12.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

12.3 Subject to clause 13.2, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business including but not limited to:
(i) loss of revenue as a consequence of your customers not being permitted to purchase cards.
(ii) losses due to your customers not being able to use the value on their cards in the Client’s venues as the EPOS system could not get the card values from our servers.
(iii) losses incurred where a greater value was able to be spent on a card than your customer had purchased;

(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.

12.4 Subject to clause 12.2, our total liability to you arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to 125% of the total Charges paid under the Contract in the 6 month period which precedes the date the liability arose..

12.5 We have given commitments as to compliance of the Services with the relevant specification in clause 5.2. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

12.6 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7 This clause 12 will survive termination of the Contract.

13. Confidentiality

13.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 13.2.

13.2 We each may disclose the other's confidential information:

(a) to such of our respective employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out our respective obligations under the Contract. We will each ensure that such employees, officers, representatives,
subcontractors or advisers comply with this clause 13; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under the Contract.

14. Termination

14.1 Without limiting any of our other rights, we may suspend the performance of the Services, or terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 70 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business.
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.

14.2 Termination of the Contract will not affect your or our rights and remedies that have accrued as at termination.

14.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

15. Events outside our control

15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).

15.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.

15.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.

16. Communications between us

16.1 When we refer to "in writing" in these Terms, this includes email.

16.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.

16.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.

16.4 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 email, that such email was sent to the specified email address of the addressee.

16.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

17. General

17.1 Assignment and transfer.

(a) We may assign or transfer our rights and obligations under the Contract to another entity but will always notify you in writing.

(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.

17.2 Variation. Toggle will notify you via the Client’s nominated email address when we are updating these terms. Any email sent to the Client’s nominated email address will be deemed considered to be delivered if sent to the nominated individual’s address in accordance with these terms and any changes to terms will come into force at midnight 30 days after such date of receipt (the “variation date”). If you are happy to accept the change and wish to continue using Toggle you do not need to respond and your agreement will be governed by the updated terms from the applicable variation date. If you do not accept the changes please notify Toggle at our nominated email address and your agreement will terminate from the variation date. .If you fail to respond prior to the variation date and continue to use the Toggle service you will be deemed to have accepted the revised terms and conditions from that date forward and you shall continue to liable to all charges.

17.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.

17.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

17.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.

17.6 Governing law and jurisdiction. The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.