Employer Agreement | 10th August 2021
An employer agrees to enter this agreement [“Agreement”] by the action of paying to subscribe staff for Scooch's services. This agreement commences on the first Monday following the first subscription payment [the “Commencement Date”] for an initial term of 3 months [“Initial Term”] where the first month shall serve as a trial [the “Trial Period”]. This Agreement is between: (i) Scooch Limited registered in England & Wales, company number 09552830 ("Scooch"); & (ii) the subscribing employer (the "Client").
1. The Services
(a) Scooch shall provide Employees of the Client who verify their Work Email Address with:
(i) access to the System & Scheme for the purposes of tracking & rewarding their physical movement;
(ii) periodic updates of their physical movement progress & progress towards sponsored Rewards ["Rewards Data"] as well as System upgrades, &/or other information as Scooch may elect with a view to enhancing such Members’ respective experiences with & adoption of the System.
(b) Scooch shall provide the Client with:
(i) a Client Account in the System where Client’s eligible Employees’ Work Email Addresses shall be listed for the purposes of the Scheme;
(ii) account level support via email to the administrative contact(s), as notified by the Client, for the Client Account;
(iii) periodic Rewards Data. This shall be provided on an anonymous & aggregated basis, unless a particular Reward of the Scheme requires a specific Employee identifier to execute a Client compensated Reward to the Employee. The Client agrees to use the Rewards Data only for the purposes of administering the Scheme for Employees & deducing anonymised trends for workforce movement levels;
(iv) additional Employee Rewards Data for any given Employee(s) that the Client, acting in good faith, believes to be engaging in fraudulent activity with regards to the Scheme (provided, where necessary, Scooch has consent to do so).
(c) Scooch shall use commercially reasonable endeavours to maintain the availability of the System, however the Client acknowledges & agrees that Scooch makes no warranty or representation that there shall be no downtime, both planned (for maintenance) & unplanned, from time to time, or access to the System shall be uninterrupted, or error-free.
2. The Client's Obligations
The Client agrees to:
(b) after the expiry of the Trial Period, use the System as its only Client-sponsored Employee movement tracking application through which an Employee shall be rewarded where the cost is ultimately borne by Client (or its affiliates);
(c) pay all Invoices, as defined in clause 5, when due, in accordance with clause 5; &
(d) provide Scooch with reasonable notice of any changes to the Employee Count or list of Work Email Addresses held in the Client Account.
3. Restrictions, Confidentiality & Intellectual Property Rights
(a) With the exception of any information provided by Scooch to the Client in accordance with clauses 1.b.iii & 1.b.iv, the Client must not use any Employee data or Rewards Data for any purpose other than administering the Client Account, the Client's Scheme & deducing anonymised trends for workforce movement levels.
(b) The Client must not attempt to copy, modify, duplicate, create derivative works from, sub-license, transfer, frame, mirror, republish, download, display, transmit, distribute or otherwise communicate all or any portion of the System in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the System.
(c) The Client must not develop a system, software or process that competes directly or indirectly with the System, Scheme or Scooch.
(d) The Client acknowledges & agrees that Scooch &/or its licensors own all intellectual property rights in the System, the Scheme & the Rewards Data. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the System.
(e) Scooch & the Client agree to keep the terms of this Agreement & the Rewards Data strictly confidential, save that Scooch may use & communicate such Rewards Data to the extent necessary to enable Scooch to administer the System & the Client’s Scheme.
(a) Notwithstanding clause 1.b.iii & 1.b.iv Scooch owns all rights, title & interest in & to all Rewards Data & any other Member information that it collects as a result of an Employee's use of the System.
(c) To the extent Scooch provides the Client with any private personally identifiable data [“PPI Data”] of Employees (where Scooch has acquired consent from the relevant Employee(s) to do so), Client shall be the processor of such data [the “Data Processor”] & must act, use & process the information only in accordance with Scooch's specific instructions & in compliance with the GDPR.
5. Fees & Payment
(a) Scooch shall provide the Client with a electronic invoice [each an "Invoice"] detailing:
(i) Employee Count at that time multiplied by £3.04 [“Employee Subscription”] covering a forthcoming 1 month period;
(ii) any applicable credit for e-Vouchers [each an "Voucher" collective Voucher payments the "Voucher Credit"] covering a forthcoming 1 month period should the Client elect to operate e-Vouchering via their modified Scheme;
(iii) any applicable additional charity donation sum [each a "Charity Payment"] should the Client elect to operate additional charity Rewards via their modified Scheme for the previous 1 month period.
(iv) a £0.50 payment processing fee ["Payment Fee"] regardless of any Invoice value.
(b) Client must pay Scooch the total amount due on each Invoice immediately on receipt of the relevant Invoice (the "Payment Due Date") using the Clients saved means of paying Invoices.
(c) In the event that not all of the Employees in the provided Employee Count or list of Work Email Addresses verify their Work Email Address, the Client will accrue a credit for Employee Subscriptions ["Employee Subscription Credit"]. Scooch shall hold the Employee Subscription Credit for the duration of this Agreement. Scooch shall amend the Employee Count that determines the Employee Subscriptions due on a given Invoice according to the number of verified Work Email Addresses in the Client Account prior to producing a given Invoice &/or advice from the Client regarding the expected Employee Count. In the event additional Employees verify their Work Email Address to increase the Employee Count in the month period after issuing a given Invoice, Scooch shall apply a retrospective pro-rata Employee Subscription at the rate of £0.10 per day ["Daily Employee Subscription Rate"] & deduct payment from the Employee Subscription Credit balance. Should there be insufficient funds in the Employee Subscription Credit balance, Scooch reserves the right to issue an additional Invoice to recover unpaid Employee Subscriptions &/or Voucher Credit.
(d) Should any Employee of the Client win a monetary prize other than a Voucher via the Scheme [each a "Jackpot Prize"], Scooch shall pay the monetary Jackpot Prize value to the Employee's Personal Email Address via PayPal.
(e) Without prejudice to any other rights & remedies of Scooch, interest shall accrue on a daily basis on any amounts not paid by the Client by the relevant Payment Due Date at a rate of 3% per month, compounded quarterly.
(f) All amounts & fees stated or referred to in this Agreement as being payable by the Client shall be:
(i) non-cancellable & only the Employee Subscription Credit shall be refundable as stated in clause 5.c.;
(ii) exclusive of sales tax (“VAT”), which shall be added to each Invoice as applicable & at the appropriate rate;
(iii) for the avoidance of doubt Employee Subscriptions & the Payment Fee collected for the Trial Period are strictly non-refundable.
(a) Scooch does not warrant that the Client's use of the System shall be uninterrupted or error-free.
(b) Scooch is not responsible for & fully disclaims any & all liability in respect of any delays, delivery failures, or any other loss or damages resulting from the transfer of data over communications networks & facilities, including the internet.
(c) The Client acknowledges & agrees that Scooch merely facilitates the tracking of Employee physical movement through mobile phone operating systems, third party mobile fitness applications & third party wearable tracker devices [each a “Device”]. The Client acknowledges & agrees that Scooch shall have no liability as to the quality or accuracy of data provided by any such Devices.
(i) any deliberate attempt by an Employee to mislead or defraud the Client using the System; or
(e) The System is provided to Employees to encourage healthy levels of physical movement & activity, however Scooch shall have no liability for the health of any Employee.
(f) The Client shall be solely responsible for their Scheme operated via their Client Account & Scooch shall have no liability arising from the administration of any schemes offered by the Client to an Employee or other third party sponsors that may be eligible to a given Member through the System.
(g) The Client shall indemnify Scooch against any & all liabilities, costs, expenses, damages & losses arising from a claim by an Employee that the Rewards Data caused them to miss out on a Reward offered by the Client.
(h) Notwithstanding anything else contained in this Agreement, but subject always to clause 6.k., Scooch shall not be liable to the Client for loss of profits, contracts or other indirect or consequential loss whether arising from tort (including negligence), breach of contract or howsoever else.
(i) Subject to clause 6.k., Scooch’s aggregate liability to the Client under this Agreement shall not exceed the amount paid by Client in Employee Subscriptions in the previous 12 months from the date of the Client's claim.
(j) The Client must use best endeavours to mitigate any loss it suffers under this Agreement & each party’s liability to the other shall be reduced to the extent that the claiming party itself contributed to such loss.
(k) Notwithstanding anything else to the contrary, nothing in this Agreement shall exclude either party's liability for:
(i) death or personal injury caused by negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods & Services Act 1982; or
(iv) any other liability that may not be excluded by law.
7. Term & Termination
(a) This Agreement shall continue in force for the Initial Term, unless terminated earlier in accordance with this clause 7.
(b) During the Trial Period:
(i) the Client may choose to offer only a limited number of Employees with access to trial the System (such number to be agreed between the parties);
(ii) either party may terminate this Agreement immediately by providing written notice to the other party.
(c) After the Trial Period, either party may terminate this Agreement if the other party materially breaches any term of this Agreement (where such breach is capable of remedy) & fails to remedy that breach within 30 days after being notified by the other (non-defaulting) party in writing to do so.
(d) This Agreement shall automatically renew for successive periods of 3 consecutive months at the expiry of the Initial Term, or each anniversary thereof [each a “Renewal Period”], unless either party notifies the other party of its intention not to continue this Agreement by written notice at least 30 days prior to the commencement of the next Renewal Period.
(e) Upon termination of this Agreement for any reason, all rights, licences & access to the System, the Scheme & the Reward Data granted to the Client & all Rewards eligible to the Client’s Employees via the Scheme shall cease immediately & the Client must immediately pay to Scooch any & all sums due under this Agreement.
Due to continuous development & improvements this Agreement may change over time.
(a) If Scooch changes the Client's rights under the terms of this Agreement, Scooch will make reasonable efforts to notify the Client.
(b) If the Client objects to any aspect of the terms of this Agreement or future modifications, the Client must terminate the Agreement according to clause 7.
(c) The Client's continued use of Scooch's service will constitute acceptance of the terms of this Agreement in force at that time.
(a) The Client is not entitled to assign, transfer or sub-license any of its rights or obligations under this Agreement, unless with Scooch’s prior written consent. Scooch shall be entitled to assign, transfer or sub-license this Agreement to any third party including its associated or affiliated companies.
(b) No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law & no single or partial exercise of such right or remedy shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
(c) In the event that any portion of this Agreement is held to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed not to form part of this Agreement & the remainder of the provisions shall remain in full force & effect.
(d) Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
(e) The person subscribing the Client to the Service confirms that they have the appropriate authority to bind the parties to this Agreement.
(f) This Agreement shall be governed by & construed in accordance with the law of England & Wales. Each party irrevocably agrees that the courts of England & Wales shall have jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, its subject matter or formation.