1. Definitions & Interpretations

    “Service Commencement Date” means the earliest date that the “Service” shall be made available to the Members;

    “Fees” mean the charges stipulated in the “Specific Terms” section of the Agreement that represent the monetary consideration for the provision of the Service;

    “Site” means a website comprised in a Service which is under FosterTalk’s control (directly or indirectly);

    “Service” and “Services” means individually or collectively the provision of support, advice and special offer scheme services and any other value added services FosterTalk agree to provide under this Agreement. The special offer scheme will provide access to a range of discounted goods and services of third party suppliers;

    “Member” is a household that the Client wishes to be registered for the receipt of the Service based upon at least one person of that household working for or being a member of the Client organisation either on an employed or self-employed basis.

  2. Registration

    The Client will, subject to and in accordance with the Data Protection provisions of clause 11:

    1. Provide FosterTalk or its sub-contractors the information needed about each Member to (i) allow their registration and access to the Services and (ii) market directly to those Members who have registered with FosterTalk, to the extent they have given the Client or FosterTalk the appropriate consent.
  3. Duration
    1. This Agreement starts on the Service Commencement Date and (unless terminated in accordance with this agreement) continues for the Minimum Duration set out in the “Specific Terms”. This Agreement shall automatically renew indefinitely after the Minimum Duration and each year for successive 12 month periods on the same terms and fees as are applicable on the date immediately prior to the relevant anniversary date, unless either party provides to the other party written notice to terminate at least 30 days prior to the first relevant anniversary date and thereafter 90 days prior to such anniversary (except for the In the event of early termination, no refunds will be provided, outstanding invoices shall remain payable, and the Fees for the relevant 12 month period shall become payable (if not already paid).
    2. Either party may terminate this Agreement by immediate effect if at any time:
      1. the other party commits a material breach of the Agreement and (if capable of remedy) fails to remedy the breach within 30 days of receipt of notice to do so; or
      2. the other party enters into liquidation either compulsorily or voluntarily (other than for the purposes of a bona fide amalgamation or reconstruction), has a receiver appointed in respect of the whole or parts of its assets or makes an arrangement or composition with its creditors generally or makes an application to the court for protection from its creditors.
    3. FosterTalk may cease providing any particular Service at any time on 30 days written notice to the Client but only if FosterTalk cease to provide the Service generally to FosterTalk customers.
  4. Obligations & Warranties

    FosterTalk will:

    1. exercise due care and skill in providing the Service (but excluding monitoring suppliers as part of the Member saving);
    2. comply with applicable UK laws in respect of the provision of the Service.
  5. Acknowledgements & Disclaimers

    Without limiting clause 4 the Client acknowledges that:

    1. Access to any Site cannot be expected to be uninterrupted or fault free and that the speed and reliability of access may vary in accordance with user demand for such Site and the Internet generally;
    2. FosterTalk do not control, and accept no responsibility for the performance or reliability of the websites of third party suppliers of goods and services comprising the Service;
    3. FosterTalk are not a party to, third party beneficiary of, or a guarantor of performance with respect to any agreement entered into between a Member and any third party pursuant to any Service wherein the third party offers discounts, promotions or other services to the Members and that FosterTalk shall have no liability to the Client or the Members in relation to any such agreement between the Member and the third party;
    4. FosterTalk do not control and make no warranty or representation in relation to the quality or availability of promotions, goods and services offered by any third party to a Member pursuant to any Service, the terms and conditions on which such promotions, goods and services are offered or purchased or the third party’s compliance with any agreement that it may enter into with a Member;
    5. FosterTalk is not responsible for and shall have no liability with respect to content we publish, post, distribute or disseminate on FosterTalk’s Sites or through any of FosterTalk’s Services which has been obtained or derived directly or indirectly from Client or any of Client’s employees. The Client agrees that such content shall be deemed for the purposes of clause 9 of this Agreement to constitute content published by the Client or the Members.
  6. Warranty Exclusions

    To the maximum extent allowed by law, except as expressly set forth in this Agreement, FosterTalk specifically disclaims all warranties (including warranties with respect to merchantability and fitness for a particular purpose) with respect to any of FosterTalk’s Services or Sites and any content, functionality, goods or services offered, supplied or made available through or in connection with FosterTalk’s Service or Sites (whether by FosterTalk or a third party).

  7. Fees
    1. In return for FosterTalk providing the Service, the Client will pay FosterTalk the Fees stipulated in the “Specific Terms”.
    2. The invoice for the Services will be raised annually on the Service Commencement Date, or the anniversary thereof. Intermediate invoices will be raised following the formal notification by the Client to increase the number of Members. These additional Members will be charged on a pro-rata basis. Intermediate invoices will be raised in the event that the Client requests further Services.
      All invoices will be paid by the Client within 30 days of invoice date.
    3. Fees may be increased no more than annually. In the event that FosterTalk is subject to significant cost increases FosterTalk reserves the right to increase fees more frequently than annually.
    4. All Fees are exempt of VAT. The Client will comply with all applicable VAT laws.
  8. Liability
    1. FosterTalk’s liability to the Client for death or injury resulting from FosterTalk’s negligence or that of its employees, agents or sub-contractors shall not be limited or excluded.
    2. The Client agrees that under no circumstances shall FosterTalk’s total aggregated liability in contract, tort (including, without limitation negligence other than negligence resulting in death or injury) or otherwise exceed for any number of breaches of this Agreement during a calendar year the fees received (or due) from the Client during that calendar year.
    3. FosterTalk shall not be liable to the Client in respect of any type of special, indirect or consequential loss even if such loss was reasonably foreseeable or FosterTalk had been advised of the possibility of the Client incurring the same.
  9. Client Responsibilities and Indemnities

    The Client undertakes and warrants to FosterTalk that no content used, published, posted, distributed or disseminated by the Client (or any individual accessing or using the Services under its authority) on or in relation to any of FosterTalk’s Sites or Services will be defamatory, obscene, infringe (or be likely to infringe) any third party intellectual property rights or otherwise be unlawful (“unlawful postings”). The Client will immediately notify FosterTalk if it becomes aware of any unlawful postings on or in relation to any of FosterTalk’s Sites or Services (whether by the Client, Members or any other person) and the Client acknowledges that FosterTalk has the right to amend or withdraw any material which, in its reasonable discretion, may constitute unlawful postings (even if this means temporarily suspending all access to FosterTalk’s Sites and Services). The Client warrants that the database provided to FosterTalk is and will continue to be up to date and free of inaccuracies. The Client agrees to indemnify FosterTalk on demand against any losses, liabilities or costs FosterTalk incurs because of the Client’s breach of this clause.

  10. Database
    1. FosterTalk understands and accepts that the Client’s database (the “Database”) remains the property of the Client.
    2. The Client licences the use of the Database to FosterTalk on a non-exclusive royalty free basis for the duration of the Agreement (the “Licence”). This Licence shall end on termination or expiry of this Agreement.
    3. FosterTalk will only use the Database to contact Members to provide the Services and/or to market the Services in accordance with the agreed communication programme, which will include but not be limited to sending (a) FosterTalk’s welcome pack by post; (b) a membership reminder letter after 4 months of membership; (c) a customer satisfaction survey after the 8th month of Membership; (d) a monthly email campaign to highlight special offers through the discounts scheme; and (e) a Quarterly magazine by post via a third party fulfilment company.
    4. FosterTalk will only communicate via email to Members where (i) the Client has recorded on the Database an email address for the Member (which confirms that appropriate consent to do so has been obtained from the Member by the Client); or (ii) where FosterTalk has obtained appropriate consent from Members directly to contact them by email.
    5. The Client acknowledges that information provided by Members directly to FosterTalk in the provision of the Services (“Service Information”) will not form part of the Database and for the avoidance of doubt, the provisions of 10.8 will not apply to such Service Information.
    6. The Client agrees that on or around termination or expiry of this Agreement FosterTalk may use the Database to correspond with all Members listed on the Database to (i) give notice that the Services will no longer be supplied by FosterTalk under this Agreement (as the Client has not renewed their Membership); and (ii) to give each Member the opportunity to register for membership with FosterTalk directly.
    7. The Database will be maintained and operated with the same strict security measures that are applied to FosterTalk’s own database. Where FosterTalk is subject to any of the events referred to in 3(ii) above, then the Client reserves to the right to terminate the Licence.
    8. On termination or expiry of this Agreement FosterTalk shall (as instructed by the Client) return all copies of the Database to the Client or delete all copies of the Database in line with FosterTalk’s archive and retention policy.
  11. Data Protection
    1. This Agreement is subject to a Data Protection Agreement which forms part of this Agreement. This Agreement will not be in force until and unless that Data Protection Agreement has been signed by both parties.
  12. Novation & Assignment

    In respect of any assignment or novation of this Agreement by FosterTalk, neither the Agreement nor the Licence granted to FosterTalk under clause 10.2 may be assigned or novated without the express written consent of the Client, such consent is not to be unreasonably withheld In the event that the Client agrees to assign or novate this Agreement, the Client agrees that FosterTalk’s obligations, liabilities, duties and rights arising out of this Agreement will be deemed to have be novated or assigned to the successor company (without recourse or warranty) and shall be assumed in full by such company and FosterTalk shall be released from all such obligations, liabilities and duties.

  13. Variations
    1. FosterTalk may without notice vary (including adding or removing) the software, functionality, tools, components, specifications, goods, services or suppliers (as the case may be) comprised in any of the Services or Sites.
    2. FosterTalk will advise the Client of any significant variation which FosterTalk consider will or will be likely to materially adversely affect the nature or quality of any Service. If any variation does materially adversely affect the nature or quality of a Service then FosterTalk shall have 60 days to remedy the Service.
    3. FosterTalk may at any time after the first 12 months of this agreement on at least 30 days written notice vary the terms and conditions of this agreement or the Fees.
  14. Force Majeure
    1. Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that party’s reasonable control (including, without limitation, any strike, lockout or other industrial action, riots, act of God, war or threat of war, epidemic, fire, communication line failures, power failures, earthquakes or other disasters, accidental or malicious damage, or prohibition by governments or other legal authority) (a “Force Majeure Event”).
    2. A party claiming to be unable to perform its obligations under this Agreement (either on time or at all) because of a Force Majeure Event must immediately notify the other party of the nature and extent of the circumstances in question.
    3. This clause 13 shall cease to apply when the Force Majeure Event has ceased to have effect on the performance of this Agreement. [Should the Force Majeure Event continue uninterrupted for a period of sixty (60) days, either party can terminate the Agreement upon notice to the other party.]
  15. Other Terms
    1. If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.
    2. If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the parties 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.

      FosterTalk may subcontract all or any part of its obligations under this Agreement but will remain responsible to the Client subject to clause 11.1 of this Agreement as prime contractor for the delivery of the Service.

      1. FosterTalk, or its licensees or suppliers, are the owner of the trade marks logos and get-ups used on this site in the UK and other countries. FosterTalk may grant the Client the right to use the Client’s name together with the suffix “FosterTalk” or similar for a customised site. The Client acknowledges that any use of the “FosterTalk” mark shall be strictly for the purposes of this Agreement. No omission or delay on the part of either FosterTalk or the Client in exercising any right, power or privilege under this Agreement shall operate as a waiver by FosterTalk or the Client of any right to exercise that right, power or privilege in the future or any of FosterTalk’s or the Client’s rights under the Agreement. The Client will not use “FosterTalk” suffix or any FosterTalk materials without the prior written consent of FosterTalk.
      2. No waiver of any term, provision or condition of this Agreement shall be effective except to the extent made in writing and signed by the waiving party.
      3. This Agreement embodies and sets forth the entire agreement and understanding of the parties and supersedes all prior oral or written agreements and representations (including negligent but excluding fraudulent representations) understandings or arrangements relating to the subject matter of this Agreement.
      4. This Agreement (and any dispute, controversy, proceedings or claims of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed and construed in accordance with English Law and any disputes arising in relation thereto shall fall within the exclusive jurisdiction of the English Courts.