(A) 123 has developed certain software applications and services which it makes available to subscribers via the internet to facilitate the online filing of electronic tax data to HMRC.
(B) The Customer wishes to use the Software and the Service.
(C) 123 has agreed to provide and the Customer has agreed to use and pay for the Service subject to these terms and conditions (‘Terms’).
1.1 The definitions and rules of interpretation in this clause apply in these Terms.
123: 123 Sheets UK Ltd ( company number 12952264 whose registered office is at 124 City Road, London, England, EC1V 2NX).
123 Website: the website at 123Sheets.com (or such other web address notified by 123 to the Customer from time to time).
Authorised Users: those officers and employees of the Customer (and, in the case of Tax Agents, the officers and employees of its clients) who are authorised by the Customer to use the Services and the Documentation, as further described in 2.2 and 2.3and in respect of whom Subscription Fees have been paid.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Customer: the entity that registers and creates the account for the User Subscription.
Customer Data: the data inputted and/or created by the Customer, Authorised Users, or 123 on the Customer's behalf when using the Services (including all data submitted to HMRC).
Documentation: the information made available to the Customer by 123 online via the 123 Website which sets out a description of the Services and any user instructions for the Services made available to the Customer by 123 from time to time (including online via the 123 Website).
Effective Date: the date of the Customer’s Subscription Period commences being the date when 123 receives the Subscription Fees in cleared funds.
HMRC: means HM Revenue and Customs of the United Kingdom.
Subscription Period: means the length of subscription purchased by the Customer during the payment process (which is typically twelve months but may be subject to special offers) and which commences on the Effective Date.
Services: the subscription services provided by 123 to the Customer under these Terms via the 123 Website from time to time which allow the Customer to file electronic tax submissions to HMRC and view certain tax information.
Software: the online software applications provided by the Supplier as part of the Services from time to time.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as notified during the payment process.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 7.1 which entitle Authorised Users to access and use the Services and the Documentation on the terms of the relevant subscription.
Tax Agent means an organisation that provides tax filing services to their own clients.
Virus: any software, code or other item which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data; or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause headings shall not affect the interpretation of these Terms.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.5 A reference to writing or written includes e-mail.
1.6 References to clauses are to the clauses of these Terms.
1.7 Wherever the words “including”, “include”, “includes” or “included” are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires it.
2. User subscriptions
2.1 Subject to the Customer purchasing User Subscriptions in accordance with clause 9, 123 hereby grants to the Customer (subject to clause 2.2) a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Period solely for the Customer's internal business operations.
2.2 Where the Customer is a Tax Agent, the licence in clause 2.1 permits the Customer to provide services to their own clients and, where such rights have been expressly purchased by the Customer, allows the clients of the Tax Agent to file their own electronic tax submissions directly to HMRC, subject always to these Terms
2.3 The Customer undertakes that:
(a) it shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) each Authorised User shall keep a secure password for their use of the Services and Documentation and that each Authorised User shall keep their password confidential;
(c) it shall permit 123 or its designated auditor to audit compliance with these Terms and the User Subscription. Each such audit may be conducted no more than once per Subscription Period, at the expense of 123 (unless the audit reveals an underpayment in which case the Customer shall be liable for the reasonable costs of the audit), and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; and
(d) if any audit referred to in clause 2.3(c) reveals that the Customer has underpaid Subscription Fees to 123, then without prejudice to the other rights of 123, the Customer shall pay to 123 an amount equal to such underpayment as calculated in accordance with 123’s then current rates within five (5) Business Days of the date of the relevant audit results being available.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) subject to the rights granted in clause 2.1 in respect of Tax Agents, use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
(e) introduce, or permit the introduction of, any Virus into the 123’s network and information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify 123.
2.6 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer (save to the extent of the User Subscription).
3.1 123 shall, during the Subscription Period, provide the Services and make available the Documentation to the Customer on and subject to these Terms.
3.2 123 shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance which may require a period of downtime. 123 shall try to minimise such downtime and will try to notify the Customer in advance of such downtime (although cannot guarantee this).
3.3 123 provides guidance and support to help with the use of the Services via the 123 Website and will endeavour to respond to any queries during normal office hours on a Business Day (but noting that such support is not available for the period 24 December to 1 January inclusive unless otherwise notified by 123).
4. Compliance with Law
4.1 Each Party will be responsible for compliance with all applicable laws and government or other applicable regulations when performing its obligations under these Terms or when exploiting the rights granted under these Terms.
4.2 The Customer grants 123 a licence to use, copy, transmit, store, analyse, and back up all data you submit to 123 through our Services to: (i) enable you to use our Services; (ii) allow us to improve, develop and protect our Services; (ii) create new services; (iii) communicate with you about your subscription; (iv) send you information we think may be of interest to you based on your marketing preferences; and (v) disclose to third-party service providers and partners to enable and support such purposes.
5. Obligations of 123
5.1 123 undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the 123’s instructions, or modification or alteration of the Services by any party other than 123 or its duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, 123 will, at its expense, use all reasonable commercial endeavours to correct any such nonconformance reasonably promptly.
5.3 123 does not warrant that the Customer's use of the Services will be uninterrupted or errorfree and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Customer should promptly notify 123 if it is having difficulty accessing the Services (for reasons other than the Customer’s own connectivity issues).
5.4 123 warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms
5.5 123 carries out back-ups in the usual course of its business but the Customer is responsible for performing full back-ups of the Customer Data. In the event of any loss or damage to Customer Data, the liability of 123 is limited to taking reasonable steps to try to recover that data from its available back-ups. 123 shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by 123 for which it shall remain fully liable to the extent set out in this clause 5.5).
6. Customer's obligations
6.1 The Customer shall:
(a) ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms and shall be responsible for any Authorised User's breach of these Terms;
(b) obtain and shall maintain all necessary licences, consents, and permissions necessary for 123, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;
(c) ensure that its network and systems comply with the relevant specifications provided by 123 from time to time for accessing the Services;
(d) be responsible for: (i) keeping its information up to date (including a current email address); and (ii) protecting and preventing unauthorised access to any usernames and passwords; and
(e) at all times be responsible for its legal, tax and compliance obligations.
6.2 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality and accuracy of all such Customer Data.
7. Charges and payment
7.1 The Customer shall pay the Subscription Fees to 123 for the User Subscriptions in accordance with this clause 7.
7.2 The Customer may, from time to time during any Subscription Period, purchase additional User Subscriptions via the 123 Website and 123 shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Terms (subject to payment of the fees in accordance with clause 7.3).
7.3 The Customer shall pay to 123 the relevant fees (based on then current rates) for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Subscription Period , such fees shall be pro-rated from the date of activation by 123 for the remainder of the current Subscription Period.
7.4 The Customer shall upon payment (and upon purchase of additional User Subscriptions pursuant to clause 7.3) provide 123 with valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details and the Customer hereby authorises 123 to bill such credit card (and upon purchase of additional User Subscriptions purchased pursuant to clause 7.3) for the Subscription Fees payable in respect of the Subscription Period.
7.5 Customer hereby acknowledges and agrees that it can set up an account at any time. At that point, Customer will have access to limited HMRC information such as tax electronic filing deadlines for electronic tax submissions, but Customer will not be able to access and use other Services (including filing electronic data to HMRC) until the Subscription Fee is paid in full and cleared funds and the User Subscription activated. 123 shall be under no obligation to provide any or all of the Services while the Subscription Fees remain unpaid.
7.6 All amounts and fees:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and (subject to clause 10.4 and clause 12.4(d)) non-refundable;
(c) are exclusive of value added tax, which shall be added to 123’s invoice(s) at the appropriate rate.
7.7 The Supplier shall be entitled to increase the Subscription Fees payable with effect from a subsequent anniversary of the Effective Date and/or, the fees payable in respect of additional User Subscriptions upon prior notice to the Customer.
8. Proprietary rights
8.1 The Customer acknowledges and agrees that 123 and/or its licensors own all intellectual property rights in the Services and the Documentation. These Terms do not grant the Customer any rights or licences in respect of the Services or the Documentation except as expressly stated.
8.2 123 confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant the rights it purports to grant under, and in accordance with, these Terms.
9.1 While using our Services, you may share confidential information with us and you may become aware of confidential information about us. You and we both agree to take reasonable steps to protect the other party’s confidential information from being accessed or used by unauthorised individuals or for any other purpose other than for using or providing the Services. We may each share each other’s confidential information with our officers, employees, agents, subcontractors and advisers (on a need-to-know basis and subject to procuring compliance by them with this clause 9.1) and with legal or regulatory authorities to the extent required to do so.
9.2 On termination or expiry of a Subscription Period without renewal, each party shall:
(a) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(b) certify in writing to the other party upon request that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's confidential information to the extent required by law or any applicable governmental or regulatory authority or in accordance with its reasonable liability management practices.
10.1 The Customer shall indemnify 123 against claims (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation.
10.2 123 shall indemnify the Customer against any claim that the Customer's use of the Services or Documentation in accordance with these Terms infringes any third-party intellectual property or other right.
10.3 The indemnities in clauses 10.1 and 10.2 are subject to the indemnified party:
(a) notifying the indemnifying party promptly on becoming aware of any matter or claim to which the indemnity might relate;
(b) not making any admission, settlement or payment in respect of such matter or claim, other than a payment made pursuant to a court order, without the prior written consent of the indemnifying party; and
(c) allowing the indemnifying party to conduct and/or settle negotiations and/or proceedings relating to such matter or claim and the indemnified party shall comply with the indemnifying party’s reasonable requests in the conduct of any such negotiations and/or proceedings.
10.4 In the defence or settlement of any claim, 123 may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become noninfringing or, if such remedies are not reasonably available, terminate any User Subscriptions on not less than 2 Business Days' notice to the Customer subject only to a pro-rata refund of Subscription Fees paid in advance but not used.
10.5 In no event shall 123 be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than 123; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by 123; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from 123.
10.6 The foregoing states the Customer's sole and exclusive rights and remedies, and 123’s entire obligations and liability, for infringement of any third party rights.
11. Limitation of liability
11.1 The Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer.
11.2 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded.
11.3 The Customer acknowledges and agrees that the Software and Services are only tools to assist the Customer with electronic submissions of tax data to HMRC and the Customer at all times remains solely responsible for meeting applicable compliance obligations. In no circumstances is 123 responsible for any late filing by the Customer (including where Services are unavailable) and the Customer shall ensure that it uses the Services in such a way as to meet any applicable filing deadlines. Nor is 123 a professional adviser and any information made available by 123 is not a substitute for professional advice and 123 is not liable for Customer’s use of such information.
11.4 Nothing in these Terms excludes the liability of 123:
(a) for death or personal injury caused by the negligence of 123; or
(b) for fraud or fraudulent misrepresentation.
11.5 Subject to clause 11.1, 11.2, 11.3 and 11.4:
(a) 123 shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for loss or corruption of data or for legal, tax or accounting compliance issues, or for any penalties or fines incurred by the Customer.
(b) the total aggregate liability of 123 in contract , tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
11.6 Nothing in these Terms excludes or limits the liability of the Customer for any breach, infringement or misappropriation of 123’s intellectual property.
12. Term and termination
12.1 Each Subscription Period shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Subscription Period. The User Subscription does not automatically renew at the end of the Subscription Period and it is the responsibility of the Customer to register and pay for a new subscription if it wishes to continue to use the Services and access its account after the end of the Subscription Period. Any renewal will be subject to 123’s terms and conditions as applicable at the date of the renewal and available on the 123 Website.
12.2 Without affecting any other right or remedy available to it, either party may terminate a User Subscription with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due on the due date for payment and remains in default not less than fifteen (15) days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other provision of these Terms and (if such breach is remediable) fails to remedy that breach within a period of fifteen (15) days after being notified in writing to do so.
12.3 Without prejudice to its rights under clause 12.2, 123 reserves the right to disable the Customer's password, account and access to all or part of the Services in any of the circumstances in clause 12.2 where it is the non-breaching party.
12.4 On termination or expiry of a Subscription Period without renewal for any reason:
(a) all licences granted by 123 shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation (and the Customer shall no longer have access to any Customer Data submitted or created by it, so it is the Customer’s responsibility to ensure that they have downloaded any records of filings and copies of Customer Data that they require);
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) 123 may destroy or otherwise dispose of any of the Customer Data in its possession (but shall be entitled to retain any such data for its liability management purposes).
(d) where the Customer is the terminating party pursuant to clause 12.2, the Customer shall be entitled to a pro-rata refund of Subscription Fees paid in advance but not used; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry of the Subscription Period, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination or expiry shall not be affected or prejudiced.
13. Force majeure
Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for the performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for thirty (30) days or more, the party not affected may terminate the affected User Subscription(s) by giving not less than fifteen (15) days' written notice to the other party.
123 reserves the right to update these Terms from time to time and will provide the Customer with as much notice as it can of such change.
15.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
15.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
16. Rights and remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Terms.
17.2 If any provision or part-provision of these Terms is deemed deleted under clause 17.1, 123 may impose a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. Entire agreement
18.1 These Terms constitute the entire agreement between the parties and supersede and extinguish all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into the User Subscription 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 these Terms.
19.1 The Customer shall not, without the prior written consent of 123, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
19.2 123 may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
20.1 Any notice the Customer sends to 123 under or in connection with these Terms shall be sent by email to: firstname.lastname@example.org (or such other address as 123 may from time to time notify to the Customer):
20.2 Any notice 123 sends to the Customer under or in connection with these Terms shall be in writing and shall be sent to the e-mail address the Customer provides to 123 during the registration process (or updates from time to time via their 123 account).
21. Governing law
These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or their subject matter (including non-contractual disputes or claims).