Click below to see the following terms:
1 About our Terms
1.1 These Terms explain how you may access and use stornaway.io (the Site).
1.2 You should read these Terms carefully before using the Site.
1.3 By accessing or using the Site or otherwise indicating your consent, you agree to be bound by these Terms and the documents referred to in them.
1.4 If you do not agree with or accept any of these Terms, you should stop using the Site immediately.
1.5 If you have any questions about the Site, you can contact us via email at email@example.com
Content means any text, images, video, audio or other multimedia content, software or other information or material submitted to or on the Site;
Submission means any text, images, video, audio or other multimedia content, software or other information or material submitted by you or other users to the Site;
Terms means these terms and conditions of use as updated from time to time under clause 12;
Unwanted Submission has the meaning given to it in clause 6.1;
We, us or our means Stornaway Productions Ltd, company registration number 11780589, whose registered office is at 37 Bellevue Crescent, Bristol, United Kingdom, BS8 4TF; and
You or your means the person accessing or using the Site or its Content.
1.7 These Terms apply to all users of the Site. In addition to these Terms, our subscription terms will apply to creators with a paid subscription. If there is any conflict between the two, the subscription terms will take precedence.
2 Using the Site
2.1 The Site is for your personal and non-commercial use only.
2.2 You agree that you are solely responsible for:
2.2.1 all costs and expenses you may incur in relation to your use of the Site; and
2.2.2 keeping your password and other account details (if applicable) confidential.
2.3 You must be at least 13 years of age to access and use the Site or, if under 13,
you must have the permission of a legal parent or guardian and the legal parent or guardian will be responsible for compliance with these Terms. Some Content and Submissions may have a higher age advisory, in which case you must only access and view such Content and Submissions if you meet the minimum age required.
2.4 It is your responsibility to ensure that you are legally able to access and use this Site in your location.
2.5 We may prevent or suspend your access to the Site if you do not comply with any part of these Terms, any terms or policies to which they refer or any applicable law.
3 Restrictions on use
3.1 As a condition of your use of the Site, you agree:
3.1.1 not to use the Site for any purpose that is unlawful under any applicable law or prohibited by these terms and conditions of use;
3.1.2 not to use the Site to commit any act of fraud;
3.1.3 not to use the Site to distribute viruses or malware or other similar harmful software code;
3.1.4 not to use the Site for purposes of promoting unsolicited advertising or sending spam;
3.1.5 not to use the Site to simulate communications from us or another service or entity in order to collect identity information, authentication credentials, or other information (‘phishing’);
3.1.6 not to use the Site in any manner that disrupts the operation of our Site or business or the website or business of any other entity;
3.1.7 not to use the Site in any manner that harms minors;
3.1.8 not to promote any unlawful activity;
3.1.9 not to represent or suggest that we endorse any other business, product or service unless we have separately agreed to do so in writing;
3.1.10 not to use the Site to gain unauthorised access to or use of computers, data, systems, accounts or networks;
3.1.11 not to attempt to circumvent password or user authentication methods; and
3.1.12 to comply with the provisions relating to our intellectual property rights and software contained in these terms and conditions of use.
3.2 Submissions are the responsibility of the person making the Submission and we do not accept any liability for your access and use of any Submission, the content of the Submission, or any consequences arising therefrom.
3.3 We are not obliged to monitor or moderate Submissions to our interactive services. Nevertheless, we may remove or edit any Submissions to any of our interactive services whether they are moderated or not.
3.4 Submissions are to be accessed via the Site only. You agree not to attempt to copy, export, extract, reverse-engineer or otherwise distribute or exploit any Submission or otherwise use a Submission for any commercial purposes (unless you have the appropriate consent from the Submission owner to do so).
3.5 If you know or suspect that any Submission to our Site infringes copyright of a third party, please contact us, providing sufficient detail of the potential infringement.
4 Submission standards
4.1 Any Submission or communication to users of our Site must conform to standards of accuracy, decency and lawfulness, which shall be applied in our discretion, acting reasonably. In particular, you warrant that any Submission or communication is:
4.1.1 your own original work and lawfully submitted;
4.1.2 factually accurate or your own genuinely held belief;
4.1.3 provided with the necessary consent of any third party;
4.1.4 not defamatory or likely to give rise to an allegation of defamation;
4.1.5 not offensive, obscene, sexually explicit, discriminatory or deceptive; and
4.1.6 unlikely to cause offence, embarrassment or annoyance to others.
5 Your privacy and personal information
6 Ownership, use and intellectual property rights
6.1 This Site and all intellectual property rights in it including but not limited to any Content and Submissions are owned by us, our licensors or both (as applicable). Intellectual property rights means rights such as: copyright, trade marks, domain names, design rights, database rights, patents and all other intellectual property rights of any kind whether or not they are registered or unregistered (anywhere in the world). We and our licensors reserve all of our rights in any intellectual property in connection with these Terms. This means, for example, that we and they remain owners of them and free to use them as we and they see fit.
6.2 Nothing in these Terms grants you any legal rights in the Site other than as necessary to enable you to access the Site. You agree not to adjust to try to circumvent or delete any notices contained on the Site (including any intellectual property notices) and in particular in any digital rights or other security technology embedded or contained within the Site.
6.3 Trade marks and trade names may be used on this Site. Your use of any trade marks on the Site is strictly prohibited unless you have our prior written permission.
7.1 Software may be made available for you to download in order to help the Site work better. You may only use such software if you agree to be bound by the terms and conditions that apply to such software (this is sometimes known as an ‘end user licence agreement’ or ‘EULA’). You will be made aware of any terms and conditions that apply to the software when you try to download it. If you do not accept such terms and conditions, you will not be allowed to download the software. You should read any terms and conditions carefully to protect your own interests (they may contain provisions that set out what your legal rights are under, eg, the Consumer Rights Act 2015, what your legal responsibilities are when using software, what the software provider’s legal responsibilities are, and provisions that limit a software provider’s legal responsibilities to you).
7.2 Using the software in an unlawful way (such as reproducing or redistributing it in a way that breaches these Terms and any others that apply to it) is expressly prohibited and may result in civil and criminal penalties.
8 Submitting information to the Site
8.1 While we try to make sure that the Site is secure, we cannot guarantee the security of any information that you supply to us and therefore we cannot guarantee that it will be kept confidential. For that reason, you should not let us have any patentable ideas or patent applications, advertising or marketing suggestions, prototypes, or any other information that you regard as confidential, commercially sensitive or valuable (Unwanted Submissions). While we value your feedback, you agree not to submit any Unwanted Submissions.
8.2 We may use any Unwanted Submissions as we see reasonably fit on a free-of-charge basis (bear in mind that we have no way of knowing whether such information is confidential, commercially sensitive or valuable because we do not monitor the Site to check for these matters). Therefore, we will not be legally responsible for keeping any Unwanted Submissions confidential nor will we be legally responsible to you or anybody else for any use of such Unwanted Submissions.
9 Accuracy of information and availability of the Site
9.1 While we try to make sure that the Site is accurate, up-to-date and free from bugs, we cannot promise that it will be. Furthermore, we cannot promise that the Site will be fit or suitable for any purpose. Any reliance that you may place on the information on this Site is at your own risk.
9.2 We may suspend or terminate operation of the Site (or any part of it) at any time as we see fit.
9.3 Content is provided for your general information and use only. It does not constitute technical, financial or legal advice or any other type of advice and should not be relied on for any purposes.
9.4 While we try to make sure that the Site is available for your use, we do not promise that the Site is available at all times nor do we promise the uninterrupted use by you of the Site.
10 Hyperlinks and third party sites
10.1 The Site may contain hyperlinks or references to third party websites other than the Site. Any such hyperlinks or references are provided for your convenience only. We have no control over third party websites and accept no legal responsibility for any content, material or information contained in them. The display of any hyperlink and reference to any third party website does not mean that we endorse that third party’s website, products or services. Your use of a third party site may be governed by the terms and conditions of that third party site.
10.2 You may create a link to our Site from another website without our prior written consent provided no such link:
10.2.1 creates a frame or any other browser or border environment around the content of our Site;
10.2.2 implies that we endorse your products or services or any of the products or services of, or available through, the website on which you place a link to our Site;
10.2.3 displays any of the trade marks or logos used on our Site without our permission or that of the owner of such trade marks or logos; or
10.2.4 is placed on a website that itself does not meet the acceptable use requirements of these terms and conditions of use.
10.3 We reserve the right to require you to immediately remove any link to the Site at any time, and you shall immediately comply with any request by us to remove any such link.
11 Limitation on our liability
11.1 Except for any legal responsibility that we cannot exclude in law (such as for death or personal injury), we are not legally responsible for any:
11.1.1 losses that:
(a) were not foreseeable to you and us when these Terms were formed; or
(b) that were not caused by any breach on our part
11.1.2 business losses.
12 Events beyond our control
We shall have no liability to you for any breach of these Terms caused by any event or circumstance beyond our reasonable control including, but not limited to, strikes, lock-outs or other industrial disputes; breakdown of systems or network access; or flood, fire, explosion or accident.
13 Rights of third parties
No one other than a party to these Terms has any right to enforce any of these Terms.
We reserve the right to vary these Terms from time to time. Our updated terms will be displayed on the Site and by continuing to use and access the Site following such changes, you agree to be bound by any variation made by us. It is your responsibility to check these Terms from time to time to verify such variations.
15.1 We shall apply these terms and conditions of use in our absolute discretion. In the event of your breach of these terms we may terminate or suspend your use of the Site, remove or edit Submissions, disclose Submissions to law enforcement authorities or take any action we consider necessary to remedy the breach.
15.2 We will try to resolve any disputes with you quickly and efficiently. If you are unhappy with us please contact us as soon as possible.
15.3 If either party wants to take court proceedings, the courts of England and Wales will have exclusive jurisdiction in relation to these Terms, save where relevant United Kingdom law permits or requires court proceedings to be issued in another part of the United Kingdom.
15.4 English law will apply to these Terms.
STORNAWAY SUBSCRIPTION TERMS
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: the agreement between the parties relating to the provision and use of the Services, incorporating these terms, the Order, and any further documents expressly incorporated by reference.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or would be regarded by a reasonable business person as being confidential, as well as information identified as Confidential Information in clause 10.4.
Customer: the legal person purchasing access to the Services by submitting an Order.
Customer Materials: the data and materials inputted by or on behalf of the Customer for the purpose of using the Services, including Customer media and content uploaded, edited and/or published via the Services.
Data Protection Legislation: all applicable laws and regulations from time to time in force relating to the protection of personal information, including the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the GDPR and any laws substituting, re-enacting or replacing any of the forgoing, as amended or updated from time to time.
Effective Date: the date for commencement of the Services, as set out in the Order (or otherwise being the date on which the Order is signed by or on behalf of both parties).
Excess Usage Fees: the fees payable to the Supplier by the Customer where the Customer uses the Services in excess of the Usage Limits, which shall be based on the Supplier’s rate card from time to time.
GDPR: The General Data Protection Regulation (Regulation EU 2016/679).
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Order: the order form completed and submitted by the Customer via the Website, or otherwise prepared by the Supplier for the Customer, in each case setting out the Services, number of User Accounts (where applicable), Subscription Fees and any other relevant terms applicable to the performance of this Agreement.
Services: the subscription services provided by the Supplier to the Customer under this Agreement, as more particularly described in the Order.
Software: the online software application provided and made accessible by the Supplier via the Website for the performance and use of the Services.
Subscription Fees: the fees payable by the Customer to the Supplier for the provision of the Services, as set out in the Order.
Supplier: Stornaway Productions Limited, incorporated and registered in England and Wales with company number 11780589, whose registered office is at 37 Bellevue Crescent, Bristol, United Kingdom, BS8 4TF.
Supplier Content: any and all data and content accessible or made available via the Services, including but not limited to the Software and any documents, images, videos, downloadable files and other media.
Third Party Services Overview: means the non-exhaustive description of third party services used in the provision of the Services and related data storage practices, as updated from time to time and available from the Supplier on request.
Usage Limits: the usage limits applicable to the use of the Services, as shown at www.stornaway.io from time to time.
User Account(s): the user account(s) purchased by the Customer pursuant to this Agreement (and as detailed in the Order).
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: the Supplier’s website via which the Services are provided, currently accessible at stornaway.io.
1.2 Any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement.
1.3 A reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns.
1.4 A reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.5 A reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Words in the singular include the plural and vice versa.
1.7 Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
1.8 A reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.
1.9 A reference to any law or legislation is a reference to that law or legislation as amended, recast, replaced, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made from time to time under that legislation.
2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to access and use the Services during the Subscription Term.
2.2 The Customer undertakes and warrants that:
(a) each User Account shall be accessed and used by one designated individual only; and
(b) it will keep the details of a User Account confidential and shall not allow or suffer any User Account to be used by any third party.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is not owned or lawfully licensed by the Customer;
(b) infringes any third party rights (including intellectual property rights);
(c) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
(d) facilitates illegal activity;
(e) depicts sexually explicit images;
(f) promotes unlawful violence;
(g) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(h) in a manner that is otherwise illegal or causes damage or injury to any person or property,
and the Supplier reserves the right, without liability or prejudice to its other rights, to disable the Customer’s access and, where applicable, permanently delete and/or remove all public access to any material that breaches the provisions of this clause. The Customer shall defend, indemnify and keep the Supplier indemnified against any losses, damages, liabilities, costs (including reasonable legal and professional fees) and expenses suffered or incurred by the Supplier, including as a result of any third party action, to the extent arising from a breach by the Customer of this clause 2.3.
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:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to 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 in order to build a product or service which competes with the Services; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, or any Supplier Content, available to any third party; or
(d) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services. In the event of any such unauthorised access or use, the Customer shall promptly notify the Supplier.
3.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement and in accordance with good industry practice.
3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance, which the Supplier shall perform outside Normal Business Hours and in respect of which the Supplier shall give the Customer at least 2 Business Days’ notice in advance; and
(b) unscheduled maintenance, which may be performed at any time as required to maintain the Services, provided that the Supplier shall use reasonable endeavours to conduct such maintenance outside of Normal Business Hours and give the Customer at least 3 Normal Business Hours’ notice in advance.
3.3 The Supplier will, as part of the Services, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s support policies and procedures from time to time.
3.4 The Customer acknowledges and agrees that the use of the Services is subject to the Usage Limits. In the event of any usage in excess of the Usage Limits, the following provisions shall apply:
a) Excess Usage Fees shall apply for all usage in excess of the Usage Limits. Any Excess Usage Fees payable in a month may be charged by the Supplier in the next monthly payment, or may be invoiced separately, in which case they shall be payable by the Customer within 14 days of the date of the invoice; and
b) if, in the Supplier’s reasonable opinion, the excess usage is or is likely to become significant (thereby incurring significant Excess Usage Fees) or otherwise pose a risk to the availability, stability and/or quality of the Services, the Supplier may remove or suspend accessibility to any relevant Customer Materials and the parties shall attempt to agree a mutually acceptable resolution.
3.5 The Customer acknowledges and agrees that the third party suppliers are used in connection with the hosting and provision of the Services, as more particularly described in the Third Party Services Overview.
4. Customer Materials
4.1 The Services may enable the Customer to upload, access, edit, publish and export Customer Materials. The Customer hereby grants the Supplier a non-exclusive, limited licence to access and use such Customer Materials to the extent necessary for the performance of the Services and the Supplier’s obligations under this Agreement (including publication via the Website where applicable).
4.2 The Customer shall own all right, title and interest in and to all of the Customer Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials.
4.3 Due to the operation of the Software, the Supplier does not maintain or back-up any copies of the Customer Materials. Accordingly, the Customer is solely responsible for keeping and maintaining full copies (including back-ups) of the Customer Materials and the Supplier shall not be responsible for any loss, destruction, alteration, corruption or unavailability of Customer Materials.
4.5 The Supplier may receive removal requests or demands relating to the Customer Materials from time to time. The Supplier shall (acting reasonably) assess such requests or demands and may, in its sole discretion, temporarily suspend access to any such Customer Materials or permanently remove such Customer Materials from the Services, and the Supplier shall not have any liability to the Customer for doing so.
4.6 The Customer acknowledges and agrees that on any suspension or termination of all User Account(s) pursuant to this Agreement, the Supplier may suspend the publication of Customer Materials and delete all copies of such Customer Materials from the Software. In the case of termination of one User Account, the Supplier may, on the Customer’s request, agree to transfer relevant Customer Materials to another valid User Account.
5. Data Protection
5.1 For the purposes of this clause, the following defined terms shall apply – “Controller”, “Processor”, “Data Subject”, “Personal Data” and “Processing/process” each have the meaning given in the Data Protection Legislation.
5.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Supplier is the Data Processor of any Personal Data comprised in the Customer Materials (“Customer Personal Data”).
5.3 Instructions. The Supplier shall process Customer Personal Data only to the extent, and in such a manner, as is necessary for the purposes of the Services and in accordance with the Customer’s written instructions from time to time and shall not process the Customer Personal Data for any other purpose. If the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Legislation it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
5.4 Security. Taking into account the state of technical development and the nature of processing, the Supplier shall ensure that it has in place appropriate technical and organisational measures to protect the Customer Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure, access or processing to ensure a level of security appropriate to the risk and harm that might result from such accidental, unauthorised or unlawful destruction, loss, alteration, disclosure, access or processing of the Customer Personal Data.
5.5 Sub-processing. The Supplier shall:
(a) have the right to appoint sub-processors for the Processing of the Customer Personal Data, provided that any sub-processor appointed pursuant to this clause shall be subject to a written contract containing materially the same obligations as under this clause 5;
(b) notify the Customer of any changes made to the appointment of sub-processors; and
(c) remain fully liable to the Customer for all the acts and omissions of each sub-processor as if they were its own.
5.6 Personnel. The Supplier shall ensure that all employees, workers and agents who have access to and/or process Customer Personal Data:
(a) are informed of the confidential nature of the Customer Personal Data and are subject to a binding written contractual obligation to keep the Customer Personal Data confidential;
(b) have undertaken training relating to handling Personal Data;
(c) are aware of the Supplier’s duties as well as their personal duties and obligations under the Data Protection Legislation; and
(d) shall only have access to such part or parts of the Customer Personal Data as is strictly necessary for performance of that person’s duties.
5.7 International transfers. The Supplier shall not transfer the Customer Personal Data outside of the UK or the European Economic Area without the prior written consent of the Customer.
5.8 Breach. The Supplier shall promptly inform the Customer if any Customer Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
5.9 Records. The Supplier shall, in accordance with the Data Protection Legislation, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 5 and to demonstrate compliance with the Data Protection Legislation.
5.10 Assistance. The Supplier shall:
(a) provide such information and assistance (including by taking all appropriate technical and organisational measures) as the Customer may require in relation to the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Legislation); and
(b) provide such information, co-operation and other assistance to the Customer as the Customer reasonably requires (taking into account the nature of processing and the information available to the Supplier) to ensure compliance with the Customer’s obligations under Data Protection Legislation.
5.11 Deletion/return. At the end of the provision of the Services relating to the processing of Customer Personal Data, at the Customer’s cost and the Customer’s option, or securely dispose of the Customer Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to retain such Customer Personal Data.
5.12 Each party warrants and undertakes that it shall comply with the Data Protection Legislation in the performance of this Agreement.
5.13 The Customer warrants to the Supplier that it has all licences, consents and permissions necessary for the Supplier to process the Customer Personal Data in accordance with the Data Protection Legislation and as required to deliver the Services and the Customer agrees to indemnify and keep indemnified and defend at its own expense the Supplier against all costs, claims, damages or expenses incurred by the Supplier as a result of a breach of this warranty.
6. Supplier warranties
6.1 The Supplier warrants and undertakes that the Services will be performed substantially in accordance with the description for the Services set out in the Order and any specification provided to the Customer and using reasonable skill and care.
6.2 The Supplier shall not be deemed to be in breach of the warranty and undertaking at clause 6.1 to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. Subject to the foregoing, if the Services do not conform with clause 6.1, the Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 The Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, or that the Services and/or the information obtained by the Customer through the Services will be accurate and up to date, and/or meet the Customer’s requirements; and
(b) 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7. Customer’s obligations
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by the Supplier,
in order to provide the Services, including but not limited to all relevant Customer Materials;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier shall not be liable for any consequent delay or non-performance of the Services and may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) be fully responsible and liable for the use of User Account(s) and the acts and omissions of those who access such User Account(s);
(e) where applicable, obtain and maintain all necessary licences, consents, and permissions for the Customer’s access and use of the Services in accordance with this Agreement; and
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. Charges and payment
8.1 The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 8 and the Order.
8.2 Unless otherwise stated in the Order or agreed by the parties in writing, the Subscription Fees shall be payable monthly in advance and shall be paid via credit or debit card. Payments are processed by the Supplier’s designated third party payment processor.
8.3 The Customer is responsible for ensuring that the payment information provided remains valid and up-to-date. In the event of a payment default, the Supplier may, without prejudice to any other rights and remedies of the Supplier:
(a) without liability to the Customer, disable the Customer’s passwords, accounts and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services unless and until the Customer pays all overdue amounts (together with any applicable interest); and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in US dollars ($USD) unless otherwise indicated in the Order;
(b) are non-cancellable and non-refundable; and
(c) are exclusive of value added tax (or any analogous sales taxes), which (if applicable) shall be added to the Supplier’s invoice(s) at the appropriate rate and payable by the Customer.
9. Proprietary rights
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and Supplier Content. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
9.2 The Supplier warrants that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body (for the purposes of that disclosure only).
10.2 Each party shall hold the other’s Confidential Information in confidence and shall not use the other’s Confidential Information, or make it available to any third party, except to the extent necessary for the performance and implementation of this Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, agents or contractors in violation of the terms of this Agreement and shall be responsible for all acts and omissions of any such employees, agents or contractors.
10.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
10.5 This clause 10 shall survive termination of this Agreement, however arising.
11. IPR Indemnity
11.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 5 Business Days’ notice to the Customer.
11.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer under clause 11.1 if and to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Customer’s use of the Services in a manner contrary to this Agreement or the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.4 The foregoing provisions of this clause 11 and clause 12.4(b) states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any third party patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of liability
12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this Agreement;
(b) in respect of any use made by the Customer of the Services or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in the Customer Materials or any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; and
(b) 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 from this Agreement.
12.3 Nothing in this Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) any other liability that cannot lawfully be excluded or limited.
12.4 Subject to clause 12.2 and clause 12.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) the Supplier’s total aggregate liability in contract (including any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid or payable during the 12 months immediately preceding the date on which the claim arose.
13. Term and termination
13.1 This Agreement shall commence on the Effective Date and, unless otherwise terminated in accordance with these Conditions, shall continue for one month (Initial Subscription Term) and thereafter automatically renew for successive one month periods (each a Renewal Period). The Customer may terminate the provision of the Services at any point, provided that such termination shall only take effect at the end of the then current Initial Subscription Term or Renewal Period. In the event of such termination, no refund of any Subscription Fees shall be due.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or serves notice of administration, or has a receiver, manager or administrative receiver appointed over its assets or (being an individual) shall become bankrupt or (being a company) shall have a winding-up order made against it or shall go into liquidation (except for the purposes of a solvent amalgamation or reconstruction and in such manner that the resulting company effectively agrees to be bound by or assume the obligations imposed on the predecessor company under this Agreement);
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(e) (inclusive); or
(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately and automatically terminate, and the Customer shall no longer access or use the Services;
(b) publication of Customer Materials via the Website (where applicable) shall cease and the Customer shall no longer have access to such Customer Materials via the Services;
(c) each party shall return and make no further use of any Confidential Information and other equipment, property and items (and all copies of them) belonging to the other party;
(d) the Supplier may destroy or otherwise dispose of any of the Customer Materials in its possession or control; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
14. Force majeure
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by any acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic or pandemic (including the Covid-19 outbreak) or default of any suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19. Entire agreement
19.1 This Agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers.
19.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
20. No assignment
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
21. No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address or email addresses as may have been notified by that party for such purposes.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received 1 Business Day after the day it was sent.
24. Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).