THIS AGREEMENT GOVERNS YOUR PURCHASE AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
YOU CAN AGREE TO THESE TERMS AND CONDITIONS BY CLICKING ON THE BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (BOTH ARE REFERRED TO HEREINAFTER AS “APPLICATIONS”).
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, WE SHALL NOT BE BOUND BY THESE TERMS AND CONDITIONS.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Your attention is particularly drawn to the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:
Application: your application for a Trial Period or a Subscription as the case may be.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.7.
Confidential Information: all identifiable methodology, know-how, experience, data, databases, flow charts, reports, tables or other material produced in relation to these Conditions and any other information of whatever kind (whether commercial, technical, financial, operational or otherwise, whether communicated verbally, in writing or in any other form and whether or not expressly stated to be confidential) relating to a party including (but not limited to) its business, products, suppliers and customers and, unless the context otherwise requires, the expression Confidential Information shall also include any modification made to any of the above-mentioned information by the party receiving the Confidential Information or any person to whom it has disclosed that information
Content: information obtained by us, including under licence, and provided to you within the Services and the Documentation.
Credit: the credit issued by us to you as a form of currency for use on the Mobile App or Website to purchase the Report.
Customer Information: the information which you input to the Mobile App or Website, as the case may be, for the purposes of generating the Report.
Documentation: our training materials and online user guides, as updated from time to time.
Fee: the fee for the Services under a Subscription or a Trial Period, as the case may be.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Malicious Code: code, files, scripts, agents or programs intended to do harm, including but not limited to viruses, worms, time bombs and Trojan horses.
Mobile App: our mobile application via which you generate the Report.
Proposal: the proposal letter from us to you accepting your offer and acknowledging any agreed modifications to these Conditions.
Report: the digital condition report generated by the Software from your information. Services: the services supplied by us to you as set out in the Proposal and which for the avoidance of doubt shall include the grant of the Licence.
Subscription: subscription by you to the Services for the Subscription Fee subject to the terms of the Contract.
Supplier Materials: all documents and files, digital or otherwise, save for the Report, which are provided by us to you or to which we provide access for you.
Trial Period: a period in which we provides the Services to you prior to Subscription. A Trial Period may be free (Free Trial Period) or may be subject to a Trial Period Fee (Paid Trial Period).
User: an individual who is authorised by you to use the Services and/or to whom you (or we at your request) have supplied a user identification and password. Users may include employees, consultants, contractors and agents and selected third parties. We, Us or Our: ART-I-CHECK Limited registered in England and Wales with company number 08186152, being the supplier of the Services which are subject to these terms and conditions.
Website: our website via which you generate the Report.
You or Your: the business entity on behalf of which you are entering into the Contract, and Affiliates of that business entity.
1.2 Construction. In these Conditions, the following rules apply: (a) a reference to a party includes its personal representatives, successors or permitted assignees; (b) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted; (c) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 Contract formation shall occur differently depending on whether you are applying for (a) a Free Trial Period, or (b) a Paid Trial Period or Subscription.
2.2 Regardless of which of the Services you wish to apply for, you must instigate the registration process by submitting the Application to us. By submitting the Application, you acknowledge that you shall be bound by these Conditions. Should you not agree to any provision of these Conditions then you must set out the same in the Application.
Free Trial Period
2.3 If you register for a Free Trial, we may at our sole discretion make one or more of the Services available to you on a trial basis free of charge. We shall define any Free Trial Period by reference either to a number of Credits or a specified period of time. Any Free Trial Period shall expire upon the earlier of (a) the redemption of the Credits allotted for that purpose, (b) the end of the Free Trial Period, or (c) the start date of any Paid Trial Period or Subscriptions agreed with you. Additional trial terms and conditions may appear in a Proposal. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.4 Following receipt of the Application, we shall: (a) issue the Proposal, which shall confirm that these Conditions shall apply and, if we agree to your proposed amendments, confirm such amendments to these Conditions, and set out any additional terms which are not included in these Conditions, including but not limited to the Fee, the number of Credits and any restrictions such as a date by which the Credits shall be used; and (b) issue the Credits to your account.
2.5 The Proposal shall constitute an offer by us to supply the Services in accordance with these Conditions as modified by the Proposal.
Paid Trial Period or Subscription
2.7 You may apply for a Paid Trial or a Subscription.
2.8 Subscription to the Services is on an annual basis. The Subscription Fee shall, at our sole discretion, be payable either: (a) in full in advance of the Subscription Period; or (b) in monthly instalments, the first being due in advance of the Subscription Period, in accordance with our Proposal.
2.9 Following receipt of the Application, we shall issue a Proposal, which shall confirm that these Conditions shall apply and, if we agree to your proposed amendments, confirm such amendments to these Conditions, and set out any additional terms which are not included in these Conditions, including but not limited to the Fee, the number of Credits and any restrictions such as a date by which the Credits shall be used.
2.10 The Proposal shall constitute an offer by us to supply the Services in accordance with these Conditions as modified by the Proposal.
2.12 Subject to payment by you pursuant to clause 2.12, we shall issue such number of Credits to your account as agreed in the proposal.
2.13 The Contract constitutes the entire agreement between the parties. You acknowledge that it has not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not set out in the Contract.
2.14 Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained on the Website, Mobile App or any in any other materials created by us, are for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.15 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.16 We may choose at our sole discretion whether to enter into a contract in respect of a Free Trial, a Paid Trial or a Subscription, and which of the Services we may provide under any of the foregoing. We are under no obligation to enter into a contract with you for some or all of the Services.
3. SUPPLY OF SERVICES
3.1 We shall supply the Services to you in accordance with these Conditions and any Proposal in all material respects.
3.2 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.
4. USE OF THE SERVICES AND CUSTOMER OBLIGATIONS
4.1 Usage Limits. The Services are subject to usage limits, including, for example, the quantities specified in the Proposal. Unless otherwise specified: (a) a quantity in a Proposal refers to Users, and the Services may not be available to more than that number of Users; (b) a User’s password may not be shared with any other individual; and (c) a User identification may be reassigned to a new individual replacing one who no longer requires on-going use of or access to the Services. If you exceed a contractual usage limit, you shall promptly upon our request submit an Application for additional Credits and/or applicable Services and/or pay any invoice submitted by us for excess usage in accordance with clause 6 (Charges and Payment).
4.2 Usage Restrictions. You will not: (a) make any or all of the Services or Content available to, or use any or all of the Services or Content for the benefit of, anyone other than you or the Users; (b) sell, re-sell, license, sub-license, distribute, rent, lease or assign any or all of the Services or Content; (c) use any or all of the Services to store or transmit material which may be defamatory, tortious, or may infringe third party rights including in relation to privacy; (d) use any or all of the Services or Content to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any or all of the Services or Content or third- party data therein; (f) attempt to gain access to any or all of the Services or their related systems or networks; (g) permit direct or indirect access to or use of any or all of the Services in a way that may circumvent a contractual usage limit; (h) copy a Service or any part, feature, function or user interface thereof; (i) copy Content except as permitted herein or in the Documentation; (j) frame or mirror any part of any Service or Content, other than framing for your own internal business purposes or as permitted in the Documentation; (k) access any or all of the Services or Content in order to build a competitive product or service; or (l) reverse engineer any or all of the Services (to the extent such restriction is permitted by law).
4.4 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default) then: (a) we shall without limiting our other rights or remedies have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations to the extent the Customer Default prevents or delays our performance of any of our obligations; (b) we shall not be liable for any costs or losses sustained or incurred by you ; and (c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
5. SUPPLIER'S OBLIGATIONS
5.1 Provision of the Services. We will: (a) make the Services and Content available to you pursuant to the Contract; (b) provide support for the Services pursuant to the Contract; and (c) use reasonable endeavours to make the Services and Content available at all times, save for: (i) planned downtime (of which we shall give as much notice as possible); and (ii) any unavailability caused by a Force Majeure Event (as defined in clause 12).
5.2 Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your data by our personnel except: (a) to provide the Services and prevent or address technical problems; (b) as compelled by law; or (c) as you permit in writing.
5.3 We shall take reasonable steps to ensure that data relating to your Reports is stored securely, however no warranty is made in this regard and we shall not be liable for any damage or loss suffered to your Reports.
6. CHARGES AND PAYMENT
6.1 You shall pay the Fee as set out in our Proposal.
6.2 Except as otherwise specified herein or in a Proposal: (a) the Fee is based on Services purchased and not actual usage; (b) payment obligations are non-cancelable and the Fee is non-refundable; and (c) quantities purchased cannot be decreased during the relevant subscription term.
6.3 In the case of a Paid Trial Period or a Subscription, we shall be under no obligation to issue a Credit to you until you have paid the Trial Period Fee or the Subscription Fee, as the case may be.
6.4 We reserve the right to apply a Subscription Fee or Trial Period Fee or any part thereof as set-off against any fee, cost, charge or other liability owed by us to you.
6.5 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Save for as expressly referred to in clause 7.2, all Intellectual Property Rights in or arising out of or in connection with the Services shall vest in and/or be owned by us.
7.2 We acknowledge that you are the author of the Report and that all copyright in the Report shall vest in you. Further and in the alternative, there shall be a deemed transfer and assignment of copyright in the Report from us to you upon delivery of the Report.
7.3 For the avoidance of doubt, the copyright referred to in clause 7.2 shall not include copyright subsisting in the Software or any other underlying software that may be relevant.
7.5 All Supplier Materials are our exclusive property.
7.6 You own all rights, including Intellectual Property Rights, in the Customer Information.
7.7 You warrant that your Information does not infringe the rights of any third party and hereby indemnify us against any losses, damages, penalties or other costs suffered or incurred as a result of such infringement.
8.1 Each party shall safeguard and keep confidential the terms of the Contract and any and all Confidential Information that it may acquire in relation to the business or affairs of the other party. Neither party shall use or disclose the other party's Confidential Information except to the extent that such use or disclosure is necessary for the purposes of performing its obligations or exercising its rights under the Contract. Each party shall ensure that its officers and employees and any other persons to whom the Confidential Information is disclosed comply with the provisions of this Clause 8.1.
8.2 The obligations on a party set out in Clause 12.1 shall not apply to any information to the extent that such information: (a) is publicly available or becomes publicly available through no act or omission of that party; or (b) is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority.
9. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 LIMITATION OF LIABILITY. AS AUTHOR OF THE REPORT, YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY OF THE REPORT IN RELATION TO THE ARTWORK WHICH IS THE SUBJECT OF IT. WE SHALL UNDER NO CIRCUMSTANCES WHATEVER BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY LOSS OF PROFIT, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING UNDER OR IN CONNECTION WITH THE CONTRACT. OUR TOTAL LIABILITY TO YOU IN RESPECT OF ALL OTHER LOSSES ARISING UNDER OR IN CONNECTION WITH THE CONTRACT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE VALUE OF THE FEE. USE OF THE REPORT IS AT YOUR SOLE RISK AND WE GIVE NO ACCURACY AS TO THE ACCURACY OF THE REPORT. THE TERMS IMPLIED BY SECTIONS 3 TO 5 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.
9.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.3 This clause 9 shall survive termination of the Contract.
10.1 Either party may terminate the Contract at any time by giving the other party not less than one month’s written notice.
10.2 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you: (a) commit a material breach of any term of the Contract; (b) repeatedly breach any of the terms of the Contract in such a manner as to reasonably justify the opinion that your conduct is inconsistent with the intention or ability to give effect to the terms of the Contract; or (c) suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) have any partner to whom any of the foregoing apply.
10.3 Without limiting our other rights or remedies, we may suspend provision of the Services under the Contract (including for the avoidance of doubt by freezing the Customer’s account) if you become subject to any of the events listed in clause 10.2, or if we reasonably believe that you are about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract howsoever arising the following provisions shall apply:
11.2 Data. Upon request by you made within 30 days after the effective date of termination or expiration of the Contract (as the case may be), we shall make your Data available to you for export or download as provided in the Documentation. We may at our discretion continue to hold your Data or delete all copies of it. If we elect to hold your Data following termination or expiration of the Contract, we may at our discretion charge a storage fee, in which case we shall notify you in advance of such charge.
11.3 Rights and remedies. Our accrued rights, remedies, obligations and liabilities as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.4 Survival. Clauses which expressly or by implication survive termination shall continue in full force and effect.
11.5 The Fee. We shall be under no obligation to refund the Fee or any part of it.
12. FORCE MAJEURE
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the our reasonable control including but not limited to 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 network, act of God, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, terrorist attack including cyber terrorism or hacking, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom.
12.2 We shall not be liable to you as a result of any delay or failure to perform our obligations under this Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents us from providing any of the Services for more than four (4) weeks, we shall, without limiting our other rights or remedies, have the right to terminate this Contract immediately by giving written notice to you.
13.1 Assignment and other dealings. We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. You shall not, without our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract.
13.2 Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause
13.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract. If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its 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.
13.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by us.
13.8 Governing law. This Contract, 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.
13.9 Jurisdiction. 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 Contract or its subject matter or formation (including non-contractual disputes or claims).