LOLAGROVE PLATFORM TERMS AND CONDITIONS
VERSION
1.0: Last updated on [insert date]
1.
General
(a)
These
terms and conditions (the "Terms") vern the use of the
Platform and Lolagrove Limited's ("we" and "us",
and "our") relationship with the user of the Platform and, in
the case of an individual user that is employed by or otherwise works on behalf
of one or more organisation(s), those organisation(s) that the individual user
works for (together "you" and "your") in
relation to your use of the Platform.
You agree to be bound by the Terms on the date that the user first
registers to use the Platform in accordance with Paragraph 1(d), or on the date
that the user first uses the Platform, whichever occurs first (that date being
the "Effective Date").
If you object to any of these Terms, you cannot use the Platform and you
must cease using it immediately.
(b)
You
warrant and undertake that: (i) you have full capacity and authority to agree
to be bound by the Terms (including, in the case of an individual user, on
behalf of the organisation(s) that the user works for); (ii) you have and will
maintain all necessary licences, consents and permissions necessary for the
performance of your obligations under these Terms; and (iii) you shall comply
with applicable laws and regulations with respect to your activities under
these Terms.[1]
(c)
Provided that you comply with these Terms,
access to certain parts of the Platform are provided to you without charge
(under the "Basic Account").
Additional parts of the Platform (under the "Pro Account")
can only be accessed in return for the payment of the Charges. The current functionality of the Basic
Account and the Pro Account is described at http://v4.lolagrove.com/pricing.
(d)
Before you can use the Platform, you must
be registered as a Registered User. To
register for a Basic Account, please follow the instructions at
http://v4.lolagrove.com/registration.
Once registered as a Registered User, to upgrade to a Pro Account,
please follow the instructions at http://v4.lolagrove.com/registration. To downgrade from a Pro Account to a Basic
Account, please follow the instructions at [include
instructions to downgrade].
(e)
If you have registered for a Pro Account
in accordance with Paragraph 1(d), you have the right to invite other
Registered Users ("Invited User") to access, upload, change
and download information from and interact with [areas of the Platform to which
you have uploaded Your Information] [2] (your "Network")
by following the instructions at [include
instructions for inviting Registered Users to Network]. [If you downgrade from a Pro Account to a
Basic Account, your Invited User's access to any Network you have created will
immediately terminate upon the date of the downgrade becoming effective][3].
(f)
Subject to the remainder of these Terms
and the level of access provided by us to you, you will determine which parts
of the Network any Invited User will have access to and the purposes for which
they can use it.
(g)
We recommend that you read these Terms
whenever you visit the Platform as we may, without prior notice to you, amend
or withdraw any content on or functionality of this Platform and/or the Terms
under which the Platform is used at any time. All changes will be effective
when posted at http://v4.lolagrove.com/terms and are binding on you from that
date. The current version of the Terms
will be displayed on this page.
2.
Information
about us
(a)
Lolagrove Limited is a company registered
in England and Wales with company number 05443168 and has its registered
address at Unit 1, Pride Court, 80-82
White Lion St, London, N1 9PF, United Kingdom.
(b)
If you wish to contact us about these
Terms or the Platform, please contact us at customerservice@lolagrove.com.
3.
Terms
and conditions of use
3.1
Basis
of use
(a)
Access to this Platform is restricted to
Registered Users. All other access is
strictly prohibited and you are not permitted to use the Platform if you are
not a Registered User. Furthermore you are not permitted to access a Network
unless you created the Network or have been invited to access it as an Invited
User. Subject to the remainder of these
Terms, the Registered User is responsible for determining and controlling
access to its Network by its Invited Users.
Registered Users are responsible and liable for their use of the
Platform, except that a Registered User and its Invited User(s) are jointly and
severally liable for the Invited User's use of the Registered User's Network in
accordance with these Terms (including in relation to the Invited User's
compliance with the Acceptable Use Policy) apart from in relation to the
payment of Charges to us, where the Registered User that has invited an Invited
User to access its Network will be responsible for paying the Charges that
accrue as a result of the Invited User's use of the Registered User's Network.
(b)
We may at our entire discretion, provide
you with access to the Platform via your user name and password. You must treat that information as
confidential and you must not disclose it to anyone else. You are responsible
for all access and use of the Platform conducted with the use of your username
or password, whether authorised or unauthorised by you, by us or anyone
else. You may change your password at
any time and should change it regularly.
If you know or suspect that someone else knows your password you must
notify us by contacting us immediately at customerservice@lolagrove.com. We have the right to reset, disable or remove
any username, password and/or your account at any time from being able to
access the Platform if in our opinion you have failed to comply with these
Terms or to prevent or address a threat to the security of the Platform.
(c)
We grant you a non-exclusive licence to
access and use the Platform solely for the purposes of you receiving the
services described at http:// http://v4.lolagrove.com/pricing, depending on
whether you have a Basic Account or a Pro Account. The Platform is to be used for your internal
business purposes only and you may not, except for the sole purpose of making your Network available to Invited
Users, make the Platform available to any third parties for any purposes
without our consent. You shall not sell, lease, lend, resell, distribute,
alter or amend your access to the Platform or create adaptations based on the
Platform, nor shall you reverse-engineer, disassemble or decompile the Platform
nor any part thereof or otherwise reduce the Platform to any human-perceivable
form. You shall not create technical
interfaces to the Platform which enable the extraction of data from the
Platform unless such activity is expressly authorized in writing by us. We reserve any and all rights not expressly
granted to you under these Terms.
We reserve the right to revoke this licence at any time and to change or
withdraw access to the Platform, or any part of it, at any time without notice
for any or no reason. The Platform shall be made available from locations
determined by us from time to time. We
shall have the right to select and change the locations used for the production
of the Platform from time to time without notice to you.
(d)
The availability and integrity of the
Platform is at our entire discretion.
While we aim to ensure that the Platform is normally available
twenty-four hours a day, seven days a week, we make no commitment to maintain
the availability or integrity of the Platform and we shall not be liable at all
if, for any reason it is unavailable or not functioning correctly at any time
or for any period due to maintenance or outages. We shall not be liable for the transmission
or receipt of any data or service to the extent it is provided to you through
the interoperation with a third party network.
(e)
Whilst we make reasonable attempts to
exclude viruses or other destructive computer codes from the Platform, we do
not accept any obligation, give no assurance and assume no liability or
responsibility (whether express or implied) in relation to viruses or such computer
code. You should take all appropriate
safeguards before using the Platform or downloading information from the
Platform.
(f)
Although we aim to ensure that the content
of the Platform is accurate, current and complete, we do not accept liability
for any errors or omissions, or for the content becoming out of date. Neither we nor any third parties that provide
content held or made accessible from the Platform provide any warranty or
guarantee (express or implied) as to the availability, accuracy, timeliness,
fitness for purpose, compatibility, security, performance, correctness of
calculation, completeness or suitability of the components, results, data,
information, materials or other content found or offered on the Platform for
any particular purpose. You acknowledge
that the content of the Platform may contain inaccuracies or errors and we
expressly exclude liability for any such inaccuracies or errors to the fullest
extent permitted by law.
(g)
The content of the Platform is provided at
our entire discretion and may be updated or changed without notice. We may suspend, discontinue, delete or change
all or any part of the Platform and the services offered on it at any time
without notice. We shall not be liable
to you or to any other person in the event that all or any part of the Platform
is suspended, discontinued, deleted or changed in any way.
(h)
From time to time the Platform may include
links to or content from other platforms, systems or websites ("Third
Party Content"). Third Party
Content is provided for your convenience to provide further information. We do not endorse such Third Party Content
and we have no responsibility for the Third Party Content. Accessing or using any Third Party Content is
done entirely at your own risk.
Furthermore, the use of the Third Party Content may depend on the
acceptance of separate terms and conditions applicable to the use of the Third
Party Content which the relevant third parties may change with or without
notice in their absolute discretion. We
may update, change or modify these Terms and/or the Platform as a result of a
change in, or unavailability of Third Party Content as described above. If any third party ceases to make its Third
Party Content available to use with the Platform on reasonable terms, as
determined by us in our sole discretion, we may cease providing access to the
Platform without any liability to you.
Any changes to Third Party Content, including their availability or
unavailability will not affect your obligations under these Terms and you will
not be entitled to any refund, credit or other compensation due to any such
changes.
(i)
It is your sole responsibility to install,
configure, maintain and obtain licenses for any software required to use and
access this Platform and for you to ensure this software is operating
properly.
(j)
This Platform is intended for use in the
United Kingdom. We make no
representation that the content held by or made available from this Platform is
appropriate or available for use in other locations. Those who choose to access
this Platform from other locations do so on their own initiative and are
responsible for compliance with local laws, if and to the extent any local laws
are applicable.
3.2
Payment
(a)
Where
you have a Pro Account, you shall pay the applicable charges as described at
http://v4.lolagrove.com/pricing (the
"Charges").
(b)
The
Charges shall be due and payable in accordance with the payment structure and
invoicing procedure set out at http://v4.lolagrove.com/payment.
(c)
If
we have not received payment within 30 days after the due date, then without
prejudice to any other of our rights and remedies:
(i)
we
may, without liability to us, suspend your access to all or any part of the
Platform and any Invited User's access to your Network and we shall be under no
obligation to provide any or all of the Platform while the invoice(s) concerned
remain unpaid; and
(ii)
interest
shall accrue on a daily basis on such due amounts at an annual rate equal to 8%
of the due amount, commencing on the due date and continuing until fully paid,
whether before or after judgement.
(d)
All
Charges:
(i)
shall
be payable in pounds sterling;
(ii)
are
non-cancellable and non-refundable; and
(iii)
are
exclusive of value added tax, which shall be added to our invoice(s) at the
appropriate rate.
(e)
We
may change the Charges from time to time, and will communicate any price
changes to you in advance. Any change of the Charges for the Pro Account will
take effect at the start of the next payment period following the date of the
price change. If you do not agree with
the change in Charges, you have the right to reject the change by terminating
the Terms prior to the change in Charges ing into effect. You shall be deemed to have accepted the
change in the Charges if you use the Platform using your Pro Account on or
following the date on which the change in Charges becomes effective.
(f)
For
the avoidance of doubt, if you exercise your right to downgrade your account
from a Pro Account to a Basic Account, you will remain responsible for the
payment of Charges that have been incurred prior to the effective date of
downgrade as described by the relevant pricing plan in effect and as may be
amended from time to time prior to the effective date of downgrade in
accordance with this Paragraph 3.2.
3.3
Our intellectual property rights
The
Platform contains data, information, materials and other content and underlying
intellectual property rights which are owned by or licensed to us. This content includes, but is not limited to,
the design, layout, look, appearance, graphics, text and program code. Reproduction and any use of the content other
than as permitted under Paragraph 3.1(c) is prohibited except as expressly
authorised by us. All trade marks
reproduced in this Platform which are not the property of, or licensed to, us
are acknowledged on the Platform.
3.4
Information provided by you
(a)
Data and other information you provide to
us ("Your Information") will be used by us and our
Subcontractors to provide the Platform to you and other users. By providing Your Information to us and our
Subcontractors, you grant us and our Subcontractors a non-exclusive, worldwide,
royalty-free, perpetual, irrevocable, fully transferable and sublicensable
licence to access, use, distribute, adapt, modify, incorporate, display,
reproduce and transmit Your Information together with all underlying
intellectual property rights to Your Information irrespective of whether those
rights subsist now or come into existence in the future for the purposes
described in this Paragraph 3.4.
(b)
We
may:
(i)
monitor
and compile statistical and other information related to the performance,
operation and use of the Platform;
(ii)
use data from the Platform in aggregated form for
security and operations management, to create statistical analyses and for
research and development purposes; and
(iii)
use data held in one part of the Platform to
corroborate, match with or enrich data held in other parts of the Platform.
(together
"Platform Analytics").
We may make the results of Platform Analytics publicly available. Platform Analytics will not incorporate Your
Information in a form that identifies you.
We retain all intellectual property rights in the Platform Analytics.
(c)
You warrant, represent and undertake to us
that:
(i)
Your
Information is true, complete and up-to-date;
(ii)
You
have the rights and have made all notifications and obtained all consents,
authorisations, approvals and licences necessary or desirable to grant us and
our subcontractors the licence described in Paragraph 3.4(a) and that these
rights, notifications, consents, authorisations, approvals and licences are and
will remain in full force and effect; and
(iii)
For
the avoidance of doubt, you have the rights and have made all notifications and
obtained all consents, authorisations, approvals and licences necessary or
desirable to allow us and our subcontractors to perform Platform Analytics on
Your Information and that these rights, notifications, consents,
authorisations, approvals and licences are and will remain in full force and
effect.
3.5
Acceptable use of the Platform
You
will not, and will not authorise anyone else to:
(a)
upload, e-mail or otherwise transmit to
the Platform any material that is:
(i)
confidential
that you do not have the right to disclose to us;
(ii)
in
our opinion, racist, sexist, ageist, homophobic, pornographic, obscene,
profane, vulgar or horrid, defamatory of any person or entity, abusive,
threatening, otherwise likely to be harmful or otherwise offensive;
(iii)
likely
to infringe or misappropriate any patent, copyright, trade mark, trade secret
or any other intellectual property right of any other person or entity; or
(iv)
a
virus, worm or Trojan horse, or any other computer code that is likely to
disrupt, overload, harm or impair the functioning, integrity or availability of
the Platform;
(b)
attempt to impersonate any other person,
or otherwise misrepresent your identity, qualifications, affiliations or any
other information about you;
(c)
attempt to disrupt, overload, harm or
impair the functioning of the Platform or use the Platform in such a way that
disrupts, overloads, harms or impairs its functioning; or
(d)
engage in any conduct that is in
contravention of any relevant local, national or international law or which
incites or encourages the contravention of any such law, is disruptive or is
otherwise inappropriate
(together
the "Acceptable Use Policy").
Contravention
of the Acceptable Use Policy may give to a claim for damages and/or be a
criminal offence. If in our opinion, you
and/or any of your Invited Users have breached the Acceptable Use Policy, we
may terminate, suspend or remove your rights and/or any or all of your Invited
Users' rights to access the Platform.
4.
Privacy
policy
4.1
Our privacy policy
This Paragraph 4 applies to the
Processing of User Personal Data by us for you.
The subject-matter and duration of the Processing, the nature and
purpose of the Processing, the types of Personal Data and the cateries of
Data Subjects to whom the User Personal Data relates are set out in the Annex.
4.2
Processor and Controller responsibilities
(a)
You
are the Controller in respect of any User Personal Data and we are the
Processor of such User Personal Data, except where you act as a Processor of
the User Personal Data, in which case we are your subprocessor. If you have any questions or wish to contact
us in relation to this Paragraph, please contact us using the methods and
contact details explained at Paragraph 2.
(b)
We
shall comply with the provisions and obligations imposed on us by the
applicable Data Protection Legislation and shall procure that our employees,
agents and contractors observe the provisions of the Data Protection
Legislation. You shall comply with the
provisions and obligations imposed on you by the applicable Data Protection
Legislation and shall procure that your employees, agents and contractors
observe the provisions of the Data Protection Legislation.
(c)
If
you are a Processor, you warrant to us that your instructions and actions with
respect to User Personal Data, including your appointment of us as a subprocessor,
has been authorized by the relevant Controller.
4.3
The instructions
(a)
You
instruct us to Process User Personal Data only in accordance with applicable
law: (i) to provide the Platform; (ii) as further specified via your use of the
Platform; (iii) as documented in these Terms; and (iv) as further documented in
any other written instructions given by or on your behalf, if agreed to by us.
(b)
You
instruct us (and authorise us to instruct each Subprocessor) to Process the
User Personal Data and transfer the User Personal Data to any country or
territory, as reasonably necessary for the provision of the Platform and
consistent with these Terms.
(c)
We
may Process User Personal Data otherwise than in accordance with your
documented instructions if the Processing is required by laws applicable to us,
in which case we shall, to the extent permitted by such laws, inform you of
that legal requirement before the relevant Processing.
4.4
Right
to Process the User Personal Data
You warrant, represent and undertake that:
(a)
You are entitled to transfer the User Personal Data to
us so that we may lawfully use, Process and transfer the User Personal Data in
order to provide the Platform and carry out our other rights and obligations
under these Terms;
(b)
The User Personal Data may be transferred or stored
outside the European Economic Area or the country where it, the Registered
Users or the Data Subjects of the User Personal Data are located in order to
provide the Platform and carry out our other obligations under these Terms;
(c)
The relevant third parties, including the Data
Subjects of the User Personal Data have been informed of, and have given their
consent to, such use, Processing, and
transfer, as required by all applicable Data Protection Legislation;
(d)
Our Processing of the User Personal Data is based on a
legal ground for Processing as may be required from time to time by applicable Data Protection
Legislation and you have, in all respects, complied with your obligations under
applicable Data Protection Legislation with respect to the User Personal Data
to permit our Processing of it;
(e)
You will document in writing, any instruction bearing
on the Processing of User Personal Data by us;
(f)
You will ensure, before and throughout the Processing
of User Personal Data, compliance with the obligations set out in these Terms;
and
(g)
You will supervise the Processing of User Personal
Data.
4.5
Confidentiality in relation to User
Personal Data
We shall ensure that our employees,
consultant, contractors, agents and representatives that are authorised to
Process the User Personal Data are subject to confidentiality undertakings or
professional or statutory obligations of confidentiality.
4.6
Security
We shall maintain the security
practices and policies for the protection of the User Personal Data as set out
at http://v4.lolagrove.com/security. You
confirm that you have assessed the security measures set out in that document
and have determined that they satisfy the requirements of the applicable Data
Protection Legislation relating to our Processing of the User Personal Data on
your behalf.
4.7
Subprocessing
(a)
You
authorise us to appoint (and permit each Subprocessor appointed in accordance
with this Paragraph 4.7 to appoint) Subprocessors in accordance with this
Paragraph 4.7 and any restrictions in these Terms.
(b)
We
will ensure that Subprocessors are bound by written agreements that require
them to provide at least the level of data protection required of us by this
Paragraph 4.
(c)
We
may continue to use those Subprocessors already engaged by us as at the
Effective Date. A list of the current
Subprocessors that we use, including their functions and locations, is provided
at http://v4.lolagrove.com/security .
(d)
We
shall give you notice of the appointment of any new Subprocessor by updating
http://v4.lolagrove.com/security. If within 7 Business Days of that update
occurring, you notify us in writing of any objections (on reasonable grounds)
to the proposed appointment, we shall not appoint (or disclose any User
Personal Data to) that proposed Subprocessor until we have provided you with an
explanation of how we propose to address the objections you have raised. If you still object to the appointment of the
Subprocessor, then we shall be entitled to appoint the Subprocessor in any event
and you will be entitled to terminate the Terms and your use of the Platform on
written notice, which will be effective as soon as it is given.
(e)
If
our arrangement with a Subprocessor involves a Restricted Transfer and EU Data
Protection Laws apply to the Processing of the User Personal Data, we shall
ensure that the Standard Contractual Clauses are incorporated into the
agreement, or otherwise entered into, between us (who shall enter the Standard
Contractual Clauses on your behalf) and the Subprocessor or between you and the
Subprocessor, if you request to do so, except that this will not apply if the
Subprocessor is situated in a third country or participates in a scheme that is
approved by the Commission as ensuring an adequate level of protection for the
transfer of User Personal Data or the transfer falls within a permitted
derogation.
(f)
If
our arrangement with a Subprocessor involves a Restricted Transfer and EU Data
Protection Laws do not apply to the Processing of the User Personal Data, we
shall ensure that appropriate safeguards as required under the applicable Data
Protection Legislation for such transfers are implemented prior to effecting
the Restricted Transfer.
(g)
We
shall be responsible for the acts and omissions of any Subprocessor with whom
we contract or who Processes the User Personal Data on your behalf as we are to
you for our own acts and omissions in relation to the matters provided for in
this Paragraph 4.
4.8
Data Subject rights
We shall:
(a)
To
the extent legally permitted and where appropriate, promptly pass on to you any
enquiries or communications (including Data Subject requests) from Data
Subjects relating to their User Personal Data or its Processing; and
(b)
To
the extent you do not have the ability to correct, amend, or delete the User
Personal Data (as required by the Data Protection Legislation) by accessing the
Platform, comply with your reasonable requests, to enable you to comply with
your duties under the Data Protection Legislation and you shall be responsible
for any of our reasonable costs and expenses arising from the provision of such
assistance.
4.9
Personal Data Breach
We shall notify you without undue
delay upon us becoming aware of a Personal Data Breach affecting the User
Personal Data and we will provide you with a description of the nature of the
breach. We shall use reasonable efforts to co-operate with you and to assist in
the reasonable investigation, mitigation and remediation of any such Personal
Data Breach.
4.10
Data Protection Impact Assessment and
Prior Consultation
We shall provide you with
reasonable assistance with respect to any data protection impact assessments,
and prior consultations with Supervisory Authorities or other competent data
privacy authorities, required by Data Protection Legislation, in each case
solely in relation to Processing of User Personal Data by us, and taking into
account the nature of the Processing and information available to us. You shall be responsible for any of our
reasonable costs and expenses arising from the provision of such assistance.
4.11
Deletion of User Personal Data by you
(a)
We
will enable you to delete User Personal Data during the Term in a manner
consistent with the functionality of the Platform. If you use the Platform to
delete any User Personal Data during the Term and that User Personal Data
cannot be recovered by you, this use will constitute an instruction by you to
us to delete the relevant User Personal Data from your instance of the Platform
which we provide to you in accordance with applicable law. Subject to Paragraph
4.11(b), we will comply with this instruction as soon as reasonably practicable
and within a maximum period of 180 days, unless retention is required by laws,
regulations or other legal or compliance requirements that are applicable to
us.
(b)
We
may retain User Personal Data following your instruction to delete the User
Personal Data in accordance with Paragraph 4.11(a) and/or any termination or
expiration of these Terms solely for the purpose of performing Platform
Analytics in relation to such User Personal Data, provided that the User
Personal Data will be fully anonymised.
4.12
Return of User Personal Data
(a)
Subject
to Paragraphs 4.12(b), (c) and (d), we shall promptly and in any event no later
than 180 days from the date of cessation of any services offered on our
Platform involving the Processing of the User Personal Data (the "Cessation
Date"), delete all copies of User Personal Data from your instance of
the Platform.
(b)
Subject
to Paragraph 4.12(c) and (d), where you, within ten (10) days of the Cessation
Date, provides us with a written notice requiring us to provide a copy of all
the User Personal Data to it, we will do so no later than 180 days from the
Cessation Date where the standard functionality of the Platform does not permit
you to download a copy of the relevant User Personal Data.
(c)
We
may retain User Personal Data as described in these Terms and/or where this is
required by laws, regulations or other legal or compliance requirements that
are applicable to us.
(d)
We
may retain User Personal Data for the purpose of performing Platform Analytics,
provided that any such User Personal Data will be fully anonymised.
4.13
Audit rights
(a)
Subject
to Paragraphs 4.13(b), we shall make available to you on reasonable request,
information that is reasonably necessary to demonstrate our compliance with
this Paragraph 4 and shall allow for and contribute to audits, including
inspections, by you or an auditor mandated by you in relation to the Processing
of the User Personal Data by us. You shall be responsible for any of our
reasonable costs and expenses arising from the provision of such information
and audit rights.
(b)
Your
information and audit rights only arise under Paragraph 4.13(a) to the extent
that these Terms and/or any other information available to you in relation to
the Platform does not otherwise give you information and audit rights meeting
the requirements of Paragraph 4.13(a).
(c)
We
shall immediately inform you if, in our opinion, an instruction in relation to
your rights under Paragraph 4.13(a) infringe Data Protection Legislation.
5.
Liability
and indemnity
5.1
Limitation of liability
(a)
THE PLATFORM IS PROVIDED "AS
IS". WE AND OUR AFFILIATES GIVE NO
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PLATFORM AND ANY NETWORK,
INCLUDING ANY WARRANTY THAT THE PLATFORM AND ANY NETWORK WILL BE UNINTERRUPTED,
ERROR FREE OR FREE OF HARMFUL COMPONENTS. EXCEPT TO THE EXTENT PROHIBITED BY
LAW, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT
OF ANY COURSE OF DEALING OR USAGE OF TRADE.
(b)
Subject to Paragraph 5.1(c), our total
aggregate liability to you in respect of all losses whenever and however
arising under or in connection with these Terms or the Platform or any Network,
whether in contract, tort (including negligence), breach of statutory duty, or
otherwise, shall be limited to and shall in no circumstances exceed £[?][4] except that
we shall under no circumstances whatsoever be liable, 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 Terms. Subject to Paragraph
5.1(c), in all other circumstances our liability for any and all losses
suffered is completed excluded.
(c)
Nothing in these Terms shall limit or
exclude our liability for:
(i)
death
or personal injury caused by our negligence, or the negligence of our
employees, agents or subcontractors (as applicable);
(ii)
fraud
or fraudulent misrepresentation; and
(iii)
any
matter in respect of which it would be unlawful for us to exclude or restrict
liability.
5.2
Indemnity
(a)
your failure to comply with any of your
obligations under these Terms and our enforcement, exercise or protection of
our rights under these Terms; and/or
(b)
any undertaking, representation or
warranty made by you under these Terms that is or proves to have been incorrect
or misleading; and/or
(c)
any claim that is made by one of your
Invited Users or any other third party against any member of the Overmore Group
that is connected to any allegation that you have breached any duty of
confidentiality or obligation under Data Protection Legislation owed to that
third party, and/or that you have infringed and/or any of Your Information
infringes any of that third party's intellectual property rights.
6.
Miscellaneous
6.1
Notices
(a)
All notices, notifications, requests or
other communications made by you under or in connection with the Terms and/or
your use of the Platform shall be made by emailing us at [insert contact
address].
(b)
Any communication made by you by way of
email will be effective one (1) Business Day after being received by us at the
address indicated in Paragraph 6.1(a) above.
(c)
Any communication made by us by way of
letter will be effective when it has been left at your address or two (2)
Business Days after being deposited in the post (with postage prepaid) in an
envelope addressed to you at that address, provided that any communication
or document left at your address after 5pm shall be deemed only to become
effective on the following day.
(d)
Any communication to be made under or in
connection with the Terms and/or your use of the Platform must be in English.
6.2
Assignment and sublicensing
(a)
You may not assign, transfer, subcontract
or sublicense any of your rights or obligations under or in connection with the
Terms or the Platform.
(b)
We may at any time assign, transfer,
subcontract and/or sublicense any of our rights or obligations under or in
connection with the Terms or the Platform without restriction and without
notice.
6.3
Confidentiality and disclosure
(a)
We will not disclose confidential
information (being information which is confidential in nature and not public
information or identified as non-confidential information) relating to you to
any third party without your consent unless such disclosure is to:
(i)
any member of the Overmore Group or to any
officer, director or employee of the Overmore Group;
(ii)
any professional advisors, subcontractors,
auditors, partners, manager or insurers of the Overmore Group;
(iii)
any prospective assignee or transferee
permitted under Paragraph 6.2 above and, in each case, their Affiliates; or
(iv)
a third party that is a court of competent
jurisdiction, a vernmental, banking, taxation, supervisory, industry
association or other similar body or a stock exchange or the information is
required or requested to be disclosed pursuant to any applicable law or
regulation or in connection with, and for the purposes of, any litigation,
arbitration, administrative or other investigations, proceedings or disputes,
and we will use reasonable
endeavours to advise such third parties of the confidential nature of such
information.
(b)
The Platform contains trade secrets and
confidential information belonging to us, our Affiliates and our and their
third parties including the specific design, structure and logic of individual
Platform programs, their interactions with other service offerings, both
internal and external, the programming techniques employed therein and you and
your usernames and passwords. Except as
explicitly permitted by these Terms, or otherwise with our consent, you shall
not allow anyone other than yourself and your Invited Users to have access to
the information contained on the Platform for the purposes described in these
Terms.
6.4
Severability
If any provision of the Terms is deemed unlawful, void
or for any other reason unenforceable then that provision shall be deemed
severed from the Terms and shall not affect the validity and enforceability of
any remaining provisions of the Terms.
6.5
No waivers
Our failure or delay to exercise or enforce any rights
or any provision of the Terms will not constitute a waiver of such right or
provision unless acknowledged and agreed to by us in writing.
6.6
Third party rights
Except as otherwise explicitly permitted by these
Terms, a person who is not a party to these Terms has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of
any of these Terms.
6.7
No partnership
Nothing in these
Terms is intended to or shall operate to create a partnership between you and
us or authorize either you or us to act as agent for the other. Neither party shall have the authority to act
in the name of, 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).
6.8
Entire agreement
The Terms
represent the entire understanding between you and us in relation to its
subject matter and supersedes all prior agreements, understandings or
arrangements made by you and us, whether oral or written. Any terms and conditions on any purchase
order or other document whatsoever which you have issued in connection with the
Platform shall not be binding on us, nor may they be used to interpret these
Terms.
6.9
Amendment
We may, from time to time, change
these Terms. When this happens the new updated Terms will be displayed to you
where you log in and you will be asked to accept or reject them. If you accept
such Terms you will be granted access to the Platform. If you reject such Terms
you will no longer have access to the Platform.
7.
Term
and termination
(a)
The Terms shall commence on the Effective
Date and will continue to apply to you until terminated by either you or us in
accordance with the provisions of these Terms (the "Term").
(b)
We may terminate the Terms or suspend your
access to the Platform with immediate effect by giving written notice for: non-compliance with the Terms,
including, without limitation, in the event of your or any of your Invited
Users' actual or suspected unauthorised use of the Platform.
(c)
You may terminate the Terms and access to
the Platform (i) immediately if you are on a pay-as-you- payment plan; (ii)
with at least [thirty (30) days][5] written
notice prior to the end of your payment plan; or (iii) immediately in
accordance with Paragraph 4.7(d).
(d)
We may terminate these Terms with
immediate effect by giving written notice if an Insolvency Event occurs in
relation to you.
(e)
In the event that either party terminates
the Terms, or if we suspend your access to the Platform, you agree that we
shall have no liability or responsibility to you and we will not refund any
amounts that you have already paid, to the fullest extent permitted under
applicable law.
(f)
Upon expiry of the Term or termination of
these Terms in accordance with its terms:
(i)
the
rights granted to you under these Terms shall terminate and you shall cease all
use of the Platform either immediately or, where you have terminated under
Paragraph 7(c), at the end of the notice period identified in that Paragraph;
(ii)
nothing
will affect any accrued rights or liabilities of either party at the date of
the termination;
(iii)
nothing
will affect the continuance in force of any provision of these Terms to the
extent it is expressed or by implication intended to continue in force after
termination. The following provisions shall in any event survive expiry or
termination: Paragraph 3.3, 3.4, 5, 6, this Paragraph 7(f) and 8; and
(iv)
for
the avoidance of doubt, nothing will affect your obligation to pay any Charges
due to be paid according to your payment plan and any outstanding Charges due
but not yet paid will become immediately due and payable on expiry of the Terms
or on the effective date of termination of the Terms, whichever occurs earlier.
8.
verning
law and jurisdiction
(a)
The Terms and any non-contractual
obligations arising out of or in connection with it are verned by English
law.
(b)
The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with your
use of the Platform and/or the Terms (including a dispute relating to the
existence, validity or termination of the Terms or any non-contractual
obligation arising out of or in connection with the Terms) (a "Dispute")
and the parties to these Terms agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly no party
will argue to the contrary.
9.
Definitions
and interpretation
(a)
In these Terms:
"Acceptable
Use Policy" has the meaning described in Paragraph 3.5;
"Affiliates"
means,
in relation to a person, a Subsidiary of that person or a Holding Company of that
person or any other Subsidiary of that Holding Company;
"Basic
Account" has the meaning in Paragraph 1(c);
"Business
Day"
means a day other than a Saturday or Sunday on which banks are open for general
interbank business in London, England;
"Cessation
Date"
has the meaning described in Paragraph 4.12(a);
"Charges" has the
meaning described in Paragraph 3.2(a);
"Data
Protection Legislation" means EU Data Protection Laws and, to the
extent applicable, the data protection or privacy laws of any other country;
"Dispute" has the
meaning described in Paragraph 8(b);
"EU
Data Protection Laws" means EU Directive 95/46/EC, as
transposed into domestic legislation of each EU Member State and as amended,
replaced or superseded from time to time, including by the GDPR and laws
implementing or supplementing the GDPR;
"GDPR" means
the EU General Data Protection Regulation 2016/679;
"Holding
Company" means, in relation to a person, any other person in
respect of which it is a Subsidiary;
"Indemnified
Parties" has
the meaning described in Paragraph 5.2;
"Insolvency
Event" means
in relation to a party:
(i)
the
issue of a petition for its winding up;
(ii)
the
convening of a meeting for the purpose of considering the passing of a
winding-up resolution for its winding up (except for the purpose of a solvent
amalgamation or reconstruction where the resulting entity is to assume all of
its obligations under this Agreement);
(iii)
the
making of an application to the court for an administration order or the filing
at court of a notice of intention to appoint an administrator;
(iv)
a
provisional liquidator, liquidator, administrative receiver, administrator,
trustee or other similar officer taking possession of or being appointed over
or an encumbrancer taking possession of the whole or substantially the whole of
its property;
(v)
a
receiver being appointed over any part of its property;
(vi)
its
making proposals for or entering into a company voluntary arrangement (within
the meaning of Part I, Insolvency Act 1986) or otherwise making proposals for
or entering into a compromise with the majority by value of its unsecured
creditors;
(vii)
the
filing of documents specified in Schedule A1, Insolvency Act 1986 with the
court with a view to obtaining a moratorium pending its making proposals for a
company voluntary arrangement;
(viii)
its
being unable to pay its debts within the meaning of s123(1) Insolvency Act 1986
or being unable to pay its debts as they fall due; or
(ix)
any
similar event occurs in any relevant jurisdiction;
"Invited
User"
has the meaning described in Paragraph 1(e);
"Liabilities" means
any sum (present, contingent or future) payable by you to us including, without
limitation, any damages, claims, losses, costs and expenses (including legal
expenses on a full indemnity basis);
"Overmore
Group"
means us and each of our Affiliates;
"Network" has the
meaning described in Paragraph 1(e);
"Platform"
means
the service provided by us at [include web address] or any other domain through
which we provide such service. A
reference to the "Platform"
is a reference to both those parts of the Platform that are available under a
Basic Account and those parts of the Platform that are available under a Pro
Account;
"Pro
Account" has the meaning described in Paragraph 1(c);
"Registered
User"
means a person that has registered to use the Platform;
"Restricted
Transfer" means a transfer of User Personal Data from us to a
Subprocessor where such transfer would be prohibited by Data Protection
Legislation (or by the terms of data transfer agreements put in place to
address the data transfer restrictions of Data Protection Legislation) in the
absence of appropriate safeguards required for such transfers under the Data
Protection Legislation;
"Standard
Contractual Clauses" means the standard contractual clauses
approved by the Commission for the transfer of Personal Data to Processors
established in third countries under Directive 95/46/EC or the GDPR;
"Subprocessor" means
any person (including any third party but excluding any of our employees or any
employee of our subcontractors) appointed by or on behalf of us to Process the
User Personal Data in connection with these Terms;
"Subsidiary" means a
subsidiary undertaking within the meaning of section 1162 of the Companies Act
2006;
"Terms" has the
meaning described in Paragraph 1(a) above;
"Third
Party Content" has the meaning described in Paragraph
3.1(h);
"User
Personal Data" means any Personal Data Processed by us
or a Subprocessor on behalf of your behalf pursuant to or in connection these
Terms;
"Your
Information" has the meaning described in Paragraph 3.4(a); and
The terms, "Commission", "Controller", "Data
Subject", "Member State", "Personal Data",
"Personal Data Breach", "Processor", "Processing"
and "Supervisory
Authority" shall have the same meaning as in the GDPR, and their
cognate terms shall be construed accordingly.
(b)
Unless a contrary indication appears, any
reference to:
(i)
the "Terms" or other
agreement is a reference to the Terms or that agreement as amended, novated,
restated, supplemented, extended or replaced;
(ii)
the singular shall include the plural and
vice versa;
(iii)
a "Paragraph" is a
reference to a Paragraph to these terms and conditions;
(iv)
the word "including" (and
its derivations) must be construed as being for illustration or emphasis only
and not as limiting the generality of any preceding words;
(v)
the word "other" must not
be construed as being limited by the context in which it appears or the words
that precede it where a wider construction is possible;
(vi)
any "person" includes any
assignee, transferee, successor-in-title, delegate or appointee of that person
(but, in the case of you or us, only permitted assignees or transferees). It also includes any individual, company or
other body corporate, any state or state agency or any unincorporated body,
association, trust, joint venture, consortium or partnership whether or not
having separate legal personality);
(vii)
a "regulation" includes
any regulation, rule, official directive, request or guideline (whether or not
having the force of law) of any vernmental, intervernmental or
supranational body, agency, department or of any regulatory, self-regulatory or
other authority or organisation;
(viii)
a provision of law is a reference to that
provision as amended or re-enacted;
(ix)
a time of day is a reference to local time
in London, United Kingdom; and
(x)
Paragraph headings are for ease of
reference only.
ANNEX
Details of Processing of User Personal Data
This Annex includes certain details of the
Processing of User Personal Data:
Subject matter and duration of the Processing of User Personal Data
Our provision of the Platform.
Duration of the Processing
The Term plus the period from the expiry of
the Term until deletion of all User Personal Data by us in accordance with the
Terms.
Nature and Purpose of the Processing of User Personal Data
We will Process User Personal Data for the
purposes of providing the Platform in accordance with the Terms.
The types of User Personal Data to be Processed
Data relating to individuals provided to us
via the Platform by you.
The cateries of Data Subject to whom the User Personal Data relates
Data Subjects include the individuals about
whom data is provided to us via the Platform by you.
Your obligations and rights
These obligations and rights are set out in
the Terms.