1.1 In consideration of the payment by you of the Service Fees and you agreeing to abide by these Terms, we grant you access to use the Website and the Service on the terms set out in this document.
1.2 By accessing any part of the Website or the Service, you shall be deemed to have accepted the Terms in full which shall take effect immediately on your first use of the Website or Service. If you do not accept the Terms in full, you must leave the Website immediately.
1.3 Any amendments, modifications, enhancements or changes to the Service made available by the Company from time to time shall be subject to these Terms.
1.4 If you are 12 years old or younger you may not register with us on this Website. By entering your details on the Website you are stating you are 13 years old or older.
2. RIGHTS GRANTED
2.1 You are permitted to use the Service for your own internal business purposes on the following basis:
(a) You have provided your legal full name, a valid email address, company name and any other information requested in order to complete the sign-up process; and
(b) if you provide or otherwise make available the Service in whole or in part in any form to any person including your employees, (“Invitees”) you undertake to ensure that all Invitees comply with these Terms and acknowledge that you shall remain responsible and liable for the acts or omissions of all Invitees to the same extent as if you had carried out such acts or omissions yourself.
2.2 Subject to the provisions of clause 2.3, all copyright and other intellectual property rights in the Service and material on the Website (including without limitation photographs and graphical images) are owned by the Company or its licensors. Any use of extracts from the Website for any purpose is prohibited.
2.3 All copyright and intellectual property rights in any information uploaded by you or your employees to the Website in connection with the Service, and in any data or works delivered to you by the Company pursuant to Exhibit B shall remain vested in you, your employees or your licensors and the Company hereby agrees to immediately assign such rights to you upon their creation.
2.4 No part of the Website or Service may be reproduced, reverse engineered or stored in any other website or included in any public or private electronic retrieval system or service without the Company’s prior written permission.
2.5 Any rights not expressly granted in these Terms are reserved.
3. SERVICE ACCESS & TECHNICAL SUPPORT
3.1 The Service shall be available 99.8% of the time during any given calendar month during the Term (the “Availability Target”). In the event that the Service fails to meet this Availability Target in any two months, you shall be entitled to terminate this agreement immediately upon written notice to the Company and to receive from the Company a pro rata refund of any fees paid relating to the remainder of the agreement.
3.2 Access to the Website and the Service may be suspended temporarily and without notice in the case of system failure, emergency maintenance or repair or for reasons beyond the Company’s control. Downtime for scheduled maintenance shall be notified to you in writing (by email) no later than four weeks in advance of such downtime.
3.3 The Company will provide technical support to then current paying subscribers to the Service by email only. Technical support will only be provided for bugs or errors in the Service that are reproducible by the Company. You agree to provide the Company with full and accurate details of all bugs and errors in the Service requested by the Company. You acknowledge that the Company provides no warranty that all or any bugs or errors in the Service will be corrected.
4. ACCEPTABLE CONDUCT
4.1 You are prohibited from posting or transmitting to or from the Website and/or the Service any material:
(a) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience; or
(b) for which you have not obtained all necessary licences, consents and/or approvals; or
(c) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or
(d) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
4.2 You may not use the Website or the Service:
(a) in any way that breaches any applicable local, national or international law or regulation;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) for the purpose of harming or attempting to harm minors in any way; or
(d) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
4.3 The Company shall fully co-operate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity or locate anyone posting any material in breach of clause 4.1, 4.2 or 4.3.
5. REGISTRATION, PAYMENT & RENEWALS
5.1 Each account is for use by either a single legal entity (e.g. a company or a partnership) or an individual user. You may provide Invitees with access to your account by inviting them to register as a user of your account. The Company acknowledges that you are a global business with entities within your company group located across the globe and agrees that you make access to your account available to any employee of any such group company as an Invitee. The Company does not permit you to share your user name and password with any other person nor with multiple users on a network.
5.2 Responsibility for the security of any usernames and passwords issued (including those of any Invitees) rests with you.
5.3 Payment is due as per the order form. Payment can be made by credit card through the link provided when Company sends you the invoice or by Bank transfer. If Customer does not pay a valid and properly due invoice within such period, Company may, in addition to the invoice amount, charge Customer late payment annual interest of two per cent (2%) on the amount unpaid provided that it has first given at least fourteen (14) days’ prior written notice of its intention to do so, and provided further that payment remains outstanding at the end of such notice period. Late payment interest shall accrue on a daily basis. However, where any invoice is disputed by the Customer, interest shall only start to accrue from the date upon which the Customer confirms that such invoice is valid and properly due. Except as otherwise provided herein, payments are non-refundable, and no refunds or credits will be given for any partial use within any month.
5.4 All fees are exclusive of all taxes, charges, levies, assessments and other fees of any kind imposed on your use of the Service and shall be the responsibility of, and payable by, you. If Company is not paid full invoice amount as a result of fees or incorrect currency conversion, Company will invoice Customer for the difference. If you reside or have your place of business within the EU then we will add UK VAT to our fees at the then current rate if no VAT number is provided.
5.5 We reserve the right to suspend your Service immediately if you fail to complete payment within the agreed timescales as per the option selected in your order form from the time of receiving an undisputed invoice. We will provide prior notice of our intention to suspend your Account by email to your then registered email address. If no payment is made to clear the full amount of any outstanding fees and charges within a further 30 days your account and all associated data will be deleted and the agreement between us set out in these Terms shall be automatically terminated.
5.6 We will notify you 60 days before the end of the agreement and inform you of your renewal options. The fees stated in the order form is discounted from our standard pricing and will apply only for the duration of this contract.
5.7 Customer agrees that they must inform Company of intention to renew a maximum of 30 days before the current contract is due to end and take the necessary steps to complete the processes of renewal to ensure there is no disruption in the use of the services.
5.8 Your renewal price may be different to the price offered on the order form. This could be because of a discount offer, market changes, inflation or costs incurred. Your default renewal price will always be the standard pricing rates at the time of renewal and you will be informed of this.
6.1 While the Company endeavours to ensure that the information provided on the Website and the information provided in connection with the Service is correct, the Company does not warrant the accuracy and completeness of such material. The Company may make changes to the material on the Website or to the Service, or to the products and prices described on the Website, at any time without notice. The material on the Website may be out of date, and the Company makes no commitment to update such material.
6.2 The material on the Website and the Service is provided “as is”, without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, the Company provides you with access to the Website and the Service on the basis that the Company excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which, but for this legal notice, might have effect in relation to the Website or the Service.
6.3 You acknowledge that:
(a) except in respect of the customisation requirements in Exhibit B, The Service has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Service as described on the Website meet your requirements;
(b) it is not possible to test the Service in advance in every possible operating combination and environment; and
(c) it is not possible to produce a Service known to be error free in all circumstances.
For the purposes of this clause, “Confidential Information” means all information designated as confidential or which ought reasonably to be considered confidential, which may include, without limitation, information relating to a Party’s customers business, products, developments, trade secrets, know-how or other matters connected with the Services.
6A.1 Each Party undertakes to keep the other Party’s Confidential Information confidential and shall not use or disclose such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement (in each case who have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and a need to know in order to carry out the Service
6A.2 Each Party may disclose the other Party’s Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement and as may be required by law, court order or any governmental or regulatory authority.
6A.3 Confidential Information shall not include any information which was in the lawful possession of the receiving Party prior to its first receipt from the disclosing Party; or received independently by the receiving party in good faith from a third party; or is or becomes (through no act or failure to act of the receiving party) public knowledge; or is required to be disclosed pursuant to a legal, governmental or other regulatory requirement provided that, to the extent it is legally permitted to do so, the Party which is required to make such a disclosure gives the other Party as much notice of this disclosure as possible.
6A.4 Notwithstanding anything to the contrary elsewhere in this Agreement, the Company may not issue a press release regarding this Agreement or about you without your prior written consent.
6B. DATA PROTECTION
For the purposes of this clause, “Data Protection Legislation” means the Data Protection Act 1998, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any replacement or successor legislation and all applicable laws and regulations relating to processing of personal data and privacy (including EU General Data Protection Regulation 2016/679 “GDPR”). “Personal Data” and “Processing” have the meanings given to them in GDPR, and “Process” will be construed accordingly
6B.1 The Company undertakes to you that it will take all necessary steps to ensure that it operates at all times within the requirements of the Data Protection Legislation and, where requested in relation to the Services, the Company will assist you in discharging its obligations under the Data Protection Legislation.
6B.2 Without limiting Clause 6B.1, if the Company receives from you or Processes any Personal Data on behalf of you, the Company will only Process the Personal Data in accordance with the data protection agreement laid out in Exhibit C
6B.3 On termination or expiry of this Agreement for whatever reason, or upon written request at any time, the Company shall forthwith cease to use or Process any Personal Data received from or on behalf of you under this Agreement, and shall return to you on demand, or at the request of you destroy or permanently erase, all Personal Data and copies of those Personal Data in its possession or control.
7.1 The Company, any other party (whether or not involved in creating, producing, maintaining or delivering the Website or Service), and any of the Company’s officers, directors, employees, shareholders or agents of any of them, exclude all liability and responsibility for any amount or kind of loss or damage that may result to you or a third party (including without limitation, any indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with the Website or Service in any way or in connection with the use, inability to use or the results of use of the Website or Service, any websites linked to the Website or the material on such websites, including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of your access to, use of, or browsing the Website or Service or your downloading of any material from the Website, the Service or any websites linked to the Website or Service.
7.2 Nothing in this legal notice shall exclude or limit the Company’s liability for:
(a) death or personal injury caused by negligence (as such term is defined by the Unfair Contract Terms Act 1977; or
(b) fraud; or
(c) misrepresentation as to a fundamental matter; or
(d) any breach of clause 6A or 6B;
(e) any liability which cannot be excluded or limited under applicable law.
7.3 If your use of material on the Website or the Service results in the need for servicing, repair or correction of equipment, software or data, you assume all costs thereof.
7.4 Subject to clauses 7.1 and 7.2, the Company’s maximum aggregate liability under or in connection with these Terms, or any collateral contract, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited to a sum equal to the aggregate amount which you are obliged to pay the Company in the twelve (12) month period immediately prior to the period giving rise to such Claim.
8.1 The Company may terminate this Agreement immediately by written notice to you if:
(a) you commit a material or persistent breach of these Terms which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
(b) a petition for a bankruptcy order to be made against you has been presented to the court; or
(c) you (being a company) becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986).
8.2 Where your termination of this Agreement is caused, in whole or in part, by a material or persistent breach of the Agreement by The Company, you will be entitled to a prorate refund or credit in respect of any fee paid by you in advance for any cancelled Service.
8.3 Upon termination for any reason:
(a) all rights granted to you under these Terms shall cease;
(b) you must cease all activities authorised by these Terms;
(c) you must immediately pay to the Company any sums due to the Company under these Terms; and
(d) the Company may immediately and without further notice delete or remove any content, data or other information submitted by you or your Invitees to the Service.
9. TRANSFER OF RIGHTS AND OBLIGATIONS
9.1 These Terms are binding on you and us, and on our respective successors and assigns.
9.2 You may not transfer, assign, charge or otherwise dispose of these Terms or any of your rights or obligations arising hereunder, without our prior written consent.
9.3 We may transfer, assign, charge, sub-contract or otherwise dispose of these Terms, or any of our rights or obligations arising hereunder, at any time.
10.1 All notices given by you to us must be given to Digital Tonic Ltd at in**@ef******************.com or 83 Ducie Street, Manchester, M1 2JQ. We may give notice to you at either the e-mail or postal address you provided to us when registering. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
11. EVENTS OUTSIDE OUR CONTROL
11.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations hereunder that is caused by events outside our reasonable control (a “Force Majeure Event”).
11.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of public or private telecommunications networks;
(e) the acts, decrees, legislation, regulations or restrictions of any government.
11.3 Our performance is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.
12.1 If we fail, at any time to insist upon strict performance of any of your obligations under these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled hereunder, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
12.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
12.3 No waiver by us of any of these Terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
13.1 If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
14. ENTIRE AGREEMENT
14.1 These Terms and any document expressly referred to in it represents the entire agreement between us in relation to the use of the Website and the provision of the Services and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
14.2 We each acknowledge that, in entering into these Terms, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to entering into these Terms except as expressly stated herein.
14.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into these Terms (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these Terms.
15. GOVERNING LAW AND JURISDICTION
15.1 This legal notice shall be governed by and construed in accordance with English law. Disputes arising in connection with this legal notice shall be subject to the exclusive jurisdiction of the English Courts.
16.2 You will provide an anonymous testimonial upon Company’s request for publication on the Company’s website. In no event shall the Company be permitted to reference you, expressly or by implication, as the author of the testimonial in any capacity or forum without your prior written consent.