Customer Terms and Conditions v1.31
Customer Terms and Conditions
THESE TERMS AND CONDITIONS AND OUR VIEWER TERMS AND CONDITIONS COLLECTIVELY FORM THE “TERMS” GOVERNING YOUR USE OF OUR PLATFORM AND SERVICES AND APPLY TO ANY CONTRACT (DEFINED BELOW) BETWEEN YOU AND US.
We may update or amend the Terms from time to time as per clause 11.2. Please check Our Website regularly to take note of any changes and the current version of Terms that apply.
Definitions and Interpretation
In these Terms, the following definitions shall apply globally:
“Application” means Our master application for services order which is signed by You and submitted by You to Us and which contains details of Your application to receive Our Services and the terms of supply set out therein.
“Applicable Law” means any transnational, domestic or foreign, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling, code of practice or other similar requirement or professional standard, enacted, adopted, promulgated or applied by a governmental authority or recognised standards entity that is binding upon or applicable to You and applies to the provision of Services by Us to You, to Your use of Our Services and to services provided by You to Your Clients or to Your activities in connection with Our Services.
“Brand” means all representations of trading names or brand(s) operated by any of Our companies anywhere in the world, Our registered and unregistered trade marks, service marks, trade dress, trade names, corporate names (including legal, assumed and fictitious names), logos, slogans, internet domain names, addresses and other computer identifiers, rights in telephone numbers and other indicia of source or origin, together with all translations, adaptations, derivations, and combinations of any of the foregoing and any Intellectual Property Rights in them, all applications for registration, registrations, and renewals in connection therewith, and all goodwill associated with any of the foregoing.
“Brand Guidelines” means the guidelines We maintain on Our Website for the use of Our Brand.
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Charges” means any and all fees payable by You for Our Services in accordance with these Terms and Your Application.
“Commencement Date” has the meaning given in clause 1.2.
“Contract” means the contract between Us and You for the supply of Services in accordance with these Terms.
“Control” has the meaning given in section 1124 of the Corporation Tax Act 2010 and the expression “change of Control” shall be construed accordingly.
“Customer” means the entity which requests the Services from Us by way of an Application.
“Data Protection Law” means any Applicable Law relating to the Processing, privacy, and use of personal data including: (i) the GDPR; (ii) the Data Protection Act 2018; (iii) the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); and (iv) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
“GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company and any subsidiary from time to time of a holding company of that company, “subsidiary” and “holding company” having the meanings set out at section 1159 Companies Act 2006.
“Initial Term” means the minimum period for which We have agreed you will have access to the Services as set out in your Application.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Late Payment Interest” means late payment interest for the United Kingdom in accordance with the EU Directive 2011/7/EU on Combating Late Payment in Commercial Transactions.
“Membership” means Your entitlement to use and enjoy Our Platform and the Services under a Contract and subject to the Terms.
“Notice Period” means at least 30 days’ prior written notice which must expire on the last Business Day in a calendar month.
“Personal Data” has the meaning given to that term by the GDPR.
“Platform” means Our Website, applications and software hosted on Our servers, proprietary hardware, software and applications and any other hardware or software used or operated by Us or on Our behalf by a third party, to provide Our Services now or in the future.
“Property” means any house, apartment or other dwelling or building in relation to which You instruct us to provide Services.
“Services” means the products and services provided by Us via Our Platform and/or appointed representatives as set out in Your Application and including services which are incidental or ancillary to such services.
“Spec Materials” means, with the exception of Your Trademarks, all information, data and databases, text, images, audio, software, scripts, graphics, photos, sounds, music, 360o visualisations, floor plans, audio-visual combinations, interactive features, visual interfaces, web pages, records, reports, documents, papers, drawings, designs, transparencies, logos, typographical arrangements and all other materials in whatever form, including but not limited to hard copy and electronic form, that we create or use in connection with the Supply of Services to you hereunder, including without limitation (i) all such materials that you may view on, access through, commission, create, acquire or contribute to on Our Platform and (ii) Our Platform itself.
“Term” has the meaning given in clause 10.1.
“Terms” means the terms and conditions in this document as amended from time to time in accordance with clause 11.2.
“VAT” means value added tax or any equivalent tax chargeable in the UK or elsewhere.
“Viewer” means any person who accesses and/or views content on Our Platform, including, without limitation, a potential purchaser of any Property.
“Viewer Terms and Conditions” means the separate terms and conditions governing Viewers’ use of Our Platform.
“Virus” means any thing, device, software, code, file or program which may in Our reasonable opinion adversely affect the operation, security, availability, user experience of the Platform or Our operations, including, without limitation, viruses, Trojan horses, worms, logic-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
“We, Us, Our” refers to Digital Reality Corp Limited, registered in England with company number 09696838 of 42 Berkeley Square, Mayfair, London, W1J 5AW and all subsidiary companies and trading names internationally.
“Website” means Our website located at https://spec.co/ or such other URL as We may nominate from time to time.
“You” or “Your” means the Customer.
“Your Client” means any person You are facilitating access to and/or are helping benefit from Our Services, including without limitation, a vendor of any Property.
“Your Trademarks” means any trade mark, whether registered or unregistered, which you may request us to incorporate into Spec Materials.
In these Terms: (i) a “person” includes a natural person, corporation, partnership, limited liability company, association, trust, corporate or unincorporated body (whether or not having separate legal personality); (ii) references to the singular include the plural and vice versa; (iii) these Terms shall be binding on, and enure to the benefit of, the parties to any Contract and their respective personal representatives, successors and permitted assigns, and reference to any party includes its personal representatives, successors and permitted assigns; (iv) reference to “writing” or “written” includes e-mails; (v) reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; (vi) reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision; (vii) any obligation on a party not to do something includes an obligation not to allow that thing to be done; (viii) reference to these Terms or to any other agreement or document referred to in these Terms is a reference to these Terms or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time; (ix) references to clauses are to clauses of these Terms; and (x) any words following the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1. Contract Terms
- Submitting an Application to Us constitutes an offer by You to purchase Our Services in accordance with these Terms.
- Your Application will only be accepted when We issue express written acceptance of it to You at which point the Contract between Us and You will begin unless stipulated otherwise in Your Application and your Membership will commence (the “Commencement Date”).
- We reserve the right to decline acceptance of your Application without giving any reasons.
2. The Services
- Subject to this clause 2, We will supply the Services specified in Your Application to You substantially in accordance with Your Application, according to the Terms and with reasonable skill and care.
- We will use reasonable endeavours to meet any performance dates specified in Your Application but any such dates shall be estimates only and time for performance by Us shall not be of the essence of the Contract.
- We reserve the right to make any changes to the Services that We deem necessary to comply with any Applicable Law or request from recognized legal authority or which do not in Our opinion materially and detrimentally affect the nature or quality of the Services. Any such change will amend the Services as described in Your Application.
- Once your initial Application is accepted in accordance with clause 1.2, We may in Our sole discretion accept additions and variations to Your original Application through Our Platform or in writing from Your representatives. You undertake that all such additions or variations received by Us from You are properly authorised and approved by You as if they formed part of the original Application and You have sufficient systems and processes in place to prevent misuse and as such agree to pay any corresponding fees for such additions or variations.
- Some of Our Services may include the facility to order products or services at additional cost to You without requiring a further signature or written confirmation from You. You agree to accept any additional Charges when such orders are made by any person accessing Our Platform using username(s) and password combinations associated with Your Membership.
We reserve the right to refuse to perform any Services if in Our view they:
- pose unacceptable risks to Our Platform or personnel; or
- would require additional time or resource to complete that could have been avoided if any reasonable pre-Service advice was not followed or if previously undisclosed requirements are made by You without reasonable notice.
- If performance of Our obligations under the Contract is prevented or delayed by any act or omission of You, Your agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy We may have, We shall be allowed an extension of time to perform Our obligations equal to such period of prevention or delay.
- Clause 2.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Our instructions, or modification or alteration of the Services by any party other than Us or Our duly authorised contractors or agents. If the Services do not conform with clause 2.1 as a result of the foregoing, We will, at Our expense, use reasonable commercial efforts to correct any such non-conformance promptly, and if the non-conformance cannot be rectified We will provide a refund of the Charges paid in respect of the affected Services on a pro rated basis for the unexpired part of the period to which such Charges apply, in which case such correction and/or refund (as the case may be) constitutes Your exclusive remedy for non-compliance with clause 2.1.
- You acknowledge that access to the internet, mobile phone networks or other communication media necessary for the provision of Our Services is inherently associated with risks including Viruses, data security, piracy, non-availability of services and unreliability of data transmission. We do not warrant that any of the Services will be provided without interruption, delay or error or that they will meet Your requirements. We reserve the right to suspend all or part of the Services to undertake routine or emergency maintenance from time to time.
- Your rights to use Our Platform and the Services are granted to You and (where expressly provided in these Terms) Your Clients only, and shall not be considered granted to any other member of Your Group.
3. Your Obligations
You agree to:
- provide for Us, Our agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Properties;
- inform Us of all relevant health and safety and security requirements that apply at any Property within a reasonable period of time in advance of Our accessing such Property;
- without prejudice to clause 6, obtain and maintain all necessary consents, permissions and applicable licences which may be required for the operation of Your business and Your use and receipt of the Services in all cases before the Commencement Date of the Contract;
- observe and comply with any Applicable Law in form and spirit;
- act (and will procure that Your Clients act) with best professional practice at all times and not do anything or allow anything to occur which may bring (in Our reasonable opinion) Us or Our Platform into disrepute;
- provide and keep up to date with Us working valid email addresses and telephone numbers and will immediately advise Us of any circumstances that would prevent You from receiving emails or calls from Us; and
- keep any access methods, credentials, usernames and password combinations to Our Platform secure from misuse and We hereby exclude any liability for any losses resulting from breach of this obligation.
You undertake that:
- You or Your Clients have not and will not misrepresent the nature of Your business and/or intended use of Our Services to Us; and
- You will co-operate with Us in Our supply of Services and in resolving any matters regarding the Services.
4. Charges and Payment
- In consideration of the provision of the Services by Us to You, You will pay Our Charges for the Services in full which are: (i) based on the rates and pricing terms set out in Your Application as accepted by Us in accordance with clause 1.2; and (ii) otherwise advised by Us to You in writing from time to time in accordance with clause 2.5 and/or clause 4.3.
- You accept that We may charge You at Our prevailing market rates for any additional Services You have used.
- You undertake to pay any Charges arising from Our inability to provide Services for reasons that We deem reasonably to be within Your control.
- If You dispute any amount raised in an invoice We send, You must notify Us within 10 Business Days from the date of the invoice otherwise You will be deemed to have accepted the invoice.
Unless otherwise stated in Your Application or expressly notified to You by Us in writing:
- we shall invoice You in arrears of each month for those Services which were performed during that month;
- our standard payment terms 10 days from date of invoice payable by direct debit; and
- the Charges are exclusive of VAT, and You shall in addition pay an amount equal to any chargeable VAT where applicable.
- Without prejudice to any other right or remedy of Ours, if You fail to make any payment due to Us in accordance with the payment terms described in clause
- reserve the right to charge Late Payment Interest and any reasonable legal fees which we incur and can demonstrate we have incurred as a result of seeking payment from You until the date We receive payment from You; and
- suspend Your access to the Services, Our Platform and the Spec Materials until such time as all amounts due are paid in full.
- Unpaid invoices may be referred to a debt collection agency and any information We have about You (including any Personal Data reasonably required) may be shared with them and other agencies in turn to facilitate securing payment. This may affect Your credit record and ability to secure credit in the future.
- If We terminate Your Contract with Us due to non-payment pursuant to clause 10.2(b) and You or any entity with substantially the same beneficial ownership re-applies for Services under a new Contract, We will require all outstanding amounts to be paid before supplying any Services and We reserve the right to charge a reconnection fee of £500 to validate your ability to pay future Charges.
- All sums payable to Us under any Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. Intellectual Property Ownership and Use
- We own all of the Intellectual Property Rights in Our Brand and with the exception of the provisions in this clause 5, You have no right to use the Brand.
- You have the non-exclusive right to use Our Brand in the normal course of Your business on the terms specified in Our Brand Guidelines. We reserve the right to terminate the right granted in this clause in Our absolute discretion and without notice, following which You will have 30 days to cease using Our Brand.
- You grant to Us a non-exclusive, worldwide, royalty-free licence to incorporate Your Trademarks into the Spec Materials in accordance with your specific instructions, and to use such Spec Materials into which Your Trademarks have been incorporated for any purpose whatsoever.
- We hereby grant to You a non-exclusive, royalty-free, worldwide, non-sub-licensable, non-transferable licence to use Spec Materials created or used by us in the course of providing Services to You only in connection with the marketing in the normal course of business of the property in relation to which the Spec Materials were created or used. This licence will expire automatically and without notice on (i) the Property being sold, (ii) the Property being withdrawn from the market or (iii) Your instruction in relation to the Property ceasing, and may be revoked by Us on written notice to You in the event of Your material breach of the Contract including these Terms.
- Subject only to clause 5.4 above, all right, title and interest in all Intellectual Property Rights in Spec Materials shall automatically vest in and be owned by Us, or, to the extent that they were already in existence prior to the Services commencing, shall remain owned by us (or, as the case may be, by our Licensor). Nothing in these Terms or otherwise in the Contract shall operate to transfer to or vest in You any Intellectual Property Rights in any Spec Materials.
To preserve consumer trust in the provenance, standard and accuracy of Our Services and to preserve any applicable insurance coverage, liability, guarantee or warranty We may apply, where You republish Spec Materials:
- Any visible or invisible Brand, watermarks, kitemarks, copy protection or digital rights management devices, certifications, or legal notices, must be preserved in their entirety and not be removed, materially altered or obscured; and
- You must not materially alter any Spec Materials, maintaining any aspect ratio, explanatory foot notes, keys, legends, notices or other relevant information.
6. Data Protection and Personal Data
In this clause 6, unless the context otherwise requires:
- “Controller”, “Data Subject”, “Personal Data” “Personal Data Breach”, “Process”, “Processing” and “Processor” have the meanings given to those terms by the Data Protection Law;
- “Customer Personal Data” means any Personal Data provided by or on behalf of You to Us, or collected by Us on Your behalf;
- “Processing Instructions” means Your instructions for Processing Customer Personal Data, as set out in Your Application or these Term, and otherwise as provided in writing by or on behalf of You to Us from time to time.
- You and We acknowledge that for the purposes of the Data Protection Law, You are the Controller and We are Your Processor acting on Your behalf in respect of any Customer Personal Data Processed by Us for the purpose of performing the Services and carrying out Your instructions in connection with any any Contract.
- You shall ensure that You only provide Customer Personal Data to Us as is required to enable us to perform the actions described in clauses 6.2(a).
- You shall ensure You have a legal basis to transfer Customer Personal Data to Us and allow us to perform the actions described in clause 6.2above.
Unless set out otherwise in this clause 6, Processing of Customer Personal Data as described in clause 6.2 shall be undertaken by Us in accordance with the following parameters:
- Subject-matter, nature and purpose of the Processing: Our provision of the Services to You and carrying out Your instructions in connection with any any Contract.
- Duration of Processing: Processing of Customer Personal Data by Us shall be carried out during the Term, provided that Customer Personal Data shall not be Processed for longer than is necessary for the purpose for which it was collected or is being Processed (except where a statutory exception applies).
- Customer Personal Data in scope: We may Process the following types/categories of Customer Personal Data: (i) Customer Personal Data, consisting of: names, addresses, email addresses and such other Personal Data which may be provided by Property owners or any person residing at a Property, or included in any data assets captured or produced by Us; and (iii) sensitive Customer Personal Data/other special categories of Customer Personal Data which may be provided by Property owners or persons residing at any Property, or included in any data assets captured or produced by Us.
- Data subjects: The group of data subjects affected by the Processing of their Customer Personal Data consists of: Property owners and/or persons residing at any Property.
- As Processor We will only act upon and Process Customer Personal Data in accordance with the Processing Instructions, unless required by Applicable Law. Customer Personal Data will be used by Us in accordance with and for the purposes set out in the Processing Instructions and only where necessary to provide the Services to You. If We are ever unsure as to the parameters or lawfulness of the instructions issued by You, We will revert to You for the purpose of seeking clarification or further instructions.
- We shall cooperate and assist You with any data protection impact assessments (“DPIAs”) and consultations with (or notifications to) relevant regulators as required by Data Protection Law in relation to the Customer Personal Data and the Services. You shall pay any costs incurred by Us in respect of Our obligations under this clause 6.12.
- We shall forward to You without undue delay and otherwise cooperate with and assist You promptly with any requests from data subjects of any Customer Personal Data pursuant to Data Protection Law. You shall pay any costs incurred by Us in respect of Our obligations under this clause 6.13.
- We shall: (i) ensure that Our personnel will not Process Customer Personal Data except in accordance with this clause 6; and (ii) procure that Our personnel are contractually obligated to maintain the security and confidentiality of any Customer Personal Data and this obligation continues even after their engagement ends.
- We shall: (i) at Your option, securely delete or return all copies of Customer Personal Data which We do not require to use for the purposes of Our own research; and (ii) cease Processing such Customer Personal Data after the business purposes for which Customer Personal Data was collected or transferred have been fulfilled (or earlier upon Customer’s written request).
- We will implement and maintain throughout the Term appropriate technical and organisational measures, internal controls and information security routines intended to protect Customer Personal Data against accidental, unauthorised or unlawful access, disclosure, alteration, loss, or destruction, which shall at all times be of at least the minimum standard required by Data Protection Law so as to ensure a level of security for the Customer Personal Data appropriate to the risk.
- If We become aware that any personal data breach has occurred, We shall without undue delay, notify You of the personal data breach and provide sufficient information to allow You to report the personal data breach and/or notify affected data subjects as required under Data Protection Law.
- We shall promptly (and in any event within 72 hours) inform You if We receives a complaint or request relating to either of Our obligations under Data Protection Law relevant to this clause 6 and shall provide c with relevant details of such complaints or requests.
You provide general consent to allow Us to engage subprocessors for the purposes of Us providing the Services where:
- We inform You of any intended changes concerning the addition or replacement of subprocessors, thereby giving You the opportunity to object to such changes; and
- subprocessors are contractually bound to equivalent obligations as are contained in this clause 6. We shall also remain fully liable to You where any subprocessor fails to fulfil its data protection obligations, as well as for any acts or omissions of the subprocessor regarding its Processing of Customer Personal Data.
- We (or any subprocessor) shall only transfer Customer Personal Data from the EU to a country outside the EEA or an international organisation where such transfer: (i) is subject to appropriate safeguards; and (ii) otherwise complies with Data Protection Law.
- We shall make available to You all information necessary to demonstrate its compliance with Our obligations under Data Protection Law and allow for and contribute to audits, including inspections, conducted by You or another auditor mandated by You. You shall pay any costs incurred by Us in respect of Our obligations under this clause 6.21. Information and audit rights only arise under this clause 6.21 to the extent that the remainder of the Contract does not otherwise give You information and audit rights meeting the relevant requirements of Data Protection Law.
- Each party represents and warrants that it shall comply with Data Protection Law at all times.
7. Use of Our Platform
- It is Your responsibility to ensure that You have requisite technical capabilities necessary to receive the benefit of the Services.
You undertake that You will not upload to Our Platform, or use Our Platform to access, store, distribute or transmit any material, or allow Our Services to be used for any activity, which:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- is deceiving or fraudulent, or has any fraudulent purpose or effect;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability;
- infringes any third party Intellectual Property Rights or breaches confidentiality;
- has, in Our opinion, a detrimental effect on the functionality, availability, security or quality of Our Platform;
- is or behaves like a Virus;
- is inaccurate or would be construed as misleading; or
- is otherwise illegal or causes damage or injury to any person or property.
- We reserve the right, without liability or prejudice to Our other rights, to delete, modify or disable Your access to the Spec Materials and Our Services to curtail breaches of clause 7.2.
You must not, except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Terms:
- attempt to scrape, reproduce, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or Our Platform in any form or media or by any means;
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of software which is part of Our Platform;
- access all or any part of the Services or Our Platform in order to build a product or service which competes with the Services;
- interfere with, damage or disrupt any part of Our Platform or any computer systems, equipment, software or networks on or through which Our Platform is stored or operated;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except Your Clients in the normal course of Your business; or
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation.
- You must use all reasonable efforts to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Us.
- We may monitor your use of Our Platform and monitor your activity for security purposes.
- You must fully cooperate with Us where any law enforcement authorities, regulators or court order requests or directs Us to disclose the identity or locate anyone with access to Our Platform or Our services in breach of these Terms.
- You shall not use data sourced from Us or Our Platforms referencing Your relationship with Us without Our prior written consent.
- You will keep in strict confidence any information of a confidential nature disclosed to You by Us, Our employees, agents or subcontractors, and any other confidential information concerning Our business, customers, suppliers products or services which You obtain, except as permitted by clause 8.2.
You may disclose the confidential information described in clause 8.1 to:
- those employees, agents or subcontractors who reasonably need to know it for the purpose of exercising Your rights and discharging Your obligations under the Contract and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those set out in this clause 8; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- This clause 8 shall survive termination of the Contract.
- If the email addresses and telephone numbers You provide to Us for the purpose of Us providing the Services are not able to receive incoming calls or messages, We will not be liable for any loss or potential loss You suffer as a result of not receiving such calls or emails.
- Our Platform may include links to third party sites or services that are not owned or controlled by Us. We make no representations or warranties as to the suitability, quality or availability of any third party sites or services and accept no liability for any loss or damage you may suffer or incur in connection with Your use of them. We encourage You to thoroughly read any terms and conditions of their use.
You will indemnify Us against all third party claims and all liabilities, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by Us as a result of or in connection with:
- any alleged or actual infringement, whether or not under Applicable Law, of any third party's Intellectual Property Rights or other rights arising out of the use of Your Trademarks by Us in accordance with Your instructions;
- any use or misuse of Our Brand by You which is not in accordance with the Brand Guidelines;
- any material alteration You make to Spec Materials that You republish; and
- any breach by You of the Contract or any negligent act or omission committed by You in connection with the subject matter of this Contract.
- Clauses 2.6 and 9.5 set out Our entire financial liability to You in respect of any liability from or connected to Your Membership. Nothing in the Terms limits or excludes Our liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited under Applicable Law.
Subject to clauses 2.6 and 9.4:
- We shall only be responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence. Loss or damage is foreseeable if it is an obvious consequence of our breach or if they were contemplated by you and us at the Commencement Date;
- although We take all reasonable steps to protect Our systems using virus checking software, please note that any content downloaded from Our Platform is at your own risk. We do not accept liability for any loss or damage that You suffer as a result of any distributed Viruses resulting from Your use of Our Platform. You are responsible for protecting Your computer systems and other devices from exposure to Viruses by the use of anti-virus software, firewalls and any other technical measures necessary;
- We will under no circumstances whatsoever be liable to You whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of or damage to goodwill, loss of sales or business, loss of agreements or contracts, loss of anticpated savings, loss of use or corruption of software, data or information, loss of reputation, loss or damage to Spec Materials (including reformatted data) or any indirect or consequential loss arising under or in connection with the Contract; and
- Our total liability to You in respect of all other losses arising under or in connection with any Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances annually exceed a sum equal to the Charges payable by You pursuant to such Contract in the twelve (12) month period before the occurrence of the act or omission giving rise to the claim.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- Clauses 9.3 to 9.7 shall survive termination or expiry of the Contract.
10. Term and Termination
- Subject to clause 10.2, the Contract will come into effect on the Commencement Date and continue for the Initial Term and thereafter continue until terminated by either party giving notice to the other party equal to the Notice Period (the “Term”).
Without prejudice to any of Our other rights in the Terms, We may terminate the Contract immediately with written notice to You if:
- You breach the Terms and that breach is irremediable or, if that breach is capable of remedy, You fail to remedy such breach within 14 days of being notified of the breach in writing;
- You fail to pay any amount due under the Contract on the due date for payment; or
- If an order is made or a resolution is passed for Your winding-up or an order is made for the appointment of an administrator to manage Your affairs, business and property or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given to You by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of Your assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or You take or suffer any similar or analogous action in consequence of debt 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) has any partner to whom any of the foregoing apply or (being a limited liability partnership) suffer any similar or analogous event in consequence of a debt; or You undergo a change of Control.
- Without prejudice to any of Our other rights in the Terms, if We have reason to suspect that You are neither willing or able to comply with the Terms or are in breach of the Terms then We can immediately suspend the provision of the Services, access to Spec Materials and terminate the Contract by serving You written notice equal to the Notice Period.
On termination of the Contract for any reason:
- You will immediately pay any outstanding unpaid invoices and interest;
- in respect of Services supplied but for which no invoice has been submitted, We will submit an invoice, which shall be payable by You immediately on receipt;
- You will return all products, materials or other items which contain Our Brand or, at Our sole discretion and instruction, destroy all such products materials and other items; and
- You will permanently erase or delete any of Our confidential information which is in Your possession or control;
- You will immediately cease using all of Our Intellectual Property Rights and Services;
- the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected;
- the licences and obligations in clauses 5.4 to 5.6 shall continue unaffected; and
- clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- We will not be in breach of this Contract nor liable for delay in performing or failure to perform any of Our obligations under the Terms if such delay or failure results from events, circumstances or causes beyond Our reasonable control.
We may update or amend the Terms or Brand Guidelines from time to time by posting them to Our website as per the terms of this clause.
- If We update or amend the Terms, You will be notified at least 7 days prior to the change taking effect. You may object to any updates or amendments by notifying Us in writing before the changes come into effect. We will attempt to resolve Your objection within 5 Business Days of receipt. If a resolution cannot be reached then this Contract may be terminated subject to the Notice Period and the amended conditions will not apply to You during the Notice Period.
- If We do not receive notification of any objections then You will be deemed to have agreed to the changes which will become binding when the changes come into effect.
- Subject to the foregoing, the changes shall be binding on You from the date that the amended versions of the Terms or Brand Guidelines (as the case may be) are posted onto Our Website.
- Except as set out in the Terms, any variation, including the introduction of any additional terms and conditions to the Contract, shall only be binding when agreed in writing and signed by Us.
- Any written notice required to be given to a party in connection with this Contract must be delivered by hand or sent by pre-paid mail with proof of postage or by email to such other nominated contacts as notified by the parties to each other in writing from time to time. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- These Terms and the documents referred to herein or on Our Website together constitute the entire agreement between the parties with regard to their subject matter and no other terms, conditions, warranties or statements (unless fraudulent) will apply. Each party acknowledges that in entering into the Contract it does not do so on the basis of, and does not rely on any representation (unless made fraudulently) warranty or other provision not expressly contained in the Terms and the documents referred to herein or on Our Website.
- Each of the provisions of these Terms (or part of any provision) is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that shall not affect the legality, validity or enforceability of the other provisions of these Terms. The provision itself shall apply with the minimum modification necessary to make it legal, valid and enforceable
- A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under the Terms or the documents referred herein shall not prevent the exercise of that or any other right.
- Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
You may not assign or transfer any benefit, interest or obligation under the Contract without Our prior written consent. With the exception of any member of Our Group, for the purposes of the Contracts (Rights of Third Parties) Act 1999 no one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms. Any attempted assignment or transfer in violation of this clause 11.9 shall be void. The parties irrevocably agree to any dispute or claim arising out of or in connection with this Contract will be governed by and construed in accordance with the law of England and Wales and that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Contract (including non-contractual disputes or claims).