NOW IT IS AGREED as follows:
1.1 In this Agreement the following expressions shall apply:
“Commencement Date” means the date you subscribe to a Package by accepting these terms and conditions whether for the first time or when ordering a new Package.
“Customer Data” means all data processed by or provided to Ayima for processing or otherwise processed as part of the Services including, but not limited to, Personal Data and “Personal Data” shall be interpreted as in the Data Protection 1998.
“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and other intellectual and industrial property rights in all parts of the world.
“Outage” means a period during which there is total loss of the Services.
“Overages” means the number of Page Views in any month which exceed the cap set out on the Packages Page.
“Package” means a package you select which covers a maximum number of Page Views relating to a Website. “Package Fee” means the fees due for your Package as set out on the Packages Page and payable monthly in advance.
“Packages Page” means the list of Packages from which you can select as set out at https://www.updatable.com/pricing.html
“Page View” means a request to load a single HTML file (web page) of a Website.
“Party” means a party to this Agreement.
“Parties” means Ayima and the entity on whose behalf these terms are accepted.
“Service Interruption” means a period during which there is partial loss of the Services.
“Services” means the services provided to you as part of your selected Package as set out on the Packages Page at https://www.updatable.com/pricing.html.
“Subscription” means a subscription to a particular Package.
“Term” means the effective term of this Agreement.
“Website” means a website belonging to you which you nominate when signing up to these terms and conditions.
2. PROVISION OF SERVICES AND LICENCES
2.1 Ayima agrees with effect from the Commencement Date in consideration of the payment of the Package Fee by you and subject to clauses 9.4 and 13, to supply the Services.
Your Subscription shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue until you cease to pay the corresponding Package Fee.
4.1 You agree to pay:
4.1.1 the Package Fee for the nominated Website monthly in advance;
4.1.2 for any Overages at the rate set out on the Packages Page within 30 days of an invoice therefor from Ayima. For the avoidance of doubt, there will not be an Overages charge if the Overages in a month do not exceed 1,000 Page Views.
4.2 You hereby authorise Ayima to charge the Package Fee each month to the credit or debit card you use when subscribing [or to such other credit or debit card that you subsequently substitute].
4.3 Ayima shall be entitled to charge the other interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) at the rate of 3 per cent per annum above the base rate from time to time of The Royal Bank of Scotland Group plc from the due date therefore until payment.
4.4 Ayima shall be entitled to increase the Package Fee with effect from each anniversary of the Commencement Date by giving at least 60 days’ prior written notice to you.
5. OUTAGES AND SERVICE INTERRUPTIONS
5.1 Outages or Service Interruptions may arise when in Ayima’s reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. Ayima will use reasonable endeavours to minimise such Outages or Service Interruptions.
6. WARRANTIES AND INDEMNITIES
6.1 Ayima warrants to and undertakes with you that:
6.1.1 Ayima will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
6.1.2 Ayima has full right power and authority to provide the Services to you in accordance with the terms of this Agreement; and
6.1.3 Ayima has all requisite registrations under UK data protection legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation.
6.2 Except for the express warranties set forth in this clause 6, the Services are provided on an “as is” basis, and your use of the Services is at its own risk. Ayima does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice and Ayima does not warrant that the Services will be uninterrupted, error-free, or completely secure.
7. YOUR OBLIGATIONS AND WARRANTIES
7.1 In the event that you are in breach of any of your obligations, representations or warranties under this Agreement, then:-
7.1.1 Ayima cannot be held responsible for any impact on the Services;
7.1.2 Ayima may suspend or terminate the Services.
7.2 You represent, warrant and undertake that:
7.2.1 you will use the Services only for lawful purposes and in accordance with this Agreement; and
7.2.2 the Website(s) will not infringe any Intellectual Property Rights of any third party and will not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such website.
7.3 You agree to provide all such assistance, facilities and information to Ayima as Ayima may reasonably require in order to enable it to carry out its obligations under this Agreement.
8. SECURITY AND DATA
8.1 Each Party recognises that it is impossible to maintain flawless security but (where relevant) Ayima shall take all reasonable steps to prevent security breaches in its servers' interaction with you and security breaches in our interaction with resources or users outside of any firewall that may be built into Ayima’s servers.
8.2 You are responsible for maintaining the confidentiality of any passwords which are required to access Updatable and the Services and are solely responsible for any damage caused by any such unauthorised access.
8.3 You acknowledge that Updatable will record basic data about traffic to the Website, notably location, IP address, user agent and timestamp of requests to access your Website and that Ayima will use this only for sharing with you and billing as appropriate.
9. LIMITATION OF LIABILITY
9.1 Ayima shall not be liable for any loss or damage of whatsoever nature suffered by you arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of you or arising from any cause beyond Ayima's reasonable control.
9.2 Ayima is not liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by you or for any wasted management time, failure to reconstitute data, failure to make anticipated savings or liability of you to any third party arising in any way in connection with this Agreement or for any liability you have to any third party or otherwise whether or not such loss has been discussed by the Parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
9.3 You accept that Ayima is in no way liable for any virus or other contaminants which enter your email system or computer network through your use of the Services and acknowledge that you must implement and maintain your own virus and malware security as well as guarding against DNS and other cyber-security threats.
9.4 Ayima shall not be liable for any Service Interruptions or Outages arising directly or indirectly from:-
9.4.1 interruptions to the flow of data to or from the internet;
9.4.2 changes, updates or repairs to the network or software which it uses as a platform to provide the Services subject to Ayima striving to minimise the interruptions/outages that may be caused by such change;
9.4.3 the effects of the failure or interruption of services provided by third parties;
9.4.4 factors outside of Ayima’s reasonable control;
9.4.5 any actions or omissions of you (including, without limitation, breach of your obligations set out in this Agreement) or any third parties; or
9.4.6 problems with your equipment and/or third party equipment.
9.5 None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Ayima or its appointed agents.
9.6 No matter how many claims are made and whatever the basis of such claims, Ayima’s maximum aggregate liability to you under or in connection with this Agreement or any other agreement between the Parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clauses 9.1-9.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed £2,500,000 (GBP).
9.7 You agree that you are in a better position to foresee and evaluate any loss you may suffer in connection with this Agreement and that the Package Fee has been calculated on the basis of the limitations and exclusions in this clause 9 and that you will effect insurance as is suitable having regard to its particular circumstances and the terms of this clause 9.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You acknowledge that you shall not acquire any Intellectual Property Rights whatsoever in respect of Updatable itself or any documentation and other materials used by Ayima in connection with or related to the provision of the Services hereunder.
10.2 Ayima warrants that it has all necessary right, title and interest to enable you to benefit from the Services in accordance with this Agreement.
10.3 You hereby grant to Ayima:
10.3.1 a non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate data provided by you or arising from your use of Updatable or the Services to enable Ayima to provide the Services; and
10.3.2 a non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display your trade marks in relation to the Services. 10.4 Subject to any contrary provision in this Agreement, Ayima undertakes only to use your trade marks for the purpose of providing the Services.
11.1 For the purposes of this clause 11, the following events shall be deemed “acts of default”:
11.1.1 if you fail to pay any moneys due pursuant hereto within 7 days of the due date therefor;
11.1.2 if a Party commits any material breach of any term of this Agreement (other than one falling under clause 11.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other Party to remedy the same.
11.2 If you commit an act of default then Ayima may:
11.2.1 forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement; or
11.2.2 terminate this Agreement by notice in writing forthwith.
11.3 If Ayima commits an act of default then you may terminate this Agreement by notice in writing forthwith.
11.4 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11.5 Termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to such termination.
12. CONFIDENTIALITY AND OWNERSHIP OF CUSTOMER DATA
12.1 Ayima hereby undertakes not without your written consent disclose the Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Services; and
12.2 The provisions of clause 12.1 above shall not apply to the whole or any part of the Customer Data to the extent that it is:
12.2.1 trivial or obvious;
12.2.2 already in Ayima’s possession without duty of confidentiality on the date of its disclosure;
12.2.3 in the public domain other than as a result of a breach of this clause; or
12.2.4 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, Ayima shall use reasonable endeavours to notify you of such requirement prior to making the disclosure.
12.3 For the avoidance of doubt, all Customer Data shall remain at all times your exclusive property and may only be used by Ayima in order to fulfil its obligations pursuant hereto.
13. FORCE MAJEURE
13.1 Neither Party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the Party in default (or its sub‑contractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an ‘Event of Force Majeure’). Any time limit or estimate for a Party to perform any act hereunder shall be suspended during an Event of Force Majeure.
The waiver by either Party of a breach or default of any of the provisions of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or email (such email notice to be confirmed by letter posted within 12 hours) to the postal address of the other Party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery and (if sent by post) upon the expiration of 48 hours after posting and (if sent by email) upon the expiration of 12 hours after dispatch.
16. INVALIDITY AND SEVERABILITY
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
17. ENTIRE AGREEMENT
17.1 Subject to clause 17.2, this written Agreement constitutes the entire agreement between the Parties hereto relating to the subject matter hereof. In entering into this Agreement neither Party has relied on any representation made by the other Party unless such representation is expressly included herein. Nothing in this clause 17.1 shall relieve either Party of liability for fraudulent misrepresentations and neither Party shall be entitled to any remedy for either any negligent or innocent misrepresentation.
17.2 No change, alteration or modification to this Agreement shall be valid unless in writing and signed on behalf of both Parties hereto.
This Agreement shall be governed by and construed in accordance with English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.