Terms and Conditions

1. Our terms

1.1     These are the terms and conditions on which we supply the Software and Services to you (the Contract).

1.2     Please read these terms carefully before you submit your Order

2. Information about us

2.1     We are WP Feedback Ltd a company registered in England and Wales. Our company registration number is 12010526 and our registered office is at 26 St. Albans Lane, London, England, NW11 7QE.

2.2     WP FeedBack is licensed to supply plugins under the GNU general public license (http://www.gnu.org/licenses/gpl-3.0.txt).

2.3     You can contact us by emailing our customer service team by writing to us at [email protected]

2.4     If we have to contact you we will do so by writing to you at the email address or postal address you provided to us in your Order.

3. Definitions and interpretation

Definitions

3.1     The following definitions and rules of interpretation apply in these Conditions:

Billing Period

as defined in clause 9.4.

Business Day

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business

Contract

the terms and conditions constituted by this document. 

Control

has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures

as defined in the Data Protection Legislation.

Core Software

the subscription version of the Software supplied by the Supplier in exchange for a Fee (such Fee to be specified in a Plan) and under which the full features of the Software are made available to the Customers.

Customer

the customer who submits the Order to the Supplier and enters into this Contract. 

Data Protection Legislation

the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Fee

as defined in clause 9.

Force Majeure Event

has the meaning given to it in clause 17.

Free Software

the free version of the Software made available to customers by the Supplier in exchange for UGC to be uploaded and shared between a community of customers to improve the Software.

GPL

the GNU operating system’s general public license.

Intellectual Property Rights

patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Maintenance Release

release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software.

Order

the Customer’s order for the Software submitted to the website of the Supplier. 

Plan

the different plans by which the Customer can purchase the Software and Services from the Supplier as specified on the Supplier’s Website from time to time, which include the:

  • Monthly Plan;
  • Starter Plan;
  • Pro Plan; and
  • Agency Plan.

Services

the support services supplied by the Supplier to the Customer as set out in the Order and as specified in the Plan purchased by the Customer.

Software

the wordpress based software plugin created by the Supplier which allows Customers to automate communications with their clients or peers regarding Website design and updates (and such definition shall include both the Free Software and the Core Software). 

Supplier

WP Feedback Ltd registered in England and Wales with company number 12010526.

Term

as defined in clause 14 and shall include the Initial Term and any Extended Term.

Third-Party Additional Terms

any terms of use specified by a third party in relation to the Customer’s use of Third Party Software incorporated in the Software.

Third Party Data

as defined in clause 6.12.

Third Party Software

any third party software incorporated in the Software.

UK Data Protection Legislation

all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

UGC

user generated content, including any graphical elements uploaded by the Customer, but excluding any Intellectual Property Rights owned by the Supplier, or any Software.

Website

the website at: https://wpfeedback.co/

Interpretation

3. 2     A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

3. 3     A reference to a party includes its successors and permitted assigns.

3.4     A reference to a statute or statutory provision is a reference to it as amended or re-enacted.  A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

3.5     Any words following the terms including, include, in particular, for example 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.

4. Basis of Contract

4.1     The Order constitutes an offer by the Customer to purchase Software and Services in accordance with the terms of this Contract.

4.2     The Order shall be deemed to be accepted on the earlier of the Supplier providing access to the Software to the Customer, or the Supplier issuing written acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date).

4.3     These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

5. License

5.1     In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer a non-exclusive licence for the Term to use the Software.

5.2     In relation to scope of use:

5.2.1     for the purposes of clause 5.1, use of the Software shall be restricted to use of the Software in object code form;

5.2.2     except as expressly stated in this clause 5, and only to the extent such activities are not permitted in accordance with the GPL, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part, except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer.

5.2.3     the Third-Party Software shall be deemed to be incorporated within the Software for the purposes of this licence (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms;

5.2.4     the Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of any Third-Party Additional Terms howsoever arising;

5.2.5     the Supplier may treat the Customer’s breach of any Third-Party Additional Terms as a breach of this Contract.

5.3     The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 5.2.2 to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright or other Intellectual Property Rights subsisting in it.

5.4     The Customer shall not:

5.4.1     sub-license, assign or novate the benefit or burden of this licence in whole or in part; 

5.4.2     deal in any other manner with any or all of its rights and obligations under this Contract,

without the prior written consent of the Supplier, such consent not to be unreasonably withheld.

5.5     The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Contract.

5.6     The Customer shall:

5.6.1     ensure that the number of persons using the Software does not exceed the number of users permitted by the Plan purchased by the Customer;

5.6.2     ensure that the Software is not used on websites in excess of the number of websites permitted under the Plan purchased by the Customer;

5.6.3     keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;

5.6.4     notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;

5.6.5     pay for broadening the scope of the licences granted under this licence to cover any unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.

5.7     The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

5.8     The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt. The installation of such Maintenance Releases may require the Supplier to suspend access to the Software in accordance with clause 7.2, as necessary to update the Software.

5.9     The Customer must at all time comply with any code of conduct which has been put in place by the Supplier, and which shall be made available on the Website.

6. User Generated Content and use of the Sofware

6.1     The Software includes tools which allow Customers to upload UGC which can be accessed, viewed and used by other Customers using the Software.

6.2     UGC uploaded pursuant to clause 6.1 has not been verified or approved by the Supplier. The views expressed by other users on the Software do not represent the views or values of the Supplier.

6.3     Whenever the Customer makes use of a feature that allows the Customer to upload UGC, or to make contact with other users of the Software, then the Customer must comply with the content standards set out in this Contract.

6.4     The Customer warrants that any such UGC will comply in full with this Contract, and the Customer will be liable to the Supplier and indemnifies the Supplier for any breach of that warranty. 

6.5     Any UGC uploaded by the Customer will be considered non-confidential and non-proprietary. Ownership rights in any UGC uploaded by the Customer shall immediately vest in the Supplier, but the Supplier grants to the Customer an royalty-free, worldwide licence to use, store and copy such UGC for the duration of the Term. 

6.6     The Customer also grants to the Supplier the right to disclose the identity of the Customer to any third party who is claiming that any UGC posted or uploaded by the Customer to the Software constitutes a violation of their intellectual property rights, or of their right to privacy.

6.7     The Supplier has the absolute right to remove any UGC uploaded to the Software.

6.8     The Customer is solely responsible for securing and backing up their UGC.

6.9     The Supplier does not guarantee that the Software or any UGC will be secure or free from bugs or viruses.

6.10     The Customer is responsible for configuring their information technology, computer programmes and platform to access the Software and any UGC. 

6.11     The Customer must not misuse the Software by knowingly introducing (including in any UGC) any viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. The Customer must not attempt to gain unauthorised access to the Software, the server on which the Software is stored or any server, computer or database connected to the Software. 

6.12     The Software may interact with third-party software, websites, plug-ins and applications (Third Party Data). Any interaction with such Third Party Data shall be entirely at the risk of the Customer and the Supplier accepts no liability for any claim risks, expenses or losses arising from the Customers interaction with such Third Party Data. Enabling connections to such Third Party Data may allow third parties to collect or share data about the Customer. The Supplier does not control these third-party websites and is not responsible for their privacy policies or any content on any third party website, applications, software or plugin and it shall be the responsibility of the Customer to familiarise itself with such policies and/or content. 

7. Supplier's Warranties

7.1     The Supplier warrants that the Software will be free from material defects for a period of 90 days from the date of the Contract (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to perform in all material respects, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Contract for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, the Supplier shall, at the Supplier’s option, do one of the following:

7.1.1     repair the Software;

7.1.2     replace the Software; or

7.1.3     terminate this Contract immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

7.2     The Supplier does not warrant that the use of the Software will be uninterrupted or error-free and the Supplier reserves the right to suspend access to the Software as necessary for any reason, including but not limited to the installation of any Maintenance Releases.

7.3     The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

7.4     All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

7.5     Although the Software and UGC may contain links to third party software, plugins, applications, websites, or other content, the Supplier is in no way affiliated to any third party supplier, including but not limited to FaceBook or WordPress. 

8. Supply of Services

8.1     The Supplier shall supply the Services to the Customer in accordance with the Order in all material respects.

8.2     The Supplier reserves the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

8.3     The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

9. Fees

9.1     The Software and Plans available on the Supplier’s website may be mispriced, described inaccurately, or unavailable, and the Supplier may experience delays in updating information on the Software and in the Supplier’s advertising on third party websites. Such an offer of a Plan or any Software does not constitute a legal offer capable of attracting legal consequences.

9.2     The Supplier does not guarantee the accuracy or completeness of any information, including prices, specifications, and availability. The Supplier reserves the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

9.3     The price for the Core Software shall be the price set out in the Order and as specified by the Plan chosen by the Customer (the Fee).

9.4     The Core Software is billed by the Supplier on a periodic basis (such periods to be specified as part of the Plan) (the Billing Periods). Within 5 Business Days of the end of each Billing Period the Supplier shall submit an invoice to the Customer and shall automatically take payment of the relevant fee from the payment details supplied by the Customer in the Order. Should automatic billing fail to occur for any reason, the Supplier will automatically issue reminders to the Customer.

9.5     If any Fee remains unpaid for a period of 7 Business Days from the date such payment becomes due, then the Supplier reserves the right to suspend the Customer’s licence to use the Software until such Fee has been paid. 

9.6     The Supplier shall provide the licence to the Free Software to the Customer for no fee, but in consideration for the licence of the Free Software, the Customer agrees to upload UGC to the Free Software in order to improve the Free Software.

9.7     All amounts payable under the Contract are payable in US Dollars. All amounts payable by the Customer under the Contract are exclusive of any applicable taxes which the Customer is liable to pay.

9.8     The Customer represents and warrants that:

9.8.1     they have the legal right to use any credit card or other payment method as specified in any Order; and

9.8.2     the information supplied to the Supplier in any Order is true, correct and complete. The Customer expressly agrees that the Supplier is not responsible for any loss or damage arising from the submission of false or inaccurate information.

10. Intellectual property rights

10.1     The Customer acknowledges that, to the extent permitted under the GPL, all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Contract.

10.2    The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 10.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

10.3     If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 10.2 are conditional on the Customer:

10.3.1     as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;

10.3.2     not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);

10.3.3     giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies for the purpose of assessing the Claim; and

10.3.4     taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.

10.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

10.4.1     procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;

10.4.2     modify the Software so that it ceases to be infringing;

10.4.3     replace the Software with non-infringing software; or

10.4.4     terminate this Contract immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 7 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.

10.5     Notwithstanding any other provision in this Contract, clause 10.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.

10.6     This clause 10 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 13.4.

11. Data Protection

11.1     Both parties will comply with all applicable requirements of the Data Protection Legislation.  This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.  

11.2     The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.

11.3     Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

11.4     Without prejudice to the generality of clause 11.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

11.4.1     process that personal data only on the documented written instructions of the Customer unless the Supplier is permitted by Data Protection Legislation to otherwise process that personal data.  Where the Supplier is relying on Data Protection Legislation as the basis for processing personal data, the Supplier shall notify the Customer of this before performing the processing required by the Data Protection Legislation unless the Data Protection Legislation prohibits the Supplier from so notifying the Customer; 

11.4.2     ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

11.4.3     ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

11.4.4     not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled:

11.4.4.1     the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

11.4.4.2     the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;

11.4.4.3     the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

11.4.4.4     the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

11.4.5     assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

11.4.6     notify the Customer without undue delay on becoming aware of a personal data breach;

11.4.7     at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Data Protection Legislation to store the personal data; and

11.4.8     maintain complete and accurate records and information to demonstrate its compliance with this clause 10.1 and allow for audits by the Customer or the Customer’s designated auditor] and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

11.5     The Supplier may, at any time on not less than 30 days’ notice, revise this clause 10.1 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

12. Affiliate Marketing

The Supplier may use the personal data of the Customer to suggest products to the Customer. Any such suggestion will appear in the form of links in the Software purchased by the Customer. The Supplier has entered into various affiliate marketing agreements with the ultimate third party owners of such suggested products, pursuant to which the Supplier receives a commission if the Customer makes a purchase via an affiliate marketing link on the Software. The Customer has the right to object or to revoke your consent to such affiliate marketing at any time in accordance with the privacy policy of the Supplier, which can be found here: https://my.wpfeedback.co/cookie-policy.

13. Confidentiality

13.1     Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.

13.2     Each party may disclose the other party’s confidential information:

13.2.1     to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract.  Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

13.2.2     as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3     Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

13.4 The terms of this clause 12 shall survive termination or expiry of the Contract.

14. Limitation of liability

14.1     The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

14.2     Neither party may benefit from the limitations and exclusions set out in this clause 13 in respect of any liability arising from its deliberate default.

14.3     Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

14.3.1     death or personal injury caused by negligence; and

14.3.2     fraud or fraudulent misrepresentation.

14.4     Subject to clause 13.3, the Supplier’s total liability to the Customer shall not exceed the amount paid by the Customer to the Supplier in the preceding 12 months of the Contract and the Supplier shall have no liability to the Customer for any losses, claims or damages arising out of any use by the Customer of any links in the software or any UGC.

14.5     Subject to clause 13.3, the Supplier shall have no liability for any of the types of loss listed in clause 13.5.1:

14.5.1     the following types of loss are wholly excluded:

14.5.1.1     loss of profits;

14.5.1.2     loss of sales or business;

14.5.1.3     loss of agreements or contracts;

14.5.1.4     loss of anticipated savings;

14.5.1.5     loss of use or corruption of software, data or information;

14.5.1.6     loss of or damage to goodwill; and

14.5.1.7     indirect or consequential loss.

14.6     Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event.  The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date.  The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

14.7     This clause 13 shall survive termination or expiry of the Contract.

15. Term

15.1     The term of the Contract be as set out in the Plan selected by the Customer in the Order (the Initial Term).

15.2     The Term of the Contract will automatically renew on a rolling basis (the Extended Term) upon the same terms and conditions, unless the Customer notifies the Supplier in writing at least 60 days prior to the end of the Term that it wishes to cancel the Contract at the end of the Term.

15.3     The Supplier shall be entitled to revise the Fee due for the Software for each Extended Term. The Supplier shall inform the Customer in writing of such revised Fees at least 30 days prior to the renewal of the Term.

16. Termination

16.1     The Supplier may terminate this Contract immediately at any time, and for any reason, upon giving the Customer written notice. 

16.2     Without affecting any other right or remedy available to it, the Supplier may terminate this Contract with immediate effect, and with no recourse to the Customer for any Fee which has been paid, by giving written notice to the Customer if:

16.2.1     the Supplier, in accordance with clause 6.7, reasonably removes any UGC uploaded by the Customer;

16.2.2     the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

16.2.3     the Customer commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

16.2.4     the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;

16.2.5     the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

16.2.6     a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer;

16.2.7     an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;

16.2.8     the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;

16.2.9     a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

16.2.10     a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;

16.2.11     any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject, or, if the Customer is an individual, such proceedings are taken against the Customer which have an effect equivalent or similar to any of the events mentioned in clause 15.2.3 to clause 15.2.9 (inclusive);

16.2.12there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).

16.3     On termination for any reason:

16.3.1     all rights granted to the Customer under this Contract shall cease;

16.3.2     the Customer shall cease all activities authorised by this Contract;

16.3.3     the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Contract; and

16.3.4     the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.

17. Consequences of termination

17.1     Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.  

17.2    Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

18. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).

19. General

Assignment and other dealings

19.1     The Supplier may at any time transfer, assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

19.2    The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

Notices

19.3     Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

19.4     Any notice shall be deemed to have been received:

19.4.1     if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

19.4.2 if sent sent by pre-paid first-class post or other next working day delivery service, at 9.00 a.m. on the second Business Day after posting or at the time recorded by the delivery service.

19.5     Clauses 18.3 and 18.4 do 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.

19.6     A notice given under the Contract in relation to any legal claim, action or other analogous proceedings is not valid if sent by email.

Severance

19.7     If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.  If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 18.7 shall not affect the validity and enforceability of the rest of the Contract.

Waiver

19.8     A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.  A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.  No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

No partnership or agency

19.9     Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

Entire agreement

19.10     The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  

19.11     Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

19.12     Nothing in this clause shall limit or exclude any liability for fraud.

Third party rights

19.13     Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

19.14     The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

Variation

19.15     Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

Governing law

19.16     The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

Jurisdiction

19.17     Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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