These are the terms on which You can use the services at PromotionalFings.co.uk (“the Website”) as provided by Fings Limited (“Fings”) of 8 Park View Drive, Chapel-en-le-Frith, High Peak, SK23 0LB.
If You wish to use the Website on the terms set out below, please click the “I accept” button below, to acknowledge acceptance of these terms. These terms will then govern the relationship between you and Fings and any use which You make of the Website.
If You do not accept the terms and conditions laid down in this Agreement, please do not use or subscribe to the Service.
NOW IT IS AGREED as follows:
1.DEFINITIONS AND CONSTRUCTION
- 1.1In this Agreement the following expressions shall apply (save where the context otherwise requires):
“Commencement Date”means the date selected via the Sign Up Form.
“Downtime” means a period during which there is total loss of the Services.
“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
“Free Version services based on a free version of the Software but with reduced usage parameters and without associated services as specified at www.promotionalfings.co.uk/pricing.
“Sign Up Form”means the section of the Website offering You various Services options www.promotionalfings.co.uk/prices
“Outage” means an instance of Downtime.
“Premium Versionpremiumservices comprising the Standard Option Services as well as the provision of storage space as specified in more detail at www.promotionalfings.co.uk/pricing
“Service Fee” means the fee of £25 per month for a single User or the fee of £40 per month for 2-5 Users which covers the provision of the Standard Service and is payable monthly in advance.
“Service Interruption”means a period during which there is partial loss of the Services.
“Service Levels”means the levels of performance to which the Services are to be provided to You by Fings as set out at www.promotionalfings.co.uk/prices
“Services” means the Lite Option, Standard Option or Premium Option services selected by You from the Sign Up Form.
“Software”means Fings’ proprietary software used to provide the Services.
“Standard Versionservices comprising the elements specified at www.promotionalfings.co.uk/pricing
“Term”means the effective term of this Agreement.
“User”means an individual user using a log-in to the Website provided by Fings.
“You”means the party which signifies acceptance of this Agreement by its representative inserting its details in the Sign Up Form and click-accepting this Agreement.
“Your Data”means all data processed by Fings or provided to Fings for processing on Your behalf or otherwise processed as part of the Services including, but not limited to personal data generated by the Website from visitor input.
“Your Equipment”means the hardware and software which You use in order to use and enable the Services to be provided in accordance with this Agreement.
- 2.PROVISION OF SERVICES AND LICENCES
- 2.1Fings agrees with effect from the Commencement Date in consideration of the payment of the Service Fee by You to supply the Services on a non-exclusive basis upon the terms and conditions of this Agreement.
- 2.2You acknowledge that Fings may at any time, and without notice, incorporate licence management software into the Software for the purposes of ensuring that User access rights are not exceeded.
This Agreement shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue on a month to month basis until terminated by either party giving to the other not less than 7 days’ notice in writing.
- 4.SERVICE FEE
- 4.1You undertake to pay the Service Fee for the Services and additional fees to Fings for any other services provided by Fings, such charges to be based on Fings’ then current charging rates.
- 4.2Fings shall send to You an invoice in respect of the Service Fee monthly in advance and this shall be paid using the payment details provided when completing the Sign Up Form unless Fings has subsequently been notified of a change by You.
- 4.3The £25 Service Fee covers a single User set out in the Sign Up Form, any increase in the number of Users will result in an increase to £40 per month on the standard version up to a maximum of 5 users.
- 4.4All invoices are payable within 7 days after the date thereof unless otherwise agreed in writing.
- 4.5Fings 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 Barclays Bank plc from the due date therefore until payment.
- 4.6Fings shall be entitled to increase the Service Fee with effect from each anniversary of the Commencement Date by giving at least 60 days’ prior written notice to You.
- 4.7All sums due under this Agreement are expressed exclusive of VAT but will be subject to VAT which will be payable by You.
- 5.OUTAGES, SERVICE INTERRUPTIONS AND CHANGES TO SERVICES
- 5.1Outages or Service Interruptions may be made by Fings when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. Fingswill use reasonable endeavours to minimise the Outages or Service Interruptions that may be caused by a change.
- 5.2If Outages or Service Interruptions are required under clause 6.1 (“Scheduled Interruptions”):
- 5.2.1Fings will endeavour to schedule Scheduled Interruptions so as to minimise impact on the Services and will notify You of the anticipated commencement time of the Scheduled Interruptions and its estimated duration.
- 5.3Customer requested interruptions (including, but not limited to, request for an application server to be re-booted) will be fulfilled but will not be considered a break in service for any purpose or give rise to any liability on the part of Fings. You are required to request such interruptions via Fings’ customer support ticket system.
- 6.WARRANTIES AND INDEMNITIES
- 6.1Fings warrants to and undertakes with You that:
- 6.1.1Fings will use its reasonable efforts to provide the Services and to exercise reasonable care and skill in accordance with the terms of this Agreement;
- 6.1.2Fings has full right power and authority to provide the Services to You in accordance with the terms of this Agreement; and
- 6.1.3Fings 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.
- 6.2Except for the express warranties set forth in this clause 7, the Services are provided on an “as is” basis, and Your use of the Services is at Your own risk. Fings 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. Fings does not warrant that the Services will be uninterrupted, error-free, or completely secure.
- 6.3Fings does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Fings will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Fings cannot guarantee that such events will not occur. Accordingly, Fings disclaims any and all liability resulting from or related to such events.
- 7.CUSTOMER OBLIGATIONS AND WARRANTIES
- 7.1You are required at all times during the term to maintain Your Equipment in good order and working condition.
- 7.2In the event that You are in breach of any of Your obligations under this Agreement, then:-
- 7.2.1Fings cannot be held responsible should the Services fail to comply with the Service Levelsas a result (directly or indirectly) of such Customer breach;
- 7.2.2Fings shall be entitled to charge You for staff time engaged on rectifying any resulting problems at Fings’ standard charge rates for the time being; and
- 7.2.3Fings may terminate or suspend support in relation to the Services without prejudice to any pre-existing rights and obligations of either party.
- 7.3You represent, warrant and undertake that:
- 7.3.1You have and shall during the Term have the legal right and authority to place and use and have used any of Your Equipment as contemplated under this Agreement;
- 7.3.2You will use the Services only for lawful purposes and in accordance with this Agreement; and
- 7.3.3any software, data, equipment or other materials provided by You to Fings or employed by You in Your use of or receipt of the Services shall not infringe any Intellectual Property Rights of any third party and shall 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 activity.
- 7.4You shall provide all such assistance, facilities and information to Fings as Fings may reasonably require in order to enable it to carry out its obligations under this Agreement.
- 7.5In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Fings will have the right to suspend immediately any related Services if deemed reasonably necessary by Fings to protect the proper interests of Fings or its other customers. If practicable and depending on the nature of the breach, Fings may (in its absolute discretion) give You an opportunity to cure. In such case once You have cured the breach, Fings will promptly restore the Service(s).
- 8.1Each party recognises that it is impossible to maintain flawless security but (where relevant) Fings shall take all reasonable steps to prevent security breaches in its servers\’ interaction with You and security breaches in its interaction with resources or users outside of any firewall that may be built into Fings’ servers.
- 8.2You are responsible for maintaining the confidentiality of any passwords which are required to access the Software and the Services and are solely responsible for any damage caused by any such unauthorised access.
- 9.LIMITATION OF LIABILITY
- 9.1Fings 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 You or on Your behalf or arising from any cause beyond Fings\’ reasonable control.
- 9.2Fings is not liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by You or for Your wasted management time, damage to Your data, any failure or inability to reconstitute data or recover lost or damaged data from storage, Your failure to make anticipated savings or any liability You may have to any third party arising in any way in connection with this Agreement or any maintenance or other agreement entered into between You and Fings 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.
- 9.3Fings shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:-
- 9.3.1interruptions to the flow of data to or from the internet;
- 9.3.2changes, updates or repairs to the network or software which it uses as a platform to provide the Services subject to Fingsstriving to minimise the interruptions/outages that may be caused by such change;
- 9.3.3the effects of the failure or interruption of services provided by third parties;
- 9.3.4factors outside of Fings’ reasonable control;
- 9.3.5any actions or omissions by You (including, without limitation, breach of Your obligations set out in this Agreement) or any third parties;
- 9.3.6problems with Your Equipment and/or third party equipment;
- 9.3.7interruptions to the Services requested by You.
- 9.4None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of Fings or its appointed agents.
- 9.5No matter how many claims are made and whatever the basis of such claims, Fings’ 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 10.1-10.3 above or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to £25,000.
- 9.6You 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 Service Fee has been calculated on the basis of the limitations and exclusions in this clause 10 and that You will effect insurance as is suitable having regard to Your particular circumstances and the terms of this clause 10.
- 10.INTELLECTUAL PROPERTY RIGHTS
- 10.1Without prejudice to Your rights in Your own materials, the parties hereby agree that You shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by Fings in connection with or related to the provision of the Services hereunder.
- 10.2Fings warrants that it has all necessary right, title and interest to enable You to benefit from the Services in accordance with this Agreement.
- 10.3You hereby grant to Fings:
- 10.3.1A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate Your Data for the provision of the Services; and
- 10.3.2A non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display Your trade marks for the purposes of the provision of the Services.
- 10.4Subject to any contrary provision in this Agreement, Fings undertakes only to use Your trade marks for the purpose of providing the Services.
- 11.1For the purposes of this clause 12, the following events shall be deemed “acts of default”:
- 11.1.1if You fail to pay any moneys due pursuant hereto within 7 days of the due date therefore;
- 11.1.2if a party commits any material breach of any term of this Agreement (other than one falling under clause 12.1.1 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;
- 11.1.3if a party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction.
- 11.2If You commit an act of default then Fings may:
- 11.2.1forthwith 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
- 11.2.2terminate this Agreement by notice in writing forthwith.
- 11.3If Fings commits an act of default then You may terminate this Agreement by notice in writing forthwith.
- 11.4Any 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.
- 11.5In the event of termination of this Agreement:-
- 11.5.1You agree promptly to pay to Fings all outstanding payments;
- 11.5.2Fings’ entitlement to use Your trademarks ceases immediately except as necessary for the provision of any post-termination services;
- 11.5.3Fings may in its sole discretion agree to provide any assistance reasonably requested by You in connection with the hand-over to a third party of any services provided by Fings hereunder, and You shall pay Fings in accordance with its then current standard rates for any such assistance.
- 11.6Termination 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 YOUR DATA
- 12.1Each of the parties hereby undertakes with the other to:
- 12.1.1keep confidential all Confidential Information;
- 12.1.2not without the other party’s written consent disclose its data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision or receipt of the Services and who have, and to the extent that they have, a need to know the same; and
- 12.2The provisions of clause 13.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
- 12.2.1trivial or obvious;
- 12.2.2already in the other’s possession without duty of confidentiality on the date of its disclosure;
- 12.2.3in the public domain other than as a result of a breach of this clause; or
- 12.2.4to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the party required to make such disclosure shall use reasonable endeavours to notify the other party of such requirement prior to making the disclosure.
- 12.3Each party hereby undertakes to the other to make all relevant employees agents and sub‑contractors aware of the confidentiality of the Information and the provisions of this clause 13.
- 12.4For the avoidance of doubt, all Your Data shall remain at all times Your excusive property and may only be used by Fings in order to fulfil its obligations pursuant hereto.
- 12.5Fings reserves the right to use all or part of any program, services or materials produced for or acquired on behalf of You for demonstrating its expertise to potential clients, subject always to the provisions of this clause 13
- 13.FORCE MAJEURE
- 13.1Neither 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.
- 13.2Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
- 13.3If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre‑existing rights or obligations of either party.
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 to be confirmed by letter posted within 12 hours) to the 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.
- 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
- 17.1Subject to clause 18.2, this written Agreement (including the Sign Up Form) constitute 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 18.1 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 except to the extent (if any) that a court, arbitrator or expert appointed under clause 22 may allow reliance on the same as being fair and reasonable.
- 17.2No 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 binding upon and enure for the benefit of the successors in title of the parties hereto.
You shall not be entitled to assign this Agreement nor all or any of Your rights and obligations hereunder.
Fings shall be entitled to sub‑contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
- 21.1All disputes or differences which shall at any time hereafter arise between Fings and You in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Fings and You shall jointly nominate.
- 21.2If Fings and You shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated at the request of either Fings or You by the President for the time being of the British Computer Society.
- 21.3The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon Fings and You.
This Agreement shall be governed by and construed in accordance with English law and (subject always to clause 22) the parties submit to the exclusive jurisdiction of the courts of England and Wales.