IMAGENCLOUD TERMS AND CONDITIONS OF SERVICE
THESE TERMS AND CONDITIONS GOVERNS YOUR USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THESE TERMS AND CONDITIONS WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THESE TERMS AND CONDITIONS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS, YOU AGREE TO BE LEGALLY BOUND BY THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND CONDITIONS AND MAY NOT USE OUR SERVICES.
These terms and conditions were last updated on October 31st, 2015.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Documentation" means Our online user guides, specifications, documentation, and help and training materials, as We may update from time to time, accessible via www.imagenevp.com or login to the applicable Service.
"Malicious Code" means any code, file or other device which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
"Order Form" means an ordering document, whether in hard copy or in electronic form, specifying the Services to be provided by Us to You that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form that references these terms and conditions, an Affiliate agrees to be bound by these terms and conditions.
"Party" means You or Us.
"Purchased Services" means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
"Services" means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components.
"User " means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means Imagen Ltd a company registered in England under number No. 3155233, whose registered office is at Grange Court, Covent Garden, Willingham, Cambridge CB24 5AH
"You" or "Your" means the company or other legal entity for which You are accepting these terms and conditions, and Affiliates of that company or entity.
"Your Data" means electronic data and information submitted by or on behalf of You to the Services or collected and processed by or on behalf of You using the Services.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on an "as is", trial basis free of charge, in consideration of You agreeing to abide by these terms and conditions, until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service ordered by You for such Service(s), unless we terminate your free trial early in accordance with these terms and conditions. Additional trial terms may be made available at Our sole discretion.
ALL OF YOUR DATA, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
Please review the Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. OUR RESPONSIBILITIES
3.1 Provision of Purchased Services. We will (a) make the Purchased Services available to You in accordance with these terms and conditions and the applicable Order Forms, (b) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased (in either case in accordance with the service levels that we may publish on our website and update from time to time), and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday GMT), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), failure of a utility or transport or telecommunications network, default or negligence of a supplier, subcontractor, or other third party, malicious damage, or denial of service attack.
3.2 Protection of Your Data. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as may be described in the Documentation. However, it is your responsibility to make back-ups of Your Data and We shall have no responsibility or liability for any loss or corruption of Your Data.
3.3 Upgrades, updates, patches and new versions. We may from time to time release upgrades, updates, patches and new versions of our Services. We will use reasonable endeavours to ensure that any such releases do not materially affect the functionality of the previous release (unless otherwise specified in the applicable Documentation) and we will use reasonable endeavours when implementing a new release to ensure that minimal disruption is caused to existing Services. If any issues arise, we will use reasonable endeavours to correct them and/or to provide a workaround within a reasonable timeframe. It is Your responsibility to ensure that You are using up-to-date browser and other software and hardware. If You do not do so, You may not be able to benefit from the full functionality of Our Services.
3.4 Undertaking. We undertake that our Services will be performed materially in accordance with the Documentation and with reasonable skill and care. This undertaking shall not apply to the extent of any non-conformance which is caused by any use of the Services contrary to Our instructions (whether set out in the Documentation or otherwise notified or communicated to You), 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 the foregoing undertaking, We shall, at our expense, use reasonable commercial endeavours to correct any such non-conformance or provide You with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Your sole and exclusive remedy for any breach of the undertaking set out above. Notwithstanding the foregoing, We do not warrant that Your use of the Services will be uninterrupted or error free, or that the Services or Documentation will meet Your Requirements, and We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. USE OF SERVICE
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, Services are purchased as subscriptions.
4.2 Usage Limits. Your subscription entitles You to the specified level of storage and bandwidth per billing period. You will incur additional charges for usage which exceeds such specified level of storage and bandwidth in line with the pricing guide effective at the time (plus a reasonable charge that we may levy in respect of our administrative costs relating to any such overuse). Restrictions can be placed on Your service, You are required to notify Us in writing requesting a limit to the volume of storage or bandwidth which Your subscription consumes in any given subscription period.
4.3 Your Responsibilities. You will (a) be responsible for Users' compliance with these terms and conditions, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with the Documentation and applicable laws and government regulations, (e) provide Us with all necessary co-operation and all necessary access to such information as We may request from time to time in order to provide the Services, (f) ensure that your network and systems comply with the relevant specifications or requirements provided by Us from time to time (whether in the Documentation or otherwise), and (g) be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to the Services, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
4.4 Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, or use any Service otherwise than for Your own internal business purposes (c) use a Service to store or transmit offensive, infringing, libellous, or otherwise unlawful or tortious material, or to upload, store or transmit material in violation of third-party rights, or in any way that fails to comply with any acceptable use policy or requirements that we may publish on our website and/or within the Services from time to time (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) copy a Service or any part, feature, function, 'look and feel', or user interface thereof, (h) copy the Documentation (in whole or in part), (i) access any Service in order to build a competitive product or service, or (j) reverse engineer any Service (unless and to the extent permitted by law). You shall indemnify Us from and against all liabilities, losses, damages, costs and expenses suffered or incurred by Us as a result of or in connection with any claim or allegation that Your Data infringes the rights of a third party and/or otherwise fails to comply with sub-clause 4.4(c) above.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1 Fees. You will pay all fees specified in these terms and conditions, in Order Forms and/or on our website (as the case may be). Except as otherwise specified herein or in an Order Form, (i) fees are based on Your base package and any additional usage which exceeds the data storage or bandwidth limits of Your base package, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) base package purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at a rate of 5% per annum over the Lloyds Bank base rate.
5.4 Suspension of Service and Acceleration. If any amount owing by You for any Services is 30 or more days overdue We may, without limiting Our other rights, suspend all Services to You until such amounts are paid in full. We will give You at least 7 days' prior notice that Your account is overdue, before suspending Services to You.
5.5 Legal Fees. You will pay on demand all of Our reasonable legal and attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).
5.6 Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6.1 Each Party undertakes that, except as provided by sub-Clause 6.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of Your subscription and for 3 months after its termination:
6.1.1 keep confidential all Confidential Information;
6.1.2 not disclose any Confidential Information to any other party;
6.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to these terms and conditions;
6.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
6.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 6.1.1 to 6.1.4 above.
6.2 Either Party may:
6.2.1 disclose any Confidential Information to:
a) any sub-contractor or supplier of that Party;
b) any governmental or other authority or regulatory body; or
c) any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by these terms and conditions, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 18.104.22.168 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 6, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
6.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of You accepting these terms and conditions, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
6.3 The provisions of this Clause 6 shall continue in force in accordance with their terms, notwithstanding the termination of your subscription for any reason.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 We will not acquire ownership of any Intellectual Property Rights subsisting in any material belonging to You which You may, from time to time, require Us to host or store in the course of providing the Services.
7.2 You agree to fully indemnify Us against any and all costs, expenses, liabilities, losses, damages, claims and judgments that We may incur or be subject to as a result of the infringement of any Intellectual Property Rights belonging to any third party arising out of Your failure to obtain the necessary rights and permissions from third parties in relation to any material (or Intellectual Property Rights) owned by such third parties and/or Your uploading to, or use of Your Data with, Our Services.
8. TERM AND TERMINATION
8.1 Term of any free trial. Your free trial commences on the date You first accept these terms and conditions and continues for the period set out in clause 2 above.
8.2 Term of Purchased Services. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 5% of the pricing for the applicable Purchased Service or Content in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time.
8.3 Either Party may terminate the provision of a Service by giving to the other not less than 30 days written notice.
8.4 Either Party may forthwith terminate the provision of a Service by giving written notice to the other Party if:
a) any sum owing to that Party by the other Party under any of the provisions of these terms and conditions is not paid within 30 days of the due date for payment;
b) the other Party commits any other material or persistent breach of any of the provisions of these terms and conditions and, if the breach is capable of remedy, fails to remedy it within 10 working days after being given written notice giving full particulars of the breach and requiring it to be remedied;
c) an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
d) the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
e) the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under these terms and conditions);
f) anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
g) the other Party ceases, or threatens to cease, to carry on business; or
h) control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of commencement of the Service. For the purposes of this Clause 8, "control" and "connected persons" shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
8.5 If the provision of a Service is terminated by You in accordance with Section 8.4, We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If the provision of a Service is terminated by Us in accordance with Section 8.4, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.6 Upon request by You made within 30 days after the effective date of termination or expiration of the provision of a Service, We will use reasonable endeavours to make Your Data available to You for export or download as may be provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control.
8.7 A Party's right to terminate the provision of a Service given by this Clause 8 shall not prejudice any other right or remedy of that Party in respect of the breach concerned (if any) or any other breach.
9. POST-TERMINATION PROVISIONS
Upon the termination of the provision of a Service for any reason:
9.1 any sum owing by either Party to the other Party under any of the provisions of these terms and conditions shall become immediately due and payable;
9.2 any rights or obligations to which any of the Parties may be entitled or be subject before its termination shall remain in full force and effect where they are expressly stated to survive such termination; for the avoidance of doubt clauses 6, 7, 9 and 15 shall survive termination;
9.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of these terms and conditions which existed at or before the date of termination;
9.4 subject as provided in this Clause 9, and except in respect of any accrued rights, neither Party shall be under any further obligation to the other;
9.5 We may forthwith remove any and all information belonging to and pertaining to You from Our computer systems (subject to clause 8.6 above); and
9.6 each Party shall (except to the extent referred to in Clause 6) forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other Party any documents in its possession or control which contain or record any Confidential Information.
10. LIABILITY AND INDEMNITY
10.1 This clause 10 sets out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents and sub-contractors) to You:
(a) arising under or in connection with these terms and conditions;
(b) in respect of any use made by You of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms and conditions.
10.2 Except as expressly and specifically provided in these terms and conditions:
(a) You assume sole responsibility for results obtained from the use of the Services and the Documentation by You, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Services, or any actions taken by Us at Your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms and conditions; and
(c) the Services and the Documentation are provided to You on an "as is" basis.
10.3 Nothing in these terms and conditions excludes Our liability:
(a) for death or personal injury caused by the Our negligence; or
(b) for fraud or fraudulent misrepresentation.
10.4 Subject to clause 10.2 and clause 10.3:
(a) We shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits or anticipated savings, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms and conditions; and
(b) Our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with these terms and conditions and/or the performance or contemplated performance of the Services shall be limited to the total amounts paid by You to Us during the 12 months immediately preceding the date on which the claim arose.
11. FORCE MAJURE
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, or any other event that is beyond the control of the Party in question.
11.1 Nature of the agreement between the Parties
11.2 You may not assign, mortgage, or charge any of Your rights under these terms and conditions, or sub-contract or otherwise delegate any of Your obligations hereunder, except with Our prior written consent, such consent not to be unreasonably withheld. We may assign, mortgage, or charge any of Our rights under these terms and conditions, or sub-contract or otherwise delegate any of Our obligations hereunder, without Your prior written consent.
11.3 These terms and conditions, together with the documents referred to in them, contain the entire agreement between the Parties with respect to its subject matter. We may update these terms and conditions from time to time, and any new subscriptions and/or Services you subsequently purchase from us will be governed by the updated terms.
11.4 Each Party acknowledges that, in entering into an agreement pursuant to these terms and conditions, it does not rely on any representation, warranty or other provision except as expressly provided in these terms and conditions, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.5 No failure or delay by either Party in exercising any of its rights under these terms and conditions shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of these terms and conditions shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
11.6 At any time each of the Parties shall, at the request and cost of the other Party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the Party so requiring may reasonably require for the purpose of giving to the Party so requiring the full benefit of all the provisions of these terms and conditions.
The Parties agree that, in the event that one or more of the provisions of these terms and conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these terms and conditions. The remainder of these terms and conditions shall be valid and enforceable.
13. RELATIONSHIP OF PARTIES
13.1 Nothing in these terms and conditions shall constitute, or be deemed to constitute a partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute an agency of any other party for any purpose.
13.2 Subject to any express provisions to the contrary in these terms and conditions, We shall have no right or authority to, and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of You or bind You in any way.
14.1 All notices under these terms and conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
14.2 Notices shall be deemed to have been duly given:
a) when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
15. LAW AND JURISTICTION
15.1 These terms and conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
15.2 Each party irrevocably agrees for Our sole benefit that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with these terms and conditions or their subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit Our right to take proceedings against You in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.