Astute Graphics Limited Astui service terms and conditions
Terms and Conditions
Please read these Terms and Conditions carefully. All contracts
that
the Provider may enter into from time to time for the provision of the Hosted Services shall be
governed by these Terms and Conditions, and the Provider will ask the Customer for the
Customer's
express written acceptance of these Terms and Conditions before providing any such services to
the
Customer.
Definitions
Except to the extent expressly provided otherwise, in these Terms and
Conditions:
"Account" means an account enabling a person to access
and
use the Hosted Services, including both administrator accounts and user accounts;
"Agreement" means a contract made under these Terms and
Conditions between the Provider and the Customer;
"Business Day" means any weekday other than a bank or
public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00
GMT/BST
on a Business Day;
"Charges" means the amounts specified in Great British
Pounds Sterling as at the Effective Date;
"Customer" means the person or entity identified as
such in
the Services Order Form;
"Customer Data" means all data, works and materials:
uploaded to or stored on the Platform by the Customer; transmitted by the Platform at
the
instigation of the Customer; supplied by the Customer to the Provider for uploading to,
transmission by or storage on the Platform; or generated by the Platform as a result of
the
use of the Hosted Services by the Customer (but excluding analytics data relating to
the
use of the Platform and server log files);
"Customer Personal Data" means any Personal Data that
is
processed by the Provider on behalf of the Customer in relation to the Agreement;
"Data Protection Laws" means all applicable laws
relating
to the processing of Personal Data including, while it is in force and applicable to
Customer Personal Data, the General Data Protection Regulation (Regulation (EU)
2016/679);
"Effective Date" means following the Customer
completing
and submitting the online Services Order Form published by the Provider on the
Provider's
website, the date upon which the Provider sends to the Customer an order confirmation;
"Force Majeure Event" means an event, or a series of
related events, that is outside the reasonable control of the party affected (including
failures of the internet or any public telecommunications network, hacker attacks,
denial
of service attacks, virus or other malicious software attacks or infections, power
failures, industrial disputes affecting any third party, changes to the law, disasters,
explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means Astui, which will be made
available
by the Provider to each Customer as a service via the internet in accordance with these
Terms and Conditions;
"Intellectual Property Rights" means all intellectual
property rights wherever in the world, whether registrable or unregistrable, registered
or
unregistered, including any application or right of application for such rights (and
these
"intellectual property rights" include copyright and related rights, database rights,
confidential information, trade secrets, know-how, business names, trade names, trade
marks, service marks, passing off rights, unfair competition rights, patents, petty
patents, utility models, semi-conductor topography rights and rights in designs);
"Personal Data" has the meaning given to it in the Data
Protection Laws applicable in the United Kingdom from time to time;
"Platform" means the platform managed by the Provider
and
used by the Provider to provide the Hosted Services;
"Provider" means Astute Graphics Limited , a company
incorporated in England and Wales (registration number 06465495) having its registered
office at Penn House, 9-10 Broad Street, Hereford, Herefordshire, UK ;
"Services" means any services that the Provider
provides to
the Customer, or has an obligation to provide to the Customer, under these Terms and
Conditions;
"Services Order Form" means an online order form
published
by the Provider and completed and submitted by the Customer incorporating these Terms
and
Conditions by reference;
"Support Services" means support in relation to the use
of,
and the identification and resolution of errors in, the Hosted Services, but shall not
include the provision of training services;
"Term" means the term of the Agreement, commencing in
accordance with Clause 2.1 and ending in accordance with Clause 2.2; and
"Terms and Conditions" means all the documentation
containing the provisions of the Agreement, namely the main body of these Terms and
Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that
documentation from time to time.
Term
The Agreement shall come into force upon the Effective Date.
The Agreement shall continue in force indefinitely, subject to
termination in accordance with Clause 15.
Unless the parties expressly agree otherwise in writing, each
Services
Order Form shall create a distinct contract under these Terms and Conditions.
Hosted Services
The Provider hereby grants to the Customer a non-exclusive licence to
use
the Hosted Services during the Term.
Except to the extent expressly permitted in these Terms and
Conditions or
required by law on a non-excludable basis, the licence granted by the Provider to the Customer
under Clause 3.1 is subject to the following prohibitions:
the Customer must not sub-license its right to access and use the Hosted Services;
the Customer must not permit any unauthorised person to access or use the Hosted
Services;
and
the Customer must not conduct or request that any other person conduct any load testing
or
penetration testing on the Platform or Hosted Services without the prior written
consent of
the Provider.
The Customer shall use reasonable endeavours, including reasonable
security measures relating to Account access details, to ensure that no unauthorised person may
gain access to the Hosted Services using an Account.
The Provider shall use reasonable endeavours to maintain the
availability
of the Hosted Services to the Customer at the gateway between the public internet and the
network
of the hosting services provider for the Hosted Services, but does not guarantee 100%
availability.
The Customer must comply with Schedule 1 (Acceptable Use Policy), and
must ensure that all persons using the Hosted Services with the authority of the Customer or by
means of an Account comply with Schedule 1 (Acceptable Use Policy).
The Customer must not use the Hosted Services in any way that causes,
or
may cause, damage to the Hosted Services or Platform or impairment of the availability or
accessibility of the Hosted Services.
The Customer must not use the Hosted Services:
in any way that is unlawful, illegal, fraudulent or harmful; or
in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
For the avoidance of doubt, the Customer has no right to access the
software code (including object code, intermediate code and source code) of the Platform,
either
during or after the Term.
The Provider may suspend the provision of the Hosted Services if any
amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the
Provider has given to the Customer at least 3 days' written notice, following the amount
becoming
overdue, of its intention to suspend the Hosted Services on this basis.
Customer Data
The Customer hereby grants to the Provider a non-exclusive licence to
copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer
Data to
the extent reasonably required for the performance of the Provider's obligations and the
exercise
of the Provider's rights under the Agreement. The Customer also grants to the Provider the
right to
sub-license these rights to its hosting, connectivity and telecommunications service providers,
subject to any express restrictions elsewhere in the Agreement.
The Customer warrants to the Provider that the Customer Data will not
infringe the Intellectual Property Rights or other legal rights of any person, and will not
breach
the provisions of any law, statute or regulation, in any jurisdiction and under any applicable
law.
Support Services
The Provider may provide the Support Services to the Customer during
the
Term, but shall have no obligation to do so; any such Support Services shall be subject to this
Clause 5.
The Provider may make available to the Customer an email-based
helpdesk.
The Provider shall provide the Support Services with reasonable skill
and
care.
No assignment of Intellectual Property Rights
Nothing in these Terms and Conditions shall operate to assign or
transfer
any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the
Provider.
Charges
The Customer shall pay the Charges to the Provider in accordance with
these Terms and Conditions.
All amounts stated in or in relation to these Terms and Conditions
are,
unless the context requires otherwise, stated exclusive of any applicable value added taxes,
which
will be added to those amounts and payable by the Customer to the Provider.
The Provider may elect to vary any element of the Charges by giving
to
the Customer not less than 30 days' written notice of the variation.
Payments
The Customer must pay the Charges to the Provider in advance of the
period to which they relate.
If the Customer does not pay any amount properly due to the Provider
under these Terms and Conditions, the Provider may:
charge the Customer interest on the overdue amount at the rate of 8% per annum above
the
Bank of England base rate from time to time (which interest will accrue daily until the
date of actual payment and be compounded at the end of each calendar month); or
claim interest and statutory compensation from the Customer pursuant to the Late
Payment of
Commercial Debts (Interest) Act 1998.
Distance contracts: cancellation right
This Clause 9 applies if and only if the Customer enters into the
Agreement with the Provider as a consumer - that is, as an individual acting wholly or mainly
outside the Customer's trade, business, craft or profession - where the Agreement is a distance
contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional
Charges) Regulations 2013.
The Customer may withdraw an offer to enter into the Agreement with
the
Provider at any time; and the Customer may cancel the Agreement entered into with the Provider
at
any time within the period:
beginning when the Agreement was entered into; and
ending at the end of 14 days after the day on which the Agreement was entered into,
subject to Clause 9.3. The Customer does not have to give any reason for the withdrawal or
cancellation.
The Customer agrees that the Provider may begin the provision of
services
before the expiry of the period referred to in Clause 9.2, and the Customer acknowledges that,
if
the Provider does begin the provision of services before the end of that period, then:
if the services are fully performed, the Customer will lose the right to cancel
referred to
in Clause 9.2; and
if the services are partially performed at the time of cancellation, the Customer must
pay
to the Provider an amount proportional to the services supplied or the Provider may
deduct
such amount from any refund due to the Customer in accordance with this Clause 9.
In order to withdraw an offer to enter into the Agreement or cancel
the
Agreement on the basis described in this Clause 9, the Customer must inform the Provider of the
Customer's decision to withdraw or cancel (as the case may be). The Customer may inform the
Provider by means of any clear statement setting out the decision. In the case of cancellation,
the
Customer may inform the Provider using the cancellation form that the Provider will make
available
to the Customer. To meet the cancellation deadline, it is sufficient for the Customer to send
its
communication concerning the exercise of the right to cancel before the cancellation period has
expired.
If the Customer withdraws an offer to enter into the Agreement, or
cancels the Agreement, on the basis described in this Clause 9, the Customer will receive a
full
refund of any amount the Customer paid to the Provider in respect of the Agreement, except as
specified in this Clause 9.
The Provider will refund money using the same method used to make the
payment, unless the Customer has expressly agreed otherwise. In any case, the Customer will not
incur any fees as a result of the refund.
The Provider will process the refund due to the Customer as a result
of a
cancellation on the basis described in this Clause 9 without undue delay and, in any case,
within
the period of 14 days after the day on which the Provider is informed of the cancellation.
Data protection
The Provider shall comply with the Data Protection Laws with respect
to
the processing of the Customer Personal Data.
The Customer warrants to the Provider that it has the legal right to
disclose all Personal Data that it does in fact disclose to the Provider under or in connection
with the Agreement.
The Customer shall only supply to the Provider, and the Provider
shall
only process, in each case under or in relation to the Agreement, the Personal Data of
identification, payment, security and service use of the following types: Customer name,
email
address, postal address in relation to payment sources, payment card informtion, password, IP
address used to access the Service, analytics in relation to the use of the Service ; and
the
Provider shall only process the Customer Personal Data for the following purposes: user account
creation and acccess, ensure security of the Service and its users, collect payment, provide
suppport, monitor Service performance, continuously improve the service. .
The Provider shall only process the Customer Personal Data during the
Term and for not more than 30 days following the end of the Term, subject to the other
provisions
of this Clause 10.
The Provider shall only process the Customer Personal Data on the
documented instructions of the Customer (including with regard to transfers of the Customer
Personal Data to any place outside the European Economic Area).
Notwithstanding any other provision of these Terms and Conditions,
the
Provider may process the Customer Personal Data if and to the extent that the Provider is
required
to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal
requirement before processing, unless that law prohibits such information.
The Provider shall ensure that persons authorised to process the
Customer
Personal Data have committed themselves to confidentiality or are under an appropriate
statutory
obligation of confidentiality.
The Provider and the Customer shall each implement appropriate
technical
and organisational measures to ensure an appropriate level of security for the Customer
Personal
Data.
The Provider must not engage any third party to process the Customer
Personal Data without the prior specific or general written authorisation of the Customer. In
the
case of a general written authorisation, the Provider shall inform the Customer at least 14
days in
advance of any intended changes concerning the addition or replacement of any third party
processor, and if the Customer objects to any such changes before their implementation, then
the
Customer may terminate the Agreement on 7 days' written notice to the Provider, providing that
such
notice must be given within the period of 7 days following the date that the Provider informed
the
Customer of the intended changes. The Provider shall ensure that each third party processor is
subject to equivalent legal obligations as those imposed on the Provider by this Clause 10.
As at the Effective Date, the Provider is hereby authorised by the
Customer to engage, as sub-processors with respect to Customer Personal Data, the following
third
parties: Amazon Web Services, Stripe, MailChimp, Google .
The Provider shall, insofar as possible and taking into account the
nature of the processing, take appropriate technical and organisational measures to assist the
Customer with the fulfilment of the Customer's obligation to respond to requests exercising a
data
subject's rights under the Data Protection Laws.
The Provider shall assist the Customer in ensuring compliance with
the
obligations relating to the security of processing of personal data, the notification of
personal
data breaches to the supervisory authority, the communication of personal data breaches to the
data
subject, data protection impact assessments and prior consultation in relation to high-risk
processing under the Data Protection Laws. The Provider shall report any Personal Data breach
relating to the Customer Personal Data to the Customer within 24 hours following the Provider
becoming aware of the breach.
The Provider shall make available to the Customer all information
necessary to demonstrate the compliance of the Provider with its obligations under this Clause
10
and the Data Protection Laws.
The Provider shall, at the choice of the Customer, delete or return
all
of the Customer Personal Data to the Customer after the provision of services relating to the
processing, and shall delete existing copies save to the extent that applicable law requires
storage of the relevant Personal Data.
The Provider shall allow for and contribute to audits, including
inspections, conducted by the Customer or another auditor mandated by the Customer in respect
of
the compliance of the Provider's processing of Customer Personal Data with the Data Protection
Laws
and this Clause 10. The Provider may charge the Customer at its standard time-based charging
rates
for any work performed by the Provider at the request of the Customer pursuant to this Clause
10.15.
If any changes or prospective changes to the Data Protection Laws
result
or will result in one or both parties not complying with the Data Protection Laws in relation
to
processing of Personal Data carried out under these Terms and Conditions, then the parties
shall
use their best endeavours promptly to agree such variations to these Terms and Conditions as
may be
necessary to remedy such non-compliance.
Warranties
The Customer warrants to the Provider that it has the legal right and
authority to enter into the Agreement and to perform its obligations under these Terms and
Conditions.
All of the parties' warranties and representations in respect of the
subject matter of the Agreement are expressly set out in these Terms and Conditions. To the
maximum
extent permitted by applicable law, no other warranties or representations concerning the
subject
matter of the Agreement will be implied into the Agreement or any related contract.
Acknowledgements and warranty limitations
The Customer acknowledges that complex software is never wholly free
from
defects, errors and bugs; and subject to the other provisions of these Terms and Conditions,
the
Provider gives no warranty or representation that the Hosted Services will be wholly free from
defects, errors and bugs.
The Customer acknowledges that complex software is never entirely
free
from security vulnerabilities; and subject to the other provisions of these Terms and
Conditions,
the Provider gives no warranty or representation that the Hosted Services will be entirely
secure.
Limitations and exclusions of liability
Nothing in these Terms and Conditions will:
limit or exclude any liability for death or personal injury resulting from negligence;
limit or exclude any liability for fraud or fraudulent misrepresentation;
limit any liabilities in any way that is not permitted under applicable law; or
exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party's statutory rights will not be excluded or
limited
by these Terms and Conditions, except to the extent permitted by law.
The limitations and exclusions of liability set out in this Clause 13
and
elsewhere in these Terms and Conditions:
are subject to Clause 13.1; and
govern all liabilities arising under these Terms and Conditions or relating to the
subject
matter of these Terms and Conditions, including liabilities arising in contract, in
tort
(including negligence) and for breach of statutory duty, except to the extent expressly
provided otherwise in these Terms and Conditions.
The Provider will not be liable to the Customer in respect of any
losses
arising out of a Force Majeure Event.
The Provider will not be liable to the Customer in respect of any
loss of
profits or anticipated savings.
The Provider will not be liable to the Customer in respect of any
loss of
revenue or income.
The Provider will not be liable to the Customer in respect of any
loss of
business, contracts or opportunities.
The Provider will not be liable to the Customer in respect of any
loss or
corruption of any data, database or software.
The Provider will not be liable to the Customer in respect of any
special, indirect or consequential loss or damage.
Force Majeure Event
If a Force Majeure Event gives rise to a failure or delay in either
party
performing any obligation under the Agreement, that obligation will be suspended for the
duration
of the Force Majeure Event.
Termination
Either party may terminate the Agreement by giving to the other party
at
least 3 days' written notice of termination.
Either party may terminate the Agreement immediately by giving
written
notice of termination to the other party if the other party commits a material breach of these
Terms and Conditions.
Either party may terminate the Agreement immediately by giving
written
notice of termination to the other party if:
the other party:
is dissolved;
ceases to conduct all (or substantially all) of its business;
is or becomes unable to pay its debts as they fall due;
is or becomes insolvent or is declared insolvent; or
convenes a meeting or makes or proposes to make any arrangement or composition
with
its creditors;
an administrator, administrative receiver, liquidator, receiver, trustee, manager or
similar is appointed over any of the assets of the other party; or
an order is made for the winding up of the other party, or the other party passes a
resolution for its winding up (other than for the purpose of a solvent company
reorganisation where the resulting entity will assume all the obligations of the other
party under the Agreement).
Effects of termination
Upon the termination of the Agreement, all of the provisions of these
Terms and Conditions shall cease to have effect, save that the following provisions of these
Terms
and Conditions shall survive and continue to have effect (in accordance with their express
terms or
otherwise indefinitely): Clauses 1, 3.8, 8, 13, 16, 18 and 19.
Except to the extent that these Terms and Conditions expressly
provides
otherwise, the termination of the Agreement shall not affect the accrued rights of either
party.
Notices
Any notice from one party to the other party under these Terms and
Conditions must be given by one of the following methods:
sent by email to the relevant email address specified through the Hosted Services, in
which
case the notice shall be deemed to be received upon receipt of the email by the
recipient's
email server; or
sent using the contractual notice mechanism incorporated into the Hosted Services, in
which
case the notice shall be deemed to be received upon dispatch,
providing that, if the stated time of deemed receipt is not within Business Hours, then
the
time of deemed receipt shall be when Business Hours next begin after the stated time.
General
No breach of any provision of the Agreement shall be waived except
with
the express written consent of the party not in breach.
If any provision of the Agreement is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement
will
continue in effect. If any unlawful and/or unenforceable provision would be lawful or
enforceable
if part of it were deleted, that part will be deemed to be deleted, and the rest of the
provision
will continue in effect (unless that would contradict the clear intention of the parties, in
which
case the entirety of the relevant provision will be deemed to be deleted).
The Provider may vary the Agreement by giving to the Customer at
least 30
days' written notice of the variation. Subject to this, the Agreement may only be varied by a
written document signed by or on behalf of each of the parties.
The Customer hereby agrees that the Provider may assign the
Provider's
contractual rights and obligations under the Agreement to any successor to all or a substantial
part of the business of the Provider from time to time - providing that such action does not
serve
to reduce the guarantees benefiting the Customer under the Agreement. The Customer must not
without
the prior written consent of the Provider assign, transfer or otherwise deal with any of the
Customer's contractual rights or obligations under the Agreement.
The Agreement is made for the benefit of the parties, and is not
intended
to benefit any third party or be enforceable by any third party. The rights of the parties to
terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating
to
the Agreement are not subject to the consent of any third party.
Subject to Clause 13.1, a Services Order Form, together with these
Terms
and Conditions and any Schedules, shall constitute the entire agreement between the parties in
relation to the subject matter of that Services Order Form, and shall supersede all previous
agreements, arrangements and understandings between the parties in respect of that subject
matter.
The Agreement shall be governed by and construed in accordance with
English law.
The courts of England shall have exclusive jurisdiction to adjudicate
any
dispute arising under or in connection with the Agreement.
Interpretation
In these Terms and Conditions, a reference to a statute or statutory
provision includes a reference to:
that statute or statutory provision as modified, consolidated and/or re-enacted from
time
to time; and
any subordinate legislation made under that statute or statutory provision.
The Clause headings do not affect the interpretation of these Terms
and
Conditions.
References in these Terms and Conditions to "calendar months" are to
the
12 named periods (January, February and so on) into which a year is divided.
In these Terms and Conditions, general words shall not be given a
restrictive interpretation by reason of being preceded or followed by words indicating a
particular
class of acts, matters or things.
Schedule 1 (Acceptable Use Policy)
Introduction
This acceptable use policy (the "Policy") sets out the
rules
governing:
the use of the website at astui.tech, any successor website, and the services available
on
that website or any successor website (the "Services"); and
the transmission, storage and processing of content by you, or by any person on your
behalf, using the Services ("Content").
References in this Policy to "you" are to any customer for the
Services
and any individual user of the Services (and "your" should be construed accordingly); and
references in this Policy to "us" are to Astute Graphics Limited (and "we" and "our" should
be
construed accordingly).
By using the Services, you agree to the rules set out in this Policy.
We will ask for your express agreement to the terms of this Policy
before
you upload or submit any Content or otherwise use the Services.
General usage rules
You must not use the Services in any way that causes, or may cause,
damage to the Services or impairment of the availability or accessibility of the Services.
You must not use the Services:
in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or
activity.
You must ensure that all Content complies with the provisions of this
Policy.
Unlawful Content
Content must not be illegal or unlawful, must not infringe any
person's
legal rights, and must not be capable of giving rise to legal action against any person (in
each
case in any jurisdiction and under any applicable law).
Content, and the use of Content by us in any manner licensed or
otherwise
authorised by you, must not:
infringe any copyright, moral right, database right, trade mark right, design right,
right
in passing off, or other intellectual property right;
be in contempt of any court, or in breach of any court order;
constitute a breach of racial or religious hatred or discrimination legislation;
constitute a breach of official secrets legislation; or
constitute a breach of any contractual obligation owed to any person.
You must ensure that Content is not and has never been the subject of
any
threatened or actual legal proceedings or other similar complaint.
Graphic material
Content must be appropriate for all persons who have access to or are
likely to access the Content in question, and in particular for children over 12 years of age.
Monitoring
You acknowledge that we may actively monitor the Content and the use
of
the Services.
Data mining
You must not conduct any systematic or automated data scraping, data
mining, data extraction or data harvesting, or other systematic or automated data collection
activity, by means of or in relation to the Services.
Harmful software
The Content must not contain or consist of, and you must not promote,
distribute or execute by means of the Services, any viruses, worms, spyware, adware or other
harmful or malicious software, programs, routines, applications or technologies.
The Content must not contain or consist of, and you must not promote,
distribute or execute by means of the Services, any software, programs, routines, applications
or
technologies that will or may have a material negative effect upon the performance of a
computer or
introduce material security risks to a computer.
© Astute Graphics Ltd, 2019