Ange and Gerry's Business Terms of Service
Effective Date: 1st November, 2015
This agreement governs your acquisition and use of our services.
If you register for a free trial for our applications, this agreement will also govern that free trial.
By accepting this agreement, either by clicking a box indicating your acceptance or by executing an order form that references this agreement, you agree to these terms of service specified below. 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 of service, 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 of service, you must not accept this agreement and may not use the services.
Ange & Gerry''s have developed a number of mobile applications, as follows:
“Voices”, which delivers colleague based personal insight to inform smart business decisions and aims to improve profitability within organisations by delivering an interactive engagement platform. Voices is managed through a cloud based administration portal.
“Colleagues”, which is a mobile corporate directory delivering instant and up-to-date access to an organisation’s mobile workforce. Colleagues is managed through a cloud based administration portal
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Acceptable Use Policy: the acceptable use policy set out in clause 12.
Access Information: such username(s), password(s) and other security information issued by or required by Ange & Gerry's from time to time.
Administrative Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Portal in order to manage the Application.
Application: the Ange & Gerry's mobile application known as “Voices” OR "Colleagues” developed by Ange & Gerry's, and any updates Ange & Gerry's may make to such application from time to time.
Back-Up Policy: Ange & Gerry’s back-up policy as may be notified to the Client from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client Account: the account held and maintained with the Client as a prerequisite to Administrative Users accessing and using the Portal.
Client Content: any content entered into the Client administration portal that the Client wants to make available to End Users via the Application, together with any and all other text, information, data, images, audio or video material, in whatever medium or form, inputted by the Client or Administrative Users to the Portal, for the purpose of developing and/or managing the Application or using the Services or facilitating the Client's, any Administrative Users and/or any End User's use of the Services.
Confidential Information: information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates and which has not come into the public domain during the term of this Agreement in breach of any obligation of confidence, including the terms of this Agreement, any information relating to the Portal or the Application or any of their constituent parts or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing.
Data Feeds: the data feeds made available by the Portal in order to allow the Client Content to be accessed by the End Users via the Application.
Device: the mobile devices used by the End Users to access the Application.
Effective Date: the date when the Application and/or Portal is made available to the Client or its End Users, either for the Trial Period or for the Initial Term.
End User: any person the Client permits access to use the Application in accordance with clause 4.
End User Account: the account held by an End User for accessing and using the Application.
End User Content: all text, comments, communications, feedback, information, data, images, audio or video material, in whatever medium or form, inputted by an End User to the Application.
Equipment Requirements: such minimum equipment and security requirements as Ange & Gerry's may notify the Client of from time to time.
Fees: the fees payable by the Client to Ange & Gerry for the User Subscriptions, as set out in clause 11.
Initial Term: three years from the Effective Date or (if applicable) three years from expiry of the Trial Period, whichever is later.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
Marks: any trademarks, trade names, service marks, trade dress, logos, URLs and domain names, any identifying slogans and symbols, any abbreviation, contraction or simulation of any of same, and the "look and feel", of a party to this Agreement, whether or not registered.
Normal Business Hours: 9.30 am to 5.30 pm local UK time, each Business Day.
Order Form: The printed form on which the Client's agrees to purchase the Services provided by Ange and Gerry's under this Agreement.
Portal: Ange & Gerry’s administration portal made available to Administrative Users in order to manage the Application.
Privacy and Security Policy: Ange & Gerry’s privacy and security policy as may be notified to the Client from time to time.
Renewal Period: the period described in clause 17.1.
Security Event: any unauthorised third party access to the Portal, the Application and/or the Services or any use of the same by the Client, any Administrative User and/or any End User that is in breach of the Acceptable Use Policy.
Services: the services provided by Ange & Gerry's to the Client under this Agreement including the provision of the Portal, the Application, User Instructions, Support and such other services as Ange & Gerry's may decide, at its discretion, to integrate into the Portal from time to time.
Support: the support to be provided to the Client under clause 6.5.
Support Services Policy: Ange & Gerry's policy for providing support in relation to the Services as set out in clause 6.5.
Term: the Trial Period (if applicable), the Initial Term together with any subsequent Renewal Periods.
Trial Period: if applicable, a period of 28 days from the Effective Date.
User Instructions: all document(s) and instructions which Ange & Gerry's may make available to the Client from time to time, in whatever form or medium, containing information for the instruction and use of the Portal and the Application.
User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 10 which entitle End Users to access and use the Application and the Services in accordance with this Agreement.
1.1 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.5 A reference to writing or written includes email to email@example.com for Ange & Gerry's and Client's email address as provided on the trial set up or order form.
1.6 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
1.7 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.
2. Access To The Portal
2.1 On or around the Effective Date the Client will provide Ange & Gerry's with such (current, complete and accurate) information as Ange & Gerry's may require from the Client in order for Ange & Gerry's to set up the Client Account (including without limitation the Client’s name and the names and email addresses of its Administrative Users).
2.2 Ange & Gerry's will notify the Client once the Client Account has been created and will distribute the Client Account details to the Administrative Users (which shall include, without limitation, individual Access Information for each Administrative User).
2.3 Subject to the terms and conditions of this Agreement, Ange & Gerry's hereby grants to the Client a non-exclusive, non-transferable, revocable licence during the Term:
2.3.1 to permit the Administrative Users to access the Portal and to use the Services solely to manage the Application; and
2.3.2 to permit the Administrative Users to upload Client Content to the Portal and to amend such Client Content from time to time.
3. Trial Period
3.1 Where agreed between the parties in writing, Ange & Gerry's shall make the Portal and the Application available to the Client, the Administrative Users and (a reasonable number of) End Users (as applicable) free of charge, for the Trial Period, in order for the Client to evaluate the Application.
3.2 Use of the Portal and the Application throughout the Trial Period shall, for the avoidance of doubt, remain subject to the terms and conditions of this Agreement (save for clause 10).
3.3 On expiry of the Trial Period the Initial Term shall commence (and the Fees shall become payable in accordance with clause 10) unless the Client gives to Ange & Gerry's not less than 7 days written notice of its intention to terminate this Agreement, such notice must expire on or before the end of the Initial Period.
4. Launching The Application
4.1 The Administrative Users shall be required to upload such Client Content as the Client determines necessary to the Portal, and as otherwise required by Ange & Gerry's, in order for Ange & Gerry's to populate and configure the Application.
4.2 The Client undertakes that all Client Content must comply with all applicable laws and must not: contain any material which is defamatory of any person, contain any material which is obscene, offensive, hateful or inflammatory, promote sexually explicit material, promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringe any copyright, database right, trade mark or other Intellectual Property Right of any other person; be likely to deceive any person; be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promote any illegal activity; be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety; be likely to harass, upset, embarrass, alarm or annoy any other person; be used to impersonate any person, or to misrepresent the Client’s identity or affiliation with any person; give the impression that they emanate from Ange & Gerry's, if this is not the case and/or advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
4.3 Following population and configuration of the Application Ange & Gerry's will make the Application (and a number of End User Account details) available to the Client for deployment to the End Users. The Client shall comply with all of Ange & Gerry’s reasonable instructions in connection with such deployment of the Application and the Client acknowledges that any failure to so comply may result in deployment of the Application being delayed until such time as Ange & Gerry’s instructions have been complied with.
4.4 Subject to the terms and conditions of this Agreement, Ange & Gerry's hereby grants to the Client a non-exclusive, non-transferable, revocable licence during the Term to provide the Application to End Users and to permit such End Users to download and run the Application on the Devices and to use the Application (and such of the Services as have been integrated into the Application) and to generate End User Content to the extent provided for by the Application and in accordance with this Agreement.
4.5 Each Administrative User may access the Application, and make use of it and such of the Services as have been integrated into it, by using their Administrative User Access Information. In such circumstances the Administrative User(s) shall, for the purposes of this Agreement, be an “End User”.
4.6 In order for each End User to download the Application onto their Device, and make use of it and such of the Services as have been integrated into it, (save where any Administrative User accesses the Application under clause 4.5 above) each End User must register for, and/or login to, the Application by:
4.6.1 applying directly to the Client for End User Account details (and in such circumstances the Client shall be solely responsible for ensuring each such End User is issued with their respective End User Account details); or
4.6.2 using their Google account details in order to access the Application.
4.7 At the Client’s request Ange & Gerry's shall provide:
4.7.1 End User Account details in addition to those provided under clause 4.3; and/or
4.7.2 (at its standard rates in force from time to time) assistance in connection with the deployment and/or use of the Application.
4.8 Unless otherwise agreed in writing with Ange & Gerry's the Client shall not issue more than 1000 (one thousand) End Users with User Subscriptions and access to the Application (and the Client shall promptly notify Ange & Gerry's if it becomes aware of any (actual or foreseeable) breach of this restriction), nor shall the Client allow any End User Account to be used by more than one individual End User unless it has been reassigned in its entirety to another individual End User, in which case the prior End User shall no longer have any right to access or use the Application.
4.9 In the event that Ange & Gerry's becomes aware of more than 1000 (one thousand) End Users accessing the Application (whether by notice from the Client under clause 4.8 or otherwise), Ange & Gerry's reserves the right to disable the Client Account and access to the Portal, the Application and/or the Services or to charge the Client for such additional User Subscriptions in accordance with clause 10.7.
5. Use Of The Portal And The Application
5.1 In relation to the Administrative Users and End Users, the Client undertakes that:
5.1.1 each Administrative User and End User shall keep secure and confidential its Access Information for its use of the Portal and the Application (as applicable) and the Services;
5.1.2 it shall notify Ange & Gerry's promptly upon termination or suspension of any Administrative User's and/or End User’s employment or services contract with the Client in order for Ange & Gerry's to disable such Administrative User's and/or End User’s access to the Portal and/or the Application (as applicable) and the Services;
5.1.3 it shall maintain a written, up to date list of current Administrative Users and End Users and provide such list to Ange & Gerry's within 5 Business Days of Ange & Gerry's written request at any time or times; and
5.1.4 if Ange & Gerry discovers that any Access Information has been provided to any individual who is not an Administrative User or End User, then without prejudice to Ange & Gerry's other rights, Ange & Gerry or the Client (as applicable) shall promptly disable such Access Information and new Access Information shall not be issued to any such individual.
5.2 The Client acknowledges that Ange & Gerry's shall not be liable for any loss (of whatever nature) suffered by the Client, any Administrative User and/or any End User as a result of the Client’s failure to comply with clause 5.1 above.
5.3 The Client shall comply with, and shall procure that each Administrative User complies with, the Acceptable Use Policy in relation to the Portal and all Client Content. The Client shall also procure that each End User complies with the Acceptable Use Policy in respect of the Application and all End User Client Content (as well as any terms and conditions imposed by Google in the event any End User accesses the Application pursuant to clause 4.6.2).
5.4 If the Client becomes aware that any Administrative User’s use of the Portal and/or Services, and/or any End User’s use of the Application and/or Services, breaches the Acceptable Use Policy, the Client shall immediately notify Ange & Gerry's. In such circumstances, and/or where Ange & Gerry's otherwise reasonably suspects that there has been a breach of the Acceptable Use Policy, Ange & Gerry's reserves the right to disable the Client’s, the Administrative User’s and/or the End User’s access to the Portal and/or Application (as applicable) or any material that breaches the Acceptable Use Policy and/or to disable the Client Account and/or the relevant End User Account, for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights and without prior notice to the Client or the relevant Administrative User or End User.
5.5 Notwithstanding any other provision in this Agreement, if there is a suspected and/or actual Security Event (or if otherwise required by any third party with applicable authority, including but limited to the police), Ange & Gerry's may, without liability or prejudice to its other rights and without prior notice to the Client, any Administrative User or any End User, remove the relevant Client Content and/or End User Content and/or disable the Client Account, the applicable End User Account and/or the Application until the relevant Security Event has been resolved. Ange & Gerry's shall give the Client written notice as soon as is reasonably practicable of the nature of the relevant Security Event.
5.6 The Client shall not, and shall procure that no Administrative User or End User shall:
5.6.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under this Agreement:
126.96.36.199 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Portal and/or the Application in any form or media or by any means; or
188.8.131.52 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Portal and/or the Application; or
5.6.2 access all or any part of the Services in order to build a product or service which competes with the Services, the Portal and/or the Application; or
5.6.3 subject to clause 20.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Administrative Users (provided that the provision of Services to End Users is permitted to the extent necessary to enable them to use the Application); or
5.6.4 attempt to obtain, or assist third parties in obtaining, access to the Services, the Portal and/or the Application, other than as provided under this clause 5.
5.7 The Client shall comply with any further obligations set out in the User Instructions that govern use of the Services, the Portal and/or the Application.
5.8 The rights provided under this Agreement are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
6.1 Ange & Gerry'a shall, during the Term and subject always to the remaining terms and conditions of this Agreement:
6.1.1 provide the Services and access to the Portal to the Client and the Administrative Users;
6.1.2 enable End Users to download and access the Application that the Client has deployed;
6.1.3 make available the Data Feeds in order to allow the Client Content to be accessed by the End Users via the Application and to enable the End Users to use such of the Services as have been integrated into the Application.
6.2 Ange & Gerry's undertakes that it will provide the Services in accordance with reasonable skill and care.
6.3 The undertaking at clause 6.2 shall not apply to the extent of any non-conformance which is caused by use of the Services other than in accordance with this Agreement or contrary to Ange & Gerry's instructions, or modification or alteration of the Services by any party other than Ange & Gerry's or Ange & Gerry's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Ange & Gerry's will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 6.2.
6.4 Notwithstanding clauses 6.1 to 6.3 (inclusive), Ange & Gerry's:
6.4.1 does not warrant that the Client's use of the Services will be uninterrupted or error-free, or that the Services and/or the information obtained by the Client, any Administrative User or any End User through the Services will meet the Client's, any Administrative User’s or any End User's requirements; and
6.4.2 is 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 the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.5 Ange & Gerry's will, as part of the Services and at no additional cost to the Client, provide the Client with Support in accordance with the Support Services Policy. Ange & Gerry's may amend the Support Services Policy in its sole and absolute discretion from time to time. The Client may purchase enhanced support services separately at Ange & Gerry's then current rates.
6.6 Notwithstanding any other provision in this Agreement, the Client acknowledges and agrees that it is responsible for all End User support of the Application (and such of the Services as have been integrated into the Application).
6.7 From time to time Ange & Gerry's may:
6.7.1 modify the Services (including without limitation the Application) by issuing updates through the Portal; and
6.7.2 make new features, functionality, applications or tools available in respect of the Services, and shall give the Client prompt written notice of such modifications and any such new features, functionality, applications or tools. Following receipt of such notice, the Client and it's End Users are responsible for downloading the latest version of the Application from the relevant App Store. The Client acknowledges that depending on the update, the Client, Administrative Users and/or End Users may not be able to use the Services, the Portal and/or the Application until the most recent version of the Application has been downloaded onto the applicable Devices, and any new terms accepted. For clarity, any modification to the Fees shall be addressed under clause 10.
6.8 This Agreement shall not prevent Ange & Gerry's from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7. Data Protection And Security
7.2 If Ange & Gerry's processes any personal data on the Client's behalf when performing its obligations under this Agreement, the parties record their intention that (for the purposes of the Data Protection Act 1998) the Client shall be the data controller and Ange & Gerry's shall be a data processor and in any such case:
7.2.1 the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Client, the Administrative Users or the End Users are located in order to carry out the Services and Ange & Gerry's other obligations under this Agreement;
7.2.2 the Client shall ensure that the Client is entitled to transfer the relevant personal data to Ange & Gerry's so that Ange & Gerry's may lawfully use, process and transfer the personal data in accordance with this Agreement on the Client's behalf;
7.2.3 the Client shall ensure that the relevant third parties have been informed of, and have given and maintained their consent to, such use, processing, and transfer as required by all applicable data protection legislation and, without limitation, the Client shall ensure that all End Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all End User Content by other End Users, the Client or Ange & Gerry's in accordance with this Agreement;
7.2.4 Ange & Gerry's shall process the personal data only in accordance with the terms of this Agreement; and
7.2.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7.3 Ange & Gerry's shall follow its archiving procedures for Client Content and End User Content. In the event of any loss or damage to Client Content and/or End User Content, the Client's sole and exclusive remedy shall be for Ange & Gerry's to use reasonable commercial endeavours to restore the lost or damaged Client Content and/or End User Content (as the case may be) from the latest back-up of such Client Content and/or End User Content maintained by Ange & Gerry's in accordance with the archiving procedure. Ange & Gerry's shall not be responsible for any loss, destruction, alteration or disclosure of Client Content or End User Content caused by any third party (except those third parties sub-contracted by Ange & Gerry's to perform services related to maintenance and back-up of Client Content and End User Content).
The parties acknowledge and agree that Ange & Gerry's is not responsible or liable for the deletion of or failure to store the Application, and other communications maintained or transmitted through use of the Services, and the Client is solely responsible for securing and backing up the Application and the End User Content.
8. Third Party Providers
9. Client's Obligations
The Client shall throughout the Term:
9.1 provide Ange & Gerry's with:
9.1.1 all necessary co-operation in relation to this Agreement; and
9.1.2 all necessary access to such information as may be required by Ange & Gerry's in order to provide the Services, including Client Content and/or security access information;
9.2 comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under this Agreement;
9.3 carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, Ange & Gerry's may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.4 ensure that the Administrative Users and End Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for breach of this Agreement caused or contributed to by any acts or omissions on the part of any Administrative User and/or End User;
9.5 ensure that its network and systems comply with the relevant specifications provided by Ange & Gerry's from time to time;
9.6 comply with the Equipment Requirements (whether in connection with the Devices, use of Portal or otherwise);
9.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Portal, and all problems, conditions, delays, delivery failures and for all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet; and
9.8 as between the parties, be responsible for responding to all Administrative User and/or End User requests concerning the use of the Services by the Administrative Users and/or End Users.
10. Charges And Payment
10.1 The Client shall pay the Fees to Ange & Gerry's for the User Subscriptions in accordance with this clause 10 and the Order Form.
10.2 The Client shall on the Effective Date provide to Ange & Gerry's valid, up-to-date billing details (and any other relevant valid, up-to-date and complete contact and billing details) and the Client hereby authorises Ange & Gerry's to invoice at the beginning of the first month of each year during the Initial Term (and at the beginning of the first month of each year during any subsequent Renewal Periods) for the Fees payable.
10.3 The Client shall pay each invoice within 7 days after the date of such invoice.
10.4 If Ange & Gerry's has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of Ange & Gerry's:
10.4.1 Ange & Gerry's may, without liability to the Client, disable the Client Account and the Client's and all Administrative Users’ access, and all End User Accounts and Access Information and End Users' access, to all or part of the Services and Ange & Gerry's shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Ange & Gerry's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.5 All amounts and fees stated or referred to in this Agreement:
10.5.1 shall be payable in pounds sterling;
10.5.2 are non-cancellable and non-refundable;
10.5.3 are exclusive of value added tax, which shall be added to Ange & Gerry's invoice(s) at the appropriate rate.
10.6 If, at any time whilst using the Services, the Client exceeds the amount of disk storage space specified in the Client Content Restrictions, Ange & Gerry shall charge the Client, and the Client shall pay, Ange & Gerry's then current excess data storage fees.
10.7 Ange & Gerry's shall be entitled to increase the Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 10.9 and/or the excess storage fees payable pursuant to clause 10.6 at the start of each Renewal Period upon 90 days prior notice to the Client.
10.8 If the Client wishes to purchase additional User Subscriptions, the Client shall notify Ange & Gerry's in writing. Ange & Gerry's shall evaluate such request for additional User Subscriptions and respond to the Client with approval or rejection of the request.
10.9 If Ange & Gerry's approves the Client's request to purchase additional User Subscriptions, the Client shall, within 30 days of the date of Ange & Gerry's invoice, pay to Ange & Gerry the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Client part way through the Initial Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Term or then current Renewal Period (as applicable).
11.1 The Fees shall be specified on the Client Order Form, and will be based on a maximum of 1000 User Subscriptions at the rate specified per User Subscription per month.
11.2 Additional User Subscriptions may be purchased by the Client in accordance with clause 10.9 at an amount specified per User Subscription on the Client Order Form.
12. Acceptable Use Policy
12.1 Neither the Client nor any Administrative User or End User shall:
12.1.1 make alterations to, or modifications of, the whole or any part of the Portal, the Data Feeds, the Application, any Service and/or any Ange & Gerry's operating system (the Technology), or permit the Technology or any part of it to be combined with, or become incorporated in, any other programs;
12.1.2 disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Technology or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Technology with another software program, and provided that the information obtained during such activities:
- is used only for the purpose of achieving inter-operability of the Technology with another software program;
- is not unnecessarily disclosed or communicated without Ange & Gerry’s prior written consent to any third party; and
- is not used to create any software that is substantially similar to the Technology;
12.1.3 to keep all copies of the Technology secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Technology;
12.1.4 to include Ange & Gerry’s copyright notice on all entire and partial copies made of the Technology on any medium;
12.1.5 not to provide or otherwise make available the Technology in whole or in part (including object and source code), in any form to any person without prior written consent from Ange & Gerry's; and
12.1.6 to comply with all technology control or export laws and regulations that apply to the Technology.
12.2 The Client, each Administrative User and each End User must:
12.2.1 not use the Technology in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Acceptable Use Policy, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Technology;
12.2.2 not infringe Ange & Gerry’s Intellectual Property Rights or any other rights or those of any third party in relation to their use of the Technology, including the submission of any Client Content and/or End User Content;
12.2.3 not to remove or alter any of Ange & Gerry’s Marks, copyright or other proprietary notices, symbols or labels within the Technology;
12.2.4 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to their use of the Technology;
12.2.5 not use the Technology in a way that could damage, disable, overburden, impair or compromise Ange & Gerry’s systems or security or interfere with other users; and
12.2.6 not collect or harvest any information or data from any of the Technology or Ange & Gerry’s systems or attempt to decipher any transmissions to or from the servers running any of the Technology
13. Proprietary Rights
13.1 The Client (or its licensors (whether the End Users or otherwise)) shall own all Intellectual Property Rights in and to all of the Client Content and the End User Content. The Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Content and End User Content.
13.2 The Client hereby grants, and shall procure that each End User grants, to Ange & Gerry's a non-exclusive, transferable, sub-licensable, worldwide, royalty-free licence during the Term to use the Client Content and the End User Content for the purpose of enabling Ange & Gerry's to provide the Services in accordance with this Agreement.
13.3 The Client acknowledges and agrees that:
13.3.1 Ange & Gerry's may include the Client's name or the Client's Marks in a list of Ange & Gerry's clients in any medium or in any link from the Portal to the Client's website; and
13.3.2 Ange & Gerry's may refer to the Client, orally or in writing, as a client of the Services for promotional, marketing and financial reporting purposes.
13.4 The Client acknowledges and agrees that, subject to the Client’s rights in clauses 13.1 to 13.3 (inclusive) above, Ange & Gerry's and/or its licensors own all Intellectual Property Rights in the Services (whether integrated into the Portal, the Data Feeds, the Application, the User Instructions or otherwise) and Ange & Gerry's Marks. Except as expressly stated herein, this Agreement does not grant the Client (or any Administrative User or End User) any rights to, or in any Intellectual Property Rights or any other rights or licences in respect of the same other than a licence to use them strictly in accordance with the terms and conditions of this Agreement.
13.5 If the Client wishes to display Ange & Gerry's Marks in relation to its use of the Services, the Client shall obtain a written licence from Ange & Gerry's and comply with any Mark guidelines issued by Ange & Gerry's from time to time. For the avoidance of doubt, Ange & Gerry's reserves the rights to display its Marks within the Portal and/or the Application.
13.6 All uses of a party's Marks under clause 13.3 or clause 13.5 (as the case may be), including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in those Marks.
14.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than for performance of its respective obligations under this Agreement.
14.2 A party's Confidential Information shall not be deemed to include information that:
14.2.1 is or becomes publicly known other than through any act or omission of the receiving party;
14.2.2 was in the other party's lawful possession before the disclosure;
14.2.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
14.2.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
14.2.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
14.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents (and also, in the case of the Client only, by the Administrative Users or End Users) in breach of the terms of this Agreement.
14.4 Ange & Gerry shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, except any third party sub-contracted by Ange & Gerry to perform services related to maintenance and back-up of Client Content and End User Content.
15.1 The Client shall defend, indemnify and hold harmless Ange & Gerry's against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Client Content and/or the End User Content.
15.2 Ange & Gerry's shall defend the Client, its officers, directors and employees against any claim that the use of any of the Services infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that this indemnity does not apply to the extent that any such claim is based on the use of any software licensed under any form of open-source licence.
15.3 The obligations of the Client and Ange & Gerry's under clause 15.1 and clause 15.2 respectively are conditional on:
15.3.1 the indemnifying party being given prompt notice of any relevant claim;
15.3.2 the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and
15.3.3 the indemnifying party being given sole authority to defend or settle such claim.
15.4 In the defence or settlement of any claim, Ange & Gerry's may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
15.5 In no event shall Ange & Gerry's, its employees, agents and sub-contractors be liable to the Client under clause 15.2 to the extent that the alleged infringement is based on or caused by:
15.5.1 a modification of the Services by anyone other than Ange & Gerry's or anyone authorised by Ange & Gerry's;
15.5.2 any failure on the part of the Client, any Administrative User or any End User to mitigate their loss; or
15.5.3 anything contained within the Client Content and/or the End User Content;
15.5.4 the use of the Services by the Client, any Administrative User or any End User:
184.108.40.206 in a manner in breach of this Agreement and/or contrary to the User Instructions and/or any other instructions given to the Client by Ange & Gerry's from time to time; or
220.127.116.11 after notice to the Client of the alleged or actual infringement from Ange & Gerry's or any appropriate authority.
16. Limitation Of Liability
16.1 This clause 14 sets out the entire financial liability of Ange & Gerry's (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client, any Administrative User and any End User:
16.1.1 arising under or in connection with this Agreement;
16.1.2 in respect of any use made by the Client, any Administrative User or any End User of the Services or any part of them; and
16.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
16.2 Except as expressly and specifically provided in this Agreement:
16.2.1 the Client assumes sole responsibility for results obtained from the use of the Services by the Client, any Administrative User and/or any End User, and for conclusions drawn from such use. Ange & Gerry's shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Ange & Gerry's by the Client, any Administrative User or any End User in connection with the Services, or any actions taken by Ange & Gerry's at the Client's direction;
16.2.2 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 this Agreement; and
16.2.3 the Services are provided to the Client, the Administrative Users and the End Users on an "as is" basis.
16.3 Nothing in this Agreement excludes the liability of Ange & Gerry's:
16.3.1 for death or personal injury caused by Ange & Gerry's negligence; or
16.3.2 for fraud or fraudulent misrepresentation.
16.4 Subject to clause 16.2 and clause 16.3:
16.4.1 Ange & Gerry's 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, loss of business, depletion of goodwill and/or similar losses, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
16.4.2 Ange & Gerry's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid by the Client for the User Subscriptions.
17. Term And Termination
17.1 This Agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
17.1.1 either party notifies the other party of termination, in writing, at least 3 months before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
17.1.2 otherwise terminated in accordance with the provisions of this Agreement.
17.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
17.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
17.2.2 the other party commits a material breach of any other term of this Agreement 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;
17.2.3 an order is made or a resolution passed for the winding up of the other party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or documents are filed with the Court for the appointment of an administrator, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order, or an arrangement or composition is made by the other party 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) or an application to a court for protection from its creditors is made by the other party; or
17.2.4 the other party takes or suffers any action similar or analogous to any of those in clause 17.2.3 in consequence of debt.
17.3 On termination of this Agreement for any reason:
17.3.1 all licences granted under this Agreement shall immediately terminate;
17.3.2 each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
17.3.3 without limiting the effect of clause 17.3.2, Ange & Gerry's may require the Client to immediately return all copies of Ange & Gerry's Confidential Information, the User Instructions and any other materials belonging to Ange & Gerry's and/or to irretrievably delete the same, together with the Application, from the Client's computer and communications systems and the Devices (to the extent technically and legally practicable). The Client may, at Ange & Gerry's request, be required to confirm in writing that all such copies have been returned or so deleted;
17.3.4 Ange & Gerry's may destroy or otherwise dispose of any of the Client Content and any End User Content in its possession unless Ange & Gerry's receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Content and End User Content. Ange & Gerry's shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Ange & Gerry's in returning or disposing of Client Content and End User Content;
17.3.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
17.3.6 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement; and any outstanding balance (including without limitation the Fees) becomes immediately due and payable
18. Force Majeure
18.1 Ange & Gerry's shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Ange & Gerry's or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, 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 (Force Majeure Event), provided that the Client is notified of such a Force Majeure Event and its expected duration.
18.2 If a Force Majeure Event prevents, hinders or delays Ange & Gerry’s performance of its obligations for a continuous period of more than 120 days, the Client may terminate this Agreement immediately by giving written notice to the affected party.
19.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's designated email address as set out in this Agreement.
19.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
20.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.3 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.4 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20.5 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
20.6 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
20.7 The Client shall not, without the prior written consent of Ange & Gerry's, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20.8 Ange & Gerry's may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20.9 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20.10 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
20.11 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.12 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into from the Effective Date.
Ange & Gerry’s welcomes your feedback regarding this Business Terms of Service policy. If you have questions, comments or concerns about this Policy, please contact us by email or post.