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Grant of Licence to You
1.1 'Software'
The Software referred to in this document is the code, program, templates and images associated with the product known as Click and Build in all of its versions and made available to license holders and other parties via a PC or similar device through a browser with telecommunications access to the Internet.
1.2 Provided that you have paid all of the licence fees and other sums payable as published from time to time in respect of your access to and use of the Software Something4 grants you a non-exclusive and non-assignable right to access and use the Software on your Internet Service Provider's server(s) for the purpose of building a web store without a payment processing services. (To obtain access to RBS WorldPay's Card Payment Processing Services you are required to enter into a separate agreement with RBS WorldPay whereupon the Software will be set to enable access to the RBS WorldPay Payment Gateway for credit/debit card processing.)
1.3

Save only to the extent that the same cannot be prevented by law, you shall not:

  • Copy or permit others to copy the whole or any part of the Software, or arrange or create derivative works based on the Software;
  • Modify, merge or combine the whole or any part of the Software with any other Software;
  • Adapt, translate, de-compile, reverse-engineer, or disassemble the Software or permit others to do so;
  • Assign, transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Software to any other person.
1.4 You shall be solely responsible for making or arranging for back-up copies to be made of all data that you use in conjunction with the Software in accordance with good data processing practice.
   
Something4's Proprietary Rights
2.1 All intellectual property and other proprietary rights (including copyright and related rights) in the Software are and shall remain owned solely by Something4 or its suppliers.
2.2 You agree not to remove, suppress or modify in any way any proprietary marking, including any Trade Mark or copyright notice on or in the Software or which are visible during its operation.
2.3 You shall permit Something4 to check the use of the Software by you at all reasonable times.
2.4 You acknowledge and agree that certain facilities provided by the Software (including but not limited to search engine registration and domain name registration) are dependent upon services (including web hosting services) provided by third party suppliers and Something4 makes no warranties or representations whatsoever in relation to the performance or continuity of those facilities.
   
Defects Warranty and Limitation of Something4's Liability
3.1 You acknowledge and agree that the Software cannot be tested in every possible combination and it is not within Something4's control how and for what purpose the Software is used by you. The Software has not been prepared to meet your individual requirements and it is your responsibility to ensure that the facilities and functions of the Software meet your requirements.
3.2 Except as expressly provided for in this Agreement, Something4 does not make any warranties, express or implied, regarding the Software, including any implied warranty of quality, merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance.
3.3 Something4 is not responsible for the security of any data residing on your server or any other computer used or controlled by you.
3.4 Something4's total liability under or in connection with this Agreement or any claim for indemnity or contribution will not exceed in aggregate payments made by you to your ISP or authorised vendor to access the Software.
3.5 Under no circumstances, including negligence, shall Something4 be liable for any indirect, incidental, consequential, special or exemplary damages arising from this Agreement, including but not limited to loss of revenue or lost profits.
3.6 Something4 warrants that the Software when used properly will provide the functions and facilities described in Something4's Click and Build feature list. Something4 does not warrant that the operation of the Software will be uninterrupted or error free.
3.7 Something4's obligation and your exclusive remedy under clause 3.6 is limited to Something4 (at its own expense) using reasonable endeavours to rectify any non-conformance with the warranty by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time or at Something4's option replacing the Software accessed by you in whole or in part.
3.8 Something4 will not be liable for any failure of the Software attributable to any modification to the Software by either you in default of your obligations under this Agreement or by persons other than you, or by combination of the Software with other software or equipment without Something4's express prior written consent.
   
Something4's Intellectual Property Rights Indemnity to you
4.1

Something4 will indemnify you for all damages awarded under any final judgment by a court of competent jurisdiction or agreed by Something4 in final settlement to the extent that the Software as used by you in accordance with this Agreement infringes the copyright or other intellectual property rights of any third party, provided that:

  • Such infringement is not caused by or contributed to by your acts other than the use of the Software in accordance with this Agreement; and
  • Something4 is promptly notified by you in writing of the details of the claim; and
  • Something4 has sole control of the defence of such claim and all related settlement negotiations; and
  • You give Something4 all reasonable assistance at Something4's reasonable expense in connection with such claim.
4.2

Something4 will have no liability for any claim of infringement based on:

  • Use of other than the latest unaltered current release of the Software as supplied to you;
  • Use a combination of the Software with equipment, programs or data not supplied by Something4; or
  • Your refusal to use modified or replacement Software supplied or offered to be supplied by Something4.
4.3 This section 4 states the entire liability of Something4 with respect to the infringement or alleged infringement of any third party intellectual property right of any kind by the Software.
   
Unauthorised Use
5.1 You are responsible for the consequences of any unauthorised access to or use of the Software.
5.2 You will indemnify Something4 in respect of any third party claim for any loss, damage or expense including loss of profit or revenue occasioned by or arising directly or indirectly from any unauthorised access to or use of the Software.
   
Your Responsibilities
6.1 You are responsible for payment of all costs, fees and expenses payable to third parties arising out of the operation of your web store (including but not limited to maintaining domain name registration and ISP subscription) as well as maintaining access to all necessary hardware and software needed to run the Software.
6.2 Domain name registration facilities included in the Software is provided by third parties. Registration or use by you of any domain name (used in conjunction with your web store) will be subject to the terms and conditions imposed by the third party and any terms and conditions or policies imposed by the ultimate registration authority. You are solely responsible for ensuring that any domain name that you register or use in connection with the Software complies with applicable trademark laws and does not infringe any third party's rights. You accept that Something4 will not be obliged to refund any sums paid by you in connection with your web store in the event that any domain name registered or used by you is placed on hold, is de-registered or otherwise made unavailable to you. Something4 will not take any part in any dispute between you and a third party regarding a domain name registered or used by you.
6.3 You acknowledge and agree that you are solely responsible for the content (including any text, images or other information) included by you on your web store. Something4 may periodically monitor your web store and may disclose any content or records included in it as may be required to satisfy any law, regulation or government request. Something4 reserves the right to suspend your access to the Software if it considers in its sole discretion that your web store contains content that (1) is defamatory; (2) is offensive, unlawful or dangerous; or (3) violates any third party's copyright or other intellectual property rights. You agree that Something4 shall not be liable to you for any action Something4 takes to suspend your access to the Software in accordance with this Agreement.
   
Term and Termination
7.1 This agreement will commence upon the date of purchase and will continue for a period of 12 months and will be automatically renewed for a further 12 months on each anniversary date until terminated by one party giving 30 days notice prior to any renewal date. No refunds will be made after 14 days of the purchase date.
7.2

Something4 will be entitled to suspend any services we provide and may terminate this Agreement with immediate effect by giving notice to you if you:

  • Fail to comply with any of the provisions of this Agreement and (in the case of a failure which is capable of being rectified), you do not rectify such failure within five working days of Something4's notice to you;
  • Are a company and become insolvent, convene any meeting of creditors, pass a resolution for winding up, suffer a petition for winding up, have an administrative receiver or receiver appointed over the whole or part of your assets, or suffer the appointment of an administrator; or
  • Are an individual and commit any act of bankruptcy or compound with your creditors or come to any arrangements with any of your creditors.
7.3 On termination of this Agreement however caused, your authorisation to access and use the Software will automatically cease and you undertake immediately to cease accessing or using the Software.
7.4 The provisions of section 3 (Defects Warranty and Limitation of Something4's Liability) and section 8 (Confidentiality) shall survive any termination of this Agreement.
   
Confidentiality
8.1 You agree that you shall keep secret and confidential and shall only use for the purpose of performing your obligations under this Agreement all information or material of a technical or business nature or relating in any way to the Software or Something4's business, products or services.
   
Assignment
9.1 This Agreement is personal to you and you may not assign, sub-licence, or otherwise transfer your rights or obligations under it without Something4's prior written consent.
9.2 Something4 reserves the right to fulfil any of its duties and powers under this Agreement by the use of agents and sub-contractors but Something4 shall remain primarily liable for their performance.
9.3 Something4 may assign the benefit of this Agreement.
   
Severability
10.1 If any part of this Agreement is found otherwise to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement and which will continue to be valid and enforceable to the fullest extent permitted by law.
   
Waiver
11.1 A failure of either you or Something4 to exercise any right provided for in this Agreement shall not be deemed to be a waiver of any right unless such failure is confirmed expressly in writing by the relevant party to be a waiver.
   
Force Majeure
12.1

Our obligations are subject to the following:

  1. Any messages that originate from your server or the server of a third party designated by you and are received in the same form as sent will be deemed to be authorised by you and we will not be liable for any consequences of processing such a message;
  2. We are not responsible for the security of data residing on a server of yours or a third party designated by you.
12.2 We shall have no liability whatsoever for any failure or delay caused by your acts or omissions or resulting from actions by us in good faith to avoid violating law, rule or regulation of any governmental authority or which is caused by circumstances beyond our control whether foreseeable or not, including (without limit or cause) breakdown or failure in any transmission or communication links or any third party equipment, strikes or industrial disputes.
   
Entire Agreement and Variation
13.1 This Agreement is the complete and exclusive statement of the agreement between you and Something4 relating to its subject matter.
   
Governing Law
14.1 This Agreement will be governed by and construed in accordance with the law of England and Wales and both you and Something4 agree to submit to the exclusive jurisdiction of the courts of England and Wales.