| 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.
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| 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. |
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| 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. |
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|
| 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. |
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| 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.
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| 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.
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| 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. |
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|
| 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. |
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|
| 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. |
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| 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.
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| 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. |
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| 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. |
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|
| 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. |
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| 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. |
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| 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. |
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| Force Majeure |
| 12.1 |
Our obligations are subject to the following:
- 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;
- We are not responsible for the security of data
residing on a server of yours or a third party
designated by you.
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| 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. |
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| 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. |
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| 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. |
