Terms and Conditions Of Use
GENERAL TERMS AND CONDITIONS OF SERVICE 1. INTERPRETATION In this agreement, the word 'company' refers to; Formability Ltd. An Internet Application Developer located at: Formability Ltd. Imperial House, Barcroft Street, Bury, Lancashire. BL9 5BT England. Tel: +44(0)161 447 8845 email: support@formability.co.uk 2. TERMS OF CONTRACT 2.1 Incorporation of Conditions These conditions shall apply to and be incorporated into any agreement between the company and the customer relating to the services. 2.2 Conflict Subject to any special conditions agreed between the company and the customer, these general terms and conditions shall apply and shall prevail over any other term of this agreement. No variation or waiver or addition to this agreement shall be binding on the company, unless and until it is confirmed in writing by the company. 3. SUPPLY OF THE SERVICES 3.1 Conditions of Supply The company agrees to supply the services to the customer on the following conditions, though please note that these conditions are not an offer to provide service but merely a statement of the terms on which we would provide them. (a) The company shall normally supply the services to the customer automatically, otherwise as soon as reasonably practicable and in any event no later than 5 working days from the commencement date of the agreement; (b) The company shall inform the customer of any delay in the delivery of the services as soon as reasonably practicable; (c) The company shall provide a full refund of the charges to the customer if it is unable to supply the services within 5 working days from and including the commencement date of the agreement. 3.2 Warranty The company warrants to the customer that the services will be provided using reasonable care and skill but at all times this will be subject to downtime caused by routine or emergency maintenance by the customer or occasioned by third parties. The company will not be liable to the customer or any third party for any losses whatsoever caused by such downtime. 3.3 Telephone charges The customer acknowledges that the charges are exclusive of any telecommunication charges. All telecommunication charges incurred by the customer in connection with the use of the services remain solely at all times the responsibility of the customer. The company does not accept liability or responsibility for any such charges. 3.4 Data Storage The volume of data stored at any time for a customer is limited to twenty (20) MB (Megabytes). Additional volume of data transfer and storage will be charged under a customer specific agreement. User accounts may be deleted after 60 days if the account has expired, in order to free up resources. 4. CHARGES The customer shall meet their charges and obligations as agreed with the company. 5. CUSTOMER OBLIGATIONS 5.1 The customer shall:- 5.1.1 Obtain the consent of individuals whose personal data are to be held. 5.1.2 Keep confidential all passwords received from the company for the purpose of the services and notify the company immediately upon becoming aware that a password has become known to an unauthorised third party. 5.1.3 Only make use of the services for a legitimate and lawful purpose. 5.1.5 Allow the company to access the customer's data records to check for any infringements of the customer's obligations under this agreement. 5.1.6 Inform Questionnaire users that Cookies must be enabled on their browser for correct use of the System. 5.2 The customer shall NOT:- 5.2.1 Modify or alter the software without the prior consent of the company; 5.2.2 Send, transmit, make available, copy, retransmit, broadcast or publish (whether directly or indirectly) in whatever form any data, information or contractual rights, material or statement which infringes the Intellectual Property Rights or contractual or statutory rights of any person or legal entity or the laws or statutory regulations relating to defamation, contempt, blasphemy, infringement of privacy or personal data rights and any equivalent or related laws in any territory in which they are or may be accessed or made available; 5.2.3 Make use of the services to send or cause to be sent or forwarded electronic mail without the express or assumed agreement of the respective recipient. 5.2.4 Use the services to obtain or offer or permit to be offered for profit or otherwise any material, images, displays or services which are erotic or pornographic including but not limited to any other material, images, displays or services which are offensive, illegal or immoral or which is in breach of any legal obligation; 5.2.5 Arrange information in a way that leads to a risk of or causes an excessive load on the server provided by the company in connection with the services; 5.2.6 Exceed the relevant data volumes unless the customer has agreed with the company to pay Additional charges as may vary from time to time for the data transfer volume exceeding the agreed level in the Specified Service. 5.2.7 Use the services in a manner that infringes a third party's copyright or other intellectual property rights of whatsoever nature. 5.3 Without prejudice to any other rights of the company arising from this agreement or otherwise, the customer will indemnify the company against all claims, losses, liabilities, expenses, fines and penalties of whatsoever nature made, incurred or imposed as a result of a breach by the customer of the terms of this clause. 6. LIABILITY 6.1 To the extent permitted by law, the company shall not be liable to the customer save as expressly provided for in this agreement and shall have no other obligations, duties or liabilities whatsoever in contract, tort or otherwise to the customer. 6.2 So far as is permitted by law and subject to Clause 3.2 the company makes no warranty to the customer as to the quality of the services and in any event, the company shall only be liable for material breaches of its obligations under this agreement and to the extent of 500 GBP per breach. 6.3 Neither party shall have any liability to the other in respect of any breach of this agreement for loss of revenue, business, anticipated savings or profits, or for any indirect or consequential loss howsoever arising, save as set out below. 6.4 Nothing in this agreement shall exclude or restrict the company for liability in respect of the death or personal injury or fraud resulting from the negligence of the company, its employees or agents; 6.5 The customer will indemnify the company for all loss of revenue, business profits, costs and expenses arising from any failure by the customer to use the services in accordance with this agreement and against any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the site by the customer. 6.6 The company disclaims all liabilities in connection with the following: (a) Loss of material uploaded (b) Incompatibility of the site with any of the customer's equipment, software or telecommunications links (c) Technical problems including errors or interruptions of the site (d) Unsuitability, unreliability or inaccuracy of the site. 6.7 The company will indemnify the customer for claims made against the customer by third parties for breach of their Intellectual Property Rights if such breach has been caused by the act, omission or otherwise of the company, its employees or agents. 6.8 Nothing in this agreement shall prevent the company from pursuing payment of a debt against the customer. 6.9 Where the customer accesses this site from locations outside the United Kingdom, the customer does so on the customer's own initiative and is responsible for compliance with local laws. 7. TERMINATION 7.1 Either party may at any time by giving notice in writing summarily terminate this agreement without compensation to the other party if the other party shall become bankrupt, or if a body corporate pass a resolution or the court shall make an order that one party be wound up, otherwise than by way of amalgamation or reconstruction, or if a receiver or manager on behalf of a creditor shall be appointed, or if circumstances shall arise which entitles the court to make a winding up order. 7.2 The company shall have the right to terminate this agreement without reason upon giving 14 days written notice to the customer and termination shall occur at the expiry of the notice period. The customer shall have the right to terminate this agreement any time giving written notice to the company. Termination shall occur at the reception time of the notice. 7.3 Termination or expiry of this agreement for whatever reason shall not prejudice or affect any right of action or remedy which shall have occurred or shall accrue thereafter to either of the parties. 7.4 The company reserves the right to terminate this agreement without notice upon any of the following events:- (a) The charges and/or Additional charges are outstanding for more than 20 calendar days; (b) The customer is in breach of his obligations as set out in Clause 5. (c) The customer fails, despite prior warning to remedy a breach. 7.5 Should the customer not receive email confirmation of their termination within 14 days of their request date the customer is responsible for contacting the company to ensure the termination has been received. 8. EFFECT OF TERMINATION On termination or expiry of this agreement for whatever reason the following provisions shall apply:- (a) The services and all copies thereof, which is the subject matter of this agreement will be returned to the company in good condition if required, and in any event in no worse condition than at the commencement of this agreement; (b) The customer shall pay immediately all charges and/or Additional charges outstanding under this agreement to the company within 14 Working Days. (c) The customer shall pay all amounts (if any) as and when such amounts shall fall due. 9. CONSUMER'S CANCELLATION RIGHTS 9.1 Any customer has the unreserved right to cancel this agreement at no cost and without any reason within 7 days from the date the contract is formed. 9.2 The customer may exercise the right of cancellation by notifying the company in writing at the company's address shown in Clause 1.1 by writing to the company, or sending an email to the company. 9.3 The customer will no longer have this right once the company has commenced provision of the services with the customer's consent. The customer shall be deemed to have given such consent by accepting these terms and conditions. 10. LIMITATION OF SERVICE 10.1 The company shall be entitled to suspend such access to the services as it deems necessary by the customer or any third party to all or any party of the services if the customer is in breach of this agreement. This Clause shall not be construed in any way as limiting the termination rights of the company as provided by Clause 7. 10.2 If access to the services is suspended as a result of downtime caused by routine or emergency maintenance by the customer the services shall be reconnected as quickly as practicable after, in the opinion of the company, such circumstances giving rise to the need to suspend have ceased to exist. 10.3 Following the suspension of services (other than for the reasons referred to in Clause 10.2) the customer shall be obliged to apply for reconnection of access to the services but the company shall not be obliged to reconnect access to the services. On receipt of an application to reconnect the company may do one of the following:- (a) Reconnect as soon as reasonably practicable subject to payment of all charges and/or Additional charges and any amounts due; (b) Specify additional reasonable terms required by the company prior to agreeing access to the services; (c) Refuse to allow access to the services on the basis that the breach or instruction or event that led to the suspension of access is unremedied or still remains as the case may be. 10.4 The customer will pay any Additional charges as may be required from time to time by the company for reconnection to the services. 10.5 If the breach or instruction or event which led to the suspension of services, the company shall be entitled to terminate without notice;- (a) In the case of non payment of any charges or Additional charges, if such amounts remain outstanding for more than 20 calendar days; or (b) In the case of any other event leading to suspension of access to the services, if it remains unremedied or additional terms are not accepted within 14 days of the suspension. 10.6 The company does not give any warranties in connection with the provision of goods supplied by a third party for the provision of the services but shall, if applicable, assign to the customer the benefit of any licence, warranty, guarantee or indemnity given by the third party supplying any services to the company. 11. LICENCE AGREEMENT 11.1 In consideration of and subject to payment of the charges by the customer upon the commencement date of this agreement, the company grants to the customer on and from the commencement date until the termination of this agreement. 11.2 The customer shall receive from the company a non-exclusive licence to utilise the services for the duration period of the agreement in accordance with the terms and conditions of this agreement. 11.3 The customer shall undertake to ensure that everyone who uses these services shall observe this licence agreement. 11.4 The customer may take such back up copies of their data as is necessary in accordance with best computing practice. Manuals may be printed out on paper for use in the customer's security procedures. The customer shall not be entitled to use, copy, process or transfer the software in a way other than that described herein to convert the software into another form (Reverse-Assemble-Reverse-Compile) or in any other way translate the software. The customer shall not be entitled to rent out or lease the software or assign or sub-licence the software unless expressly agreed. 12. INTELLECTUAL PROPERTY RIGHTS All Intellectual Property Rights of the company in any software and ancillary documentation shall at all times for the duration period of this agreement remain vested in the company 13. DATA PROTECTION 13.1 All information, mail messages and other data stored on the company's computer system will be treated as private and solely the property of the customer at all times and will not be duplicated, copied, reproduced or viewed publicly in any way except with express or implied permission of the customer and/or for the purpose of the company's back up services and/or providing the customer with the services and/or for the company's own internal purposes such as market research. 13.2 The company expressly points out to the customer that by entering into this agreement the customer acknowledges and agrees that once the customer's unencrypted data passes onto the Internet, it is not secure and is open to unscrupulous use. The company cannot accept responsibility or liability for any data or information that becomes available by such means against the wishes of the customer. 14. FORCE MAJEURE The company shall not be liable for any failure in performing its obligations under this agreement due to circumstances beyond its reasonable control. 15. INSURANCE The customer shall take out and maintain at its own cost insurance against any property loss insuring for its full replacement value against all usual risks until returned if applicable to the company. 16. COMPLAINTS The customer should address any complaints concerning the provision of the services to the company at the company's address. 17. GENERAL Each party shall treat as confidential all information received by it from the other party relating to the other party's business, customers, strategies and plans, and such information may only be used for the purpose of this agreement and may only be disclosed in strict confidence to its professional advisers or any person to whom disclosure is required by law, to its employees or subcontractors where reasonably necessary for the purposes envisaged by this agreement, and where otherwise specifically permitted by this agreement.