RANDALL & PAYNE
SITESCROLLER™ END USER TERMS AND CONDITIONS
BEFORE YOU, THE CUSTOMER, CLICK ON THE
“ACCEPT” BUTTON AT THE END OF THIS DOCUMENT, PLEASE CAREFULLY READ THE TERMS
AND CONDITIONS OF THIS END USER AGREEMENT (THE “AGREEMENT”). BY CLICKING ON THE “ACCEPT” BUTTON THE
CUSTOMER IS CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT (INCLUDING
THE LIMITED WARRANTY AND LIMITATIONS OF LIABILITY). IF THE CUSTOMER DOES NOT AGREE TO ALL OF THE
TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND DO NOT USE THE
SITESCROLLER™ SERVICE.
1. In this Agreement, the following
words and phrases shall, unless the context otherwise requires, have the
following meanings:
“Charges” means the charges in
respect of the Sitescroller™ Service as follows:
Service Level Charges (£)
Free Trial Nil
Standard 7
days use - £15
£4.99
per month for a minimum term of 6 months or
£45
per annum
Premium £9.99
per month for a minimum term of 6 months or
£90
per annum
the charges are levied per
Website;
“Content” means the content
included or displayed on the Website from time to time;
“Intellectual Property Rights”
means all intellectual property rights wherever in the world arising, whether
registered or unregistered (and including any application), including
copyright, know-how, confidential information, trade secrets, business names
and domain names, trade marks, service marks, trade names, patents, design
rights, topography rights, database rights and all rights in the nature of
unfair competition rights or rights to sue for passing off;
“R&P” means
Randall & Payne, a partnership at
“Server” means any server owned
or operated by R&P;
“Sitescroller™ Service” means the
scrolling display of Website pages in a presentation format which may be configured
by the Customer (depending on the level of service selected). The service is fully hosted by R&P and is
available in three service levels as follows:
(i) Free Trial the Customer is able to use a demonstration
version of the Sitescroller™ Service by uploading a maximum number of pages to
scroll through. The Sitescroller™ Service
then randomly displays these pages every 15 seconds;
(ii) Standard the
Customer is permitted to upload an unlimited number of pages of its Website and
set (a) the order such pages are displayed, (b) the time each is displayed for,
and (c) further configure the manner in which the Sitescroller™ Service operates;
(iii) Premium as
per standard service plus additional benefits including the use of R&P’s
site crawler to produce a list of Website pages for display and to check for
broken website links;
“Term”
means the period of the Sitescroller™ Service selected by the Customer and
specified in its order; and
“Website” means the Customer’s
website at which text, graphics, data, files and information are stored
electronically and access to which is made available to third parties via the
internet.
2.1 The terms of this Agreement are not
binding on R&P unless and until R&P sends confirmation of its
acceptance to the Customer in the form of an email accepting the Customer’s
order and confirming the details of the order to use the Sitescroller™ Service.
2.2 R&P may change the terms of this
Agreement from time to time during the Term.
In such an event, reasonable notification will be given by R&P by
posting amended terms on its website.
2.3 If the Customer is not a business but
is instead using the Sitescroller™ Service for personal use only, the Customer
has the right to cancel the Sitescroller™ Service within 7 days of the
Agreement date. Use of the Sitescroller™
Service during any such period of cancellation will act as a waiver of such
right to cancel.
3.1 R&P shall perform the Sitescroller™
Service with reasonable care and skill.
R&P gives no warranty that access to the Server and the Website will
be uninterrupted or error-free. R&P
also accepts no liability for any loss whatsoever suffered by the Customer, in
the event that the Sitescroller™ Service is so interrupted or are not
error-free.
3.2 This Agreement sets out the full
extent of R&P´s obligations and liabilities in respect of the supply of the
Sitescroller™ Service. All conditions, warranties or other terms concerning the
Sitescroller™ Service which might otherwise
be implied into this Agreement or any collateral contract (whether by statute
or otherwise) are hereby expressly excluded.
4.1 The Customer shall be responsible
for the accuracy and completeness of the Website and all Content.
4.2 The Customer shall ensure that the Content
does not infringe any applicable laws, regulations or third party rights (such
as material which is obscene, indecent, pornographic, seditious, offensive,
defamatory, threatening, liable to incite racial hatred, menacing, blasphemous
or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
4.3 The Customer acknowledges that
R&P has no control over any Content placed on the Website by visitors and does
not purport to monitor the Content. R&P reserves the right to remove
Content from the Website where it reasonably suspects such content is
Inappropriate Content. R&P shall notify the Customer if it becomes aware of
any allegation that content on the Website may be Inappropriate Content.
4.4 The Customer shall indemnify R&P
against all damages, losses and expenses arising as a result of any action or
claim that the Website or any other material posted to, or linked to, the Website
constitutes Inappropriate Content.
4.5 On the free version, R&P may
include the statement "Sitescroller™ by Randall & Payne" on the
home page of the Website in a form to be agreed.
5.1
The Customer shall pay all Charges for the Sitescroller™
Service and any other sums due from the Customer to R&P by such method as
R&P may agree from time to time, within 14 days of the date of R&P’s
invoice for such charges. Any invoices
raised by R&P shall be deemed to be correct and evidence of all connection,
access, usage and other fees contained therein.
All Charges are subject to Value Added Tax.
5.2
In the event that any Charges and any other
sums are not paid by their due date then interest may be levied at the rate of
3% above the base lending rate of HSBC Bank plc from time to time in force,
calculated from the date payment was due until the date of actual payment.
6. This Agreement shall commence on
the date of acceptance by R&P of the Customer’s order and (subject to
earlier termination pursuant to clause 7 below) shall continue for the Term,
unless the parties agree in writing to extend the same.
7.1 R&P may, at its option,
terminate this Agreement or suspend the Sitescroller™ Service as follows: if
the Customer (i) fails to make any payment due to R&P, within 5 days of its
due date, or (ii) is habitually in payment default, or (iii) breaches any
warranty or is otherwise in material breach of this Agreement and does not
remedy that breach within 30 days of being notified by R&P to do so, or (iv)
there is a change in the ownership or control of the Customer. In no event shall R&P’s election to
suspend this Agreement or the Sitescroller™ Service hereunder be construed as a
waiver of R&P’s right to terminate this Agreement.
7.2 R&P may immediately terminate
this Agreement if bankruptcy or insolvency proceedings are brought against the
Customer or a receiver or administrator is appointed over any of the Customer’s
assets, or the Customer goes into liquidation, or there is a corresponding
event under the law of any other country.
7.3 The Customer may terminate this
Agreement if (i) R&P is in material breach of this Agreement, and the
breach, if capable of remedy, has not been remedied by R&P within sixty (60)
days of receipt of written notice specifying the breach and requiring its
remedy, or (ii) upon the dissolution of R&P.
7.4 Upon termination or expiration of
this Agreement for whatever reason, the Customer shall cease using the Sitescroller™
Service. All outstanding indebtedness of
the Customer to R&P shall become immediately due and payable
8.1 Nothing in this
agreement shall operate to exclude or limit the R&P´s liability for:
(i) death or personal injury caused by
its negligence; or
(ii) any
breach of the terms implied by section 12 of the Sale of Goods Act 1979 or
section 2 of the Supply of Goods and Services Act 1982; or
(iii) fraud; or
(iv) any
other liability which cannot be excluded or limited under applicable law.
8.2 R&P shall not be liable to the
Customer for any damage to software, damage to or loss of data, loss of profit,
anticipated profits, revenues, anticipated savings, goodwill or business
opportunity, or for any indirect or consequential loss or damage.
8.3 Subject to clause 8.1 R&P's
aggregate liability in respect of claims based on events in any calendar year
arising out of or in connection with this Agreement or any collateral contract,
whether in contract or tort (including negligence) or otherwise, shall in no
circumstances exceed the total Charges payable by the Customer to R&P under
this Agreement.
9.1 The Customer retains all
Intellectual Property Rights in the Website and Content, and grants R&P a
licence to such Intellectual Property Rights to the extent required to perform
its obligations pursuant to this Agreement.
9.2 All Intellectual Property Rights in
any software and other works arising in connection with the performance of the Sitescroller™
Service by R&P (the “Works”) shall
be the property of R&P, and R&P hereby grants to the Customer a
non-exclusive licence of such Intellectual Property Rights for the Term for the
purposes of using the Sitescroller™ Service.
9.3 The Customer shall indemnify R&P
against all damages, losses and expenses arising as a result of any action or
claim that the Website or the Content infringes any Intellectual Property
Rights of a third party.
9.4 R&P
shall indemnify the Customer against all damages, losses and expenses arising
as a result of any action or claim that the Works infringe the Intellectual
Property Rights of any third party in the UK
10.1 R&P shall not be liable for any
failure to perform under this Agreement due to any unforeseeable act, event or
cause beyond its reasonable control (“Force
Majeure Event”) during the duration of the Force Majeure Event, Force
Majeure Events shall include but not be limited to: acts of God, war (whether
declared or undeclared), terrorism, riot, insurrection, civil commotion,
national emergency, power shortage, strike, quarantine, contamination, external
transmission interference, failure of any telecommunications lines,
infrastructure or equipment, any action or inaction of any government or
competent authority and any inability or delay in obtaining the Sitescroller™ Service due to the act of a third party
provider of the same.
10.2 Upon removal or cessation of the Force
Majeure Event, all obligations under this Agreement shall resume.
10.3 The Customer shall remain liable for
all of its payment obligations hereunder, regardless of the occurrence of a
Force Majeure Event, until is has notified R&P of such occurrence.
10.4 If a Force Majeure Event continues for
more than sixty days, the Agreement shall immediately terminate without
liability to either party.
11.1 The Customer will at all times (both
before and after termination of this Agreement) keep confidential and will not
use (other than for the purposes of this Agreement) or disclose to any third
party any information in respect of the Sitescroller™ Service or R&P.
11.2 Any notice required to be given to
R&P pursuant to this Agreement shall be in writing by delivering the notice
by hand at, or by sending the same by prepaid first class post (or airmail to
an address outside the country of posting) to the address of R&P set out in
this Agreement. In the case of a notice addressed to the Customer, it shall be
delivered to such address as notified to R&P by first class post, by
facsimile transmission or sent by electronic mail. Notices given according to the above
procedure shall be deemed to have been given at the time of delivery (if
delivered by hand) and when received (if sent by post) and on the day on which
a facsimile transmission or electronic mail is sent.
11.3 Nothing in this Agreement shall be
construed as creating a partnership, joint venture or other relationship
between the parties.
11.4 Any modification to this Agreement
must be made in writing and signed by both parties.
11.5 The Customer shall not without the
prior written consent of R&P assign, transfer or sub-contract all or any
part of this Agreement.
11.6 No failure or delay by either party
to exercise any right, power or remedy will operate as a waiver of it.
11.7 This Agreement constitutes the
entire agreement and understanding of the parties in respect of the subject
matter of the Agreement.
11.8 A person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce any of its terms.
11.9 This Agreement is subject to English
law and is subject to the exclusive jurisdiction of the Courts of England and