This is an agreement between Cashology Limited, with its registered office at 71-75
Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ, company number
13867358 (“Supplier”) and the person or entity identified
in any applicable Subscription Form or who otherwise wishes to utilise the Services
(as
explained below) (“Client”).
Background
The Supplier has developed various software applications and platforms which it
makes available online.
The Supplier has agreed to provide its Services to the Client subject to the terms
and conditions of this agreement.
Definitions and interpretation
Capitalised terms have the following meanings in these terms and conditions:
Applicable Laws: all applicable laws, regulations and codes
of conduct
Business Day: a day other than a weekend or public holiday
in England
Client Data: all data inputted by the Client in connection
with the Services
Data: Client Data and Third Party Data
Personal Data: as defined in the Data Protection Act 1998
Price List: the Supplier's price list shown on the Website
or otherwise available from the Supplier as may be varied from time to time
Services: the platform (including the Software) provided by
the Supplier to the Client under this agreement as described in more detail
on the Website
Software: the online software applications provided by the
Supplier as part of the platform
Standard Business Hours: 9.00 am to 5.00 pm local UK time
each Business Day
Supplier Fees: any fees due to the Supplier under this
agreement
Website: the website at www.cashology.co.uk
In Writing: all forms of visible reproduction in permanent
form (including email unless otherwise stated)
Words in the singular include the plural and vice versa. References to a “person”
shall include any individual, firm, unincorporated association or body corporate.
Any reference in this agreement to any provision of a statute shall be construed as
a reference to that provision, as amended, re-enacted or extended at the relevant
time.
The word “including”, unless the context otherwise requires, shall mean “including
without limitation”.
The headings in this agreement are for convenience only and shall not affect its
interpretation.
Supplier's Obligations
Subject to the terms and conditions of this agreement, the Supplier hereby grants to
the Client a non-exclusive, non-transferable right to use the Services.
The Supplier shall provide the Services subject to the terms and conditions of this
agreement.
The Supplier shall use commercially reasonable endeavours to make the Services
available 24 hours a day, seven days a week, excluding:
planned maintenance carried out at any time outside Standard Business Hours;
and
maintenance which the Supplier considers to be urgent.
The Supplier undertakes that it shall supply the Services with reasonable skill and
care (“the Undertaking”).
The Undertaking shall not apply to the extent that any breach is caused by use of
the Services contrary to the
Supplier's instructions or by modification of the Services by any party other than
the Supplier.
If the Services do not comply with the Undertaking and provided that this agreement
has not been terminated
and that neither party has given notice to terminate the agreement, the Supplier
shall use reasonable commercial
endeavours to correct any such
non-compliance promptly.
Such correction is the Client's sole and exclusive remedy for any
breach of the Undertaking.
Notwithstanding the foregoing, the Supplier:
does not warrant that the Client's use of the Services will be uninterrupted
or error-free; or that the Services
or the information obtained by the Client through the Services will meet the
Client's requirements; and
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.
The Supplier does not provide professional advice of any kind or warrant that use of
Services
will achieve the Client's financial goals. It is entirely the Client's
responsibility to satisfy itself as to such matters.
The Supplier does not warrant that balance and transactional data will necessarily
match that held by your banking or credit institution.
It is entirely the Client's responsibility to satisfy itself as to the veracity of
the balance and transactoinal data displayed in the Software.
Support
The Services include email support. The Supplier may vary the nature
of the support or withdraw it entirely. The Supplier reserves the right to charge
for support.
The Supplier shall use reasonable commercial endeavours to respond to support
queries within seven Business Days.
The Supplier shall not in any event be obliged to supply support:
in respect of faults or problems directly or indirectly arising from:
incorrect use of the Services;
services not supplied by the Supplier; or
any cause external to the Service; or
if any Supplier Fees are unpaid.
Client's Obligations
The Client shall:
provide the Supplier with:
all necessary co-operation in relation to this agreement; and
all necessary access to such information as may be required by the
Supplier in order to provide the Services;
comply with all Applicable Laws and not infringe any third party rights with
respect to this agreement and use of the Services;
take reasonable care to maintain the confidentiality of any passwords and
other log-in information relating to the Services and
promptly notify the Supplier of any apparent breach of security such as
loss, theft, misuse or unauthorised disclosure or use of a password;
promptly notify the Supplier of any errors which it encounters in the
Services;
not do anything which may have the effect of disrupting the Services
including storage, distribution or transmission of worms, viruses, software
bombs or mass mailings or the like;
attempt to gain unauthorised access to any part of the Services or equipment
used to provide the Service
ensure that its networks and systems comply with any
relevant criteria specified by the Supplier from time to time; and
be solely responsible for procuring and maintaining its network connections
and telecommunications links from its systems to the
Supplier's data centres,
and all problems, conditions, delays, delivery failures and all other loss
or damage arising from or relating to the Client's network connections or
telecommunications links or caused by the internet.
satisfy itself as to the
veracity of
the balance and transactiinal data displayed in the Software, by reference
to
that reported by their banking, credit or other institution.
Data
The Supplier does not guarantee that all Data will be backed up or that it will be
able to restore Data in all circumstances.
Even if there is a restorable backup, the Supplier does not guarantee that that
there will be no Data loss.
As between the Supplier and Client, the Client is responsible for Data. The Client
warrants that Data shall not be unlawful,
defamatory, threatening, harassing, invasive of privacy, offensive, vulgar, racist,
hateful, discriminatory, obscene, pornographic,
sexually suggestive, promoting of self-harm, misleading, abusive or deceptive or an
infringement of third party intellectual property or other rights.
The Supplier reserves the right without notice or refund to suspend, alter, remove
or delete Data or to disclose to the relevant authorities
any Data or behaviour if it is the subject of complaint or where the Supplier has
reason to believe that it breaches this agreement or
that such steps are necessary to protect the Supplier or others or that a criminal
act has been committed
or that the Supplier is required to do so by law or appropriate authority.
Personal Data
The Client is the data controller and the Supplier is the data processor in
connection with any Personal Data included within the Data.
Insofar as the Supplier may process any Personal Data on behalf of the Client as
data processor, the Supplier agrees that:
the Supplier shall do so only in accordance with this agreement or your
written instructions, and
the Supplier will at all times have appropriate technical and organisational
measures in place to protect all such Personal Data against
unauthorised or unlawful processing, accidental loss, destruction or damage
and that, having regard to the state of technological development
and the cost of implementing any measures, the measures shall ensure a level
of security appropriate to the harm that might result from such
unauthorised or unlawful processing or accidental loss, destruction or
damage and to the nature of the data to be protected.
Termination and Suspension
The Client is entitled to terminate this agreement at any time by giving notice in
writing to the Supplier.
For the avoidance of doubt, such notice does not give rise to any refund of Supplier
Fees.
The Supplier is entitled to terminate this agreement at any time by giving at least
28 days' advance notice in Writing to the Client.
The Supplier is entitled to suspend or terminate this agreement at any time by
giving immediate notice in Writing to the Client if
the Supplier terminates the Services as a whole or any Supplier Fees are unpaid or
the Supplier acting reasonably considers it necessary
to terminate the agreement to protect itself or others, in all of which cases there
will be no refund of Supplier Fees already paid.
If the Supplier suspends this agreement, fees shall continue to fall due during the
suspension period.
The Supplier shall be entitled not to restore any Services until any outstanding
Supplier Fees including interest have been paid.
Without prejudice to any other right or remedy available to either party under this
agreement or at law,
either party (the ‘Innocent Party') may terminate this agreement at any time and
with immediate effect upon giving notice to the other party if:
the other party has committed a material breach of this agreement and has
failed to remedy such breach within 28 days of receipt
of a notice in Writing from the Innocent Party describing the breach and
requiring its remedy; or
the other party suffers, or threatens to suffer, any form of bankruptcy,
insolvency, receivership, administrative receivership, administration
or is unable to pay its debts or makes any arrangement with creditors or
applies for protection from creditors or passes a resolution for its winding
up or ceases,
or threatens to cease, to carry on business or any event occurs which is
substantially similar to any of the foregoing.
On termination of this agreement for any reason:
all licences granted under this agreement shall immediately terminate and
the Supplier shall cease supplying the Services;
accrued rights and liabilities shall be unaffected; and
the Supplier is entitled to delete any Data without notice after 28 days
following termination;
all terms shall survive which are expressed or intended to survive
termination as well as any terms necessary for the interpretation or
enforcement of this agreement.
Limitation of liability
Any provisions in this agreement excluding or limiting liability will apply
regardless of the form of action, whether under statute,
in contract or tort including negligence or otherwise. Such provisions apply to and
may be enforced by the relevant party's directors,
officers, employees, subcontractors, agents and affiliated companies as well as to
the party itself and those parties will have the benefit
of such provisions in terms of the Contracts (Rights of Third Parties) Act 1999.
Nothing in this agreement in any way excludes or restricts
either party's liability for negligence causing death or personal injury or for
fraudulent misrepresentation
or for any liability which may not legally be excluded or limited.
The liability of the Supplier of any kind (including for negligence) with respect to
the Services for any one event or series of
related events shall in no circumstances exceed the total fees paid or payable to
the Supplier in the 12 months preceding the event(s) complained of.
The Supplier shall not in any event be liable for any
economic losses (including, without limit, loss of revenues, profits,
contracts, business or anticipated savings);
loss of goodwill or reputation;
special, indirect or consequential losses; or
damage to or loss of Data
(even if the Supplier has been advised of the possibility of such losses).
The Supplier shall not be liable for breach of this agreement unless the Client has
given the Supplier prompt written notice
of the breach and a reasonable opportunity thereafter to rectify the breach at the
Supplier's expense.
The parties excludes all conditions, terms, representations (other than fraudulent
representations) and warranties relating to the Services,
express or implied, that are not expressly stated herein, including but not limited
to any implied warranties as to quality,
fitness for purpose or ability to achieve a particular result.
Indemnity
The Client shall defend, indemnify and hold harmless the Supplier against claims,
actions, proceedings, losses, damages, expenses and costs
(including without limitation court costs and reasonable legal fees) arising out of
or in connection with the Client's use of the Services
(including use thereof by any Third Party) and/or breach of this agreement by the
Client, provided that:
the Client is given prompt notice of any such claim;
the Supplier provides reasonable co-operation to the Client in the defence
and settlement of such claim, at the Client's expense; and
the Client is given sole authority to defend or settle the claim.
Intellectual Property Rights
The Client acknowledges that the Supplier and/or its licensors own all intellectual
property rights in the Services and Software.
Except as expressly stated herein, this agreement does not grant the Client any
intellectual property rights in respect of the Services and Software.
The Supplier warrants that it owns all rights necessary to grant the rights which it
purports to grant under this agreement.
Except to the extent expressly permitted under this agreement, the Client shall not
use, sublicense, retrieve, display, modify, copy, print,
sell, distribute, download, hire, reverse engineer (unless permitted by applicable
law) or create extracts of, or derivative works from, the Software.
The Client shall not access all or any part of the Services in order to build or
enhance a product or service which competes with the Services.
The Client licenses the Supplier to use in connection with the Services any trade
marks, branding and materials (“Materials”)
supplied by the Client to the Supplier for such purposes. The Client warrants that
the Materials do not infringe any third party
intellectual property rights.
The Client acknowledges that the Supplier is entitled to display its own trade marks
and branding as it sees fit in connection with the Services.
Confidentiality
Each party shall keep in confidence any information in any form (including oral) of
a confidential nature relating to the other party
obtained in connection with this agreement and shall not without the prior written
consent of such other party use that information
other than for the purposes of this agreement or disclose it to any person other
than its personnel who need to know the information
for the purposes of this agreement.
This clause shall not apply to:
information which becomes public knowledge has been published other than
through a breach of this agreement;
information lawfully in the possession of the recipient before the
disclosure took place;
information obtained from a third party who is free to disclose it; and
information which a party is requested to disclose and if it did not could
be required by law or regulation or competent authority to do so.
This section of the agreement shall survive termination.
General
This agreement constitutes the entire agreement between the parties with respect to
its subject matter and supersedes any previous
communications or agreements between the parties in relation to such matters. Both
parties acknowledge that there have been no
misrepresentations and that neither party has relied on any pre-contractual
statements. Liability for misrepresentation
(excluding fraudulent misrepresentation) relating to the terms of this agreement is
excluded
Neither party is liable for failure to perform or delay in performing any obligation
(excluding payment) under this agreement
if the failure or delay is caused by any circumstances beyond that party's
reasonable control including third party telecommunication failures.
Any notice required by this agreement to be given by any party in Writing may be
given by hand or sent
(by special delivery within the UK or by international signed for post outside the
UK) to another party at its registered office
or such other address as that party may notify to the other party for this purpose
from time to time or, unless stated otherwise,
by email subject to the email not having been returned.
No amendment or variation of this agreement shall be effective unless in Writing
,
expressed to be an amendment to this agreement and signed by a duly authorised
representative of each of the parties.
Neither party may assign or transfer any of its rights or obligations under
agreement without the prior consent in Writing
of the other provided, however, that each party shall have the right without consent
to assign or its rights or obligations
under this agreement in connection with any merger, consolidation, sale or transfer
of all or substantially all of such party's assets.
The Developer is entitled to subcontract any of its obligations under this agreement
and is responsible for procuring compliance by
subcontractors with this agreement.
The failure of a party to exercise or enforce any right under this agreement shall
not he deemed to be a waiver of that right
nor operate to bar the exercise or enforcement of it at any time or times
thereafter.
If any provision of this agreement is held to be unlawful, void or unenforceable in
whole or in part, this agreement shall continue in force
in relation to the unaffected provisions and the remainder of the provision in
question, and the parties will renegotiate the offending provision
in good faith to achieve the same objects.
Save insofar as expressly provided otherwise in this agreement, no third party may
enforce any clause in this agreement under the Contracts
(Rights of Third parties) Act 1999.
The relationship of the parties is that of independent contractors. Except as
otherwise stated in this agreement, nothing in this agreement
shall constitute the parties as partners, joint venturers or co-owners, or
constitute any party as the agent,
employee or representative of the other(s), or empower any party to act for, bind or
otherwise create
or assume any obligation on behalf of the other(s), and no party shall hold itself
out as having authority to do the same.
This agreement shall be governed by and construed in all respects in accordance with
the laws of England and
each party hereby submits to the exclusive jurisdiction of the English Courts.