[Operating system requirements: This is a web based system which is cross browser capable. The minimum specification requirements are published on the clixifix web site. www.clixifix.co.uk]
1.1 The Digital Media is operated by clixifix Limited ("we/clixifix"). We are registered in England and Wales under company number 08039614 and have our registered office at Unit S3 & S4, The Evolve Building, Cygnet Way, Rainton Bridge South Business Park, Houghton-le-Spring, Tyne and Wear, DH4 5QY. Our VAT number is 167 4204 11.
1.2 These Terms are an agreement between you and clixifix Limited. The Terms are equally applicable to you and those customers permitted or authorised by you from time to time to use and access the Services (“Your Customers”), and any reference to “you” shall be construed to include you and Your Customers where applicable. You shall procure and ensure that Your Customers also agree to be bound by these Terms.
1.3 These Terms apply to the Digital Media or any of the services accessible through the Digital Media (Service), including any updates or supplements to the Digital Media or any Service, unless they come with separate terms, in which case those terms apply.
1.4 We may change these terms at any time by sending you an email with details of the change or notifying you of a change when you next use the Digital Media. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Digital Media and Services.
1.6 The Digital Media or any Service may contain links to other independent third-party websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
2. ORDER CONFIRMATION
2.1 To place an order to use the Digital Media and Services, you must chose the relevant package you wish to purchase and provide all requested details and submit your order. You order constitutes an offer to clixifix. All orders are subject to acceptance by clixifix.
2.2 We will acknowledge receipt of your order by email, if you have not received email acknowledgement please resubmit your order. We will email confirmation of our acceptance of your order (Email Confirmation) and the agreement for supply of Services by clixifix to you shall not be complete until such Email Confirmation has been sent by clixifix.
2.3 The Email Confirmation shall specify the services to be supplied and to confirm the pricing arrangement. Further details of clixifix services and prices can be accessed on the Website www.clixifix.com/pricing as amended from time to time.
2.4 Subject to payment, the Email Confirmation
2.4.1 will set out the commencement date from which you will be able to access and use the Digital Media and Services; and
2.4.2 shall constitute grant of a non-exclusive, non-transferable licence for you to use and access the Digital Media and to permit Your Customers to use and access the Services for the duration of the agreement.
2.5 Subject to the provisions of these Terms, we shall use commercially reasonable endeavours to make the Digital Media and Services available 24 hours a day, seven days a week except for:
2.5.1 planned maintenance carried out during the maintenance window of [8:00pm to 6:00am] (GMT); and
2.5.2 unscheduled emergency maintenance.
2.6 Access to certain areas, contacts, features and functionalities of the Digital Media is restricted to access on a specific subscription basis (“Subscriber Content”/“Restricted Content”), by those users who order and subscribe to receive access to all or some areas of the Digital Media (“Subscribers”) and/or those persons including Your Customers who we otherwise permit to use the restricted areas of the Digital Media (“Permitted Users”, which term shall include “Subscribers” where referred to in these Terms).
2.7 You are responsible for making all arrangements necessary for you to have access to the Digital Media (including obtaining and maintaining all telephone lines, computer hardware and other equipment needed to access the Digital Media) and you shall bear the costs associated with the same. You are also responsible for ensuring that all persons who access the Digital Media through your internet connection are aware of these Terms, and that they comply with them.
2.8 You shall:
2.8.1 provide us with all necessary co-operation and information as may be reasonably required by us from time to time in order for us to provide the Services;
2.8.2 comply with all applicable laws, statutes and regulations from time to time in force (“Applicable Laws”) with respect to your activities under the Contract;
2.8.3 ensure that Your Customers use the Services in accordance with these Terms and be liable to us for any breach by Your Customers of the provisions of these Terms;
2.8.4 ensure that your network and systems enabling use of the Services, comply with any relevant specifications provided by us from time to time;
2.8.5 be solely responsible for procuring and maintaining any required network connection to the Services and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to any required network connections or telecommunications links to the Services or caused by the internet; and
2.8.6 take proper, regular and full back-ups of the data submitted to us to ensure that adequate recovery of such data can be achieved if required.
3. PAYMENT OF FEES
3.1 The prices for use of the Digital Media and Services shall be as quoted on the Website from time to time and confirmed in the Email Confirmation (the “Price”), except in cases of obvious error. The Price excludes VAT unless otherwise indicated. Prices are liable to change at any time. Unless stated to the contrary the Price shall be a monthly price.
3.2 Each of our Service packages is available for a free trial period of up to one month as set out on our Website from time to time (Trial Period). No fees or charges are payable for the Trial Period. You may only participate in one Trial Period and any subsequent attempts to obtain further Trial Periods may be refused by us. Unless cancelled prior to the termination of Trial Period, the Price shall become due and payable on the first day of each contract period (the “due date”). Unless stated to the contrary each contract period shall be one calendar month.
3.3 Prior to the end of the Trial Period you must provide valid, up-to-date and payment details and any other relevant valid, up-to-date and complete contact and billing details requested by us and you hereby authorise us to bill such credit or debit card, on or after the day on which you provide such details, the Price payable in respect of the forthcoming contract period and on or after the first day of each subsequent contract period thereafter, subject to earlier termination. If you do not provide any card details prior to the end of the Trial Period, the provision of the Services will terminate on expiry of the Trial Period.
3.4 If we have not received payment of the Price by any due date for whatever reason, and without affecting any other rights and remedies we may have we may, without liability to you, disable your access to all or part of the Digital Media Services and we shall be under no obligation to provide any or all of the Digital Media or Services while the Price (or part) concerned remains unpaid.
3.5 We shall be entitled to increase the Price upon 30 days' prior notice to you.
3.6 Payment for all Services must be by credit or debit card. You agree that processing of your payment transactions may be subcontracted by us to an appropriate payment processor from time to time.
4. LOG-IN DETAILS FOR PERMITTED USERS
4.1 If you are a Permitted User, you (or your employer) will be given access details, codes, credentials, passwords and/or other information in order to be able to access and/or use Restricted Content (“Log-In Details”). You must treat your Log-In Details as confidential, and you must not disclose these to any third party. You must only access the Restricted Content using your unique Log-In Details as supplied by us. You are responsible for all activities that take place using your Log-In Details and agree to notify us immediately if you believe there has been unauthorised use of your Log-In Details or unauthorised access of the Restricted Content using these.
4.2 We may disable any user Log-In Details, at any time, if in our opinion you have failed to comply with any of the provisions of these Terms.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Unless otherwise expressly stated, we are the owner or the licensee of all intellectual property rights in the Digital Media and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
5.2 “CLIXIFIX” and its corresponding logo(s) are trade marks of clixifix and all goodwill and reputation relating thereto is owned solely by clixifix.
5.3 You may print off one copy, and may download extracts, of any page(s) from the Digital Media for your personal reference and you may draw the attention of others within your organisation to material posted on the Digital Media. Our status (and that of any identified contributors) as the authors of material on the Digital Media must always be acknowledged.
5.4 You must not;
5.4.1 modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text; or
5.4.2 use any part of the materials on the Digital Media for commercial purposes without obtaining a licence to do so from us or our licensors.
5.5 If you print off, copy, use or download any part of the Digital Media in breach of these Terms or the Subscription Agreement, your right to use the Digital Media will cease immediately and you must, at our option, return, delete or destroy any copies of the content (including any Restricted Content) you have made and on request certify to us that you have complied with this section.
5.6 You acknowledge that all intellectual property rights in the Digital Media and the Technology anywhere in the world belong to us or our licensors, that rights in the Digital Media are licensed (not sold) to you, and that you have no rights in, or to, the Digital Media or the Technology other than the right to use each of them in accordance with these Terms.
5.7 You acknowledge that you have no right to have access to the Digital Media in source-code form.
6. PROFESSIONAL SERVICES
6.1 clixifix offers additional professional services such as:
6.1.1 Data preparation and entry;
6.1.2 Onsite training and software user support;
6.1.3 Consultancy in customer care in the construction sector; and
6.1.4 Bespoke development of additional software functionality.
6.2 Where a customer requires such services, clixifix will provide a written offer, detailing scope, daily rate and any anticipated expenses.
6.3 Following written acceptance of the offer by the customer, services will be provided on a time and material basis.
6.4 An additional charge will be made for the costs of any professional services provided as outlined in quotation collateral.
6.5 All intellectual property rights in any materials developed remain solely with clixifix. All services will be provided in a workmanlike manner, In the event of customer dissatisfaction with the quality of work a written complaint should be submitted and clixifix will make reasonable efforts to rectify any problem.
6.6 In any circumstances clixifix’s liability shall be limited to reimbursement of the fees charged for any sub-standard work.
7. USING OUR DIGITAL MEDIA AND ITS CONTENTS
7.1 You may only use the Digital Media for lawful purposes. Non-Subscribers may only use the Digital Media for non-commercial personal use and purposes. You must not (and must procure and ensure that Your Customers do not) use it:
7.1.1 in any way that breaches any Applicable Law or regulation;
7.1.2 in any way that is unlawful or fraudulent, or has such a purpose or effect;
7.1.3 to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (also known as "spam"); or
7.1.4 to knowingly introduce or transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, logic-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code or material which is malicious or technologically harmful or designed to adversely affect the operation of any computer software or hardware.
7.1.5 not use the Digital Media or any Service in any unlawful manner, for any unlawful purpose, in any way that breaches any applicable local, national or international law or regulation, or in any manner inconsistent with these Terms, or act fraudulently, for example for the purposes of making a false claim, or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Digital Media, any Service or any operating system;
7.1.6 not infringe our intellectual property rights or those of any third party in relation to your use of the Digital Media or any Service, including the submission of any material (to the extent that such use is not licensed by these Terms);
7.1.7 not send, transmit, knowingly receive, upload, download, use or re-use any material that is defamatory, offensive or otherwise objectionable or does not comply with our Content Standards (see below) in relation to your use of the Digital Media or any Service;
7.1.8 not use the Digital Media or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
7.1.9 not collect or harvest any information or data from any Digital Media or Service or our systems or attempt to decipher any transmissions to or from the servers running any Digital Media or Service;
7.2 You also agree (and must procure and ensure that Your Customers agree):
7.2.1 not to reproduce, duplicate, copy or re-sell any part of the Digital Media in contravention of the provisions of these Terms.
7.2.2 not to access without authority, interfere with, damage or disrupt:
(a) any part of the Digital Media;
(b) any equipment or network on which the Digital Media is stored;
(c) any software used in the provision of the Digital Media; or
(d) any equipment or network or software owned or used by any third party.
7.2.3 not to access without authority, interfere with, damage or disrupt any part of the Digital Media or any equipment or network on which the Digital Media is stored, any software used in the provision of the Digital Media, or any equipment or network or software owned or used by any third party connected or used in relation to the Digital Media. By breaching this provision, you may commit a criminal offence. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Digital Media will cease immediately.
7.3 You may only link to the home page of the Website, provided that you do so from a website owned by you and in a way that is fair and legal and does not damage our reputation or take advantage of it or in such a way as to suggest any form of association, approval, sponsorship or endorsement on our part. However, we reserve the right to withdraw linking permission without notice for any reason whatsoever.
8. INTERACTIVE SERVICES
8.1 We provide, from time to time, interactive services within the Digital Media, including, without limitation in particular customer tickets, and any bulletin boards, communications facilities, and discussion forums (“interactive service(s)”).
8.2 Where we do provide any interactive service, we will provide clear information to you about the kind of service offered, if it is moderated and what form of moderation is used (including whether it is human or technical). Unless otherwise stated we will not moderate or monitor any interactive service.
8.3 We will do our best to assess any possible risks for users from third parties when they use any interactive service provided on our site, and we will decide in each case whether it is appropriate to use moderation of the relevant service (including what kind of moderation to use) in the light of those risks.
However, we are under no obligation to oversee, monitor or moderate any interactive service we provide on our site, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.
8.4 The use of any of our interactive services by a minor is subject to the consent of their parent or guardian. We advise parents who permit their children to use an interactive service that it is important that they communicate with their children about their safety online, as moderation is not foolproof. Minors who are using any interactive service should be made aware of the potential risks to them.
8.5 Where we do moderate an interactive service, we will normally provide you with a means of contacting the moderator, should a concern or difficulty arise.
9. CONTENT STANDARDS
9.1 These content standards (“content standards”) apply to any and all material which you contribute to our site, including without limitation, all types of information, text, software, sound recordings, photographs, graphics, video, databases or any other compilations, (“contributions”) and to any interactive services associated with it.
9.2 You and Your Customers must comply with the spirit of the following standards as well as the letter (you must procure and ensure that Your Customers so comply). The standards apply to each part of any contribution as well as to its whole.
9.3 Contributions must:
9.3.1 Be accurate (where they state facts).
9.3.2 Be genuinely held (where they state opinions).
9.3.3 Comply with Applicable Law in the UK and in any country from which they are posted.
9.4 Contributions must not:
9.4.1 Be used for sales promotion or other commercial purposes.
9.4.2 Contain any material which is defamatory of any person.
9.4.3 Contain any material which is obscene, offensive, hateful or inflammatory.
9.4.4 Promote sexually explicit material.
9.4.5 Promote violence.
9.4.6 Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
9.4.7 Infringe any copyright, database right, trade mark, confidentiality or other intellectual property right of any other person.
9.4.8 Be likely to deceive any person.
9.4.9 Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence.
9.4.10 Promote any illegal activity.
9.4.11 Be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety.
9.4.12 Be likely to harass, upset, embarrass, alarm or annoy any other person.
9.4.13 Be used to impersonate any person, or to misrepresent your identity or affiliation with any person.
9.4.14 Give the impression that they emanate from us, if this is not the case.
9.4.15 Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
9.5 You and Your Customers must not send, knowingly receive, upload, download, use or re-use any material which does not comply with our content standards (you must procure and ensure that Your Customers comply with this obligation).
10. BREACH OF USE RESTRICTIONS CONTENT STANDARDS
10.1 We may take all steps we believe reasonably necessary to ensure these Terms being complied with. We may investigate all actions which we suspect breach these Terms. We will determine, in our discretion, whether there has been a breach of these Terms. Failure to comply with the acceptable use restrictions and content standards may constitute a material breach of these Terms.
10.2 When we believe a breach of these Terms has occurred, we may take any action we deem appropriate, including but not limited to all or any of the following actions and may result in our taking all or any of the following actions:
10.2.1 Immediate, temporary or permanent withdrawal of your or Your Customers’ right to use the Digital Media and/or Services.
10.2.2 Immediate, temporary or permanent removal of any posting or material uploaded by you or Your Customers to the Digital Media.
10.2.3 Issue of a warning to you or Your Customers.
10.2.4 Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
10.2.5 Further legal action against you or Your Customers.
10.2.6 Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.
11. UPLOADING MATERIAL
11.1 Whenever you or Your Customers make use of a feature that allows you to upload material to our site, or to make contact with other users of our site, you and Your Customers must comply with the content standards. You warrant that any such contribution does comply with those standards, and you indemnify us for any breach of that warranty.
11.2 Any material you or Your Customers upload to our site will be considered non-confidential and non-proprietary, and we have the right to use, copy, distribute and disclose to third parties any such material for any purpose. We also have the right to disclose your and Your Customers’ identity to any third party who is claiming that any material posted or uploaded by you or Your Customers to our site constitutes a violation of their intellectual property rights, or of their right to privacy.
11.3 We will not be responsible, or liable to any third party, for the content or accuracy of any materials posted by you or any other user of our site.
11.4 We have the right to edit, reject or remove any material or posting you or Your Customers make on our site for any reason including in particular (without limitation) if, in our opinion, such material does not comply with the content standards. Where in our reasonable opinion any offending contribution by you or Your Customers cannot be removed, or where you or Your Customers have repeatedly supplied or inputted offending contributions, we may, in our sole discretion either suspend your or Your Customers’ access to the Digital Media or terminate this agreement.
11.5 Where reasonably requested by you, we will as soon as is practicable, make any additions modifications or deletions to the Digital Media Content.
12. WARRANTY AND INDEMNITY
12.1 You warrant that:
12.1.1 you are the legal owner of any contribution and any intellectual property rights in any contribution supplied by you;
12.1.2 all contributions supplied by you will comply with the contribution standards
12.1.3 all contributions supplied by you will comply with all provisions of the Data Protection Legislation, as defined in clause 15;
12.2 You indemnify us and hold us harmless fully and effectively indemnified against any loss, damage, cost or expense (including, without limitation, reasonable professional fees and expenses) arising directly or indirectly out of (i) breach of your obligations, warranties and/or undertakings in these Terms; (ii) your or Your Customers’ use of and access to the Digital Media or Services; (iii) your violation of any term of these Terms; (iv) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (v) any claim that one of your Submissions caused damage to a third party. This defence and indemnification obligation will survive these Terms and your use of the Service.
13. TERM AND TERMINATION
13.1 Our agreement with you shall, unless otherwise terminated in accordance with these Terms, commence on the date on which we first allow you to access the relevant Services or Digital Media and shall continue for any Trial Period during which, the agreement shall be automatically renewed if, and from the date on which, you provide the payment details required under these Terms for successive periods of one calendar month (unless otherwise stated) (each a contract period), unless:
13.1.1 either of us notifies the other in writing of termination at least 7 days before the end any contract period, in which case the Contract shall terminate upon the expiry of the applicable contract period; or
13.1.2 otherwise terminated in accordance with these Terms.
13.2 Either you or we may terminate a Contract immediately on written notice to the other if:
13.2.1 the other commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
13.2.2 the other suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
13.3 We may also terminate the Contract immediately on written notice to you if:
13.3.1 you fail to pay any sum due to us in respect of the Services on its due date;
13.3.2 you or any of Your Customers breach any of the provisions of these Terms;
13.3.3 you or any of Your Customers do anything which, in our reasonable opinion, would bring us into disrepute or damage our brand.
13.4 On termination of the Contract for any reason:
13.4.1 all rights and licenses granted to you under these Terms shall immediately cease and terminate;
13.4.2 you must immediately cease all activities authorised by these Terms, including your use of any Digital Media or Services.
13.4.3 we may destroy or otherwise dispose of any of your data in our possession unless we receive, with your notice to terminate, or where we terminate, prior to the end of the Trial Period or the current contract period, a written request for the delivery to you of the then most recent back-up of the your data. We shall use reasonable commercial endeavours to deliver any back-up to you within 45 days of receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination. You shall pay all reasonable expenses incurred by us in returning or disposing of your data;
13.4.4 no refund will be due to you in respect of the Price (or any part) for the then current contract period; and
13.4.5 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
14. SECURITY AND ERRORS
14.1 Whilst we use reasonable endeavours to maintain the security of the Digital Media and to ensure that the Digital Media is error free and up to date, you acknowledge that the Digital Media may be subject to breaches of security and other technical issues. Therefore, we do not represent or warrant that the Digital Media or the features on it will be uninterrupted, error-free, up to date or free from breaches of security.
14.2 By accessing and using the Digital Media, you confirm that all necessary firewall, anti-virus, data backup and other security software is installed and operational on the device(s) from which you access the Digital Media and is up to date.
15. DATA PROTECTION
15.1 “Data Protection Legislation” means all applicable data protection and privacy legislation, regulations and guidance including the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations, Regulation (EU) 2016/679 (the General Data Protection Regulation or GDPR) including any law based on or enacting essentially equivalent provisions in the United Kingdom to the GDPR and any applicable guidance or codes of practice issued by the European Data Protection Board or Information Commissioner from time to time (all as amended, updated or re-enacted from time to time).
15.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
15.3 The parties acknowledge that for the purposes of the Data Protection Legislation, you are the controller and we are the processor. Schedule 1 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject.
15.4 Without prejudice to the generality of clause 15.2, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of this agreement.
15.5 Without prejudice to the generality of clause 15.2, we shall, in relation to any personal data processed in connection with the performance by us of our obligations under this agreement:
15.5.1 process that personal data only on your documented written instructions unless we are required by Applicable Laws to otherwise process that personal data. Where we are relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;
15.5.2 ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
15.5.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
15.5.4 assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
15.5.5 notify you without undue delay on becoming aware of a personal data breach;
15.5.6 at your written direction, delete or return personal data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the personal data; and
15.5.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation.
15.6 You consent to us appointing third parties (Amazon Web Services / Salesforce & Heroku) as third party processors of Personal Data under this agreement. We confirm that we have entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 15 and in either case which we confirm reflect and will continue to reflect the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third party processor appointed by us pursuant to this clause 15.
15.7 We may, at any time on not less than 30 days' notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
16.1 You expressly agree that use of the Digital Media and the Service is at your sole risk and that the service and any content is provided on an "as is" and "as available" basis. The content with the Digital Media and Services is made available for you to select or disregard as you see fit, it does not constitute advice. Where the Digital Media contains opinions or recommendations, these are not endorsed by us and to the maximum extent permitted by law, we shall not be liable on account of the accuracy or otherwise of such opinions and recommendations. We shall have no liability to any party in relation to any connected services.
16.2 Commentary, communications and other materials or content posted, transmitted, or otherwise made available on or via the Digital Media are the personal views or opinions of the contributor(s) and do not reflect the opinions or views of, and are not endorsed by, clixifix or any company or body associated with it and are not intended to amount to advice on which reliance should be placed.
16.3 Commentary, communications and other materials or content posted, transmitted, or otherwise made available on or via the Digital Media are the sole responsibility of the person who originated such content. We may not monitor or control the content posted on or via the Digital Media and, we shall not take responsibility for such content. Accordingly, you understand that by using the Digital Media, you may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabelled or are otherwise deceptive.
16.4 Under no circumstances will clixifix be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred on or as a result of the use of any content posted, transmitted, or otherwise made available via the Digital Media or broadcast elsewhere.
16.5 There may be links from the Digital Media, or in communications you receive from the Digital Media, to third party websites. Accessing those third party websites requires you to leave the Digital Media. We do not control those third party websites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any loss or damage that may arise from your use of any of those third party websites.
16.6 To the extent permitted by law:
16.6.1 We therefore disclaim all liability and responsibility arising from any reliance placed on such content by any user of the Digital Media or Services or by anyone who may be informed of its content.
16.6.2 We make no warranties or representations about the accuracy or completeness of the content provided on or via the Digital Media or Service and we assume no liability or responsibility for any errors, omissions or inaccuracies of content or submissions.
16.6.3 We are not responsible for any content or transaction that is contained or may be available outside the Digital Media or Service. We make no representations, warrantees, guarantees or any endorsements as to the quality, suitability, functionality or legality of any products, services or other offerings that may be advertised or made available by a third party through the service or which may be linked to the service such as in advertising or a submission. Accordingly, we will not be a party to or in any way be responsible for any transaction that may occur between you and such third parties and you should always use prudent judgment and read the policies and terms of such third parties.
17. OUR LIABILITY TO YOU
17.1 You acknowledge that the Digital Media has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Digital Media as described in the Documents meet your requirements.
17.2 We warrant that the Services will be performed with reasonable skill and care. In the event of breach of this warranty, we will, at our expense and in our sole discretion use our reasonable commercial endeavours to correct any such breach promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of this warranty.
17.3 Whilst we try to ensure the Digital Media is normally available 24 hours a day, we will not be liable to you if for any reason the Digital Media is unavailable at any time or for any period. We reserve the right to withdraw or amend any part of the Digital Media and/or any feature/service we provide on the Digital Media without notice (on a temporary or permanent basis). You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Digital Media or any part thereof.
17.4 We do not warrant that your or Your Customers' use of the Services will be uninterrupted or error-free and we do not warrant that any information provided by us on our site or through the Services is accurate or up to date or that any reports produced or analysis of customer feedback carried out will be entirely error free. Such information, reports and analysis are provided for guidance only and should not be relied on by you in any way.
17.5 We are 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 your or Your Customers' internet connection) and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
17.6 You are responsible for Your Customers' use of the Services and ensuring that you have appropriate terms and policies in place with Your Customers detailing how they may use the Services and how their Personal Data may be processed by you (and by us on your behalf) and so far as is permitted in law we shall have no liability to Your Customers in respect of their use of the Services.
17.7 We will not be liable to you for anything which is caused by
17.7.1 use of the Digital Media or Services contrary to our instructions, or modification or alteration of the Digital Media or Services by any party other than us or our authorised contractors or agents.
17.7.2 a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Digital Media or to your downloading of any material posted on it, or on any website linked to it.
17.8 Commentary, communications and other materials or content posted, transmitted, or otherwise made available on or via the Digital Media are for information purposes only and is not intended to amount to advice on which reliance should be placed. We therefore exclude all liability for any loss or damage arising from your reliance on, or use of, such information.
17.9 To the extent permitted by law we hereby expressly exclude:
17.9.1 all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and
17.9.2 any liability for the following loss or damage incurred by you in connection with the Digital Media or in connection with the use, inability to use, or results of the use of the Digital Media, any websites linked to it and any materials posted on it:-
(a) loss of income or revenue;
(b) loss of business;
(c) loss of profits or contracts;
(d) loss of anticipated savings;
(e) loss of, damage to or corruption of data;
(f) loss of opportunity or goodwill; and
(g) indirect, special and/or consequential loss
however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
17.10 In any event, we are only responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence up to the limit specified in this clause, but we are not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach or if such loss was contemplated by you and us at the time these Terms were entered between us. Our maximum aggregate liability under or in connection with these Terms (including use of any Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the actual amount paid or payable by you and received by us in relation to the relevant Digital Media and Services. This clause 17.10 does not apply to the types of loss set out in condition 17.11.
17.11 These Terms are not intended to and do not affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under Applicable Law.
18. EVENTS OUTSIDE OUR CONTROL
18.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control).
18.2 If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms:
18.2.1 our obligations under these Terms will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
18.2.2 we will use our reasonable endeavours to find a solution by which our obligations under these Terms may be performed despite the Event Outside Our Control.
19.1 If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing, you can send this to us by e-mail or by prepaid post to clixifix Limited Unit S3 & S4, The Evolve Building, Cygnet Way, Rainton Bridge South Business Park, Houghton-le-Spring, Tyne and Wear, DH4 5QY and firstname.lastname@example.org. We will confirm receipt of this by contacting you in writing, normally by e-mail. If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your request for the Digital Media.
19.3 You may not assign, or transfer its rights under this agreement in any way.
19.4 You acknowledge and accept that we do not warrant that the whole or any part of the Digital Media will be continuously available. Where downtime is within our control, we will use our reasonable endeavours to keep it to a minimum and where possible will notify you of any pending downtime
19.5 We shall be entitled, to refer to any company subscribing to, or permitted access to, the Digital Media either in written or pictorial form in our promotional materials, including use of any trade marks or logos.
19.6 We reserve the right, in our sole discretion, to modify or otherwise update these Terms by posting revised and/or updated terms to the Digital Media at any time. If you continue to use the Digital Media following such posting you will be agreeing to be bound by such modifications or updates. We recommend therefore that you review these Terms on a regular basis.
19.7 These Terms and the documents referred to in them, constitute the entire agreement and understanding between us relating to the use of the Digital Media and supersede all prior written or oral understandings, arrangements, representations or agreements relating to such (and no reliance is placed on, or remedy is available in relation to, such). You acknowledge that you do not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to these Terms or not) other than as expressly set out in these Terms.
19.8 A person who is not a party to these terms has no rights under the Contract (Rights of Third Parties) Act 1999 to enforce any of these terms, but this section does not affect a right or remedy of a third party which exists or is available apart from that Act.
19.9 If for any reason any part of these Terms is deemed unenforceable by a competent authority, then that part of the Terms will be deleted and this will not affect the validity or enforceability of the remaining Terms.
19.10 Any waiver by us of the breach of these Terms shall not be deemed to be a waiver of any subsequent breach of any provision.
19.11 The English courts will have exclusive jurisdiction over any claim arising from, or related to, a visit to or use of the Digital Media. These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
Schedule 1 – data processing
Processing under this Agreement
Subject Matter. As described in the agreement.
Purpose. Personal Data will be collected and processed for the purpose only of performance of obligations under this agreement.
Nature. clixifix provides an innovative SAAS solution to customer care and defect management in the construction industry sector. clixifix has leveraged emerging mobile consumer technology to provide innovative solutions to customer care. Using mobile devices to capture defects information, defect images and customer signatures the old paper base systems can and are being phased out. clixifix combines novel and non-trivial data structures with temporal analysis techniques to provide deep insights into the customers data. This novel approach has stretched the bounds of existing technology to create coherent and meaningful reports. Combining the platform as a service provided by Heroku with software as a service components from providers like Amazon, clixifix has taken the burden of running a software solution in house and moved this into a central multi tenancy solution.
Duration. clixifix’s processing of Personal Data under this agreement will be for the duration of the term of this agreement.
The Types of Personal Data processed under this agreement will be:
Special Access Details to Property.
No financial details are stored on the platform.
The Categories of Data Subject the categories of Data Subject that will be processed under this agreement will be:
• Customer - including all data above.
• Employee - First Name, Last Name, Email Address.
• Trades person - Company Name, Company Address.
• Phone numbers and First Name, Last Name, Email Address for all invited users to the portal.
• Concierge staff - First Name, Last Name, Email Address.
Third Party Processors
• Heroku (Salesforce)