Terms of use
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE.
This agreement ("Agreement") is a legal agreement between you ("Partner" or "you") and TOUCHNOTE LIMITED (company no. 062352264) of Unit 3, 17-19 Bonny Street, London NW1 9PE, United Kingdom ("Touchnote" or "we") for the Software (defined below) and for and in connection with the use of the Software.
BY CLICKING ON THE "ACCEPT" BUTTON YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BE LEGALLY BINDING ON YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE INSTALLATION OF THE SOFTWARE NOW.
IF YOU EXPERIENCE PROBLEMS WITH INSTALLATION OF THE SOFTWARE THEN PLEASE CONTACT OUR CUSTOMER SERVICES [insert hyperlink].
1. Definitions & Interpretation
1.1 In this Agreement the following terms shall have the following meanings:
"Accounting Date" means 31 March, 30 June, 30 September and 31 December;
"Accounting Period" means the period from the Commencement Date to the next following Accounting Date and each three (3) month period ending on an Accounting Date thereafter;
"Commencement Date" the date of this Agreement coming into force, being the date of your acceptance of the terms of this Agreement;
"Documentation" means online or electronic documentation relating to the Software;
"Initial Term" means twelve (12) months from the Commencement Date, unless agreed otherwise in writing and subject at all times to early termination in accordance with the terms of this Agreement;
"Link" means an embedded graphic representation of the Touchnote Logo which contains a unique hypertext pointer from the URL address of the Partner Website to the URL address of the Touchnote Website (and which will, for the avoidance of doubt, enable users of the Partner Website to order a Product from the Touchnote Website);
"Linked Image" means any artwork, photograph or image created, or made available, on the Partner Website (by users of the Partner Website) which are supplied to Touchnote via the Link (for the purposes of creating and ordering a Product from the Touchnote Website);
"Net Sales Price" means all monies actually received by Touchnote (and not, for the avoidance of doubt, any monies invoiced by Touchnote and not yet received or any monies written off as bad debt) in connection with the sale of a Product exclusive of any VAT (or other equivalent sales tax) and less any charge-backs, refunds, cancellation fees, delivery charges and other transaction related charges (if any) or any other similar charges (as determined by Touchnote in its reasonable discretion;
"Partner Website" me the website operated by or on behalf of the Partner upon which users of the website can create Linked Images; and
"Product" means a greeting card, note card or postcard featuring on its front cover a Linked Image;
"Purpose" means to create a level of linked functionality and inter-operation between the Partner Website and the Touchnote Website via the Link such that a user of the Partner Website can click on the Link and transfer images from the Partner Website to the Touchnote Website and in turn allow the user to then create and order a Product directly from the Touchnote Website;
"Royalty" means unless otherwise agreed at any time, thirty per cent (30%) of the Net Sales Price until 31st March 2010 and ten per cent (10%) thereafter;
"Software" means the Touchnote Web Application computer software (including any updated, upgraded or new releases of the same made available by Touchnote from time to time);
"Touchnote Logo" means the logo (in its various forms) attached in the Schedule to this Agreement (or such other logo(s) as Touchnote may from time to time notify must be used by the Partner for the purposes of this Agreement) that must constitute the graphic representation of the Link; and
"Touchnote Website" means the website operated by or on behalf of Touchnote identified by the URL www.touchnote.com, and its replacement and/or successor from time to time.
1.2 The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. References to Clauses, sub-clauses and Schedules refer to the clause, sub-clauses and schedules of this Agreement unless stated to the contrary. Unless the context otherwise requires, the singular shall include the plural and vice-versa and references to the masculine shall include references to the feminine and vice-versa.
2. Software and Documentation: Grant & Scope of Licence
2.1 In consideration of you agreeing to comply with the terms of this Agreement, Touchnote hereby grants to you a non-exclusive, non-transferable licence to use the Software and the Documentation for the Purpose on the terms of this Agreement.
2.2 You may:
(a) use the Software only for the Purpose; and
(b) use any Documentation in support of the use of the Software permitted under clause 2.2(a).
2.3 The Partner will not (nor permit any third party to do any of the same on its behalf):
(a) use the Software or the Documentation other than for the Purpose in strict conformity with the terms and conditions of this Agreement and any other reasonable instructions of Touchnote;
(b) except as permitted by local law or as may be strictly necessary for carrying out the Purpose, copy, extract, re-utilise, alter, modify, adapt, delete, add to or translate the whole or any part of the Software (including, but not limited to, program listings, object and source program listings, object code and source code), nor permit the whole or any part of the Software to be combined with or become incorporated within any other computer program(s) of any kind or be used in any other way to create derivative works, nor decompile, recompile, recreate, disassemble or reverse engineer the same nor attempt to do any such thing; or
(c) provide the Software (including, but not limited to, program listings, object and source program listings, object code and source code) or the Documentation to any third party or allow use of it by or on behalf of any third party in whole or in part whether by way of sale, resale, loan, transfer, hire or any other form of exploitation.
2.4 You shall:
(a) supervise and control use of the Software and the Documentation and ensure that the Software and the Documentation are used in accordance with the terms of this Agreement;
(b) replace the current version of the Software with any updated or upgraded version or new release provided by Touchnote immediately on receipt of such version or release;
(c) not remove, alter or otherwise modify any copyright or trade mark notice within the Software or any Documentation without Touchnote's express prior written approval;
(d) keep the Software and the Documentation secure and confidential and effect such security measures as may be necessary in order to keep the Software and the Documentation secure and confidential; and
(e) permit Touchnote and its representatives to take such steps as Touchnote reasonably considers appropriate to monitor compliance with the terms of this Agreement, and shall co-operate fully with Touchnote and its representatives in relation to such monitoring (including, but not limited to, by providing access to any personnel, records, premises and to computer equipment at which the Software or the Documentation is being kept or used).
2.5 All rights not expressly granted to the Partner under this Agreement are reserved to Touchnote. All intellectual property rights (including without limitation copyright and all similar or related rights) in the Software and Documentation are and shall remain at all times the property of Touchnote (and/or its licensors).
3. Touchnote Logo: Grant & Scope of Licence
3.1 For strict use only in connection with the Purpose, Touchnote hereby grants you a non-exclusive, non-transferable licence to display the Touchnote Logo on the Partner Website as the graphic representation of the Link on the Partner Website.
3.2 In making use of the Touchnote Logo that is permitted under this Agreement, the Partner shall:
(a) use the Touchnote Logo only for the purpose set out in clause 3.1 and for no other purpose whatsoever unless expressly permitted in writing by Touchnote;
(b) use the Touchnote Logo in accordance with Touchnote's reasonable guidelines and instructions issued from time to time, including such guidelines and instructions that may relate to the size, colour, appearance and other use of the Touchnote Logo;
(c) only use a version of the Touchnote Logo supplied to you under the terms of this Agreement and shall not alter, amend, modify or otherwise adapt the Touchnote Logo without Touchnote's express prior written approval; and
(d) not use the Touchnote Logo as part of a corporate or business name, logo or style of the Partner;
(e) not use or seek to register any mark, name or logo which is the same as or confusingly similar to the Touchnote Logo; and
(f) not do or permit to be done anything which would be likely to jeopardise the ownership of the Touchnote Logo
3.3 The Touchnote Logo is a trade mark of Touchnote (and/or its licensors) and this Agreement serves to confer no rights to the Partner in respect of the Touchnote Logo. Any and all goodwill in the Touchnote Logo that may be generated or created by or on behalf of the Partner shall belong to Touchnote and you hereby assign the same to Touchnote and, upon request, you shall execute all documents or other materials necessary to effect or perfect such assignment.
4. Obligations of the Parties
4.1 The Partner's Obligations
4.1.1 The Partner shall, subject to the terms and conditions of this Agreement and in compliance with any and all applicable laws, use the Software licensed under this Agreement for the Purpose and in order to create, enable, provide and maintain the Link such that users of the Partner Website can create and order Products from the Touchnote Website that include Linked Images.
4.1.2 The Partner shall use reasonable endeavours to promote the Link and the service afforded to users of the Partner Website to create and order Products from the Touchnote Website that include Linked Images
4.1.3 The Partner shall use reasonable endeavours to maintain the availability of the Partner Website (but does not warrant that the Partner Website will be available at all times or that use of the Partner Website will not be error or interruption free).
4.1.4 The Partner must ensure that the Link is uploaded and enabled as soon as possible following the Commencement Date and thereafter maintain the Link during the term of this Agreement subject at all times (and from time to time) to compliance with Touchnote's reasonable instructions in connection with the same.
4.1.3 The Partner shall promptly notify Touchnote of:
(a) any unlicensed or unauthorised use of the Software, Documentation and/or the Touchnote Logo which comes to its attention; and
(b) any allegation by any person that the use of the Software, Documentation and/or the Touchnote Logo breaches the rights of any third party.
4.2 Touchnote's Obligations
4.2.1 Touchnote shall use reasonable endeavours to maintain the availability of the Touchnote Website (but does not warrant that the Touchnote Website will be available at all times or that use of the Touchnote Website will not be error or interruption free).
4.2.2 In accordance with (and subject to) clause 4.2.3, Touchnote shall pay to the Partner the Royalty for and in connection with the sale of each Product by Touchnote from the Touchnote Website. For the avoidance of any doubt, the Royalty is not owing to or payable by Touchnote where a Product is provided or made available free of charge for any reason (whether promotional or otherwise).
4.2.3 All Royalties shall be paid:
(a) quarterly in arrears within thirty (30) days of the end of the relevant Accounting Period (and in the event of late-payment the Partner shall be entitled to claim interest on any overdue sum at the rate of 2% above the base rate from time to time of Barclays Bank plc from the date of Touchnote's receipt of the Partner's written notification that the amount is outstanding until final payment);
(b) in pounds sterling (and where a Product may have been sold (in whole or in part) in a currency other than pounds sterling then, for the purpose of calculating the Royalty payable to you under this Agreement, the Net Sales Price shall be converted to sterling at the middle market rate quoted in London for such currency on the last working day of the Accounting Period in respect of which the payment of the Royalty is due to you);
(c) exclusive of VAT or any other applicable sales tax; and
(d) based upon calculations made by Touchnote with reference to Touchnote's own records and together with an accompanying statement detailing the calculation of the Royalties then being paid for the relevant Accounting Period.
5. Term & Termination
5.1 This Agreement shall come into effect on the Commencement Date and shall, unless terminated earlier in accordance with clause 5.2 or 5.3, remain in force for the duration of the Initial Term and thereafter until terminated by either party on not less than three (3) months' prior written notice.
5.2 This Agreement may be terminated immediately and without further liability by either Touchnote or the Partner without prior notice if the other:
(a) has committed a material breach of this Agreement which, if capable of remedy, is not remedied within thirty (30) days after the service of a written notice requiring such breach to be remedied; or
(b) enters into any composition or arrangement with its creditors generally or is placed in voluntary liquidation or bankruptcy (as the case may be) or has an administrator, receiver, manager or administrative receiver appointed over its assets or ceases for any reason to carry on business (or if anything equivalent to the foregoing happens in any other jurisdiction).
5.3 This Agreement may be terminated at any time by (including during the Initial Term) by Touchnote upon no less than forty-eight (48) hours' prior written notice if it reasonably considers in its sole discretion that:
(a) the Partner is mis-using or otherwise making (or permitting others to make, including its users) inappropriate, obscene, defamatory, distasteful, infringing (including infringement of third party rights) or unlawful use of the functionality and inter-operation between the Partner Website and the Touchnote Website that is provided by the Software; or
(b) having accessed the Touchnote Website via the Link in order to create and order a Product including a Linked Image, users of the Partner Website persistently breach the 'Terms of Use' provided on the Touchnote Website and which relate (inter alia) to the use of the service offered by the Touchnote Website to create and order Products; or
(c) the association (or continued association) between the Partner and Touchnote created by this Agreement is (or is likely to be or has the potential to be) prejudicial to the interests and responsibilities of Touchnote and/or damaging to the reputation, image, goodwill and/or interests of Touchnote.
5.4 Consequences of Termination
5.4.1 Termination of this Agreement for any reason shall not affect the accrued rights or remedies of the parties arising in any way out of this Agreement as at the date of termination.
5.4.2 Upon termination for any reason:
(a) all rights granted to you under this Agreement shall cease;
(b) you must immediately cease all activities authorised by or otherwise related to this Agreement (including in particular, but not limited to, the use and display of the Link on the Partner Website); and
(c) you must immediately delete or remove the Software from all computer equipment in your possession, custody or control and immediately destroy or return to Touchnote (at Touchnote's option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to Touchnote that you have done so.
5.4.3 For the avoidance of doubt, and consistent with clause 5.4.2, no Royalties shall be payable or become due or owing to the Partner after the date of termination. Touchnote reserves the right to withhold your final payment of Royalties up to the date of termination for up to 120 days after the date of termination to calculate properly any amount due to you.
6. Liability
6.1 Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation.
6.2 The selection and use of the Software is the Partner's responsibility and the Software is provided on the terms and conditions of this Agreement, free of charge, on an "as is" basis. Touchnote accepts no liability of any kind for the Partner making such selection. The Partner agrees that by accepting the terms of this Agreement: (i) it has not relied on any representations made by Touchnote, whether express or implied, in connection with the Software, the operation of the Link or the payment of Royalties; and (ii) it acknowledges and accepts that the Software has not been developed to meet the Partner's individual requirements and that it is therefore the Partner's responsibility to ensure the facilities and functions of the Software meet its requirements; and (iii) it acknowledges and accepts that the Software may not be free of bugs, viruses or errors.
6.3 Subject to clause 6.1, Touchnote's liability for losses that may suffered by you arising out of or in connection with this Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall be limited as follows:
(a) Touchnote shall not be liable to the Partner for (i) loss of income; (ii) loss of profits, business or contracts; (iii) business interruption; (iv) loss of anticipated savings; (v) loss of information; (vi) loss of opportunity, goodwill or reputation; (vii) loss of, damage to or corruption of data; (viii) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise; or (ix) any loss or damage arising from the Partner's failure to ensure software compatibility with the Partner's hardware and other software or to carry out appropriate virus checks; or (x) any losses relating to or arising as a result of any third party claims; and
(b) subject to clauses 6.1 and 6.2 and to sub-clause 6.3(a), Touchnote's maximum aggregate liability to the Partner under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed the amount paid by Touchnote as Royalties.
7. Confidential Information
7.1 The parties agree to maintain secret and confidential all information which is marked as or which is by its nature confidential obtained from each other or created before or during this Agreement including (but is not limited to) the terms of this Agreement and any information concerning either party's (as the case may be) business plans, commercial projects, pricing or licensing structures or similar information or materials. The parties further agree only to use such confidential information for the purposes of this Agreement and to disclose the same only to those of its employees, agent, sub-contractors or professional advisers who may reasonably need to know the same.
7.2 The restrictions in clause 7.1 will not apply to information which: (i) either party can establish was in its possession prior to disclosure of such information by or on behalf of the other party; (ii) is in the public domain or becomes public knowledge through no fault of either party; (iii) a party acquired from a third party not under an obligation of secrecy; and/or (iv) is required by law or by any regulatory or governmental authority to be disclosed (but only then to the extent of such disclosure).
7.3 The foregoing obligations of confidentiality are without prejudice to the Partner's obligation under sub-clause 2.4(d) and shall survive the termination of this Agreement.
8. Miscellaneous
8.1 Force Majeure. Neither party shall be liable to the other in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of force majeure, namely circumstances outside of that party's reasonable control including (but not limited to) fire, flood, storm, sabotage, strikes or lock-outs, riot, war, acts or threats of terrorism or acts of local, government or parliamentary authority. Each of the parties shall give notice as soon as practicable to the other upon becoming aware of an event of force majeure which prevents that party from performing its obligations under this Agreement, and the cessation of such event.
8.2 Assignment. This Agreement is binding on the Partner and Touchnote and on their respective successors and assigns. The Partner shall not transfer, assign, charge or otherwise dispose of this Agreement or any of its rights, obligations or interests arising under it without Touchnote's prior written consent. Touchnote may transfer, assign, charge sub-contract or otherwise transfer this Agreement, or any of its rights or obligation arising under it, at any time during the term of this Agreement
8.3 Representation. Neither party shall in any way represent itself as being the other or an agent, partner, employee or representative of the other and shall not hold itself out as such or as having any power or authority to incur any obligation of any nature whether express or implied on that other's behalf.
8.4 Variation. Touchnote may at any time update or amend the terms and conditions of this Agreement by posting the revisions on the Touchnote Website and notifying you of such posting or by amending the relevant terms as they are accessed from XXX . It is your responsibility to review the terms and conditions of this Agreement from time to time. If you continue to use of the Software (including any upgrade or subsequent version of the Software) and/or continue to provide the Link on the Partner Website after Touchnote has posted the revisions or amendments that will demonstrate and confirm that you accept and agree the revised and/or amended terms.
8.5 Waiver & Severance. Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed nor shall be deemed to be a waiver of that party's rights under this Agreement, nor in any way affect the validity of the whole or any part of this Agreement. If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
8.6 Entire Agreement. This Agreement sets out the entire agreement of the parties and supersedes any prior arrangement or understanding, whether written or oral, relating to the subject-matter of this Agreement between the Partner and Touchnote. This Agreement sets out the full extent of Touchnote's obligations and liabilities in respect of the supply of the Software [and Documentation]. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Touchnote except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Software [and Documentation] which might otherwise be implied into, or incorporated in, this Agreement, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
8.7 Third Party Rights. This Agreement does not confer (and shall not be interpreted to confer) any rights on any third parties.
8.8 Notices. Any notice to be given hereunder shall be in writing and delivered or sent by first class recorded delivery post or sent by facsimile to the other party to be served at that party' address appearing in this Agreement, or such other address as that party may notify in writing to the other. Any such notice shall be deemed to have been served if delivered at the time of delivery, or if posted at the expiry of two (2) full working days after the envelope containing the same was posted, or if sent by facsimile within twelve (12) hours of despatch and in proving such service it shall be sufficient to prove that delivery was made or that the envelope containing the same was properly addresses and posted or that the facsimile was despatched to the relevant party's correct number.
8.9 Public Pronouncements. Neither of the parties shall make any public announcements or press releases with respect to this Agreement unless expressly permitted and approved by the other (such permission and approval not to be unreasonably withheld or delayed).
8.10 Governing Law. The construction, validity and performance of the provisions set out in this Agreement shall be governed by the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
