Adzy Terms of Service - MASTER

TERMS AND CONDITIONS OF BUSINESS FOR CUSTOMERS

Last updated [INSERT DATE] 2023.

1. Provision of the Services

1.1. The Services are provided by Enigma Innovations Group Limited (“we”, “our”, “us” Adzy”). We are registered in England and Wales under company number 10940006 and have our registered office at Gemma House, 39 Lilestone Street, LONDON, NW8 8SS.

1.2. “You” are the user of these Services enabled by the Software.

1.3. We offer the Services to you on these terms.

1.4. The Services enable you to create bespoke advertisements for your business, utilising artificial intelligence and our library of Images.

1.5. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES accessed via the Adzy Media Platform as they represent a binding legal agreement and you will be bound by them. A copy of these terms can be downloaded from https://adzy.co/customer-platform-terms-of-service/

1.6. THESE TERMS OF SERVICE APPLY TO ALL USE OF THE SOFTWARE (INCLUDING THE ADZY MEDIA PLATFORM). BY CONTINUING TO USE THE SOFTWARE YOU ARE INDICATING YOUR ACCEPTANCE OF THE TERMS OF SERVICE.

1.7. Use of the Software includes accessing it, perusing it, linking to it, copying any of the content on it or using any of the functionality offered via it. If you do not agree to these terms and conditions of service, you must not use the Software.

1.8. You are also responsible for ensuring that all persons who access our Software through your internet connection are aware of these terms of use and other applicable terms and conditions, and that they comply with them. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF SERVICE, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE

1.9. Our services are only for users who are over 18 years of age .

2. Other Applicable Terms & Policies

2.1. The following additional terms also apply to your use of the Software:

2.1.1. Our Website Terms of Use, which sets out the terms on which you may access our Website (where amongst other things, you can access the Adzy Media Platform and from there use the Software.)

2.1.2. Our Privacy Policy, which sets out the terms on which we process any personal data we collect from you, or that you provide to us.

2.1.3. Our Cookie Policy, which sets out information about the cookies on the Website.

3. Definitions and construction

3.1. In this Agreement the following expressions shall apply (save where the context otherwise requires):

"Advertisement” means a document comprised of Images, design and written copy that has been prepared with a view to promotion of goods and services to a target audience.

“Adzy Media Platform” means the part of our Website, web application or mobile application through which You access and use the Software and Services.

“Affiliate” means each and any Subsidiary or Holding Company of a party and each and any Subsidiary of a Holding Company of a party.

“Accepted Advertisement” means an Advertisement created by the Adzy Media Platform, incorporating Images and accepted by you for promotion of your products and services.
.

“Agreement Commencement Date” means the date on which you accept this Agreement by clicking the “I Accept” button when subscribing to the Services.

“Business Days” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

“Data Controller” shall have the meaning of ‘data controller’ set out in Article 4(7) of the UK GDPR.
“Data Processor” shall have the meaning of ‘data processor’ set out in Article 4(8) of the UK GDPR.

“Data Protection Legislation” means, for such time as they are in force in England and Wales, the DPA, the UK GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.

“DPA” means the Data Protection Act 2018.

“Extension Period” means a period of one calendar year commencing at the end of the Initial Period or at the end of the previous Extension Period.

“Fee” means the fee payable in respect of a particular Tier of Service by You the amount being specified in your User Account.

“Image” means a photograph or other visual representation whether obtained by camera, mobile phone or any other form of photographic equipment or any other means, which is now known or which may become known in the future and shall include all metadata, keywords, descriptions and captions associated with the Image

“Initial Period” means a period of one calendar year commencing on the Agreement Commencement Date.

“Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.

“Licence Commencement Date” means the date on which you accept an Advertisement for your use and we issue a licence for your use of the Accepted Advertisement

“Month” means a calendar month and “monthly” shall be construed accordingly.

“Order” means the choices made on the Adzy Media Platform whilst configuring requirements for the Services and the subsequent confirmatory order page of the Website or document detailing your order for Services, and which contains various commercial details relating to the same.

“Personal Data” has the meaning set out in Article 4(1) of the UK GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.

“Processing” and “Process” have the meaning set out in Article 4(2) of the UK GDPR.

“Services” means the services provided by us to you via the Adzy Media Platform under the terms of this Agreement.

“Software” means the software used by us to provide the Services which it is either our proprietary software or third party software licensed to us or a mix of both.

“Subscription” means an order placed for the Services by you detailed in the [website or documented] Order and accepted by us.

“User Account” means a unique user account allocated to an individual User, which enables that User to access the Services. User accounts may be offered with various functionality, such as by designating certain User Accounts as having ‘Administrator’ privileges and others as having ‘Regular’ privileges, and certain Tiers may grant access to varying quantities of particular types of User Account

“Term” means the effective term of this Agreement (which shall include the Initial Period and all subsequent Extension Periods).

“Tier” means a package of services selected by you at the outset of a Subscription , which will determine the recurring Fee to be paid for that Subscription and the quantity and type of Services which you are entitled to receive during it. Amongst other matters a Tier may specify a particular number and/or type of User Accounts to which you are entitled

UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018

“User” means an individual user which accesses the Services with a unique log in name and password.

“Your User Information” means all information processed by us or otherwise provided to us pursuant hereto (including any Personal Data).

“Your Equipment” means such hardware and software as may be specified on the Adzy Website or elsewhere which you are required to have in use in order to use and enable the Services to be provided in accordance with this Agreement.

“Website” means https://adzy.co a website owned and operated by us and where you gain access to the Adzy Media Platform and its associated Software and Services

3.2. The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.

3.3. Unless the context otherwise so requires:

3.3.1. references to you and us include our permitted successors and assigns;

3.3.2. references to statutory provisions include those statutory provisions as amended or re-enacted;

3.3.3. references to any gender include all genders;

3.3.4. words in the singular include the plural and in the plural include the singular.

3.4. In the event of any conflict between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of this Agreement shall prevail.

3.5. Holding company shall be construed in accordance with section 1159 of the Companies Act 2006.

3.6. Subsidiary shall be construed in accordance with section 1159 of the Companies Act 2006.

4. Provision of Services and Licences

4.1. Your Order and acceptance of these Terms of Service in combination with the settings applied by you, in your User Account constitutes an offer by you to use the Services in accordance with this Agreement.

4.2. In consideration of your timely payment of the Fee and agreement to these Terms of Service, we agree, with effect from the Agreement Commencement Date, to supply the Services and licence the Software to you on a non-exclusive basis pursuant to the terms and conditions of this Agreement.

4.3. You agree to receive the Software as a service and accordingly your licence to use the Software is subject to the following conditions:

4.3.1. Non-Exclusivity: the licence is non-exclusive and we shall remain entitled to grant similar or identical licences to use the Software to any third parties without restriction;

4.3.2. Transferability: the licence is non-transferable or sub-licensable, and you shall not permit or purport to transfer the licence to any third party (nor offer the Software on a bureau basis) without first obtaining our explicit written permission from us to do so and in full knowledge that further fees shall be negotiated by us and payable by you before such consent is provided;

4.3.3. Purpose: the Software may only be used by you for the purpose of creating Advertisements and managing promotions of those Advertisements on the Adzy Media Platform, save where a subscription Tier specifically permits the use of the Software for [providing services to third parties;

4.3.4. Duration: the licence shall endure for the full Term of this Agreement, after which your right to use or have access to the Software shall end.

4.4. You accept that you shall in no circumstances be permitted to:

4.4.1. reproduce, edit, create derivative works of, sell or in any way commercially exploi t any part or aspect of the Software;

4.4.2. outsource the Services or Software provided under this Agreement to third parties;

4.4.3. attempt to obtain, or assist third parties (other than Users) in obtaining access to the Software and Services

4.4.4. attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the Software (including any underlying software or any part of it) that is used to provide the Services, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and

4.4.5. to observe, study or test the functioning of the Software (including any underlying software or any part of it) that is used to provide the Services, except and only to the extent that such restriction is prohibited pursuant to section 50BA of the Copyright, Designs and Patents Act 1988.

5. User Account

5.1. You shall be allocated the number and type of User Accounts applicable to the purchased Tier of service when you enter into this Agreement .

5.2. You acknowledge that each User Account may only be allocated to a single individual User.

5.3. The sharing of User Accounts between Users is expressly prohibited.

5.4. Each User shall keep a secure password for their use of the Services, and that each User shall keep their password confidential.

5.5. Increasing the number of User Accounts may increase the Fee payable in respect of the Services.

5.6. You may, from time to time during the Term of this Agreement allocate a User Account to a new User or transfer a User Account from one User to another (each such transfer an “Allocation”). Where you wish to make an Allocation, you shall use the functionality provided in the Software. You are not entitled to make any Allocations save for those permitted by the Software’s functionality and accept that the making of such Allocations may cause a fee to become payable.

5.7. You shall maintain a written, up to date list of current Users and provide such list to the us within 5 Business Days of our written request to do so;

5.8. You shall permit us or our designated auditor to audit the Services in order to establish the name and password of each User and Your Equipment to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;

5.9. if any of the audits referred to in clause 5.8 reveal that any password has been provided to any individual who is not a User, then without prejudice to the our other rights, we shall promptly disable such passwords and you shall not issue any new passwords to any such individual; and

5.10. if any of the audits referred to in clause 5.8 reveal that you have underpaid our Fees, then without prejudice to our other rights, you shall pay us an amount equal to such underpayment as calculated in accordance with the Fees on our Website.

6. Duration

6.1. This Agreement shall commence on the Agreement Commencement Date and shall continue for the Initial Period and thereafter for any Extension Periods invoked pursuant to Clause 6.2 unless and until terminated by either party in accordance with Clause 17 below.

6.2. This Agreement shall automatically be extended for an Extension Period at the conclusion of the Initial Period and at the conclusion of each subsequent Extension Period thereafter until terminated in accordance with Clause 17.

7. Fees

7.1. You undertake to pay the applicable Fee for the Services, which (unless otherwise expressly stated on the Website) shall be payable annually in advance. Payment shall be made by you using either direct debit or a credit card which shall be scheduled to be taken from you automatically at regular intervals or with our prior written agreement upon presentation of a valid invoice.

7.2. You shall pay invoices within 30 days of issue.

7.3. We shall be entitled to suspend access to the Services until we are satisfied that we have received payment of the Fee in full.

7.4. The Fee payable by you will be determined by reference to the Tier of service to which you have Subscribed, plus the cost of any additional User Accounts which may be purchased by you. For the avoidance of doubt, you may subscribe to multiple service Tiers in respect of the various modules of the Service.

7.5. You may, at any time, upgrade your current service Tier, or purchase Subscriptions to additional Tiers of service or procure additional User Accounts.

7.6. Where you wish to purchase additional User Accounts not included in your current Tier it will be required to either (a) upgrade your subscription by purchasing a higher Tier of service, or (b) pay an additional fee, as specified in your User Account, in order to gain access to additional User Accounts. Where you elect to pay a fee for additional User Account that fee shall be payable again at each interval at which payment of the Fee for your chosen service Tier becomes due. Fees are NOT pro-rated and we advise you to choose the timing of any upgrades carefully.

7.7. All amounts and Fees stated or referred to in this Agreement shall be payable in GBP and are non-cancellable and non-refundable;
7.8. We shall be entitled to charge you interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) on a daily basis at the rate of 5 per cent per annum above the base rate from time to time of the Bank of England or at the maximum rate permitted by statute from the due date therefor until payment.

7.9. Where this Agreement would be extended by virtue of Clause 7.9 then you shall be obliged to make payment of the Fee prior to any such extension commencing.

7.10. We shall be entitled to increase the Fee from time to time by posting details of the updated Fee in your User Account. Such increases shall take effect immediately and shall be payable by you at the commencement of the first Extension Period which commences after the relevant increase.

7.11. All sums due under this Agreement are expressed exclusive of VAT but will be subject to VAT at the prevailing rate and where applicable and which will be payable by you.

7.12. From time to time, we may offer a subscription Tier which is accessible without payment of a fee (each such Tier a “Free Service Tier”). Customers using the Service by way of a Free Service Tier will not be eligible to receive any customer support or technical support pursuant to the terms of this Agreement.

7.13. We may withdraw or modify each Free Service Tier at any time without prior notice and without liability, to the extent permitted under applicable law.

7.14. We reserve the right to suspend or terminate use of a Free Service Tier at any time without notice and without liability to us.

7.15. Where we provide any other services to you which are not included in the Fee, such as consultancy, configuration, customisation or data services we shall be entitled to invoice you in arrears such charges based on our then current charging rates (as published on our Website), or as otherwise agreed between from time to time.

8. Licence

8.1. You shall upload instructions to the Software in accordance with the instructions set out in the Adzy Media Platform or as directed on the Adzy Website. You shall be entitled to licence the number of Accepted Advertisements over the Term specified in your Subscription.

8.2. The Adzy Media Platform shall respond to instructions uploaded through the Adzy Media Platform and shall share a showreel of Images and Advertisements. You shall be granted a restricted royalty-free licence to view Images and Advertisements in a showreel on the Adzy Media Platform for the purpose of creating and refining the preparation of Accepted Advertisements only. The payment of the Fee does not grant you a licence to use Images and Advertisements until they or any of them become an Accepted Advertisement. The Images and Advertisements shall contain a watermark and any and all attempts to remove or otherwise obscure the watermark shall breach this agreement, put us in breach of our agreements with the Image licensors and entitle us to damages.

8.3. When you accept an Advertisement, we shall grant you a broader but nonetheless still restricted Licence to use the Accepted Advertisement in accordance with these terms and conditions. For the avoidance of doubt, you do not acquire the Intellectual Property Rights in any Images upon payment of the Fee.

8.4. In consideration of payment by of the Fee, Adzy hereby grants to you from the Licence Commencement Date, a non-transferable, personal, exclusive, royalty-free licence of the Accepted Advertisement including a non-exclusive licence of the Image, design and written copy therein, to use the Accepted Advertisement for the full period of copyright in it including all periods of renewal, extension and revival of the copyright and thereafter in perpetuity and all necessary consents under the Copyright, Designs and Patents Act 1988 as amended from time to time or any enactment that replaces it to enable you to promote, publish, exhibit, use and otherwise exploit the Accepted Advertisement whether alone or incorporated in or in conjunction with other works worldwide and in all formats and media now known or hereinafter devised for promotion and marketing of your goods and services to your customers.

8.5. You acknowledge that you have no right to;

8.5.1. sub-licence the Licence; or

8.5.2. assign any Intellectual Property Rights in the Accepted Advertisement (including the Image)

8.6. We shall not be liable to you for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising from any unauthorised access to our Services which is malicious or technologically harmful which results in a breach of this Licence in the Accepted Advertisement.

9. Intellectual Property Rights

9.1. Without prejudice to your rights in your own materials, Your User Information and the licence of the Accepted Advertisements, we jointly agree that you shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by us in connection with or related to the provision of the Services.

9.2. We warrant that we have all necessary right, title and interest to enable you to benefit from the Services in accordance with this Agreement.

9.3. You hereby grant to us:

9.3.1. A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate Your User Information provided by you or resulting from the Services for the provision of the Services to you; and

9.3.2. A non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display your trade marks for the purposes of using the trademarks for the provision of the Services and for our marketing purposes.

9.4. We shall notify you in writing if any of the following matters come to our attention:

9.4.1. any actual, suspected or threatened infringement of the Intellectual Property Rights in an Image forming part of an Accepted Advertisement;

9.4.2. any claim made or threatened that an Accepted Advertisement infringes the rights of any third party; or

9.4.3. any other form of attack, charge or claim to which the Intellectual Property Rights in the Accepted Advertisement may be subject.

10. Our Warranties

10.1. Outages or Service interruptions may occur due to third-party service providers or when in our reasonable opinion they are necessary to facilitate improvements to, or to maintain the Services. We will use reasonable endeavours to minimise the duration of outages or Service interruptions that we deem necessary and where possible, shall endeavour to resolve any outages or Service interruptions caused by third-party suppliers.

10.2. We warrant to and undertake with you that:

10.2.1. we will use our reasonable efforts to provide the Services and to exercise reasonable care and skill when providing the Services in accordance with the terms of this Agreement;

10.2.2. we have full right power and authority to provide the Services to you in accordance with the terms of this Agreement;

10.2.3. we have all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term; and

10.2.4. we will at all times comply with the Data Protection Legislation.

10.3. For the avoidance of doubt, we make no warranty that use of the Service will guarantee or enable compliance with any particular laws, regulations or codes of conduct. Your compliance with any legal requirements to which you may be subject is entirely your own responsibility and we shall have no liability or responsibility in respect of the same.

10.4. You acknowledge that the Services may enable or assist you to access the content of, correspond with, and procure products and services from, third parties via third-party websites and that you do so solely at its own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party

10.5. We make no representation or warranty that any information provided by or contained within the Services or Software shall be accurate, complete or up-to-date and you shall be responsible for verifying any such information on which you may choose to rely.

10.6. We shall follow our archiving procedures for Your User Information. In the event of any loss or damage to Your User Information, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore Your User Information from the latest back-up maintained by us in accordance with our archiving procedure available upon request. We shall not be responsible for any loss, destruction, alteration or disclosure of Your User Information caused by any third party.

10.7. Except for the express warranties set forth in this Clause 10, the Services are provided on an “as is” basis, and your use of the Services is at your own risk. We do not make, and hereby disclaim, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. We do not warrant that the Software or Services will be uninterrupted, error-free, or completely secure.

10.8. We do not and cannot control the rate of flow of data to or from our network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although we will use commercially reasonable efforts to take actions we deem appropriate to remedy and avoid such events, we cannot guarantee that such events will not occur. Accordingly, we disclaim any and all liability resulting from or related to such events.

11. Your Obligations and Warranties

11.1. You hereby warrant and undertake that:

11.1.1. Your User Information (and therefore the Accepted Advertisement) does not incorporate any material that infringes the Intellectual Property Rights of any third party, including any right of confidentiality or privacy, nor is it misleading or otherwise non-compliant with laws and regulations applicable to your profession, business or industry;

11.1.2. Your User Information shall be free from viruses or Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code that are designed or intended to disrupt, damage or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorised access to any data or other information in the possession of any third party.

11.2. You are required at all times during the term to maintain Your Equipment in good order and working condition. You are solely responsible for procuring, maintaining and securing your network connections and telecommunications links and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

11.3. You shall provide us with:

11.3.1. all necessary co-operation in relation to this Agreement; and

11.3.2. all necessary access to such information as may be required by us
in order to provide the Services, including but not limited to the information in Your User Account.

11.4. In the event that you are in breach of any of your obligations under this Agreement (including, for the avoidance of doubt, timely payment of the Fee), then:-

11.4.1. We cannot be held responsible should the Services fail to perform or comply with any published service levels as a result (directly or indirectly) of your breach;

11.4.2. We shall be entitled to charge you for staff time engaged on rectifying any resulting problems at our then current standard charging rates; and

11.4.3. We may without any liability terminate or suspend the Services (including, for the avoidance of doubt, by way of restricting or blocking your access to the Software) without prejudice to any other pre-existing rights and obligations of either party.

11.5. You represent, warrant and undertake that:

11.5.1. you have Your Equipment and shall during the Term have the legal right and authority to use Your Equipment for the purpose of procuring the Services as contemplated under this Agreement
11.5.2. you will use the Services only for lawful purposes and in accordance with this Agreement;

11.5.3. you will at all times comply with Data Protection Legislation;

11.5.4. any Personal Data will only be provided to us in accordance with Data Protection Legislation;

11.5.5. you will be solely responsible for the accuracy and submission of Your User Information when using the Services and we will not be liable for failing to ensure the accuracy of any Your User Information; and

11.5.6. any software, data, equipment or other materials provided by you to us or employed by you in your use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or Personal Data interests of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.

11.6. In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, we will have the right to suspend immediately any related Services if deemed reasonably necessary by us to protect our proper interests or our other users. If practicable and depending on the nature of the breach, we may (in our absolute discretion) give you an opportunity to cure such breach. In such case once you have cured the breach, we will promptly restore the Services.

12. Confidentiality

12.1. Subject to Clause 12.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (Confidential Information).

12.2. We hereby undertake not to disclose without your written consent Your User Information in whole or in part to any other person save those of our employees agents and sub-contractors involved in the provision of the Services and who have, and to the extent that they have, a need to know the same; and

12.3. The provisions of Clause 12.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:

12.3.1. trivial or obvious;

12.3.2. already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;

12.3.3. in the public domain other than as a result of a breach of this clause; or

12.3.4. to the extent that disclosure of such information may be required by any Court, lawful authority, governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.

12.4. For the avoidance of doubt, Your User Information shall remain at all times your exclusive property.

12.5. We reserve the right to use all or part of any program, services or materials produced for or acquired on your behalf for demonstrating our expertise to potential clients, subject always to the provisions of this Clause 12.

12.6. The provisions of Clause 12 shall remain in full force and effect notwithstanding any termination of this Agreement.

13. Data Protection

13.1. We jointly agree for the purposes of the Data Protection Legislation that we shall be independent Data Controllers in respect of any Personal Data which is transferred from you to us in accordance with this Agreement.
13.1.1. We shall each ensure that our processing of Personal Data is fair and lawful. We shall each ensure that we have a lawful basis under the Data Protection Legislation for the processing of Personal Data.
13.1.2. You warrant and undertake that you are entitled to provide the Personal Data to us and you will ensure that the Personal Data is accurate.
13.1.3. We warrant to each other that in respect of Personal Data, we shall:
13.1.3.1. process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments that apply to Personal Data processing operations
13.1.3.2. ensure that we provide clear and sufficient information to the Data Subjects, in accordance with the Data Protection Legislation, of the purposes for which we will process their Personal Data, the legal basis for such purposes and such other information as is required by the Data Protection Legislation
13.1.3.3. provide such assistance as is reasonably required to enable the other party to comply with Data Subject requests within the time limits imposed by the Data Protection Legislation
13.1.3.4. promptly respond within and as far as reasonably possible to enquiries from the regulator in relation to the Personal Data.
13.1.4. We each undertake to have in place throughout the Term appropriate technical and organisational security measures to prevent:
13.1.4.1. unauthorised or unlawful processing of Personal Data; and
13.1.4.2. the accidental loss or destruction of, or damage to Personal Data
13.1.5. We each undertake to have in place throughout the Term a level of security appropriate to:
13.1.5.1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
13.1.5.2. the nature of Personal Data to be protected.
13.1.6. We shall each comply with our obligations to report a Personal Data Breach to the Information Commissioner and (where applicable) Data Subjects under the Data Protection Legislation and shall each inform the other party of any Personal Data breach irrespective of whether there is a requirement to notify the Information Commissioner or any Supervisory Authority or Data Subject(s).
13.1.7. We agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Personal Data breach in an expeditious and compliant manner.
14. Security

14.1. Each party recognises that it is impossible to maintain flawless security but (where relevant) we shall take all commercially reasonable steps to prevent security breaches in our servers' interaction with Your Equipment.

14.2. You are responsible for maintaining the confidentiality of any passwords which are required to access the Software and the Services and are solely responsible for any damage caused by any unauthorised access which arises from your failure to do so.

15. Indemnity
15.1. You shall defend, indemnify and hold us harmless 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 your use of the Services or a breach of this Agreement (including without limitation a breach of the Data Protection Legislation or an alleged breach of third party Intellectual Property Rights.)
15.2. You hereby indemnify us and shall at all times keep us indemnified against all actions, proceedings, costs, claims and damages whatsoever incurred by or awarded against us and compensation agreed by us in consequence of any breach or non-performance by you of any of the warranties and undertakings in this Agreement.

16. Limitation of Liability

16.1. Except as expressly and specifically provided in this agreement, you assume sole responsibility for results obtained from the use of the Services and for conclusions drawn from such use and we shall have no liability for any damage caused by errors or omissions in Your User Information or any information or instructions provided to us by you in connection with the Services, or any actions taken by us at your direction.

16.2. Except as expressly stated in Clause 16.4:

16.2.1. We shall not be liable for any indirect or consequential loss or damage suffered by you, irrespective of how such loss or damage may arise and no matter which theory of liability gives rise to any cause of action by you.

16.2.2. We shall have no liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

16.2.2.1. special damage, even though we were aware of the circumstances in which such special damage could arise;

16.2.2.2. loss of profits;

16.2.2.3. loss of anticipated savings;

16.2.2.4. loss of business opportunity;

16.2.2.5. loss of goodwill or reputation; or

16.2.2.6. loss of or damage to data.

16.2.3. to the extent that losses are not excluded by Clauses 16.2, 16.4, 16.5 and 16.6 or otherwise, our total aggregate liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fees actually paid by you during the Initial Period or, where the Initial Period has elapsed, during the 12 month period immediately prior to the first event which gave rise to your right to bring a claim against us.

16.2.4. You agree that, in entering into this Agreement, you did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if you did rely on any representations, whether written or oral, not expressly set out in this Agreement) that you shall have no remedy in respect of such representations and (in either case) we shall have no liability otherwise than pursuant to the express terms of this Agreement;

16.3. The exclusions in Clause 16.1 shall apply to the fullest extent permissible at law but we do not exclude liability for:

16.3.1. death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;

16.3.2. fraud or fraudulent misrepresentation; or

16.3.3. any other liability which cannot be excluded by law.

16.4. We shall not be liable for any loss or damage of whatsoever nature suffered by you arising out of or in connection with any act, omission, misrepresentation or error made by or on your behalf or arising from any cause beyond our reasonable control.

16.5. You accept that we are in no way liable for any virus or other contaminants which enter your email system or computer network via email or for any loss, damage, interruption to the Service caused by the failure of Your Equipment.

16.6. We shall not be liable for any interruptions to the Services arising directly or indirectly from:-

16.6.1. interruptions to the flow of data to or from the Internet;

16.6.2. changes, updates or repairs to the network or the Software subject to us using commercially reasonable endeavours to minimise the interruptions that may be caused by such change;

16.6.3. the effects of the failure or interruption of services provided by third parties;

16.6.4. any of the factors set out in Clause 18;

16.6.5. any actions or omissions by you (including, without limitation, breach of your obligations set out in this Agreement) or any third parties;

16.6.6. problems with Your Equipment, any other equipment owned by you and/or any third party equipment;

16.6.7. interruptions to the Services requested by you.

16.7. You agree that you are in a better position to foresee and evaluate any loss you may suffer in connection with this Agreement and that the Fees have been calculated on the basis of the limitations and exclusions in this Clause 16 and that you will put in place insurance as is suitable having regard to your particular circumstances and the terms of this Clause 16.

16.8. Notwithstanding the foregoing and except as expressly stated in Clause 16.3, in no event shall we be liable to you for any claims or costs you sustain in relation to the Free Service Tier, for consequential, special, direct or indirect losses or damages sustained by it or any third parties, irrespective of whether under contract, tort or otherwise (including, without limitation, loss of profits, loss of revenues, loss of customers or damage to reputation or goodwill).

17. Termination

17.1. For the purposes of this Clause 17, the following events shall be deemed “acts of default”:

17.1.1. if we fail to pay any moneys due pursuant hereto within 45 days of the due date;

17.1.2. if a party commits any material breach of any term of this Agreement (other than one falling under Clause 17.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;

17.1.3. if a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

17.2. If you commit an act of default then we may forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement.

17.3. If either party commits an act of default, the other party may terminate this Agreement by giving no less than 5 Business Days’ notice in writing.

17.4. We shall have the right, without prejudice to our other rights or remedies, to terminate this Agreement by giving you no less than 5 Business Days’ notice.

17.5. Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

17.6. In the event of termination of this Agreement:-

17.6.1. you agree promptly to pay to us all outstanding payments;

17.6.2. all licences granted under this agreement shall immediately terminate and you shall immediately cease all use of the Services;

17.6.3. We may in our sole discretion agree to provide any assistance reasonably requested by you in connection with the hand-over to a third party of any services provided by us hereunder, and you shall pay us in accordance with our then current standard rates for any such assistance;

17.6.4. we may in our sole discretion destroy or otherwise dispose of any of Your User Information in our possession unless we receive, no later than ten days after the effective date of the termination of this agreement, a written request for delivery to you of the then most recent back-up of Your User Information. We shall use reasonable commercial endeavours to deliver the back-up to the you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination) and you shall pay all reasonable expenses incurred by us in returning Your User Information.

17.6.5. at our request, you shall return our Confidential Information.

17.7. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination. For the avoidance of doubt, termination of this Agreement shall not in any circumstances entitle you to any form of rebate or refund.

18. Force majeure

18.1. Neither party shall be liable for any breach of its obligations in this Agreement, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub contractors) including but not limited to acts of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute (except involving a party’s own employees), pandemic or epidemic, illness, flood, fire or tempest (an “Event of Force Majeure”). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.

18.2. Each of the parties agrees to give prompt notice to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.

19. Waiver

The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

20. Notices

20.1. To us: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first class recorded post to our registered office address or by email to team@adzy.co with the subject line “Legal Notice” (such email notice to be confirmed by delivery or read receipt).

20.2. To you: any notice, request, instruction or other document to be given hereunder shall be delivered or sent by email (such email notice to be confirmed by delivery or read receipt) to your email address used as login to the Services.

21. Publicity

21.1. We are permitted to make announcements or information concerning this Agreement available in any advertising publicity promotional or other marketing activities without your prior written consent.

21.2. You shall not make an announcement or disclose information concerning this Agreement or any ancillary matter in any advertising publicity promotion or other marketing activity without our prior written consent.

22. Costs

Except for the payments specifically agreed in this Agreement, each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.

23. Invalidity and severability

If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

24. Entire agreement

24.1. Subject to Clause 24.2, this written Agreement constitutes the entire agreement between the parties hereto relating to the subject matter. Nothing in this Clause 24.1 or Clause 16.3.4 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation.

24.2. No change, alteration or modification to this Agreement by you shall be binding upon Adzy unless Adzy confirms such change, alternation of modification in writing.
24.3. No change, alteration or modification to this Agreement by Adzy shall be binding upon you unless you receive notice of the change in writing no less than 30 days before the effective date of the change and you continue to use the Services after the effective date of the change.

25. Relationship

The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

26. Successors

This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.

27. Assignment

27.1. You shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without our prior written consent, such consent not to be unreasonably withheld.

27.2. We shall be entitled to assign this Agreement or all or any of its rights and obligations hereunder.

28. Sub contracting

We shall be entitled to sub contract the whole or any part of our obligations hereunder to any third party but shall remain liable as if we were performing the Services ourselves.

29. Governing Law & Jurisdiction

29.1. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

29.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

30. Third Party Rights

No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.