TERMS AND CONDITIONS OF SERVICE FOR CONTENT PROVIDERS
Last updated 5th December 2022.
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 upload Images to the Adzy Creator Hub for the purpose of (i) Adzy reviewing Images for their suitability and potential acceptance (ii) licencing to Adzy for use by Adzy Customers and (iii) including into services and promotions by Adzy to Adzy Customers and other content providers.
1.5. This Agreement provides no guarantee that an Image or any Image shall be accepted by Adzy for inclusion in the provision of services to Customers, or that an Accepted Image or any Accepted Image will be included in the provision of services to Customers or that a Customer or any Customer shall use an Accepted Image when procuring services from Adzy.
1.6. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES accessed via the Adzy Creator Hub 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/media-platform-terms-of-service/
1.7. THESE TERMS OF SERVICE APPLY TO ALL USE OF THE SOFTWARE (INCLUDING THE ADZY CREATOR HUB).BY CONTINUING TO USE THE SOFTWARE YOU ARE INDICATING YOUR ACCEPTANCE OF THE TERMS OF SERVICE.
1.8. 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.
1.9. 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
1.10. 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 Creator Hub 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):
“Adzy Creator Hub” 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 Images” means an Image uploaded by you to the Adzy Creator Hub and accepted by Adzy for promotion to Customers and the provision of services to Customers, and may result in Licence Fees payable to you.
“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.
“Customers” means Adzy’s customers who purchase advertising services from Adzy.
“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 to You when an Accepted Image is licensed to a Customer, the amount being specified in your User Account.
“Fees Owed” means the cumulative sum (net of any payments already made) of the Fees owed to you at any given time as displayed 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
“Image Specifications” means the specifications for any Image uploaded via the Adzy Creator Hub, as specified in the instructions set out therein or on the Adzy Website.
“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 we accept the Image for commercial use and you issue a licence for our use of the Image
“Licensee” means any person who is granted a licence to use of the Accepted Image as part of the provision of services to our Customers in accordance with the Adzy Terms of Business for Customers.
“Month” means a calendar month and “monthly” shall be construed accordingly.
“Payment Date” means the 2nd day of the month or as may be varied by us by giving you written notice.
“Payment Method” means the payment method you have selected in your User Account to which all due payments will be made.
“Payment Threshold” means the threshold used to determine whether a payment will be made to you on the Payment Date as specified by you in your User Account.
“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 Creator Hub under the terms of this Agreement.
“Software” means the software used by us to provide the Services which is either our proprietary software or third party software licensed to us or a mix of both.
“User Account” means a unique user account allocated to an individual User, which enables that User to access the Services.
“Term” means the effective term of this Agreement (which shall include the Initial Period and all subsequent Extension Periods).
“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) but excluding Images.
“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 Creator Hub 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 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 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. We may offer to enter into a licence agreement with you for Images, at our sole discretion. A licence agreement for an Accepted Image is not guaranteed to generate any Fees.
4.4. You agree to receive the Software as a service and accordingly your licence to use the Software is subject to the following conditions:
4.4.1. 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;
4.4.2. 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;
4.4.3. Purpose: the Software may only be used by you for the purpose of offering images and associated release documents for saving on the Adzy Creator Hub;
4.4.4. 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.
4.5. You accept that you shall in no circumstances be permitted to:
4.5.1. reproduce, edit, create derivative works of, sell or in any way commercially exploit any part or aspect of the Software;
4.5.2. outsource the Services or Software provided under this Agreement to third parties;
4.5.3. attempt to obtain, or assist third parties (other than Users) in obtaining access to the Software and Services
4.5.4. 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
4.5.5. 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 a User Account 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.
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. Submission, acceptance and Licence Fees
7.1. You shall upload Images to the Software in accordance with the instructions set out in the Adzy Creator Hub or as directed on the Adzy Website.
7.2. Adzy shall review each Image uploaded through the Adzy Creator Hub and shall normally confirm within two Business Days if such Image has been accepted by Adzy for inclusion in the provision of services supplied to our Customers. Acceptance of an Image shall be entirely at Adzy’s sole discretion. You can view the approval status of all your uploaded Images in the Adzy Creator Hub. In the case of rejected Images you can also view the reason for rejection if specified.
7.3. In full and final consideration of the licence to use the Accepted Images and the grant of the rights hereunder we agree to pay you the Fee in respect of each Accepted Image we license to a Licensee in accordance with the terms of the Adzy Terms of Business for Customers.
7.4. When a Licensee buys a licence for the Accepted Image in accordance with the terms of the Adzy Terms of Business for Customers, your User Account will be updated to show details of the transaction including the Fee applied to your account. This Fee will be added to the Fee Owed total.
7.5. If the value of Fees Owed to you at the Payment Date is greater than or equal to the Payment Threshold, we will pay the Fees Owed in full using the Payment Method you have specified in your User Account. Note, there may be a delay before your Payment Method Provider makes payment into your bank or account for which we have no control and shall not be held responsible.
7.6. We shall not be responsible for or have any liability in respect of any fees, charges or other costs associated with your choice of Payment Method.
7.7. If the value of Fees Owed to you at the Payment Date is less than the Payment Threshold, a payment will not be made and the Fees Owed will be carried forward until the next Payment Date when the process of evaluating Fees Owed and Payment Threshold will repeat.
7.8. You can set and change the Payment Threshold in your User Account at any time (and you may find this assists with reducing any charges applied by your Payment Method provider.)
7.9. If we are unable to make a payment to you, we will email you at the address specified in your User Account with details of the attempted transaction so that you can investigate the matter. We will also post a message in your User Account which you may view when you next login.
7.10. If we are unable for any reason to make payment on three consecutive Payment Dates and you do not contact us during that time, we reserve the right to suspend your account and you may forfeit your rights to any Fees under the terms of this Agreement.
7.11. The payments we make to you are gross of any taxes or charges. If you are registered for VAT and need to charge VAT, then you must enter your VAT number in your User Account. Note the Fees Owed are a) paid gross and you will need to account for the VAT element accordingly and b) do not include the cost of any fees the Payment Method provider may charge. This means the amount you receive may be less than the Fees Owed.
7.12. You shall be responsible for the filing of all tax returns and the payment of all income tax and charges of a similar nature raised or charged in respect of all monies due to you pursuant to this Agreement.
7.13. You expressly agree and acknowledge that any payment due under clause 7.3 is in full and final compensation for all rights granted hereunder and (without prejudice to the generality of the foregoing) you expressly acknowledge that you shall not be entitled to any further fees or compensation from us in respect of the exploitation of the Accepted Image.
7.14. Adzy may change the Fee upon no less than 30 days’ notice and in accordance with clause 24.3.
7.15. At its sole discretion, Adzy may exclude any or all Accepted Images from the services that Adzy provides to its Customers. When an Accepted Image is excluded, the record relating to the Image in the Adzy Creator Hub will be changed from Accepted to Revoked. In circumstances where we choose to exclude all of your Accepted Images, we will advise you in writing via email using the email address specified in Your User Information and the status of all records relating to Images in your User Account will be changed to Revoked. All Fees Owed at the time of exclusion will be paid in accordance with clause 7.5
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7.16. All amounts and Fees stated or referred to in this Agreement shall be payable in GBP.
7.17. You shall be entitled to charge us 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 2 per cent per annum above the base rate from time to time of Barclays Bank plc.
8. Grant of Licence
8.1. In consideration of
8.1.1. our provision of the Services, you hereby grant to Adzy from the Agreement Commencement Date, a non-exclusive, licence of the Accepted Image, to use the Accepted Image 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 us to publish, exhibit, use and otherwise exploit the Accepted Image 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 Adzy to Customers, for providing services to any number of Customers using our algorithm (including serving Accepted Images to Customers for their perusal); and
8.1.2. payment to you of the Fee, you hereby grant to Adzy from the Licence Commencement Date, a non-exclusive, licence of the Accepted Image, to use the Accepted Image 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 us to publish, exhibit, use and otherwise exploit the Accepted Image whether alone or incorporated in or in conjunction with other works worldwide and in all formats and media now known or hereinafter devised and, in particular, to sub-license the Accepted Image to Licensees in accordance with the Adzy Terms of Business for Customers (together the “Licensed Rights”).
8.2. You grant to us complete and sole discretion regarding:-
8.2.1. the terms and conditions of licensing the Accepted Image to Licensees and any other third party and acknowledge that we do not guarantee that the Accepted Image will be licensed. Notwithstanding the foregoing, we acknowledge we have no right to assign any Intellectual Property Rights in the Accepted Image; and
8.2.2. how we might manipulate (such as crop, re-size, format or otherwise) an Accepted Image prior to its use in providing services to Customers; and
how we might combine the Accepted Image with any other copyrighted materials when providing services to Customers
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8.3. 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:
8.3.1. a Licensee, or any other third party, breaching and/or exceeding the rights granted to them in the Accepted Image by us; and
8.3.2. any unauthorised access to our Services which is malicious or technologically harmful which results in a breach of your Intellectual Property Rights in the Accepted Image.
9. Our Warranties
9.1. 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.
9.2. We warrant to and undertake with you that:
9.2.1. 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;
9.2.2. we have full right power and authority to provide the Services to you in accordance with the terms of this Agreement;
9.2.3. we have all requisite registrations under Data Protection Legislation and will maintain such registrations throughout the Term; and
9.2.4. we will at all times comply with the Data Protection Legislation.
9.3. 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.
9.4. 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.
9.5. 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.
9.6. Except for the express warranties set forth in this Clause 9, 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.
9.7. 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.
10. Your Obligations and Warranties
10.1. You hereby warrant and undertake that:
10.1.1. you are the sole owner of the Intellectual Property Rights in the Accepted Image and have full authority to enter into this agreement;
10.1.2. all captions, metadata, descriptions, headlines and tags in relation to the Accepted Image are accurate and truthful;
10.1.3. the Accepted Image has not been altered from its original composition;
10.1.4. the Accepted Image is not intended to endorse a product or service or any other commercial purpose;
10.1.5. the Accepted Image has not been produced in the course of your employment;
10.1.6. the Accepted Image does not incorporate any material that infringes the Intellectual Property Rights of any third party, including any right of confidentiality or privacy, nor was it obtained through the harassment of any person, nor does it contain any obscene, blasphemous or defamatory matter, and its exploitation shall not place any person in contempt of court, in breach of any provision of any statute or give rise to any other criminal or civil liability;
10.1.7. you are not aware, having made full and reasonable enquiry, of any claim by any third party that the Accepted Image or any pre-existing material incorporating the Accepted Image or included within the Accepted Image, or the exploitation of the Accepted Image by either party, has infringed or will infringe any Intellectual Property Rights or any other rights of any third party and you agree that you shall immediately inform us if you become aware of any such claim;
10.1.8. you have used all reasonable endeavours to secure all third-party permissions and releases (in particular, model releases and building releases) necessary to grant the Licensed Rights to Adzy (Releases) and have made or will make in a timely manner all payments due to any such third parties necessary to enable us to exercise the rights granted to us under this Agreement. You hereby acknowledge that we shall not be liable for any such payments;
10.1.9. you have uploaded copies of the Releases to the Adzy Creator Hub; and
10.1.10. Images and Releases 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.
10.2. 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.
10.3. You undertake at all times during the Term to comply with all our Image Specifications. We shall give not less than 14 days’ written notice to you of additions and changes to Image Specifications.
10.4. You shall provide us with:
10.4.1. all necessary co-operation in relation to this Agreement; and
10.4.2. 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.
10.5. In the event that you are in breach of any of your obligations under this Agreement, then:-
10.5.1. 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;
10.5.2. We shall be entitled to charge you for staff time engaged on rectifying any resulting problems at our then current standard charging rates; and
10.5.3. 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.
10.6. You represent, warrant and undertake that:
10.6.1. you will use the Services only for lawful purposes and in accordance with this Agreement;
10.6.2. you will at all times comply with Data Protection Legislation;
10.6.3. any Personal Data will only be provided to us in accordance with Data Protection Legislation;
10.6.4. 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
10.6.5. 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.
10.7. 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.
11. Intellectual Property Rights
11.1. Without prejudice to your rights in your Images and Your User Information, we jointly agree that you shall not acquire any Intellectual Property Rights whatsoever in respect of the Adzy Creator Hub, Software, documentation and other materials used by us in connection with or related to the provision of the Services hereunder.
11.2. We warrant that we have all necessary right, title and interest to enable you to benefit from the Services in accordance with this Agreement.
11.3. In addition to the licence granted at clause 8, you hereby grant to us a non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate (i) your Images whether or not they are Accepted Images and (ii) Your User Information provided by you or resulting from the Services for the provision of the Services to you.
11.4. We shall immediately notify you in writing giving full particulars if any of the following matters come to our attention:
11.4.1. any actual, suspected or threatened infringement of the Intellectual Property Rights in an Accepted Image;
11.4.2. any claim made or threatened that an Accepted Image infringes the rights of any third party; or
11.4.3. any other form of attack, charge or claim to which the Intellectual Property Rights in the Accepted Image may be subject.
11.5. In respect of any of the matters listed in clause 11.4, it is acknowledged that:
11.5.1. you shall, at your absolute discretion, decide what action to take, if any;
11.5.2. you shall have exclusive control over, and conduct of, all claims and proceedings;
11.5.3. we shall not make any admissions other than to you and we shall, at your cost, provide you with all assistance that you may reasonably require in the conduct of any claims or proceedings; and
11.5.4. you shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for your own account.
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 Images and Your User Information shall remain at all times your exclusive property.
12.5. 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 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 not excluded by Clauses 16.3.2, 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 earnt 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.
16.6. 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 15 and that you will put in place insurance as is suitable having regard to your particular circumstances and the terms of this Clause 16.
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. all rights and licences granted pursuant to this agreement shall cease, save that:
17.6.1.1. Our right to use the Accepted Image to promote the Website shall continue following the date of termination, albeit solely for use within existing promotional material at the date of termination; and
17.6.1.2. such termination will not affect the terms of any existing licences granted to Customers under the Adzy Terms of Business for Customers and any such licences will continue in full force and effect in according to their terms.
17.6.2. we may in our sole discretion destroy or otherwise dispose of any of Your User Information and Images in our possession.
17.6.3. 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, 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.
