Terms & Conditions Of Use
Please read these Terms and Conditions, carefully before registering for a subscription for the Services offered on this website operated by EVC Technologies Ltd, Chapel Cottage, Shortbridge Road,Piltdown, East Sussex TN22 3XD, United Kingdom, company number 11528551, VAT number GB 306 2895 00.
In this Agreement, the following words shall have the following meanings:
“Company” means EVC Technologies Ltd, Chapel Cottage, Shortbridge Road, Piltdown, East Sussex TN22 3XD, United Kingdom;
“Confidential Information” means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s Company’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
“Customer Data” means all data imported into the Services for the purpose of using the Services or facilitating the Customer’s use of the Services;
“Customer” means the company or person who completes the online registration form for use of the Services;
“DPA” means the data processing agreement of the Company published at https://www.everyvoicecounts.net/DPA as amended from time to time;
“Effective Date” means the date on which payment for the Services is confirmed via Bank Transfer in the confirmation invoice;
“Fees” means the fees as set out in the online account manager page of the Company website where the Customer may order Services online after the Trial Period has expired;
“Force Majeure” means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
“Intellectual Property Rights” means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Operating Rules” means any Company rules or protocols, in whatever form recorded or set, that affect the Customer’s access to or use of the Services, and made available by the Company from time to time to the Customer;
“Services” means the software applications services of the Company, ordered online by the Customer and set out in the confirmation invoice sent to the Customer which are made available to the Customer in accordance with any Operating Rules and including any computer software programmes and, if appropriate, Updates thereto;
“Term” means the period starting on the Effective Date until the Agreement is terminated;
“Terms and Conditions” means the free trial period starting on the date that the Customer registers for the free Services on the Company website and ending upon the expiry of the free trial period as set out in the ‘free trial offer’ on the Company website;
“Updates” means any new or updated applications services or tools (including any computer software programmes) made available by the Company as part of the Services.
2.1) The Customer engages the Company and the Company agrees to provide the Services for the Term or sooner termination in accordance with the terms of this Agreement.
3.1) Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term. Such licence shall permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licences.
3.2) All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3) Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), the Company will provide access to relevant source code or information. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4) Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer as part of the Customer’s website/desktop architecture. The Customer may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, permit access to or use of the Services by or on behalf of any third party.
3.5) The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
4. Payments and Ordering
4.1) In consideration of the provision of the Services by the Company, the Customer shall pay to the Company the Fees.
4.2) The Company shall render invoices to the Customer in respect of the Fees and all Fees are payable by credit card using Sage Pay at the time of order. The Fee is the price in force at the date and time of your order. All Fees are exclusiveof VAT.
4.3) The Company is entitled to refuse any order placed by a Customer. If an order is accepted, the Company will confirm acceptance via email.
4.4) All invoices by the Company to the Customer shall be rendered in pounds Sterling and shall be payable in full by the Customer together with any Value Added Tax (if applicable).
4.5) For the purposes of this Agreement, ‘Business Day’ shall mean any day (other than Saturday or Sunday) which the clearing banks are open for normal banking business in the city of London.
4.6) The Customer undertakes that all details provided for the purpose of obtaining the Services will be correct and that the credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
5.1) The Company warrants to the Customer that it has the right to license the Services and that:(i) the Services will operate to provide the facilities and functions implemented by the Company; (ii) that by performing the Services it will not knowingly infringe the rights of any third party (including but not limited to Intellectual Property Rights in any jurisdiction) or be in breach of any obligations it may have to a third party; and (iii) it is not prohibited from providing the Services by any statutory or other rules or regulations in any relevant jurisdiction. The foregoing warranties shall not: (a) cover deficiencies or damages relating to any third party components not furnished by the Company; or (b) any third party provided connectivity necessary for the provision or use of the Services. In the event of a breach of the warranties under this section 5.1, the Company shall have no liability or obligations to the Customer other than to reimburse the Fees for the Services.
5.2) Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free. This section shall survive the termination of this Agreement.
5.3) The Customer acknowledges that Services should not be used for high risk applications where precise locations or features on maps are essential to the Customer, for example use of the Services by the emergency services.
6.1) The Company does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of the Company in connection with the provision of the Services.
6.2) In no event shall the Company be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. ‘Consequential Loss’ shall for the purposes of this section mean: (i) pure economic loss; (ii) losses incurred by any client of the Customer or other third party; (iii) loss of profits (whether categorised as direct or indirect loss); (iv) losses arising from business interruption; (v) loss of business revenue, goodwill or anticipated savings; and (vi) losses whether or not occurring in the normal course of business, wasted management or staff time.
6.3) Subject to sections 6.1 and 6.2, the total liability of the Company (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to theCompany during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
6.4) In no event shall the Customer raise any claim under this Agreement more than one (1) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of the termination of this Agreement. This section shall survive the termination of this Agreement.
6.5) The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Company, any employees or agents of the Company.
7.1) The Company, at its own expense, shall:(i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defence and/or settlement; and the (c) Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
7.2) If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may:(i) procure for the Customer the right to continue to use the Services or the affected part thereof; or(ii) replace the Services or affected part with other suitable non-infringing service(s); or(iii) modify the Services or affected part to make the same non-infringing.
7.3) The Company shall have no obligations under this section 7 to the extent that a claim is based on:(i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or(ii) use of the Services in any manner inconsistent with this Agreement; or(iii) the negligence or wilful misconduct of the Customer.
7.4) The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by a third party; and (iii) use by the Company of any Customer provided item; and (iv) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer.
7.5) Subject to sections 7.1 to 7.4 inclusive, each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party under clause 7 of this Agreement.
7.6) The indemnity above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
8. Term and Termination
8.1) The Company may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement.
8.2) The Customer shall be entitled to terminate this Agreement at any time without notice if the Company is prohibited, under the laws of England or otherwise, from providing the Services.
8.3) Either party shall be entitled to terminate this Agreement on written notice to the other party if the other party: (i) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts within the meaning of s268 Insolvency Act 1986 or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (ii) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within five (5) Business Days of receipt of a written notice specifying the breach and requiring it to be remedied; (iii) is prevented by Force Majeure from fulfilling its obligations for more than twenty eight (28) days.
8.4) Upon termination of this Agreement: (i) the Company shall immediately cease providing the Services to the Customer and all licences granted hereunder shall terminate; (ii) the Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Term; (iii) at the option of the Customer, following receipt of a request from the Customer delete (in accordance with the terms of the DPA) or return allCustomer Data stored in the Company’s database in a machine readable format, free of charge, provided that such request is made within 30 days of termination. If the Customer requires any CustomerData to be returned in a different format the Company reserves the right to charge for this additional service on time and materials basis.
8.5) Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
9. Confidential Information
9.1) Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
9.2) Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
9.3) Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
9.4) The obligations of confidentiality under this Agreement do not extend to information that:(i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement;(ii) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or(iii) is required by law to be disclosed.
10. Data Protection and Customer Data
10.1) Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
10.2) To the extent that personal data is processed when the Customer or it users, use the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.
10.3) If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
10.5) The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing Intellectual Property Rights and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
11. Third Parties
11.1) Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the provision of the Services is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
12. Force Majeure
12.1) If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, then that party’s obligation to perform in accordance with this Agreement will be suspended.
12.2) As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. If the Force Majeure event last for more than 28 days the non-defaulting party may terminate this Agreement with immediate effect without penalty.
13.1) Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
13.2) This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
13.3) No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies.
13.4) The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
13.5) Amendments to, or notices to be sent under this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post or acknowledged fax to a party at the address given for that party in this Agreement.
13.6) This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.