The parties are:
- Intelligent Commerce Ltd. (t/a Vendably), a company incorporated in England & Wales number 10942422 with a registered office address at Suite 4.07 Leeming Building Vicar Lane, Leeds, England, LS2 7JF, United Kingdom, further referred to as “We” or “Us” or “Our”, and...
- the party submitting an application to become a user of Vendably (Section 1), further referred to as “You” or “Your”.
Terms and Conditions:
These terms and conditions (“Terms”) govern Your participation in and/or use of Vendably (Section 1) that We provide to You. You agree to be bound by these Terms. The Terms are effective as at the date You register as a user of Vendably.
Description of Vendably
- Vendably is a proprietary web application software hosted on our servers and is made available to you through our website at vendably.com and any other sub domains thereof.
- Vendably One Source is a data feed management and optimisation platform available to subscribers via the internet for the purpose of optimising and distributing product information to 3rd party providers.
- Vendably Ad Manager is the service for creating and managing online advertising campaigns with third party advertising networks.
- Vendably Shopping is the service which displays products owned and sold by 3rd party providers for the purpose of advertising products to end users and for participating in vendably comparison shopping service
- All mentions of "Vendably" in these terms refer to both the proprietary web application software and the subsequent services detailed in clauses 1.1 and 1.2, unless explicitly stated otherwise.
- We grant You a non-exclusive, non-assignable and non-transferable right during the Term (Section 11) to use Vendably in accordance with the Terms set forth herein.
- Access to Vendably requires logging in using Your credentials which will be provided to You at the time of registration.
- You are solely responsible for Your use of Vendably. You shall not permit any third party to use or gain access to Vendably and shall use all reasonable security measures to protect against such unauthorised usage and/or access. You are solely responsible for the use of Vendably by any of Your employees, agents or any other person, whether authorised or otherwise.
- We shall not access Your account for purposes other than in the course of general administration and maintenance or to provide support.
- You shall provide Us with true, accurate and current information and shall maintain all account information, ensuring it is true, accurate and up-to-date. You, not Us, shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and intellectual property ownership or right to use all Customer Data (as defined in clause 3(6) below), and We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
- When an individual, You represent and warrant that You are at least 18 years of age and have full capacity to perform acts in law.
- When a company or corporate entity, You represent and warrant that Your company or corporate entity is properly incorporated or properly able to perform acts in law.
- When acting on behalf of another party (whether they be an individual or a company), You represent and warrant that You have full legal authority to enter into a contract with Us on behalf of that party.
- When You provide your personal data and/or the data of any third party for which You are acting on behalf of, you authorise Us to process that data as required to fulfil Our responsibilities as provided by Vendably and any other services to You.
- We do not own any keyword data, information, performance data, paid search campaigns or material that You submit to Us in the course of Us providing the Service to You (collectively called “Customer Data”).
- You hereby grant Us a worldwide, royalty-free, non-exclusive right during the Term (section 11) to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Data for the sole purposes of (i) processing your Customer Data in connection with providing the Services to you; and (ii) storing or hosting the Customer Data in a remote database or on Vendably.com website for access by You.
- You shall not access, or attempt to access, Vendably by any means other than through Our website.
- You shall not attempt to obstruct, disrupt or interfere with the operations of Vendably or any other products or services offered by Us.
- You shall not attempt to gain unauthorised access to accounts not registered to You, or to any servers, systems or networks which are connected, owned or operated by Us.
You shall not obtain or attempt to obtain:
- any information from Vendably, including without limitation: email addresses, telephone numbers, names, addresses or other personal information of other account holders, or other software data.
- intercept, examine or otherwise observe any communications used by Vendably, Our website, servers and/or other services.
- use any software that is designed to provide means of unauthorised access to, or distort, delete, damage or disassemble Vendably, Our website, servers and/or other services.
- You shall not use Vendably for any illegal, obscene, offensive or immoral purpose.
- You shall ensure that all materials provided by You are free from viruses, worms, Trojan horses and other malicious code.
- You shall not rent, lease, sublicense, distribute, transfer, copy or modify Vendably.
- We have no obligation to review Your use of Vendably. We do not control, nor are We to be held responsible for, Your use of Vendably or any other content that You send or receive through Vendably.
- All algorithms, methods of computation and data processed by Vendably to measure account performance or any other data of statistical nature necessary for the proper functioning of Vendably or a feature thereof (“Processed Data”), are and shall remain Our sole and exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto. We reserve all rights not expressly granted to You herein.
- Your materials (i.e. campaigns, adverts, imagery, etc.) are and shall remain Your sole and exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto.
- We shall not be obligated to provide You with any support, but We may elect to do so at Our sole discretion. In the event, technical support shall be provided in English based on the agreed plan chosen by You, and refers to the working days Monday through Friday, from 09:00 to 17:00 Greenwich Mean Time, or when in effect, British Summer Time.
- You agree that Vendably and theProcessed Data are Our confidential and/or trade secret information (“Confidential Information”). You shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. You agree to secure and protect the Confidential Information in a manner consistent with the maintenance of Our rights therein. You shall use Your best efforts to assist Us in identifying and preventing any unauthorised access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, You shall advise Us immediately in the event that You learn or have reason to believe that any person to whom You have given access to the Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any of Our proprietary rights. You will, at Your expense, cooperate with Us in seeking injunctive or other equitable relief in the name of You orUs against any such person. You agree to maintain the confidentiality of the Confidential Information using at least as great a degree of care as You use to maintain the confidentiality of Your own confidential information, and in no event less than a reasonable degree of care. You acknowledge that the disclosure of any aspect of theConfidential Information or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to Us inadequately compensable in damages to law, and We are entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, We may immediately terminate Your account and all license rights granted herein, in the event You breach any of Your confidentiality obligations.
- You shall indemnify, defend, and hold Us harmless from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by Us, known or unknown, contingent or otherwise, directly or indirectly arising from Your breach of any term or provision of these Terms or any way related to Your use of Vendably, including but not limited to any claim that Your website is owned by someone other than You or that the website infringes on the intellectual property rights of a third party. We shall notify You of any such claim and shall cooperate with You, at Your expense, in defending or settling such claim. You may not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Our rights without Our prior written consent. We may join in defence with counsel of Our choosing at Our own expense. If You do not assume the defence of any such claim within thirty (30) days after the date that notice of such a claim is given, We may defend against such claim in such manner as it may deem appropriate at Your expense, including, without limitation, settling such claim, after giving notice of the same to You.
- WE, OUR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, USERS AND AGENTS (COLLECTIVELY “THE VENDABLY PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING CLIENTS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE VENDABLY PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OF VENDABLY OR PERFORMANCE OF THE USER WEBSITES REMAINS WITH THE USER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE VENDABLY PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF VENDABLY, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PLATFORM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF VENDABLY. THE PLATFORM IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY YOU SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE VENDABLY PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE VENDABLY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE VENDABLY PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED FIFTY POUNDS STERLING (£50.00).
- These Terms are effective as long as You are a registered user of Vendably. We will provide the services to You on a month-to-month basis.
- Either You or Us (“Party”) may terminate this agreement at any time by providing notice to the other Party. Regardless of the circumstances such termination shall not give rise to liability.
- In the event of any termination, You shall not be entitled to any refunds of any fees. Any outstanding balance for Your use of Vendably rendered through the date of termination, and any other unpaid payment obligations incurred during the remainder of the billing period, shall be immediately due and payable in full. All data, files, or other information stored in Your account shall no longer be available to You.
- The termination of this agreement shall automatically, and without further action by Us, terminate and extinguish Your right to use Vendably.
- You agree that We have the right to delete all data, files, or other information that is stored in Your account subsequent to termination. You agree that We may retain any Processed Data (defined in section 6a) relating to Your use of Vendably, except for personal data. Such data shall be used only to improve Vendably and the quality of service.
We may suspend or terminate Your access to Vendably at any time, without advance notice, for any reason that We find valid in Our sole discretion, until cured, including but not limited to where We believe that:
- You are or have previously been, in any way, in breach of the Terms.
- You are or have previously been conducting activities that do not fully comply with all applicable local, State, national and foreign laws, rules and regulations.
- You are or have previously been late with any payment for the usage of Vendably.
- You are or have previously been involved in the misuse of system resources, including without limitation, the employing of programs or techniques that consume excessive network capacity, CPU cycles, disk I/O or place excessive demand on any other resource, whether intentional or otherwise.
- We may, from time to time, modify the Terms or billing plans. We will post notice of modifications hereto at Our website. Changes will not apply retroactively and will become effective immediately after they are posted. Modifications to billing plans will come into force at the beginning of the next billing period.
- All amendments or modifications will be binding if You continue to use Vendably after modifications to these Terms come into force.
Charges and Payments
- No Subscription Fees shall be payable in respect of any Trial Period. You shall pay to us, in accordance with this clause 9, the Subscription Fees in respect of all applicable Renewal Periods.
- You shall on request provide to us or our payment provider (as the case may be) with relevant valid, up-to-date and complete payment information (Payment Information).
- We accept payment by direct debit or continuous payment authority (debit or credit card) or such other method as we may from time to time agree.
- You acknowledge Vendably provides access to the Platform as a subscription service and that Vendably takes recurring payments, you hereby authorise Vendably to automatically charge you in advance in respect of the immediately following Renewal Period for the applicable Subscription Fee on or around the Effective Date and monthly thereafter.
- You acknowledge that you will register for and subscribe to each service individually and that each service will be marked as a line item on your monthly recurring subscription invoice
- You shall pay the applicable Additional Services Fees in respect of any additional services you take.
- If you owe us any sum due under or relating to this Contract, without prejudice to any of our other rights and remedies and without liability to you, we may suspend your access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the sum(s) concerned remain unpaid.
If you make an unjustified credit card, debit card or other charge-back then you will be liable to pay us, within 7 days following the date of our written request
- an amount equal to the amount of the charge-back;
- all third party expenses incurred by us in relation to the charge-back (including charges made by our or your bank or payment processor or card issuer);
- an administration fee of £25 (including VAT); and
- all our reasonable costs, losses and expenses incurred in recovering the sums referred to in this clause 9.7,
- and for the avoidance of doubt, if you fail to recognise or fail to remember the source of an entry on a card statement or other financial statement, and make a charge-back as a result, this will constitute an unjustified charge-back for the purpose of this clause 9.7.
All amounts and fees stated or referred to in this Contract are:
- payable in pounds sterling;
- non-cancellable and non-refundable;
- exclusive of VAT, which shall be added at the appropriate rate.
- We may at any time set off any amount that you owe to us against any amount that we owe to you.
- We shall be entitled to vary the Subscription Fees and the Additional Services Fees from time to time by posting new fees on the Website, but this will not affect fees for services that have previously been paid.
- You shall pay interest on any sum due under this Contract at a rate of 4% above the Banks of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%, from when the overdue sum became due, until it is paid (whether before or after judgment). This clause is without prejudice to any of our rights to claim interest under the law.
- All invoices shall be paid in full, without deduction, counterclaim or set off, in cleared funds on or before their due date for payment.
- You shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against Us. You shall reimburse Us for the amount of any such taxes or duties paid or accrued directly by Us as a result of this transaction.
- All agreements between You and Us shall be governed by, and construed in accordance with, the laws of England and Wales, except for its conflict of law provisions, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
- Any litigation based hereon, or arising out of, under, or in connection with these Terms (and all agreements between You and Us), shall be brought and maintained exclusively in the competent courts in England and Wales. The Parties hereto hereby expressly and irrevocably submit to the jurisdiction of the above mentioned courts for the purpose of any such litigation as set forth above. In addition, each Party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The Parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
- Each of the Parties hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
- These Terms are made solely for the benefit of You and Us and Your/Our respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms.
- You may not assign any of Your rights or delegate any of Your duties under these Terms without Our prior written consent. Despite such consent, no assignment shall release the assignor of any of its obligations or alter any of its primary obligations to be performed under these Terms.
- Except as otherwise expressly provided in these Terms, these Terms shall bind and ensure to the benefit of the successors, assigns, heirs, executors and administrators of You or Us.
- The relationship of You and Us established by these Terms is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
- Neither Party shall be deemed in default of these Terms to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party.
- No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms shall be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No failure or delay by Us in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
- Except as may be set forth in a written agreement signed between You and Us, these Terms constitute the final, complete, and exclusive statement of the terms of the use of Vendably between the Parties and supersedes all prior and contemporaneous understandings or agreements of the parties.
- If any provision of these Terms is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of such provision.
- If We prevail in any action, suit, or proceeding arising from or based upon these Terms, We shall be entitled to recover from You, Our reasonable fees in connection therewith in addition to the costs of such action, suit, or proceeding.
- The headings in these Terms are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms nor affect any of the rights or obligations of the Parties these Terms.
Any notice, communication or statement relating to these Terms shall be in writing and deemed effective:
- upon delivery when delivered in person.
- upon transmission when delivered by verified facsimile or other confirmed electronic transmission.
- when delivered by certified mail or postage prepaid to the address of the respective Party as indicated herein. Copies of all notices shall be sent to Intelligent Commerce Ltd
- Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms. These Terms shall not be construed against either Party by reason of its drafting.
- Any complaints that arise from these Terms or use of Vendably can be directed to help@Vendably.com. All complaints will be handled within a reasonable timeframe.