1.1. The definitions and rules of interpretation in this clause apply in the Contract.
|“Acceptable Use Policy”||our acceptable use policy for using the Site and the Services, available at https://calibur-designs.co.uk/terms/acceptable-use, and as amended from time to time.|
|“Animation”||an animation created by you using the Services.|
|“Business Day”||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.|
|“Conditions”||these terms and conditions as amended from time to time in accordance with clause 13.1.|
|“Customer Materials”||any images, logos, text, video, audio or other materials uploaded to the Services by you.|
|“Data Protection Legislation”||(a) the Data Protection Act 2018; and
(b) unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
(c) any successor legislation to the GDPR or the Data Protection Act 2018.
|“Documentation”||the documentation made available to you by us online via our Site or such other web address notified by us from time to time which sets out a description of the Services and the user instructions for the Services.|
|“Effective Date”||the date of the Contract.|
|“Extended Animation Licence”||the licence to use an Animation, available at https://caliburdesigns.co.uk/licenses/extended, and as amended from time to time.|
|“Fees”||the subscription fees and other charges payable by you to us as set out in your order.|
|“Initial Term”||the initial subscription term for the Services, usually monthly or annually as set out in your Subscription.|
|“Intellectual Property Rights”||patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Month”||the period of one month starting on the calendar day corresponding to the commencement of your Subscription.|
|“Normal Business Hours”||9.30 am to 5.00 pm local UK time, each Business Day.|
|“Privacy Notice”||our privacy notice setting out how we will process any personal data provided by you, which is available at https://caliburdesigns.co.uk/terms/privacy, and as amended from time to time.
|“Renewal Period”||a period of time equal to the Initial Term or 12 months, whichever is shorter.|
|“Services”||he subscription services provided by us to you under the Contract via the Site or any other website notified to you from time to time, as more particularly described in the Documentation.|
|“Software”||the online software applications provided by us as part of the Services.|
|“Storage Limit”||the storage limit for online storage of Animations forming part of your Subscription.|
|“Subscription Term”||has the meaning given in clause 11.1, being the Initial Term and any Renewal Period.|
|“Subscription”||your subscription to use the Services and the Documentation to produce Animations.|
|“Support Services”||our standard support services from time to time available via our support link at https://caliburdesigns.co.uk/contact.|
1.2. Clause, schedule and paragraph headings will not affect the interpretation of the Contract.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4. Unless the context otherwise requires, words in the singular includes the plural and in the plural includes the singular.
1.5. Unless the context otherwise requires, a reference to one gender includes a reference to the other genders.
1.6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and a reference to a statute or statutory provision includes all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.7. References to clauses and schedules are to the clauses of these Conditions.
1.8. In the event of any conflict between the provisions of these Conditions and any document referred to herein, the provisions of these Conditions take priority.
2 WHO WE ARE AND HOW WE CAN CONTACT EACH OTHER
2.1. We are Calibur Designs, England and Wales. Our main trading and registered office is at 101 Charnwood Drive, Nuneaton, United Kingdom, CV10 0UE.
2.2. If you wish to contact us in writing, or if any condition in the Contract requires you to give us notice in writing, you can send this to us by email to [email protected] or by pre-paid post to Calibur Designs at 101 Charnwood Drive, Nuneaton, United Kingdom, CV10 0UE. We will confirm receipt of this by contacting you in writing, normally by email.
2.3. If we have to contact you or give you notice in writing, we will do so by email to the address you provide in your account details. We may also post general notices on our Site.
3.1. We will, during the Subscription Term, provide the Services and make available the Documentation to you on and subject to the terms of the Contract.
3.2. The level of Services accessible by you will be in accordance with your Subscription. You may upgrade your Subscription level at any time.
3.3. You will be able to create and download each Month the number of Animations you have purchased under your Subscription. You may increase the number of Animations available at any time by purchasing an upgraded Subscription.
3.4. As part of the Services, and at no extra cost to you, we will provide online storage of your Animations up to the Storage Limit specified in your Subscription. If you exceed your Storage Limit then any Animations may be deleted by us after 30 days without further notice from us to you. You can increase your Storage Limit at any time by purchasing an upgraded Subscription.
3.5. You can upgrade your Subscription at any time by purchasing an upgraded Subscription to increase the number of Authorised Users and User Subscriptions, the number of Animations you are able to create and download each Month, or to increase your Storage Limit. Any upgrade will be applied within 3 Business Days (but are usually applied immediately).
3.6. You may reduce the level of your Subscription by giving us not less than 3 Business Days’ notice but such reduction will not take effect until the following Renewal Period and you will still be responsible for the full Fees applicable to your Subscription for the remainder of the Initial Term (or Renewal Period, as the case may be).
3.7. We will use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 7am and 12 noon UK GMT; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give you at least 3 hours’ notice in advance.
3.8. We will, as part of the Services and at no additional cost to you, provide our standard Support Services during Normal Business Hours. We may amend the Support Services in our sole and absolute discretion from time to time. You may purchase enhanced support services separately at our then current rates.
4 AUTHORISED USER SUBSCRIPTIONS
4.1. Subject to you purchasing the Subscription in accordance with clause 10.1, the restrictions set out in this clause 4 and the other terms and conditions of the Contract, we grant you a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.
4.2. The number of Authorised Users able to access the Services will be in accordance with your Subscription.
4.3. In relation to the Authorised Users, you undertake that:
4.3.1. the maximum number of Authorised Users that you authorise to access and use the Services and the Documentation will not exceed the number of User Subscriptions you have purchased from time to time;
4.3.2. you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User will no longer have any right to access or use the Services and/or Documentation;
4.3.3. each Authorised User will keep a secure password for his use of the Services and Documentation, that such password will be changed regularly and that each Authorised User will keep his password confidential;
4.4.4. you permit us to audit the Services in order to establish the name and password (in hashed format so that we cannot identify the password) and use of the Service of each Authorised User to monitor compliance with the Contract;
4.3.5. if it is revealed that any password has been provided to any individual who is not an Authorised User, then without prejudice to our other rights, we will promptly disable such passwords and we will not issue any new passwords to any such individual; and
4.3.6. if it is revealed that you have underpaid Fees, then without prejudice to our other rights, you will pay on demand an amount equal to such underpayment as calculated in accordance with our then current price list.
4.5. You will not:
4.5.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
126.96.36.199. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
188.8.131.52. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4.5.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
4.5.3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
4.5.4. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than your Authorised Users as provided under this clause 4.
4.6. You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.
4.7. The rights provided under this clause 4 are granted to you only, and will not be considered granted to any subsidiary or holding company.
5 OUR OBLIGATIONS
5.1. We undertake that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
5.2. The undertaking at clause 5.1 will not apply to the extent of any non-conformance which is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, we will use all reasonable endeavours to correct any such non-conformance promptly. Such correction constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.
5.3. Notwithstanding the foregoing, we:
5.3.1. do not warrant that:
184.108.40.206. your use of the Services will be uninterrupted or error-free; or
220.127.116.11. that the Services, Documentation, Animations and/or the information obtained through the Services will meet your requirements; and
5.3.2. (b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.4. We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under the Contract.
5.5. In the event of any loss or damage to your Animations stored online, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Animations from our latest back-up. We are not responsible for any loss, destruction, alteration or disclosure of Animations stored on the Services caused by any third party (except those third parties sub-contracted by us to perform services related to maintenance and back-up).
6 YOUR OBLIGATIONS
6.1. You will:
6.1.1. provide us with all necessary co-operation in relation to the Contract and all necessary access to such information as we may require from time to time in order to provide the Services;
6.1.2. without affecting your other obligations under the Contract, comply with all applicable laws and regulations with respect to your activities under the Contract;
6.1.3. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Contract and you will be responsible for any Authorised User’s breach of the Contract;
6.1.4. be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing you network connections and telecommunications links from your systems to our Sites, 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;
6.1.5. pay the Fees in accordance with clause 10.
6.2. You will defend, indemnify us 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 and/or Documentation, provided that:
6.2.1. you are given prompt notice of any such claim;
6.2.2. we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
6.2.3. you are given sole authority to defend or settle the claim.
7 PROPRIETARY RIGHTS
7.1. You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Contract does not grant you any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
7.2. We confirm that we have all the rights in relation to the Services and the Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of the Contract.
7.3. You will (as between us and you) own all right, title and interest in and to all of the Customer Materials and you confirm that you have all the rights in relation to the Customer Materials that are necessary to grant all the rights you purport to grant under, and in accordance with, the terms of the Contract.
7.4. You grant us a non-exclusive, royalty free licence to use, copy and store the Customer Materials solely for:
7.4.1. the purposes of performing the Services;
7.4.2. our own promotional and marketing purposes;
7.4.3. training purposes; and
7.4.4. our own internal purposes,
in each case whether such Customer Materials are used, copied or stored on their own, or when incorporated into an Animation. Furthermore, you agree that we may refer to you as a Calibur Designs user or customer in any of our promotional or marketing material.
8.1. We grant you the Extended Animation Licence in respect of any Animations created by you as part of the Services.
8.2. You are expressly prohibited from selling, sub-licencing or otherwise transferring any rights in connection with an Animation on any third party marketplace.
8.3. Your right to grant sub-licences of the Extended Animation Licence in accordance with its terms will survive termination or expiry of the Contract.
9 PERSONAL DATA
9.1. Both we and you will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2. Where you share any personal data with us (whether your own or of any other person), you warrant and represent that you are lawfully able to share such personal data with us, have obtained all necessary consents, provided the data subject (if relevant) with appropriate notices of such sharing) and that it is true, complete and accurate in all material respects. You agree to indemnify us and keep us indemnified against any and all claims, losses, damages and expenses arising directly or indirectly out of your breach of this clause 8.2.
9.3. We will process all personal data provided in accordance with our Privacy Notice.
10 FEES AND PAYMENT
10.1. You will pay the Fees in accordance with this clause 9.
10.2. You will on the Effective Date provide us with valid, up-to-date and complete credit or debit card details and any other relevant valid, up-to-date and complete contact and billing details. Our Fees shall be payable as set out in your Subscription and you hereby authorise us to bill such credit or debit card in advance for the Fees.
10.3. If you fail to make payment no later than 3 days after the the due date, and without prejudice to any of our other rights and remedies:
10.1.1. we may, without liability to you, disable your password, account and access to all or part of the Services and we will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.1.2. interest will accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of our bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4. All amounts and Fees stated or referred to in the Contract:
10.4.1. are, subject to clause 11.2 and 12.3(b), non-cancellable and non-refundable save where you terminate the Contract under clause 13.2;
10.4.2. are exclusive of value added tax, which will be added to our invoice(s) at the appropriate rate.
10.5. We will be entitled to increase the Fees upon not less than 30 days’ notice. Any such increase will take effect on the following Renewal Period.
11.1. We will defend you against any claim that the Services or Documentation infringes any third party’s Intellectual Property Rights, and will indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
11.1.1. we are given prompt notice of any such claim;
11.1.2. you provide us with reasonable co-operation in the defence and settlement of such claim, at our expense; and
11.1.3. we are given sole authority to defend or settle the claim.
11.2. In the defence or settlement of any claim, we may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, immediately terminate the Contract without any additional liability or obligation to pay liquidated damages or other additional costs to you, save that any Fees paid in advance for Services not yet delivered will be refunded.
11.3. In no event will we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
11.3.1. a modification of the Services or Documentation by anyone other than ourselves; or
11.3.2. your use of the Services or Documentation in a manner contrary to the instructions given to you by us; or
11.3.3. your use of the Services or Documentation after notice of the alleged or actual infringement from us or any appropriate authority.
11.4. The foregoing and clause 12.3(b) state your sole and exclusive rights and remedies, and our (including our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Right.
12 LIMITATION OF LIABILITY
12.1. Except as expressly and specifically provided in the Contract:
12.1.1. you assume sole responsibility for results obtained from the use of the Services and the Documentation by you;
12.1.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
12.1.3. the Services and the Documentation are provided to you on an “as is” basis.
12.2. Nothing in the Contract excludes our liability:
12.2.1. for death or personal injury caused by our negligence;
12.2.2. for fraud or fraudulent misrepresentation; or
12.3. 12.3 Subject to clause 12.1 and clause 12.2:
12.3.1. we will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
12.3.2. (b) our total aggregate liability in, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract will be limited to the total Fees paid for the Subscription during the 12 months immediately preceding the date on which the claim arose.
13 TERM AND TERMINATION
13.1. The Contract will, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and will continue for the Initial Term and, thereafter, the Contract will be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
13.1.1. either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case the Contract will terminate upon the expiry of the applicable Initial Term or Renewal Period; or
13.1.2. (b) otherwise terminated in accordance with the provisions of the Contract,
and the Initial Term together with any subsequent Renewal Periods will constitute the “Subscription Term”.
13.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of five days after being notified in writing to do so.
13.3. On termination of the Contract for any reason:
13.3.1. all licences granted under the Contract, save for any Extended Animation Licences, will immediately terminate and you will immediately cease all use of the Services and/or the Documentation;
13.3.2. we will be entitled to retain copies of the Customer Material and the Animation for a period not exceeding seven years for the purpose of our own internal administration;
13.3.3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination will not be affected or prejudiced.
14 FORCE MAJEURE
We will have no liability to you under the Contract if we are prevented from or delayed in performing our obligations under the Contract, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control.
15.1. We may vary these Conditions from time to time upon not less than 30 days’ prior written notice to you. Such revised Conditions will apply with effect from the following Renewal Period. If you do not accept any such revised Conditions then you should terminate the Contract in accordance with clause 13.1.1.
15.2. No other variation of the Contract will be effective unless it is in writing and signed by us (or our authorised representatives).
No failure or delay by us to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
17 RIGHTS & REMEDIES
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract.
18 ENTIRE AGREEMENT
18.1. The Contract constitutes the entire agreement between you and us, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
18.2. You acknowledge that in entering into the Contract you do not rely on, and will have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
18.3. You agree that you will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
18.4. Nothing in this clause will limit or exclude any liability for fraud.
19.1. You will not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract, save that an Extended Animation Licence may be sub-licensed in accordance with its terms.
19.2. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract
19 NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or will operate to create a partnership between you and us, or authorise either of us to act as agent for the other, and neither of us will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20 THIRD PARTY RIGHTS
The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21 GOVERNING LAW AND JURISDICTION
21.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales.
21.2. You irrevocably agree, for our sole benefit that, subject as provided below, the courts of England and Wales will have exclusive jurisdiction over any dispute or claim (including non-contractual disputes or claims) brought by you arising out of or in connection with the Contract or its subject matter or formation. Nothing in this clause will limit our right to take proceedings against you in any other court of competent jurisdiction, nor will the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.