1. THESE TERMS
1.1. What these terms cover. These are the terms and conditions on which we supply ad hoc Animations created on the Calibur Designs platform to you. If you have taken out a subscription to use the Calibur Designs platform, then the relevant subscription terms will apply, which can be found in our Terms.
1.2. Are you a business customer or a consumer? In some areas you will have different rights under these terms depending on whether you are a business or consumer. You are a consumer if:
1.2.1. You are an individual.
1.2.2. You are buying products from us wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession).
1.3. If you are a business customer this is our entire agreement with you. If you are a business customer these terms, together with the documents referred to in them, constitute the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you will have no claim for innocent or negligent misrepresentation based on any statement in these terms.
2. INFORMATION ABOUT US AND HOW TO CONTACT US
2.1. Who we are. 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. How to contact us. You can contact us by emailing our customer service team at [email protected]
2.3. How we may contact you. If we have to contact you we will do so by writing to you at the email address you provided to us in your order.
2.4. “Writing” includes emails. When we use the words “writing” or “written” in these terms, this includes emails.
3.1. The Animation Licence or the Extended Animation Licence will apply. Subject to your payment of the price, we grant you an Animation Licence or Extended Animation Licence to use the Animation, as applicable and as set out in your order.
3.2. You cannot sell the Animation on third party marketplaces. Without prejudice to the generality of anything contained in the Animation Licence or the Extended Animation Licence (as the case may be), you are expressly prohibited from selling, sub-licencing or otherwise transferring any rights in connection with an Animation on any third party marketplace.
3.3. When we will provide the Animation. We will use reasonable endeavours to make the Animation available for download by you as soon as we accept your order and have taken payment, however we will not be responsible for any delays caused by an event outside our control. If you are unable to download your Animation within 24 hours please contact us. Your animation will remain available for download for a period of 30 days.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. We own all intellectual property rights in our site and its software. You acknowledge and agree that we and/or our licensors own all intellectual property rights in our Site and its underlying software, together with any animation created (but not including any materials that you upload to the Site). 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 our Site and its underlying software. We confirm that we have all the rights in relation to our Site and its underlying software that are necessary to grant all the rights we purport to grant under, and in accordance with, these terms and conditions.
4.2. You retain ownership of all intellectual property rights in respect of any materials that you upload to our Site. You will (as between us and you) own all right, title and interest in and to all materials (whether images, logos, text, audio, video or otherwise) that you upload to our Site.
4.3. You are responsible for any material uploaded to our Site. You confirm that you have all the rights in relation to the any materials (whether images, logos, text, audio, video or otherwise) that you upload to our Site that are necessary to grant all the rights you purport to grant under, and in accordance with, these terms and conditions. You agree to indemnify us against any claims, losses, damages, costs and expenses that we may incur as a result of any breach of this clause by you.
4.4. How we may use any material that you upload to our Site. You grant us a non-exclusive, royalty free licence to use, copy and store any materials that you may upload to our Site solely for:
4.4.1. the purposes of performing the Services;
4.4.2. our own promotional and marketing purposes;
4.4.3. training purposes; and
4.4.4. our own internal purposes,
4.5. in each case whether such 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.
5. RIGHTS TO END THE CONTRACT
5.1. Your Consumer Rights. Where you are a consumer, under the Consumer Contracts Regulations you are able to cancel the contract for your Animation in the 14 day period following your order, save where you have begun to download the Animation.
5.2. We may end the contract if you have not paid. We may end the contract for the Animation if your payment to us does not go through for any reason.
6.IF THERE IS A PROBLEM WITH THE ANIMATION
6.1. How to tell us about problems. Please let us know as soon as possible if there is a problem with your Animation. You can email our customer service team at [email protected]
6.2. Your Consumer Rights. If you are a consumer we are under a legal duty to supply products that are in conformity with this contract. See the box below for a summary of your key legal rights in relation to the products. Nothing in these terms will affect your legal rights.
Summary of your key legal rights
This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
The Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality:
6.2.1. If your digital content is faulty, you’re entitled to a repair or a replacement.
6.2.2. If the fault can’t be fixed, or if it hasn’t been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back.
6.2.3. If you can show the fault has damaged your device and we haven’t used reasonable care and skill, you may be entitled to a repair or compensation.
6.3. If you are a business. If you are a business customer we warrant that on delivery your Animation will:
6.3.1. conform with the relevant specification;
6.3.2. be free from material defects in design, material and workmanship; and
6.3.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979),
and if you give us notice in writing within a reasonable time of discovery that an Animation does not comply with the warranty set out above we will, at our option, replace the Animation, or refund the price of the Animation in full.
6.4. Limitations and exclusions to our liability. We will not be liable for an Animations failure to comply with the warranty in clause 6.3 if:
6.4.1. you make any further use of such Animation after giving a notice in accordance with clause 6.3;
6.4.2. the defect arises as a result of any materials (such as images, logos, text, audio or video) provided by you;
6.4.3. you alter or modify the Animation,
and except as provided in clause 6.3 and this clause 6.4, we will have no liability to you in respect of a product’s failure to comply with the warranty set out in clause 6.3
7. PRICE AND PAYMENT
7.1. Where to find the price for the product. The price of the Animation (which excludes VAT) will be the price indicated on the order pages when you placed your order.
7.2. When you must pay and how you must pay. You must pay upon submitting your order and in any event prior to downloading your Animation. We accept payment by most major credit and debit cards.
8. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU IF YOU ARE A CONSUMER
8.1. We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen.
8.2. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the products as summarised at clause 6.2 and for defective products under the Consumer Protection Act 1987.
8.3. You are responsible for any material uploaded to our Site. You are responsible for any materials (whether images, logos, text, audio, video or otherwise) that you upload to our Site, and we will have no liability for any damages, losses, costs or expenses that arise out of your or our use of such materials.
8.4. When we are liable for damage caused by defective digital content. If defective digital content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
8.5. We are not liable for business losses. If you are a consumer we only supply the Animations for to you for domestic and private use. If you use the Animations for any commercial, business or re-sale purpose our liability to you will be limited as set out in clause 9.
9. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU IF YOU ARE A BUSINESS
9.1. We do not limit our liability where we are not able to do so. Nothing in these terms will limit or exclude our liability for:
9.1.1. death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
9.1.4. defective products under the Consumer Protection Act 1987; or
9.1.5. any matter in respect of which it would be unlawful for us to exclude or restrict liability.
9.2. Statutory implied terms will not apply. Except to the extent expressly stated in clause 6.3 all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
9.3. You are responsible for any material uploaded to our Site. You are responsible for any materials (whether images, logos, text, audio, video or otherwise) that you upload to our Site, and we will have no liability for any damages, losses, costs or expenses that arise out of your or our use of such materials.
9.4. Limitation of our liability. Subject to clause 9.1:
9.4.1. we will not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and
9.4.2. our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the price of the Animation.
10. HOW WE MAY USE YOUR PERSONAL INFORMATION
10.1. How we will use your personal information. We will only use your personal information as set out in our Privacy Notice.
11. OTHER IMPORTANT TERMS
11.1. We may transfer this contract to someone else. We may transfer our rights and obligations under these terms to another organisation.
11.2. You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
11.3. Nobody else has any rights under this contract. This contract is between you and us. No other person will have any rights to enforce any of its terms.
11.4. If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
11.5. Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
11.6. Which laws apply to this contract and where you may bring legal proceedings if you are a consumer. These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. However, if your local consumer protection laws permit you to bring proceedings in the or country in which you live, then nothing in these terms and conditions will prevent that.
11.7. Which laws apply to this contract and where you may bring legal proceedings if you are a business. If you are a business, any dispute or claim arising out of or in connection with a contract between us 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. You 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 this 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.