REC+ Terms & Conditions

Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions. Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

DATE

22nd May 2018

1. Definitions

1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:

"Account" means an account enabling a person to access and use the Hosted Services;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Authorised Reseller" means a business partner that has entered into an approved relationship with the Provider to sell the Provider’s Hosted Services and their own related services;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

"Charges" means the following amounts:

(a) the amounts specified on the website from which the service is made available, where shown, or where agreed in writing with the Customer; and

(b) such amounts as may be revised by the Provider or through its Authorised Resellers in writing from time to time; and

(c) such charges for the provision of custom services agreed by the Provider.

"Customer" means the person or entity identified as a user or subscriber to the Hosted Services;

"Customer Confidential Information" means:

(a) any information disclosed by the Customer to the Provider (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked as "confidential"; or

(ii) should have been reasonably understood by the Provider to be confidential;

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider or Authorised Resellers to the Customer;

"Effective Date" means the date the service was first purchased, or used if a free version is available;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means the software which will be made available as a service via the internet by the Provider to the Customer on the Provider’s Platform in accordance with these Terms and Conditions, and which explicitly does not include implementation or design services;

"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer;

(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

"Hosted Services Specification" means the specification for the Platform and Hosted Services as described by the Provider, but which does not include custom designs or bespoke changes made by Authorised Resellers or other parties acting on the instruction of the Customer;

"Implementer" means the organisation or individual responsible for implementing the system for the Customer;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

"Mobile App" means a mobile version of the application that is made available by the Provider through channels which might include the Google Play Store and the Apple App Store;

"Permitted Purpose" means the use of the system as intended by the Provider for conducting legal business activities and without using the Hosted Services for spamming ;

"Personal Data" has the meaning given to it in the Data Protection Act 1998;

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

"Provider" means Wildfire Internet Limited, a company incorporated in England and Wales (registration number 06638772) having its registered office and principal place of business at Unit 8, Hanbury Wharf, Hanbury Road, Droitwich WR9 7DU, with the principle email address being [email protected];

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

"Services Order Form" means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of the Customer and the Provider or an Authorised Reseller, in each case incorporating these Terms and Conditions by reference;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;

"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari;

"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, and the main body of these Terms and Conditions;

"Update" means a hotfix, patch or minor version update to any Platform software; and

"Upgrade" means a major version upgrade of any Platform software, which may attract additional charges at the discretion of the Provider.

"Website" means the website or online support system made available by the Provider which relates to the Hosted Services.

2. Term

2.1 The Agreement shall come into force upon the Effective Date.

2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17.

2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.

3. Hosted Services

3.1 The Implementer shall create an Account for the Customer and shall provide to the Customer login details for that Account and any required licence key on or promptly following the Effective Date.

3.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.

3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;

(b) the Hosted Services will be delivered within the usage levels relevant to the licence that is purchased, and should the Customer exceed the usage levels then additional charges will apply to move to an alternative licence with an appropriate usage level.

3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Hosted Services;

(b) the Customer must not permit any unauthorised person to access or use the Hosted Services or Platform;

(c) the Customer must not use the Hosted Services to provide services to third parties, unless it is with the express permission of the Provider, subject to agreed charges;

(d) the Customer must not republish or redistribute any content or material from the Hosted Services, unless it is with the express permission of the Provider;

(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation;

(f) the Customer is not entitled to transfer the licence to another party without the agreement of the Provider, at which point a new licence will need to be issued which will be subject to a new charge and access to the Platform may be withheld at the Provider’s discretion until such payment has been received.

3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.

3.6 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.

3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(c) a fault or failure of the Customer's computer systems or networks;

(d) any breach by the Customer of the Agreement; or

(e) scheduled maintenance carried out in accordance with the Agreement.

3.8 The Customer must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with these Terms and Conditions.

3.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

3.10 The Customer must not use the Hosted Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

(c) when requested to suspend or permanently stop sending email via our Platform

3.11 The Customer acknowledges that alternative hosting arrangements may need to be put into place by the Provider at additional charge where the Customer’s website usage accounts for 5% or more of system resources, or where the Customer wishes to have special hosting requirements that do not form part of the standard Hosted Services.

3.12 Reasonable web space is available for genuine web site content, and content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository or for streaming services. Customers are expected to employ good house keeping when maintaining their account.

3.13 The Provider may remove any email accounts provided to the Customer which have not been accessed for 100 days or more.

3.14 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term nor to have it transferred to another server.

3.15 The Customer must not upload scripting languages onto the Customer’s website, in particular but not exclusively PHP, or other files which may create security vulnerabilities; files used to create interactive effects within web browsers, such as Javascript, are permissible but unsupported by the Provider and the Customer is responsible for ensuring such use does not interfere with normal operation of their website.

3.16 The Customer is ultimately responsible for testing the operation of their website:

before making it live; or

whenever changes are made or automatic updates applied as notified in the admin centre; or

whenever the Customer believes there is an issue with the website’s operation; or

after an Update has been applied to the website to resolve an issue; or

whenever system settings, content or designs have been changed.

3.17 The Provider may suspend the provision of the Hosted Services:

(a) if any amount due to be paid by the Customer to the Provider or Authorised Resellers under the Agreement is overdue, without needing to give any further notice;

(b) if there are excessive reports of spam being sent from the Platform, as determined by the Provider or third party service providers;

(c) if the level of usage has a detrimental effect on other Customers;

(d) if the level of usage exceeds that allowed within the Customer’s purchased licence for a period exceeding 30 days, at which point the Provider will issue a revised Charge for a new level of usage and the Customer will make payment as per their regular billing cycle.

4. Maintenance Services

4.1 The Provider shall provide the Maintenance Services to the Customer.

4.2 The Provider shall where practicable give to the Customer prior notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, either via email, admin alerts or Twitter updates, without prejudice to the Provider's other notice obligations under this main body of these Terms and Conditions.

4.3 The Provider reserves the right to make unscheduled maintenance changes without prior notice where the situation demands it.

4.4 The Provider will automatically Update or Upgrade the Platform overnight when changes are released.

4.5 The Provider shall inform the Customer of the application of any Update or Upgrade to the Platform which affects or adds functionality to the Platform when it becomes available, via an admin alert  or email bulletin.

4.6 Minor software enhancements will be provided free of charge, but major software enhancements will be chargeable as determined by the Provider.

4.7 The Provider shall provide the Maintenance Services with reasonable skill and care.

4.8 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, without needing to give any further notice.

5. Support Services

5.1 The Provider shall provide the Support Services which relate to the Hosted Services during the Term.

5.2 The Customer will have access to a helpdesk in accordance with the provisions of this main body of these Terms and Conditions, which will be provided by an Authorised Reseller and which can be used on a reasonable basis.

5.3 The Customer will solely contact the helpdesk to report any issues and the Authorised Reseller operating the helpdesk will refer issues to the Provider where necessary.

5.4 The Provider shall provide the Support Services with reasonable skill and care.

5.5 The Customer will ensure that operators are trained on the system prior to contacting the helpdesk, which includes any third parties appointed by the Customer to make design or configuration changes.

5.6 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services, which includes:

(a) reasonable advice and guidance on using REC;

(b) access to REC Freshdesk knowledge centre and support ticket system;

(c) bug reporting and fixing;

(d) hosting on our dedicated infrastructure;

(e) data backups;

(f) security updates;

(g) software maintenance;

(h) minor software enhancements.

5.7 The Customer may not use the helpdesk for any other purpose, unless it is by separate agreement or quotation, which includes but is not limited to:

(a) training;

(b) design changes;

(c) implementation of system features;

(d) consultancy and marketing advice;

(e) SEO / social media / general internet advice;

(f) implementing new enhancements;

(g) fixing email issues on local devices;

(h) data imports and exports;

(i) retrieving lost / deleted data from backups or rolling back a site;

(j) ad hoc revenue / SEO / performance analysis;

(k) service reviews and reporting;

(l) digital advertising;

(m) implementing major software releases;

(n) implementing changes to comply with legislation or regulations.

5.8 Advice on use of the system via the helpdesk will be restricted to 30 minutes per request, or a series of requests where they relate to the same or similar subjects;  and where more time is required then this will be deemed as training which is chargeable.

5.9 Excessive use of the helpdesk may result in the suspension of the service to the Customer and training or consultancy offered instead on a chargeable basis.

5.10 The Provider shall respond within reasonable timescales to all requests for Support Services made via the helpdesk which are assigned to the Provider.

5.11 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider or Authorised Reseller under the Agreement is overdue, without needing to give any further notice.

6. Customer Data

6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement.

6.2 The Customer warrants to the Provider that the use of the Customer Data by the Provider in accordance with the Agreement will not:

(a) breach the provisions of any law, statute or regulation;

(b) infringe the Intellectual Property Rights or other legal rights of any person; or

(c) give rise to any cause of action against the Provider,

in each case in any jurisdiction and under any applicable law.

6.3 The Provider shall create a regular back-up copy of the Customer Data, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.

6.4 The Provider will not restore elements of data for individual Customers on an ad hoc request basis.

6.5 The Provider will remove data within 30 days from when the Customer’s account is closed without further notice.

7. Mobile App

7.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.

8. Use of Logos and Intellectual Property Rights

8.1 You agree that the Provider may use your name or logo on the Website announcing that you are a customer of the Service.

8.2 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

8.3 All Updates and Upgrades to the Platform by the Provider are retained within  the Provider’s Intellectual Property Rights, whether provided free, as part of a paid Upgrade or funded in any way by a Customer.

9. Charges

9.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions if the Customer signs up directly with the Provider, alternatively the Customer will pay the Charges to the Authorised Reseller with whom they signed up according to any separate agreement between the Customer and Authorised Reseller.

9.2 If the Charges are based in whole or part upon the time spent by the Provider performing custom Services for a request from a Customer or Authorised Reseller, the Provider must obtain written consent before performing Services that result in any estimate of time-based Charges being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the requestor agrees otherwise in writing, the requestor shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 9.2. However, if additional Platform resources required to perform those Services exceed reasonable estimates due to unforeseen circumstances, then the requestor will be liable to pay those Charges or alternatively to request the changes are rolled back where practicable whereupon the Charges will no longer apply.

9.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider or Authorised Reseller.

9.4 The Provider, or its Authorised Resellers acting in agreement with the Provider, may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.

10. Payments

10.1 Payments are made to the Provider where the Customer has signed up directly with the Provider, alternatively the Customer will make payments to the Authorised Reseller with whom they signed up in accordance with the Authorised Reseller’s own terms and conditions.

10.2 The Provider will only provide Services to Customers signed up by Authorised Resellers once the Provider has received payment in full from the Authorised Reseller in relation to the Customer.

10.3 The Provider, or the Provider’s chosen payment operator, shall issue invoices for the Charges to Customers who have signed up with the Provider.

10.4 The Customer must promptly pay the Charges to the Provider, or the Provider’s chosen payment operator, in accordance with the subscription cycle to which they have signed up.

10.5 The Customer must pay the Charges by direct debit or other acceptable methods as offered by the Provider or the Provider’s chosen payment operator.

10.6 If the Customer does not pay any amount properly due to the Provider, or the Provider’s chosen payment operator, under these Terms and Conditions, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

11. Provider's confidentiality obligations

11.1 The Provider must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;

(d) act in good faith at all times in relation to the Customer Confidential Information; and

(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, Authorised Resellers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

11.3 This Clause 11 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the Provider;

11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.

11.5 The provisions of this Clause 11 shall cease to have effect following the termination of the Agreement.

12. Data protection

12.1 The data processing agreement included below these terms sets out the data protection obligations for the Provider and the Customer and constitutes part of this agreement.   

13. Warranties

13.1 The Provider warrants to the Customer that:

(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions;

(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.

13.2 The Provider warrants to the Customer that:

(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;

(b) the Hosted Services will be free from material Hosted Services Defects;

(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any material Hosted Services Defects into the Hosted Services, but in the case that any occur these will be remedied in a reasonable timescale.

13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.

13.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

13.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may:

(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights at its own cost and expense; or

(b) withdraw the Hosted Service on a temporary basis; or

(c) terminate the Hosted Service and refund that element of the service for the remainder of the period which has been paid up.

13.6 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.

13.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

14. Acknowledgements and warranty limitations

14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

14.4 The Customer acknowledges that the Provider will not provide any legal, technical, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

15. Limitations and exclusions of liability

15.1 Nothing in the Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(c) limit any liabilities in any way that is not permitted under applicable law; or

(d) exclude any liabilities that may not be excluded under applicable law.

15.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in the Agreement:

(a) are subject to Clause 15.1; and

(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

15.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

15.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

15.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.

15.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.

15.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

15.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software.

15.9 The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

15.10 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the amount paid and payable by the Customer to the Provider under the Agreement in the current one month period to which Charges apply according to the plan the Customer has subscribed to. If the Charges are paid annually, then this will be calculated on a pro rata basis for the remaining unused months plus the current month.

15.11 The aggregate liability of the Provider to the Customer under the Agreement shall not exceed the amount paid and payable by the Customer to the Provider under the Agreement in the current one month period to which Charges apply according to the plan the Customer has subscribed to. If the Charges are paid annually, then this will be calculated on a pro rata basis for the remaining unused months plus the current month.

15.12 The Provider shall not be liable to the Customer in respect of services provided by Authorised Resellers or other third parties engaged by the Customer.

16. Force Majeure Event

16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

16.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

17. Termination

17.1 Either party may terminate the Agreement by giving to the other party at least 30 days' written notice of termination; where an initial minimum term has been agreed in writing with the Customer then termination can be given only after this period has ended.

17.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.

17.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

18. Effects of termination

18.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.17, 7, 10.2, 10.6, 11, 15, 18, 21 and 22.

18.2 The termination of the Agreement shall not affect the accrued rights of either party.

18.3 Within 30 days following the termination of the Agreement for any reason:

(a) a Customer must pay to the Provider any Charges in respect of Services provided to the Customer by the Provider before the termination of the Agreement; and

(b) the Provider must refund the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,

(c) the Provider will not refund any Charges collected by Authorised Resellers who signed up the Customer,

18.4 The Customer can download any data available via the export program and their images via the admin centre or FTP; the Provider has no obligation to provide any other files nor to assist in the transfer of data or assets to another system, and if such assistance was agreed then it would be chargeable and payable in advance by the Customer,

without prejudice to the parties' other legal rights.

19. Notices

19.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;

(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or

(c) via an email, with receipt confirmation

providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

19.2 The Provider's contact details for notices under this Clause 19 will be via those shown in these terms under the definition of Provider; alternatively the Authorised Reseller will provide their contact details during or just after sign up.

19.3 The addressee and contact details may be updated from time to time by a party giving written or email notice of the update to the other party in accordance with this Clause 19.

20. Subcontracting

20.1 The Provider may subcontract any of its obligations under the Agreement.

20.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations material to the delivery of the Hosted Services.

20.3 Notwithstanding any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform and Hosting Services.

21. General

21.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.

21.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

21.3 The Agreement may not be varied except, where custom Services are agreed, by a written document signed by or on behalf of each of the parties.

21.4 The Provider may revise these Terms from time to time, the most current version will always be made available on the Provider’s Website. If the revision, in the Provider’s sole discretion, is material the Provider will notify the Customer via an  admin alert or e-mail to the email associated with the Customer’s account. By continuing to access or use the Services after those revisions become effective, the Customer agrees to be bound by the revised Terms.

21.5 The Customer hereby agrees that the Provider may assign the Provider's contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time or any third party. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer's contractual rights or obligations under the Agreement.

21.6 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

21.7 Subject to Clauses 15.1, a Services Order Form, together with these Terms and Conditions and any Schedules and the data processing agreement, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.  

21.8 The Agreement shall be governed by and construed in accordance with English law.

21.9 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

22. Interpretation

22.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

22.2 The Clause headings do not affect the interpretation of these Terms and Conditions.

22.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

Data processing agreement

PARTIES

1. Wildfire Internet Ltd, a company incorporated in England and Wales (registration number 06638772) having its registered office at Unit 8 Hanbury Wharf, Hanbury Road, Droitwich WR9 7DU (the "Processor"); and

2. The Customer (the "Controller").

BACKGROUND

1. The Processor provides hosted software-as-a-service for building and operating websites and ecommerce stores.

2. The Controller uses the software to display content and/or products and which may be used to collect personal data via forms, such as storing leads and enquiries, notifications, signing up to newsletters, placing orders.

3. The Processor and the Controller therefore wish to enter into a contract in accordance with the provisions of this Agreement.

AGREEMENT

1.   Definitions

1.1 In this Agreement:

"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day, except Friday where the day ends at 16:30 GMT/BST;

"Controller Personal Data" means any Personal Data that is processed by the Processor on behalf of the Controller under or in relation to this Agreement;

"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Controller Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);

"Effective Date" means the date of execution of this Agreement;

"Main Contract" means the main terms and conditions between the parties for the use of the REC and REC+ software-as-a-service;

"Personal Data" has the meaning given to it in the Data Protection Laws  applicable in the United Kingdom from time to time;

"Schedule" means any schedule attached to the main body of this Agreement; and

"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2.

2.   Supplemental

2.1 This Agreement supplements the Main Contract.

2.2 Any capitalised terms that are:

(a) used in this Agreement;

(b) defined in the Main Contract; and

(c) not defined in this Agreement,

    shall in this Agreement have the meanings given to them in the Main Contract.

2.3 If there is a conflict between this Agreement and the Main Contract, then this Agreement shall take precedence.

2.4 This Agreement shall automatically terminate upon the termination of the Main Contract.

2.5 The Main Contract shall automatically terminate upon the termination of this Agreement.

3.   Term

3.1 This Agreement shall come into force upon the Effective Date.

3.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 2.4, 2.5 or 7 or any other provision of this Agreement.

4.   Consideration

4.1 The Processor has entered into this Agreement, and agrees to the provisions of this Agreement, in consideration for the payment by the Controller to the Processor the sums agreed for the delivery of the service provided in the Main Contract.

5.   Data protection

5.1 The Processor shall comply with the Data Protection Laws with respect to the processing of the Controller Personal Data.

5.2 The Controller warrants to the Processor that it has the legal right to disclose all Personal Data that it does in fact disclose to the Processor under or in connection with this Agreement.

5.3 The Controller shall only supply to the Processor, and the Processor shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 1 (Data processing information) and of the types specified in Paragraph 2 of Schedule 1 (Data processing information); and the Processor shall only process the Controller Personal Data for the purposes specified in Paragraph 3 of Schedule 1 (Data processing information).

5.4 The Processor shall only process the Controller Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 5.

5.5 The Processor shall only process the Controller Personal Data on the documented instructions of the Controller (including with regard to transfers of the Controller Personal Data to any place outside the European Economic Area).

5.6 The Processor shall promptly inform the Controller if, in the opinion of the Processor, an instruction of the Controller relating to the processing of the Controller Personal Data infringes the Data Protection Laws.

5.7 If the Controller agrees in writing to any transfer of Controller Personal Data to any place outside the European Economic Area then, unless the Controller agrees otherwise in writing, such transfer shall be made under the standard contractual clauses set out in Schedule 2 (Model contractual clauses).

5.8 Notwithstanding any other provision of this Agreement, the Processor may process the Controller Personal Data if and to the extent that the Processor is required to do so by applicable law. In such a case, the Processor shall inform the Controller of the legal requirement before processing, unless that law prohibits such information.

5.9 The Processor shall ensure that persons authorised to process the Controller Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

5.10  The Processor and the Controller shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Controller Personal Data, including those measures specified in Paragraph 4 of Schedule 1 (Data processing information).

5.11  The Processor must not engage any third party to process the Controller Personal Data without the prior specific or general written authorisation of the Controller. In the case of a general written authorisation, the Processor shall where practical inform the Controller at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Controller objects to any such changes before their implementation, then the Controller may terminate this Agreement on 7 days' written notice to the Processor, providing that such notice must be given within the period of 7 days following the date that the Processor informed the Controller of the intended changes. The Processor shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Processor by this Clause 5.

5.12  As at the Effective Date, the Processor is hereby authorised by the Controller to engage, as sub-processors with respect to Controller Personal Data, the third parties, and third parties within the categories, identified in Paragraph 5 of Schedule 1 (Data processing information).

5.13  The Processor shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Controller with the fulfilment of the Controller's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.

5.14  The Processor shall assist the Controller in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Processor shall report any Personal Data breach relating to the Controller Personal Data to the Controller within 24 hours following the Processor becoming aware of the breach. The Processor may charge the Controller at its standard time-based charging rates for any work performed by the Processor at the request of the Controller pursuant to this Clause 5.14.

5.15  The Processor shall make available to the Controller all information necessary to reasonably demonstrate the compliance of the Processor with its obligations under this Clause 5 and the Data Protection Laws.

5.16  The Processor shall, at the choice of the Controller, delete or return all of the Controller Personal Data to the Controller after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

5.17  The Processor shall allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller in respect of the compliance of the Processor's processing of Controller Personal Data with the Data Protection Laws and this Clause 5. The Processor may charge the Controller at its standard time-based charging rates for any work performed by the Processor at the request of the Controller pursuant to this Clause 5.17.

5.18  If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

6.   Limits upon exclusions of liability

6.1 Nothing in this Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(c) limit any liabilities in any way that is not permitted under applicable law; or

(d) exclude any liabilities that may not be excluded under applicable law.

7.   Termination

7.1 Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.

7.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

7.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)   that other party is the subject of a bankruptcy petition or order.

8.   Effects of termination

8.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 2.2, 2.3, 5.1, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17, 5.18, 6, 8, 10 and 11.

8.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

9.   Notices

9.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 9.2):

(a) delivered personally or sent by courier or recorded signed-for post, in which case the notice shall be deemed to be received upon delivery; or

(b) sent by email and acknowledged by the other party within 7 days, in which case the notice shall be deemed to be received upon the date the email was sent.

9.2 The parties' contact details for notices under this Clause 9 are as follows:

(a) in the case of notices sent by the Controller to the Processor, refer to the Processor’s website at www.wildfireinternet.co.uk for current address details, or via email to [email protected]; and

(b) in the case of notices sent by the Processor to the Controller, this will be via the contact and address details supplied for invoicing for the Processor’s services in the first instance.

9.3 The addressee and contact details set out in Clause 9.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 9.

10. General

10.1  No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

10.2  If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

10.3  This Agreement may not be varied except by a written document signed by or on behalf of each of the parties, including the use of electronic signatures.

10.4  Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

10.5  This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

10.6  Subject to Clause 6, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

10.7  This Agreement shall be governed by and construed in accordance with English law.

10.8  The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

11. Interpretation

11.1  In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

11.2  The Clause headings do not affect the interpretation of this Agreement.

11.3  References in this Agreement to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

11.4  In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

SCHEDULE 1 (DATA PROCESSING INFORMATION)

1.   Categories of data subject

All categories except children, which require an impact assessment and specific agreement to process that data.

2.   Types of Personal Data

Generally this is personally identifiable data relating to contact details (such as name, email address, telephone number); ordering details (such as contact details, addresses, product enquiries, notifications and purchases); analytical and tracking details (such as device, browser, IP address, location).

In addition any type of personal data can be collected on forms set up on the website, but these must not include sensitive personal data which require an impact assessment and specific agreement to process that data.

3.   Purposes of processing

Typically this can include some or all of the following:

Recording enquiries and leads

Signing up for and receiving newsletters

Enquiring on or ordering products and receiving status updates

Receiving notifications when products are back in stock

Creating wish lists

Leaving comments on articles

Leaving reviews

Sharing via social media or email

4.   Security measures for Personal Data

(a) Security Measures

The Processor will implement and maintain technical and organisational measures to protect data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (Security Measures).

The Security Measures include measures to help ensure ongoing confidentiality, integrity, availability and resilience of the Processor’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness.

The Processor may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.

(b) Security Compliance by the Processor’s Staff.

The Processor will take appropriate steps to ensure compliance with the Security Measures by its employees to the extent applicable to their scope of performance, including ensuring that all persons authorised to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

5.   Sub-processors of Personal Data

Categories of Sub-processors of Personal Data can include:

Hosting providers storing the software and data on their servers

Content Delivery Networks

Email service providers

Payment processors

Delivery service providers

SMS notification services

Postcode lookup providers

Accounting system providers

Analytics, performance tracking and advertising providers

Social media, social sharing and commenting services

Review services

 

SCHEDULE 2 (MODEL CONTRACTUAL CLAUSES)

Not relevant.