Legal
Terms & Conditions
Software-as-a-Service Agreement and Acceptable Use Policy for axxalon flow and axxalon plan.
These terms form the Software-as-a-Service Agreement between axxalon AG (Engelbergerstraße 19, 79106 Freiburg, Germany), represented by CEO Markus Menner, commercial register HRB 730401 — the ‘Provider’ — and the customer that concludes an agreement to use the software — the ‘Customer’. They govern the rights of use and the ongoing service & support of axxalon’s Smart Factory software, in particular axxalon flow and axxalon plan.
Software-as-a-Service Agreement
1. Preliminary Remarks
This contract regulates the conditions for using the software offered by axxalon as part of its Smart Factory solutions. Axxalon provides a modular and configurable platform consisting of, among others:
axxalon flow - The modular MES (Manufacturing Execution System),
axxalon plan – The game changer for scheduling of production as well as
further planning and management systems.
The Customer concludes this Agreement with the Provider for the rights of use and the ongoing service & support of software systems (so called Service & Support Agreement (SaaS)). The essential part of this Agreement is the Customer’s access to the Provider’s Platform and database in order to use the agreed functions.
All provisions made in this Agreement exclusively refer to the software and services provided by Provider and explicitly exclude products, licenses, and services of third parties.
2. Definitions
In this Agreement, except to the extent expressly provided otherwise:
“Access Credentials” means the specific URL of the Customer (including usernames, passwords and other credentials enabling access to the Hosted Services);
“Agreement” means this agreement including any schedules, and any agreed amendments to this agreement from time to time;
“AI Systems” means machine learning and other artificial intelligence systems, tools, applications, algorithms and other software;
“API” means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
“Business Day” means Monday to Friday;
“Business Hours” means the hours of 09:00 to 17:00 CET (Middle Europe) on a Business Day;
“Remuneration” means:
(a) the Remuneration and other payable amounts specified in this Agreement;
(b) Remuneration calculated by multiplying the Provider’s standard time-based charging rates as specified by the Provider to the Customer before the date of the performing of his Services (rounded down by the Provider to the nearest quarter hour; and
(c) Remuneration and payable amounts as may be agreed in writing by the parties from time to time;
“Customer Confidential Information” means any information disclosed by or on behalf of the Customer to the Provider during the term or at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure and was marked or described as “confidential”;
“Customer Data” means all data and materials uploaded to the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by the Platform; or generated by the Customer using the Hosted Services (but excluding usage data relating to the Platform and Hosted Services, and excluding server log files);
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding personal data with respect to which the Provider is a data controller;
“Data Protection Laws” means the EU GDPR and German local laws relating to the processing of Personal Data;
“Data Providing Company” The third-party vendor that provides the Enterprise Resource Planning (ERP) software and/or builds the connector which integrates the ERP software with Axxalon.
“Effective Date” means the date of execution of this Agreement;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Force Majeure Event” means an events, that is outside the reasonable control of the party affected (which may include 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, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means the hosted services as specified by the Provider in his descriptions (or in Hosted Services Specification) and as updated by the Provider from time to time subject to the restrictions set out in this Agreement;
“Hosted Services Defect” means a defect, error or bug in the Platform having a negative effect on the appearance, 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 or any person authorized by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the specification, whether by the Customer or by any person authorized by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
“Hosted Services Specification” means any specification for the Platform and Hosted Services set out by the Provider;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or un-registrable, registered or unregistered, including in particular copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trademarks, patents and rights in designs;
“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;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“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 Chrome, Firefox, Safari and Edge.
“Term” means the term and the duration of this Agreement
“User Interface” means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
3. Term and Duration
This Agreement comes into force upon the Effective Date.
This Agreement continues in force indefinitely until the date upon which this Agreement terminates automatically or subject to a termination in accordance with this Agreement.
4. Hosted Services
The Provider has programmed the infrastructure and the software modules of the software it offers itself and is the sole owner of the rights. The Provider provides the Customer with the parts of the software specified in detail in the respective module, including the functions described there.
https://axxalon.com/preise/
For this purpose, the Customer receives a customer-specific URL and an administrator account, with which he can set up and use the modules for his users.
The Provider provides, or ensures that the Platform provides, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
The Provider hereby grants to the Customer a worldwide, non-exclusive license to use the Hosted Services by means of the User Interface and the API for the internal business purposes of the Customer in accordance with the current specification.
The license granted by the Provider to the Customer is subject to the following limitations:
(a) the User Interface may only be used through a Supported Web Browser as specified by the Provider;
(b) the User Interface may only be used by the named users identified by registration process, providing that the Customer may change, add or remove a designated named user in accordance with the user change procedure defined by the Hosted Services;
(c) the User Interface must not be used at any point in time by more than the number of concurrent users specified in the registration process, providing that the Customer may add or remove concurrent user licenses in accordance;
Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer 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 unauthorized person or application to access or use the Hosted Services;
(c) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services (without the prior written consent of the Provider).
The Customer implements and maintains reasonable security measures relating to the Access Credentials to ensure that no unauthorized person or application may gain access to the Hosted Services by means of the Access Credentials. In this regard, it is highly recommended to use the Single Sign-On (SSO) feature.
The Provider uses reasonable endeavors to maintain the availability of the Hosted Services to the Customer, for at least 98% (“uptime”). In the event that aforementioned uptime is not met and this is attributable to Provider, Provider grants a discount of 2% of the monthly Remuneration per whole percentage point that the uptime is not met.
For the avoidance of doubt, downtime caused directly or indirectly by any of the following will not be considered a breach of this 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 Services of the Data Providing Company;
(d) a fault or failure of the Customer’s computer systems or networks;
(e) any breach by the Customer of this Agreement and/or any other fault and/or failure of Customer; or
(f) scheduled maintenance carried out in accordance with this Agreement.
The Customer must ensure that all persons using the Hosted Services with the authority of the Customer comply with the Acceptable Use Policy.
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. The Customer must not use the Hosted Services in any way that is unlawful, illegal, fraudulent, or harmful.
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.
The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Scheduled maintenance
The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform.
The Provider gives to the Customer at least 3 Business Days’ prior notice by Email of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services for a specified duration.
The Provider makes reasonable efforts to ensure that all scheduled maintenance is carried out outside Business Hours.
6. Support Services
The Provider provides the Support Services to the Customer during the Term.
The Provider provides the Support Services in accordance with the standards of skill and care reasonably expected from a service provider in the Provider’s industry.
The Provider responds promptly to requests for Support Services made by the Customer.
The Provider has no obligation to provide Support Services:
(a) to the extent that the requested Support Services amount to general training in the use of the Hosted Services by the Provider or a partner company (implementation partner);
(b) in respect of any issue that could have been resolved by a competent person who had received general training by one of the implementation partner in the use of the Hosted Services;
(c) in respect of any duplicate issues raised by or on behalf of the Customer;
(d) in respect of any issue caused by the improper use of the Hosted Services by or on behalf of the Customer; or
(e) in respect of any issue caused by any alteration to the Hosted Services, or to the configuration of the Hosted Services, made without the prior written consent of the Provider.
The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer Data
The Customer hereby grants to the Provider the right to copy, store and transmit the Customer Data to the extent reasonably required for the performance of the obligations of the Provider under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity, and telecommunications service providers strictly for this purpose and subject to any express restrictions elsewhere in this Agreement.
The Customer warrants to the Provider that the Customer Data does not infringe the Intellectual Property Rights or other legal rights of any person, and does not breach the provisions of any law, statute, or regulation, in any jurisdiction and under any applicable law.
Nothing in this Agreement operates to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
The Provider guarantees a multiple redundant system including the ongoing back-up copies of the Customer Data and a daily copy, and ensures 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 retains and securely store each such copy, in a different cloud, for a minimum period of 30 days.
8. Remuneration
The Customer pays the Remuneration to the Provider in accordance with this Agreement.
The Customer pays the Provider a monthly service & support fee, which includes the usage of the specified services. The amount differs depending on the selected modules and the number of users as booked. Current prices are published under https://axxalon.com/preise/
The basic prices are subject to annual indexing based on inflation rates of services published by the European Central Bank (ECB). In addition, prices may be adjusted to reflect software upgrades and improved features. Any changes will be shared with the Customer in advance.
All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes (VAT), which in accordance to applicable law will be added to those amounts and payable by the Customer to the Provider.
Prior to the Effective Date and commencement of the axxalon implementation, a preliminary price configuration will be shared with the Customer.
9. Payments
The Provider issues invoices for the Remuneration in advance to the Customer for the period to which they relate.
The Remuneration is due immediately.
The Customer must pay the Remuneration by bank transfer using such payment details as are published by the Provider or notified by the Provider to the Customer from time to time.
10. Provider’s confidentiality obligations
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 no less onerous than those contained in this Agreement;
(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; and
(d) act in good faith at all times in relation to the Customer Confidential Information.
Notwithstanding the above regulated Clause, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors, who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
This Clause imposes no obligations upon the Provider with respect to:
(a) Customer Confidential Information that is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) Customer Confidential Information that is or becomes publicly known through no act or default of the Provider;
(c) Customer Confidential Information that is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality; or
(d) information that is independently developed by the Provider without reliance upon or use of any Customer Confidential Information.
The restrictions in this Clause do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, or by any judicial or governmental order or request. If the Provider makes a disclosure to which this Clause applies then, to the extent permitted by applicable law, the Provider shall promptly notify the Customer of the fact of the disclosure, the identity of the disclosure, and the Customer Confidential Information disclosed.
The provisions of this Clause will continue for a period of 2 years following the termination of this Agreement, at the end of which period they cease to have effect.
11. Data protection
Each party complies with the Data Protection Laws with respect to the processing of the Customer Personal Data.
The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
The Customer shall only supply to the Provider, and the Provider 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 a separately Data processing information (Auftragsdatenverarbeitung, Art. 28 GDPR) as may be agreed by the parties in writing.
The Provider only processes the Customer Personal Data for purposes specified in the Data processing information.
The Provider shall only process the Customer Personal Data during the Term and for not more than 3 months following the end of the Term.
The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in this Agreement.
The Customer hereby authorizes the Provider to make the following transfers of Customer Personal Data:
(a) the Provider may transfer the Customer Personal Data internally to its own employees;
(b) the Provider may transfer the Customer Personal Data to its third party processors in the jurisdictions of Germany and or another country of the European Union and may permit its third party processors to make such transfers.
The Provider is allowed to use the servers of https://www.hetzner.com to provide its services and store all data and personal of the Customer.
The Provider promptly informs the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider informs the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
The Provider ensures that persons authorized to process the Customer Personal Data have guaranteed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The Provider implements appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in the Data processing information.
The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay as far as it is regulated in GDPR.
The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer 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.
The Provider allows for and contributes to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this.
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 endeavors promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
12. Warranties
The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider complies with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfillment of the Provider’s obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, does not breach any laws, statutes or regulations applicable under German law.
The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, does not infringe the Intellectual Property Rights of any person.
If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights – as far as it is legally possible and economically reasonable
The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
The Provider is ISO 27001 certified on the Effective Date. In that context, the Provider guarantees the standards of skill and care that can reasonably be expected of a service provider in the Provider’s industry.
Provider warrants that it does use its reasonable best efforts to obtain adequate liability insurance coverage, in the context of the performance of this Agreement.
All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
13. Acknowledgements and warranty limitations
The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services is wholly free from defects, errors and bugs. However the hosted services are governed by Providers’ 98% uptime guarantee, as detailed in paragraph 4 of this Agreement.
The Customer acknowledges that the Provider has made commercially reasonable efforts to make the software secure, and that the software – from the Provider’s point of view – is secure.
The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems; and the Provider does not warrant or represent that the Hosted Services are compatible with any other software or systems.
The Customer acknowledges that the Provider does not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer does not give rise to any legal liability on the part of the Customer or any other person.
14. Limitations and exclusions of liability
The liability of the Parties for damages suffered by the other Party as a result of an attributable breach of its obligations and/or due to any unlawful act of a Party, its employees, or third parties engaged by a Party, is excluded.
To the extent that the liability of a Party cannot be excluded, it is limited to the compensation of direct damages, up to the net amount received by Provider under this Agreement to which the damage is attributable, and in any case, limited to a maximum of EUR 5,000 per event. The total compensation for direct damages will never exceed the amount covered by a Party’s business liability insurance policy.
Direct damages solely mean:
material damage to property;
reasonable costs incurred to prevent or limit direct damages that could be expected as a result of the event on which the liability is based; and
reasonable costs incurred to determine the cause of the damage.
Liability of the Parties for indirect damages is excluded. Indirect damages include all damages that are not direct damages, and therefore include, but are not limited to, loss of production, consequential damages, lost revenue, loss of profits, missed savings, business interruption, damages to third parties, loss of goodwill, etcetera. Neither Party is liable to the other Party in respect of damages arising out of a Force Majeure Event.
The exclusions and limitations mentioned in this Article do not apply in case the damage results from the intent or conscious recklessness of a Party or its management.
15. Force Majeure Event
If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
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 this 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.
A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16. Business Continuity and Disaster Recovery
Provider develops and maintains business continuity and disaster recovery plans to ensure the continuity of services provided to Customer. The business continuity and disaster recovery plans are reviewed and tested annually.
Provider back ups all Confidential Information at least once a Business Day. Provider maintains a recovery point objective (RPO) of no less than 24 hours and recovery time objective (RTO) of no less than 12 hours.
17. Termination
The Customer may terminate this Agreement with 30 days’ written notice. The Provider may terminate this Agreement by providing an expiration date for the software, along with a reasonable period for the Customer to find an alternative solution. Any changes will be communicated to the Customer in a timely manner.
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.
Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party is dissolved,is or becomes unable to pay its debts as they fall due; is or becomes insolvent or is declared insolvent
(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 reorganization where the resulting entity will assume all the obligations of the other party under this Agreement)].
Within 30 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Remuneration in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Remuneration paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties’ other legal rights.
18. Subcontracting
Subject to any expressly regulated restrictions in this Agreement, the Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
The Provider remains responsible to the Customer for the performance of any subcontracted obligations.
Notwithstanding the provisions of this Clause but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
19. General regulations
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 continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part is deemed to be deleted, and the rest of the provision continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision is deemed to be deleted).
This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
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.
This Agreement is governed by and construed in accordance with the law of Germany.
The courts of Germany and as far as rightfully disponible by law the Landgericht Freiburg have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
If there are any Customer specific agreements, they shall be documented and included in ANNEX II of this Agreement. These agreements will form an integral part of this Agreement and will be subject to the same terms and conditions unless explicitly stated otherwise within the annex.
Annex I — Acceptable Use Policy
This Acceptable Use Policy sets out the rules governing the use of the Platform and the Services, and the transmission, storage and processing of content by you or on your behalf. By using the Services, you agree to these rules.
1. Introduction
This acceptable use policy (the “Policy”) sets out the rules governing:
(a) the use of URL of the Platform any successor website, and the services available on that website or any successor website (the “Services”); and
(b) the transmission, storage and processing of content about the provided services by you, or by any person on your behalf, using the Services (“Content”).
References in this Policy to “you” are to Customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to Provider (and “we” and “our” should be construed accordingly).
By using the Services, you agree to the rules set out in this Policy.
We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2. General usage rules
You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
You must not use the Services
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
Content, and the use of Content by us in any manner licensed or otherwise authorized by you,must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) constitute a breach of official secrets legislation; or
(j) constitute a breach of any contractual obligation owed to any person.
You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
Content must not depict violence[ in an explicit, graphic or gratuitous manner].
Content must not be pornographic[ or sexually explicit].
5. Factual accuracy
Content must not be untrue, false, inaccurate or misleading.
Statements of fact contained in Content and relating to persons (legal or natural) must be true[; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion].
6. Negligent advice
Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7. Etiquette
Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behavior on the internet.
Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
Content must not be liable to cause annoyance, inconvenience or needless anxiety.
You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
You must not use the Services for the purpose of deliberately upsetting or offending others.
You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
You must ensure that Content does not duplicate other content available through the Services.
You must ensure that Content is appropriately categorized.
You should use appropriate and informative titles for all Content.
You must at all times be courteous and polite to other users of the Services.
8. Marketing and spam
You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
9. Regulated businesses
Customer must not use the Services for any purpose relating to the execution of gambling, gaming, betting, lotteries, sweepstakes, prize competitions, or any other gambling-related activities .
You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
10. Monitoring
You acknowledge that we may actively monitor the Content and the use of the Services or we do not actively monitor the Content or the use of the Services.
11. Data mining
You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12. Hyperlinks
You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13. Harmful software
The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.