Last Updated: 25-05-2018
These terms shall apply to the Agreement entered into between you and Wooshii for access to the Services. By accessing the Services, you confirm that you accept these terms and that you agree to comply with them.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
1.2 Clause and paragraph headings shall not affect the interpretation of these terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date and shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
2.1 Subject to you purchasing additional User Subscriptions in accordance with clause 3.1 and clause 9.1, the restrictions set out in this clause 2 and elsewhere in these terms, Wooshii hereby grants to you a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services during the Subscription Term solely for your business operations.
2.2In relation to the Authorised Users, you undertake that:
2.2.1 the maximum number of Authorised Users that you authorise to access and use the Services shall not exceed the number of User Subscriptions that you have purchased from Wooshii from time to time;
2.2.2 you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
2.2.3 each Authorised User shall keep a secure password for his/her use of the Services, such password shall be changed regularly in accordance with best practice and each Authorised User shall keep his/her password confidential; and
2.2.4 you shall maintain a written, up to date list of current Authorised Users and provide such list to Wooshii within 5 (five) Business Days of our written request at any time.
2.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services that:
2.3.1 is Unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates Illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise Illegal or causes damage or injury to any person or property;
and Wooshii reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this clause.
2.4 You shall not:
2.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
2.4.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
2.4.3 access all or any part of the Services in order to build a product or service which competes with the Services;
2.4.4 subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or
2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Wooshii.
3.1 You may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the agreed number and Wooshii shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement and upon payment of any additional Subscription Fees.
4.1 Wooshii shall, during the Subscription Term, provide the Services to you on and subject to these terms.
4.2 Wooshii shall use commercially reasonable endeavours to make the Services available 24 hours a day, 7 days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 2200 to 0200 UK time; and
4.2.2 unscheduled maintenance performed outside Business Hours, provided that Wooshii has used reasonable endeavours to give you at least 6 (six) Business Hours’ notice in advance.
4.3 Wooshii will, as part of the Services and in consideration of the Support Fees, provide you with Wooshii’s standard customer support services during Business Hours.
5.1 You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 You must maintain copies of all Customer Data. Wooshii adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of the Customer Data. In the event of any loss or damage to the Customer Data, your sole and exclusive remedy shall be for Wooshii to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Wooshii. Wooshii shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Wooshii to perform services related to Customer Data maintenance and back-up).
5.3 Wooshii shall, in providing the Services, comply with the Privacy and Security Policy relating to the privacy and security of Customer Data available at the Website, as such document may be amended from time to time by Wooshii in its sole discretion.
5.4 If Wooshii processes any personal data on your behalf when performing its obligations under this Agreement, you acknowledge that you shall be the data controller and Wooshii shall be the data processor and in any such case:
5.4.1 you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and Wooshii’s other obligations under this Agreement;
5.4.2 you shall ensure that you are entitled to transfer the relevant personal data to Wooshii so that Wooshii may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;
5.4.3 you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
5.4.4 Wooshii shall process the personal data only in accordance with these terms and any lawful instructions reasonably given by you from time to time; and
5.4.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7.1 Wooshii undertakes that the Services will be performed with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by any use of the Services contrary to Wooshii’s instructions, or modification or alteration of the Services by any party other than Wooshii or Wooshii’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Wooshii will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Wooshii:
7.2.1 does not warrant that your use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by you through the Services will meet your requirements;
7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities: and
7.2.3 is not responsible for the outcome of any Project as to content, content usability for the purposes of a user, completion by any agreed due date or at all, acceptance by the instructing party or otherwise.
7.3 Wooshii warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8.1 You shall:
8.1.1 provide Wooshii with:
220.127.116.11 all necessary co-operation in relation to this Agreement; and
18.104.22.168 all necessary access to such information as may be required by Wooshii,
in order to provide the Services, including but not limited to the Customer Data, security access information and configuration services;
8.1.2 comply with all applicable laws and regulations with respect to your activities under this Agreement;
8.1.3 carry out all other responsibilities set out in this Agreement in a timely and efficient manner;
8.1.4 ensure that the Authorised Users use the Services in accordance with these terms and shall be responsible for any Authorised User’s breach of these terms;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Wooshii, its contractors and agents to perform their obligations under these terms, including without limitation the Services;
8.1.6 ensure that your network and systems comply with the relevant specifications provided by Wooshii from time to time; and
8.1.7 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Wooshii’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
9.1 You shall pay the Subscription Fees to Wooshii for the User Subscriptions in accordance with this clause 9 and the Support Fees in accordance with clause 4.3.
9.2 You shall on the Effective Date provide to Wooshii valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details and you hereby authorise Wooshii to bill such credit card:
9.2.1 on the Effective Date for the Subscription Fees payable in respect of the Initial Term;
9.2.2 upon Wooshii’s agreement of any request made by you to increase the number of Projects or Authorised Users;
9.2.3 where you incur Excess Data storage fees pursuant to clause 9.5; and
9.2.4 subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period where you have selected to pay the Subscription Fees monthly, on the specified day in each month for such monthly payment.
9.3 If Wooshii has not received payment by the due date, and without prejudice to any other rights and remedies of Wooshii:
9.3.1 Wooshii may, without liability to you, disable your password(s), account(s) and access to all or part of the Services and Wooshii shall be under no obligation to provide any or all of the Services while such invoice(s) remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 6 (six) per cent over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4All amounts and fees stated or referred to in this Agreement:
9.4.1 shall be payable in pounds sterling;
9.4.2 are, subject to clause 13.3.2, non-cancellable and non-refundable; and
9.4.3 are exclusive of value added tax, which shall be added to Wooshii’s invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, you exceed the agreed amount of data storage space, Wooshii shall charge you, and you shall pay, Wooshii’s then current excess data storage fees. Wooshii’s Excess Data storage fees current as at the Effective Date are set out at on the Website.
9.6 Wooshii shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.1, the Support Fees payable pursuant to clause 4.3 and/or the Excess Data storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 30 (thirty) days’ prior notice.
9.7 You may from time to time be offered preferential pricing or discounts for the Subscription Fees as a result of the number of Authorised Users accessing the Software or the number of Projects that you have subscribed for. Eligibility for such preferential pricing or discounts is conditional upon your acceptance of responsibility for payment of any Subscription Fees in relation to all Authorised Users and Projects. Without prejudice to any other rights that Wooshii may have under these terms or at law, Wooshii reserves the right to render invoices for the full (non-discounted) Subscription Fees due or suspend or terminate your use of the Software in respect of any or all Authorised Users and/or Projects in the event that any invoices for those Subscription Fees are not paid in full by the due date for payment.
10.1 You acknowledge and agree that Wooshii and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, these terms do not grant you any Intellectual Property Rights or any other rights or licences in respect of the Services.
10.2 Wooshii confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6 You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute Wooshii’s Confidential Information.
11.7 Wooshii acknowledges that the Customer Data is your Confidential Information.
11.8 The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
12. Contact - we recommend that you have all of your email notifications turned on to get the best use of the Wooshii platform as such we set these as a defaulted to ‘on’ when your account is first setup. You can change these settings at any time by going to your settings.
13. By using our Service you understand and agree that we are providing a platform for you to where you can post content, including photos and other materials ("User Content"), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service.
14.1 You shall defend, indemnify and hold harmless Wooshii against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services.
14.2 In no event shall Wooshii, its employees, agents and sub-contractors be liable to you for any allegation that the Services infringe a third party’s Intellectual Property Rights to the extent that such liability is based on:
14.2.1 a modification of the Services by anyone other than Wooshii;
14.2.2 your use of the Services in a manner contrary to the instructions given to you by Wooshii; or
14.2.3 your use of the Services after notice of the alleged or actual infringement from Wooshii or any appropriate authority.
15.1 Except as expressly and specifically provided in this Agreement:
15.1.1 you assume sole responsibility for results obtained from your use of the Services, and for conclusions drawn from such use. Wooshii shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Wooshii by you in connection with the Services, or any actions taken by Wooshii at your direction;
15.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
15.1.3 the Services are provided to you on an “as is” basis.
15.2 Nothing in this Agreement excludes Wooshii’s liability:
15.2.1 for death or personal injury caused by Wooshii’s negligence; or
15.2.2 for fraud or fraudulent misrepresentation.
15.3 Subject to clause 15.1 and clause 15.2:
15.3.1 Wooshii shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information (including the Customer Data), or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
15.3.2 Wooshii’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 (twelve) months immediately preceding the date on which the claim arose.
16.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 (twelve) months (each a Renewal Period), unless:
16.1.1 either party notifies the other party of termination, in writing, at least 60 (sixty) days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
16.1.2 otherwise terminated in accordance with the provisions of this Agreement,
and the Initial Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
16.2 Without affecting any other right or remedy available to it, Wooshii may terminate this Agreement with immediate effect by giving written notice to the you if:
16.2.1 you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 14 (fourteen) days after being notified in writing to make such payment; or
16.2.2 you commit a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 (fourteen) days after being notified in writing to do so.
16.3 On termination or expiry of this Agreement for any reason:
16.3.1 all licences granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Services;
16.3.2 each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
16.3.3 Wooshii may destroy or otherwise dispose of any of the Customer Data in its possession unless Wooshii receives, no later than 10 (ten) days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to you of the then most recent back-up of the Customer Data. Wooshii shall use reasonable commercial endeavours to deliver the back-up to you within 30 (thirty) days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination or expiry). You shall pay all reasonable expenses incurred by Wooshii in returning or disposing of the Customer Data; and
16.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Wooshii shall have no liability to you under these terms if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Wooshii’s workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, terrorism, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
22.1 You shall not, without the prior written consent of Wooshii, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 Wooshii may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice given under this Agreement by either party to the other must be by email and will be deemed to have been given on transmission. Notices to Wooshii must be sent to firstname.lastname@example.org or to any other email address notified by email to you by Wooshii from time to time. Notices to you will be sent to the email address provided by you when setting up access to the Software.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
To contact Wooshii, please email email@example.com