START UP ACTIVE TERMS OF SERVICE AGREEMENT
This Agreement is entered into this date by and between Start Up Active Ltd, a limited company incorporated under the laws of England & Wales with a company number 09340818 (hereinafter “Company” or “Start Up Active”), and the Buyer.
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of providing online marketing for via a template based website (hereinafter “Services”); and
WHEREAS, the Buyer is interested in purchasing the Company’s services of providing online marketing via a template based website; and
WHEREAS, the Buyer recognizes that this is not for the sale of a website, and that all websites remain the sole property of Start Up Active Ltd.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. TERM.
This Agreement for will continue in full effect until either party terminates the Agreement by giving thirty (30) days prior written notice to the other party. This Agreement has a minimum term of 6 months, and can only be terminated within 6 months of signing the Agreement by payment of an amount to the Company such that the Company has received from the Buyer in total fees equivalent to three months’ fees.
SECTION 2. PAYMENT.
The Buyer agrees to pay Start Up Active all fees associated with the Buyer’s account. The first payment being due on the first day the buyer registers with Start Up Active. The buyer agrees to pay all fees associated with the Buyer’s account each month until the Agreement is terminated.
2.1 Payment shall be made to the Company via Electronic Subscription unless otherwise notified by Start Up Active. Start Up Active will charge the credit card on file or deduct the fee from Buyer’s electronic payment account until the Agreement is terminated.
2.2 In addition to any other right or remedy provided by law, if the Buyer fails to pay for the Services when due, the Company has the option to treat such failure as a material breach of this Agreement, and may terminate this Agreement and/or seek legal remedies. The Company will give the Buyer notice of the payment failure and the Buyer’s website will be taken down if the payment is not received within 5 days of the notice being given.
SECTION 3. WARRANTIES.
The Company shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner. The Company shall meet the standards that other similar companies in the Company’s community and region are held to, and will provide a standard of care equal to, or superior to, care used by service providers similar to the Company on similar projects.
SECTION 4. WORK PRODUCT OWNERSHIP.
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by the Company in connection with the Services will be the exclusive property of the Company. Upon request, the Buyer will execute all documents necessary to confirm or perfect the exclusive ownership of Company to the Work Product. The Company is the owner of the website, and the Buyer is purchasing a service to use a template website that will be returned to the Company after the Agreement is terminated. Buyer agrees that any text, graphics or material copied from the Company by the Buyer onto a new website will result in a charge of £750 per month per website copied onto or reactivation of this agreement.
SECTION 5. CONFIDENTIALITY.
Buyer shall hold and keep the confidentiality of the Confidential Information of the Company and shall not use or disclose the Confidential Information to any third party. “Confidential Information” shall mean any financial information, trade secrets, know-how, inventions, products, designs, methods, techniques, systems, processes, software programs, works of authorship, business plans, customer lists, projects, plans, proposals and any other information of the Company. This provision will remain in effect after the termination of this Agreement.
SECTION 6. DEFAULT.
The occurrence of any of the following shall constitute a material default under this Agreement:
6.1 The failure to make a required payment when due;
6.2 The insolvency or bankruptcy of either party;
6.3 The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency; or
6.4 The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
SECTION 7. REMEDIES UPON DEFAULT.
In addition to any and all other rights a party may have in accordance with the law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving the notice shall have ten (10) days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time periods shall result in the automatic termination of this Agreement. The occurrence of any of the following shall constitute a material default under this Agreement.
SECTION 8. NOTICES.
Any notices permitted or required under this Agreement shall be deemed given upon the date of personal delivery or 48 hours after posting, first class postage fully prepaid, addressed as follows:
(a) To Company: Start Up Active Ltd, Beehive Loft, Jersey Street, Manchester, M4 6JG.
(b) To Buyer: Address listed on account of buyer
or any other address as any party may, from time to time, designate by notice given in compliance with this section.
SECTION 9. FORCE MAJEURE.
9.1 If a Force Majeure Event occurs, the party that is prevented by that Force Majeure Event from performing any one or more obligations under this agreement (the “Nonperforming Party”) will be excused from performing those obligations, on condition that it complies with its obligations under section
9.2 For purposes of this agreement, “Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents a party from complying with any of its obligations under this agreement, other than an obligation to pay money, on condition that that party that uses reasonable efforts to do so, except that a Force Majeure Event will not include any a strike or other labour unrest that affects only one party, an increase in prices, or a change of law.
9.3 Upon occurrence of a Force Majeure Event, the Nonperforming Party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long that party expects it to last. Thereafter the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure Event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this agreement.
SECTION 10. ARBITRATION.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules Chartered Institute of Arbitrators. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree as to the selection of arbitrator, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than thirty (30) days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The Arbitration Settlement Agreement shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
SECTION 10. DISCLAIMER OF WARRANTY
THE SITE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, START UP ACTIVE AND ITS LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER START UP ACTIVE NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE, THE MATERIALS AND/OR THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES START UP ACTIVE OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES, THE MATERIALS OR THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE SERVICES AND/OR THE MATERIALS IS AT YOUR SOLE RISK. IN ADDITION, START UP ACTIVE IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
FURTHER, START UP ACTIVE AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE MATERIALS OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES OR THE MATERIALS OUTSIDE THE UNITED KINGDOM, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES. NEITHER START UP ACTIVE NOR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES WARRANT THAT THE SITE, ITS SERVERS THE MATERIALS OR THE SERVICES OR ANY E-MAIL SENT FROM THE SITE OR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SECTION 11. LIMITATION OF LIABILITY
START UP ACTIVE IS NOT LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, THE MATERIALS, USER CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF START UP ACTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE USER HEREBY RELEASES START UP ACTIVE AND HOLDS START UP ACTIVE AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, MATERIALS, SITE, YOUR CONTENT, COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGHTHE SITE. THE USER HEREBY WAIVES THE PROVISIONS OF ANY LAW LIMITING OR PROHIBITING A GENERAL RELEASE.
SECTION 12. EXCLUSIVE REMEDY
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, THE MATERIALS, THE USER AGREE S THAT ITS SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS. UNDER NO CIRCUMSTANCES SHALL START UP ACTIVE, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR THE USE OF THE SITE BY THE USER, THE SERVICES, THE MATERIALS, THE USERS CONTENT, ITS COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILBALE ON OR THROUGH THE SITE. Where the exclusion of implied warranties or limitation of liability for incidental or consequential damages are not permitted by law, then the exclusions set forth above may not apply to the User.
SECTION 13. INDEMNITY.
You agree to indemnify, hold harmless, and defend Start Up Active and its licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively “Indemnified Parties”) from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys’ fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Site or the Materials, (ii) your Content, or (iii) any commercial products you offer on or through the Site or using our Services. This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defence and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
SECTION 14. PRIVACY.
SECTION 15. ASSIGNMENT.
Neither party may assign or transfer this Agreement without prior written consent of the other party, which consent shall not be unreasonably withheld.
SECTION 16. ENTIRE AGREEMENT.
This Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. Any amendments to this Agreement must be in writing and signed by the party against whom enforcement of that amendment is sought.
SECTION 17. AMENDMENT.
This Agreement may be modified or amended if the amendment is made in writing and signed by both parties.
SECTION 18. SEVERABILITY.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
SECTION 19. WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
SECTION 20. SEPARATE COUNSEL.
The Buyer hereby expressly acknowledges that it has been advised that it has not been represented by the Company’s lawyer in this matter and has been advised and urged to seek separate legal counsel for advice in this matter.
Section 21. Further Action. The parties hereto shall execute and deliver all documents, provide all information and take or forbear from all such action as may be necessary or appropriate to achieve the purpose of the Agreement.
SECTION 22. LAW GOVERNING.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.