www.coniq.com (as further described in paragraph 2.1) (the “Service”) you (the “Client”) agree to be bound by these Terms of Use and the Privacy Policy displayed at www.coniq.com/Privacy which together govern such access and use (collectively the “Terms”).
1.2 Please read the Terms carefully before you start to use the Services. If you do not agree to the Terms, do not use the Services.
1.3 Codilink may revise the Terms at any time by amending the page at www.coniq.com/terms-of-use/en. You are expected to check this page from time to time to take notice of such changes, as they are binding on you.
1.4 The Services are owned and provided by Codilink UK Ltd t/a Coniq, River House, 143-145 Farringdon Rd, London EC1R 3AB (“Codilink”, the Client and Codilink together being the “Parties”).
2. THE SERVICE
2.1 Codilink shall provide the client with one or more web based marketing
products which may include , but is not limited to:
a) Coniq ToolBox (Coniq)
b) Coniq Facebook marketing app (Social Rocket)
2.2 If Codilink’s performance of its obligations under the Terms is
prevented or delayed by:
a) any act or omission of the Client, its agents, subcontractors,
consultants or employees;
b) any interruptions, delays or faults affecting any third party platform
or website which is monitored by the Service from time to time,
Codilink shall not be liable for any costs, charges or losses sustained or
incurred by the Client that arise directly or indirectly from such
prevention or delay.
2.3 Codilink shall maintain the security and integrity of the Client Data
(as defined in paragraph 6.4).
2.4 The Client shall:
(a) have sole responsibility for the accuracy, quality, integrity,
legality, reliability, and appropriateness of all the Client Data;
(b) use commercially reasonable efforts to prevent unauthorised access to,
or use of, the Services, and notify Codilink promptly of any such
unauthorised access or use; and
(c) comply with all applicable laws in using the Services, including any
applicable laws, regulatory requirements or generally accepted practices or
guidelines which relate to the purpose for which the Client makes use of
the Services.
(d) not use as Client Data any individual’s Personal Data for which it is
not the legal owner
(e) not use Client Data for which it does not have explicit “opted in”
consent from the customers that the Client may use their Personal Data for
marketing purposes send or store viruses, worms, time bombs, Trojan horses
and other harmful or malicious code, files, scripts, agents or programs
(“Malicious Code”);
(f) interfere with or disrupt the integrity or performance of the Services
or the data contained therein;
(g) attempt to gain unauthorized access to the Services or its related
systems or networks; or
(h) use the Services for any purpose, or in any manner, which Codilink has
reasonable grounds to consider:
(i) may adversely affect Codilink’s business (which includes damage to
Codilink’s reputation or business standing, affecting its profitability,
conflict with business strategy of Codilink or conflict with Codilink’s
ethical standards and policies); or
(ii) is not appropriate for the nature and purpose of the Services, as
envisaged under the Terms.
2.5 Codilink shall have the right to periodically audit the Client’s usage
of the Services to ensure that the Client is only using the Services in
accordance with the terms and conditions of these Terms of Use, including
paragraphs 2.4 and 2.5.
2.6 If Codilink has reasonable grounds to suspect that the Client has
failed to comply with paragraphs 2.4 or 2.5, it shall be entitled to
suspend the provision of the Services with immediate effect. Codilink shall
then undertake an audit pursuant to paragraph 2.4 or 2.5 and if it
determines (acting reasonably) that such failure to comply did not occur,
it shall reimburse to the Client (within thirty (30) days of such audit)
the Fees paid by the Client in respect of the period during such suspension
(calculated on a pro-rata basis). If Codilink determines (acting
reasonably) that such failure to comply did occur, it shall have the right
to immediately terminate these Terms and charge to the Client an amount of
money equal to the value of the remainder of the term committed by the
Client in the Pricing Form.
2.7 Codilink shall have the right to periodically perform maintenance on
the Services (or the servers and networks which are connected to the
Services), which may result in interruption to the provision of the
Services. The dates and times of this maintenance shall be advertised by
Codilink in advance, via its website or other media. Codilink shall attempt
to ensure that minimal disruption is caused by such maintenance.
3. SCANNING DEVICES
3.1 Where the Client elects, in the form which sets out the options and
fees for the Services (as made available by Codilink from time to time and
accepted by the Client) (the “Pricing Form”), to receive, and Codilink
agrees to provide, a scanning device (as described in paragraph 2.1) (the
“Device”), the following terms shall apply:
(a) Codilink shall retain ownership in the Device at all times;
(b) the Device shall only be used for purposes envisaged under the Terms
(namely the validation of barcodes issued by the Client via the Services);
(c) risk in the Device shall pass to the Client at the point at which the
Device leaves Codilink’s premises. The Client shall be fully liable for,
and will indemnify and hold harmless Codilink and its Affiliates (as
defined in paragraph 10.5) against all losses, liabilities and costs
(including legal expenses) sustained, incurred or suffered by them arising
out of or connection with use of, damage to, or the loss or theft of, the
Device while in the Company’s possession or under its control. The liability for loss or theft will be £150 as
a minimum, and
(d) if the Device suffers a fault, Codilink will use all reasonable
endeavours to repair or replace such Device within seven (7) Working Days
(being any day other than a Saturday, Sunday or public holiday in England)
of receipt of written notification from the Client of such fault and
receipt of the faulty Device. To the maximum extent permitted by applicable
law, this paragraph 3.1 sets out the Client’s sole remedy in respect of any
faults affecting any Device(s).
4. FEES AND PAYMENT
4.1 The Client shall pay the fees set out in the Pricing Form in respect of
all options for the Services that it elects to receive in the Pricing Form
from time to time, and Codilink agrees to provide (the “Fees”).
4.2 Codilink may, at any time and at its sole discretion, increase the Fees
by giving the Client at least thirty (30) days’ written notice of the
increase. Where the Client has paid Fees in advance, such increase shall
not take effect until the end of the period in respect of which the Client
has paid such Fees.
4.3 Where the Client is required to pay the Fees before it commences use of
the relevant part(s) of the Services (as specified in the Pricing Form),
the Client shall pay such Fees in accordance with the relevant terms
specified in the Pricing Form.
4.4 Where paragraph 4.3 does not apply and the Client has elected to pay by
direct debit, please note that Codilink has appointed the BACS Approved
Direct Debit Bureau, Eazy Collect Servicess Limited (www.eazycollect.com),
to collect Client payments and Eazy Collect will be shown on your bank
statement.
4.5 Where paragraphs 4.3 and 4.4 do not apply, Codilink may invoice the
Client for the Fees in advance and the Client shall pay such Fees within
thirty (30) days of the invoice date. If invoices are not settled by the
Client in full by the due date for payment then without prejudice to its
remedies elsewhere in these Terms of Use or otherwise:
(a) Codilink may suspend provision of the Servicess until payment is made;
, anpassen
(b) if the Client has not paid all outstanding sums in full within thirty
(30) days of receipt of notice of late payment from Codilink, Codilink may
terminate the Terms immediately.
4.6 Codilink shall have the right to periodically audit the Client’s usage
of the Services to ensure that the Client has not underpaid any Fees due.
4.7 The Fees and other amounts payable by the Client pursuant to these
Terms of Use are exclusive of:
(a) VAT/IVA and other tax duties and rates;
(b) Bank or currency exchange charges incurred due to payments being made
from countries outside of the UK or in currencies other than pounds
sterling, which will be payable by the Client in addition to the Fees where
applicable.
5. FAIR USE POLICY
5.1 If the Client elects to subscribe to an unlimited email usage package,
as specified in the Pricing Form, usage of such shall be governed by
Codilink’s Fair Use Policy.
5.2 The amount of monthly email sends considered to be within the Fair Use
Policy shall depend on the subscription package selected by the Client in
the Pricing Form and shall be calculated as being five times the maximum
size of customer database permitted by the relevant subscription package.
5.3 If the Client’s email usage of the Services exceeds the amount
specified in this paragraph 5, Codilink reserves the right to restrict the
number of emails permitted to be sent by the Client and/or charge the
Client a fee relating to the number of emails sent by the Client above the
Fair Use Policy, at the price specified in the Pricing Form.
6. INTELLECTUAL PROPERTY RIGHTS and data
6.1 The Client shall provide to Codilink its logo, and any other data,
documents, information and materials (including any image works) that it
wishes to use via the Services (the “Client Materials”), in order to enable
Codilink to provide the Services. The Client warrants that it has all
necessary rights and consents in order to do so.
6.2 As between the Parties, Codilink shall own all Intellectual Property
Rights and all other rights in:
(a) the Services;
(b) the data, documents, information and materials provided by Codilink to
the Client as part of the provision of the Services (the “Codilink
Materials”);
(c) all anonymised records of transactions created or stored on the
Services (the “Transaction Data”); and
(d) the contact details (created or stored on the Services) of any
customers of the Client who have opted to receive marketing communications
from third parties(the “Marketing Data”), the Codilink Materials,
Transaction Data and Marketing Data together being the “Codilink Data”.
6.3 As between the Parties, the Client shall own all Intellectual Property
Rights and all other rights in:
(a) the data, documents, information and materials (including the Client
Materials) provided by the Client to Codilink as part of its use of the
Services pursuant to the Terms, excluding the Marketing Data; and
(b) the data relating to customers of the Client created or stored on the
Services, excluding the Transaction Data and the Marketing Data, together the “Client Data”.
6.4 Subject to the payment of all amounts due from the Client to Codilink
under these Terms of Use, Codilink hereby grants to the Client a
non-exclusive, non-transferable licence to use the Codilink Data and the
Services solely for its own internal business purposes. The Client shall
not otherwise distribute the Codilink Data or make it available to any
third party for any purpose. If these Terms expire or are terminated for
any reason, this licence will automatically terminate and the Client will
cease all use of the Codilink Data and the Services.
6.5 The Client hereby grants to Codilink a non-exclusive, non-transferable
licence to use the Client Data solely to the extent necessary for the
provision of the Services.
6.6 The Client acknowledges that it obtains no proprietary rights in the
Codilink Data or Services under the Terms. All right, title and interest in
and to the foregoing including any and all related Intellectual Property
Rights, modifications and additions thereto shall at all times remain with
Codilink or any third party from whom Codilink has licensed the foregoing.
6.7 The Client shall not:
(a) create by de-compilation or reverse engineering the Services, or
related documentation; or
(b) access the Services in order to:
(i) build a competitive product or services, or
(ii) copy any ideas, features, functions or graphics of the Services.
6.8 The Client hereby grants Codilink the right to use the Client’s name,
logo and any respective Transaction Data in order to advertise the fact
that the Client is a client of Codilink, and in the preparation of a case
study of the Client and its usage of the Services (together the “Case Study
Material”). The Case Study Material may be publicised on Codilink’s
website, in printed material and other forms of marketing on behalf of
Codilink. The Client may request at any time that Codilink refrains from
using the Case Study Material. Within 15 working days after receiving such
written notice from the Client, Codilink shall remove all references to the
Case Study Material in any of its marketing activities.
6.9 For the purposes of these Terms, “Intellectual Property Rights” means
all patents, rights to inventions, utility models, copyright and related
rights, trademarks, services marks, trade, business and domain names,
rights in trade dress or get-up, rights in goodwill or to sue for passing
off, unfair competition rights, rights in designs, rights in computer
software, database right, topography rights, moral rights, rights in
confidential information (including know-how and trade secrets) and any
other intellectual property rights, in each case whether registered or
unregistered and including all applications for and renewals or extensions
of such rights, and all similar or equivalent rights or forms of protection
in any part of the world.
7. CONFIDENTIALITY
7.1 Each Party (the “Recipient”) shall keep any Confidential Information
received from or belonging to the other Party (the “Disclosing Party”)
secret and not disclose such Confidential Information to anyone (except on
a need to know basis for internal use only where necessary to perform its
obligations under the Terms to its employees or full time contractors bound
by express written secrecy obligations) or use such Confidential
Information other than to perform its obligations under the Terms without
the prior written consent of the Disclosing Party.
7.2 Paragraph 7.1 shall not apply to any Confidential Information to the
extent that:
(a) disclosure is required to or by any court, tribunal or governmental
authority with competent jurisdiction;
(b) it is or becomes generally and freely publicly available through no
fault of the Recipient or its servants or agents; or
(c) it can be shown to have been independently originated by the Recipient
or communicated to it in circumstances otherwise than where its disclosure
to the Recipient imparted a duty of confidence.
7.3 For the purposes of this Paragraph 7, “Confidential Information” means
the Codilink Data, the Client Data and all other information of a
confidential nature concerning the trade secrets or business dealings,
methods of business, transactions, plans or affairs of a Party or other
party to whom the Party owes a duty of confidence; any document or
information marked “Commercial in Confidence” or otherwise expressly
designated as confidential; and any information which by its nature the
recipient ought reasonably to conclude was confidential information of the
other Party, in all cases whether encrypted or not and including all copies
of the above on any media (including electronic media) whatsoever.
8. DATA PROTECTION
8.1 The Client warrants and undertakes that:
(a) it has obtained all consents, registrations and notifications (covering
the types of processing envisaged by the Terms) required by the Data
Protection Legislation in respect of Personal Data to be supplied or
disclosed to Codilink;
(b) it will at all times comply with its obligations under the Data
Protection Legislation;
(c) Personal Data is accurate and up to date when disclosed; and
Personal Data is processed and disclosed fairly and lawfully (as required
by the Data Protection Legislation) by the Client when supplying or
disclosing such Personal Data to Codilink.
8.2 The Parties acknowledge that for the purposes of the Data Protection
Act 1998, the Client is the Data Controller and Codilink is the data
processor in respect of any Personal Data.
8.3 Codilink shall process the Personal Data only in accordance with, and
for the purposes described in, the Terms and shall not process the Personal
Data for any other purpose unless expressly authorised by the Client.
8.4 Codilink warrants that, having regard to the state of technological
development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the
unauthorised or unlawful processing of Personal Data and against the
accidental loss or destruction of, or damage to, Personal Data to ensure a
level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful
processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected; and
(b) take reasonable steps to ensure compliance with those measures.
8.5 The Client acknowledges that Codilink is reliant on the Client for
direction as to the extent to which Codilink is entitled to use and process
the Personal Data. Consequently, Codilink will not be liable for any claim
brought by a Data Subject arising from any action or omission by Codilink,
to the extent that such action or omission resulted directly from the
Client’s instructions.
(a) Notwithstanding any other provision in the Terms, the Client
acknowledges and agrees that Codilink may use the Transaction Data for any
purpose (provided it complies with the Data Protection Legislation in doing
so).
8.6 Where Codilink provides Personal Data to the Client as part of the
provision of the Services, or shares data collected via the Social Rocket
Product:
(a) Paragraphs 8.1 to 8.5 (inclusive) shall not apply in respect of such
Personal Data.
(b) Codilink warrants and undertakes that it will at all times comply with
its obligations under the Data Protection Legislation.
(c) The Client shall process the Personal Data only in accordance with
Codilink’s lawful instructions from time to time and shall not process the
Personal Data for any purpose other than those expressly authorised by
Codilink.
(d) The Client warrants that, having regard to the state of technological
development and the cost of implementing any measures, it will:
(i) take appropriate technical and organisational measures against the
unauthorised or unlawful processing of Personal Data and against the
accidental loss or destruction of, or damage to, Personal Data to ensure a
level of security appropriate to:
(1) the harm that might result from such unauthorised or unlawful
processing or accidental loss, destruction or
(2) the nature of the data to be protected; and
(ii) take reasonable steps to ensure compliance with those measures.
8.7 For the purposes of this paragraph 8:
(a) “Data Protection Legislation” means the Data Protection Act 1998, the
Data Protection Directive (95/46/EC), the Regulation of Investigatory
Powers Act 2000, the Telecommunications (Lawful Business Practice)
(Interception of Communications) Regulations 2000 (SI 2000/2699), the
Electronic Communications Data Protection Directive (2002/58/EC), the
Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI
2426/2003) and all other applicable laws and regulations in any
jurisdiction relating to the processing of personal data and privacy,
including where applicable the guidance and codes of practice issued by the
Information Commissioner or any other regulatory, statutory, governmental
or local authority in any jurisdiction; and
(b) “Data Controller”, “Data Processor”, “Data Subjects” and “Personal
Data” shall have the meanings given in the Data Protection Legislation.
9. WARRANTIES
9.1 Each Party represents and warrants that it has the legal power to enter
into the Terms.
9.2 Codilink represents and warrants that:
(a) it will provide the Services in a manner consistent with general
industry standards reasonably applicable to the provision thereof;
(b) the Services will not contain or transmit to the Client any Malicious
Code (except for any Malicious Code contained in materials provided by the
Client);
(c) it owns or otherwise has sufficient rights in the Services to grant to
the Client the rights to use the Services granted herein; and
(d) to the best of Codilink’s knowledge, the Services does not infringe any
Intellectual Property Rights of any third party.
9.3 The warranties contained in this paragraph 9 are in lieu of all other
warranties or conditions, whether express, implied or statutory, including
the implied warranties and conditions of merchantability and fitness for a
particular purpose and those arising by statute or otherwise in law or from
the course of dealing or usage of trade. In particular, Codilink does not
warrant that the services will be error free or will perform in an
uninterrupted manner or that the Codilink Materials will be accurate or
complete.
10. LIABILITY
10.1 The Client shall indemnify and hold harmless Codilink and its
Affiliates against all losses, liabilities and costs (including legal
expenses) sustained, incurred or suffered by them as a result of:
(a) any claim, action or proceeding that their use, possession or receipt
of the Client Data infringes the Intellectual Property Rights of any third
party;
(b) any breach by the Client of paragraph 2.4, 2.5, 7 or 8.
10.2 Except as expressly and specifically provided in these Terms of Use,
the Client assumes sole responsibility for results obtained from use of the
Services by the Client, and for conclusions drawn from such use. Codilink
and its Affiliates shall have no liability for any damage caused by errors
or omissions in any information, materials or instructions provided to
Codilink by the Client in connection with the Services, or any actions
taken by Codilink at the Client’s direction.
10.3 Nothing in the Terms limits or excludes the liability of Codilink or
its Affiliates:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud
or fraudulent misrepresentation by Codilink; or
(c) for any other type of liability that cannot be excluded or limited
under applicable law.
10.4 Subject to paragraph 10.3: the total liability of Codilink and its
Affiliates in contract, tort (including negligence or breach of statutory
duty), misrepresentation or otherwise, arising in connection with the
performance or contemplated performance of the Terms will be limited to the
amount of the sums paid by the Client to Codilink pursuant to these Terms
of Use (excluding VAT and expenses) during the twelve (12) months preceding
the date on which the claim arose; and
(a) Codilink and its Affiliates will not be liable to the Client in
contract, tort, misrepresentation or otherwise (including negligence), for
any:
(i) loss of profits, loss of business, loss of data, depletion of goodwill
and/or similar losses or pure economic loss (whether direct, indirect or
consequential);
(ii) indirect or consequential loss or damage, costs, expenses or other
claims for consequential compensation whatsoever, which arises out of or in
connection with the Terms.
10.5 For the purposes of these Terms of Use, “Affiliate” means, in respect
of a company or other business entity, any company or other business entity
Controlled by, Controlling, or under the common Control of that company or
other business entity (where “Control” means the direct or indirect power
to direct or cause the direction of the management and policies of a
company or other business entity, whether through ownership of fifty
percent (50%) or more of the voting interest, by contract, or otherwise
(and “Controlled” and “Controlling” shall be construed accordingly)).
11. TERMINATION
11.1 The Terms shall commence upon the Client’s first use of, or access to,
the Services and (unless terminated in accordance with this paragraph 11):
where the Client elects to receive the Services for an initial period of
longer than one (1) month, shall continue for such period and thereafter
shall automatically renew for further consecutive periods unless the Client
gives Codilink at least one (1) month’s written notice of non-renewal via
the email address sorrytoseeyougo@coniq.com (to take effect at the end of
the then current period).
11.2 Codilink may terminate the Terms at any time by giving the Client at
least thirty (30) days’ written notice.
11.3 On expiry or termination for any reason of the Terms:
(a) Codilink shall make available to the Client the Client Data for
download via a secure part of the Services for a period of fifteen (15)
days from the effective date of expiry or termination (and thereafter
Codilink shall not have any obligation to provide the Client Data to the
Client); and
(b) the accrued rights and liabilities of the parties as at termination and
the continuation of any provision expressly stated to survive or implicitly
surviving termination (including paragraphs 2, 6, 7, 8, 10 and 12), shall
not be affected
12. GENERAL TERMS
12.1 Neither Party shall be responsible for any failure to comply with or
for any delay in the performance of the terms of the Terms including delays
in delivery by Codilink where such failure or delay is directly or
indirectly caused by or in any manner arises or results from events
reasonably beyond the control of the Parties sought to be charged. These
events include, but shall not be restricted to, fire, flood, earthquake,
accident, civil disturbances, war, rationing, allocation or embargoes,
strikes or labour problems, delays in transportation, acts of God and acts
of any government or any branch or agency thereof.
12.2 The failure of either Party to insist on the strict performance of any
terms, covenants and conditions of the Terms, or its failure to take
advantage of any of its rights hereunder, shall not be construed as a
waiver or relinquishment of any such rights or conditions at any future
time nor shall it affect the continuance in full force and effect of all
the provisions of the Terms.
12.3 If any provision of the Terms (or part of any provision) is found by
any court or other authority of competent jurisdiction to be invalid,
illegal or unenforceable, that provision or part-provision shall, to the
extent required, be deemed not to form part of the Terms, and the validity
and enforceability of the other provisions of the Terms shall not be
affected.
12.4 If a provision of the Terms (or part of any provision) is found
illegal, invalid or unenforceable, the provision shall apply with the
minimum modification necessary to make it legal, valid and enforceable.
12.5 The Terms constitute the whole agreement between the Parties and
supersedes any previous arrangement, understanding or agreement between
them relating to the subject matter of the Terms.
12.6 Each Party acknowledges that, in entering into the Terms, it does not
rely on any statement, representation, assurance or warranty, whether made
negligently or innocently (“Representation”) of any person (whether a party
to the Terms or not) other than as expressly set out in the Terms. Each
Party agrees that the only remedies available to it arising out of or in
connection with a Representation shall be for breach of contract.
12.7 Nothing in clause 12.5 or 12.6 shall limit or exclude liability for
fraud.
12.8 Where words include(s), including or in particular are used in the
Terms, they are deemed to have the words without limitation following them.
12.9 The Client shall not assign its rights and obligations under the Terms
without the prior written approval of Codilink. Notwithstanding the
foregoing, either Party may assign the Terms, or any of its rights and
obligations under the Terms to its parent company or its Affiliates upon
written notice to the other Party provided such assigning Party shall
remain liable to the non-assigning Party for the assigning Party’s
obligations under the Terms.
12.10 Codilink reserves the right to sub-contract any part of a Services,
to a third party, and Codilink
retains responsibility for any such sub-contracted Services.
12.11 The Terms shall enure to the benefit of the Parties and their
respective successors and permitted assigns.
12.12 The Parties are independent contractors. The Terms do not create a
partnership, franchise, joint venture, agency, fiduciary nor employment
relationship between the Parties. A person who is not a Party to the Terms
shall not have any rights under applicable law to enforce any term of the
Terms.
12.13 Nothing in the Terms shall prohibit or be deemed to prohibit Codilink
from providing similar services to any other client or third party subject
to the provisions of confidentiality referred to in paragraph 7.
12.14 All notices under these Terms shall be in writing (including email)
and shall be deemed to have been given upon: (i) personal delivery; (ii)
the second business day after mailing; (iii) the second Working Day after
sending by confirmed facsimile; or (iv) the second Working Day after
sending by email. Notices to Codilink shall be addressed to its Commercial
Manager at the above address or legal@coniq.com. Notices to the Client
shall be addressed to the name and address provided by the Client upon
registration to use the Services
12.15 The Terms shall be governed by, and construed in accordance with, the
laws of England and Wales and each Party hereby submits to the exclusive
jurisdiction of the courts of England and Wales.
