Last updated: 20 July 2020
1. Parties. The Itarmi Platform is provided by Itarmi UK Limited is incorporated and registered in England and Wales with company number 09844175 and registered office at Kemp House, 152-160 City Road, London EC1V 2NX, United Kingdom, together with our Affiliates (Itarmi, us, we or our) to each user (user or you).
2. Our agreement with you. We refer to our agreement with you as the Terms and Conditions. The following documents, available through the Itarmi Platform, are incorporated by reference into these Master Terms and, together, form the Terms and Conditions:
2. Itarmi Platform documents that apply to specific user groups: Engineer Terms; Customer Managed Service Terms and CMS Subscription Terms; Customer Order Form; terms and policies notified to you from time to time.
2. Acceptance. Users must be at least 18 years of age. You are deemed to have authority and capacity to bind the party on whose behalf you accept the Terms and Conditions (and references to you include any such party). By using the Itarmi Platform, you agree to fully comply, and procure compliance by your Affiliates, with all of the Terms and Conditions.
2.1 Universal rules. This section 2 (Definitions) sets out core definitions and rules of interpretation that apply to all documents within our Terms and Conditions.
2.2 Defined terms.
Affiliate means any entity that directly or indirectly controls, or is controlled by, or is under common control with a party to this agreement. For these purposes, control means directly or indirectly control or ownership of more than 50% of the issued share capital or similar right of ownership, voting power, or the power to secure that a party’s affairs are conducted in accordance other party’s wishes (whether by contract or otherwise).
Assignment means any assignment, role, project, task or similar engagement, whether performed at the premises of a Customer or a third party or remotely.
Beta Services means features made available by us to you expressly for testing purposes only.
Business Day means 9:30am–5:30pm in the United Kingdom on any day when banks in London are open for business, except for Saturday, Sunday or any public holiday in England.
Customer means any user of our customer services, prospects and partners.
Customer Exceptions means your liability in respect of infringement of intellectual property rights, breach of acceptable use terms, indemnification and fees.
Engineer means any individual registered with us as an engineer.
Itarmi Platform means any software, application or website (including new releases or features, bug fixes, modifications, corrections, updates or Beta Services), together with any media, manuals and user documentation, that we make available to you from time to time.
Loss means any directly or indirectly arising loss, liability, damage, costs, expense of any kind.
2.2 Use of services. Any reference to the access or use of the Itarmi Platform shall be deemed to include the use of our services.
2.3 General words. Any words that follow “including”, “include”, “in particular”, “for example” or any similar expression are illustrative and do not limit the generality of such expression. Words denoting the singular include the plural and vice versa, words denoting any gender include all genders, and words denoting parties include all persons, individuals, firms and corporations.
2.4 Affiliates. Any reference to “you” is deemed to include a reference to any Affiliates.
3.1 Prohibited use. You must not:
3.1.1 transfer, rent, license, lease, distribute, sell, copy, modify, disassemble, decompile, reverse-engineer, reduce to human readable form all or any part of the Itarmi Platform;
3.1.2 combine or incorporate all or any part of the Itarmi Platform with any other programs, or create derivative works based it;
3.1.3 use the Itarmi Platform for any unlawful purpose, fraudulently or maliciously;
3.1.4 develop or use any workaround for any security measure in the Itarmi Platform;
3.1.5 introduce any virus, worms, trojan horses, software, code, file, program or device which prevents or impairs the operation of the Itarmi Platform;
3.1.6 use or launch any automated system, including robots, spiders or offline readers, that sends more messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
3.1.7 attempt to gain unauthorised access to any services or parts of the Itarmi Platform.
3.2 Communication. Any comments or material you share must:
3.2.1 be honest and accurate as to facts and be genuine as to opinions;
3.2.2 not use defamatory, threatening, sexually explicit, offensive or hateful language;
3.2.3 not promote or assist any unlawful act; discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; harassment or invasion of privacy; or
3.2.4 not misrepresent your identity or affiliation with any person or give the impression that your comments come from another person if this is not the case.
4.1 Our intellectual property. We own all right, title and interest in all intellectual property rights in the Itarmi Platform, any material we publish on it and in our branding (including registered and unregistered trademarks, service marks, names, logos or slogans). You irrevocably and unconditionally waive any and all moral rights in relation to the Itarmi Platform and branding. You shall, on written request and at our cost, provide reasonable assistance to protect or secure our ownership of our intellectual property in the Itarmi Platform.
4.2 Use of our branding. You may not use our branding: (i) without our prior written consent, (ii) in false or misleading advertising, (iii) to create confusion as to our endorsement of, or affiliation with, your company, products or services), or (iv) to damage our reputation or goodwill.
4.3 Your use. You may use the Itarmi Platform on a non-exclusive, non-transferable basis and solely for the purpose of accessing the services we provide through it. You may not reproduce, republish, download, post, transmit or otherwise use any content in any way except as permitted by the Terms and Conditions.
4.4 User branding. You grant us a non-exclusive, royalty-free licence to use your branding (including company name and logos) for the term of our agreement for marketing purposes and as reasonably necessary to provide our services. You warrant and undertake that your branding does not and will not infringe any party’s intellectual property rights. You retain full ownership of all of your branding and we waive any and all moral rights in relation to your branding.
4.5 User content. You will not upload or introduce any content to the Itarmi Platform in relation to which you do not own the intellectual property rights or have permission to do so.
4.6 Feedback. We encourage users to provide feedback, including participating in surveys and providing or commenting on suggestions and ideas for improving the Itarmi Platform. We shall only publish your private comments on an identifiable basis with your prior written consent. You agree that: (i) we own all intellectual property rights in any feedback and rights to use it, without payment or attribution to you, and (ii) if at any time required, you grant us a perpetual, irrevocable, sublicensable, royalty-free worldwide licence to use and/or incorporate such material into any of our products or services at any time.
5.1 Defined terms.
Confidential Information or CI means all information disclosed by one party (Discloser) to another party (Recipient) that is designated as confidential. CI includes information relating to the Discloser’s technologies, know-how, processes, software, research, design specifications, products and services (past, present and proposed), financial information (including analyses, projections, statistics and forecasts), customer lists (current and potential), sources of supply, sales and marketing plans, business plans and models, personnel, and shareholders; together with all copies in any form. CI shall not include information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without breach of any obligation owed to the Discloser; (iv) is independently developed by the Recipient.
5.2 Protection of CI. During this agreement and for a period of two years after its termination, the Recipient shall: (i) protect the confidentiality of the Discloser’s CI with the same degree of care that it uses to protect its own CI of like kind, but in no event, no less than reasonable care; (ii) not use the Discloser’s CI for any purpose outside the scope of the Terms and Conditions; (iii) not disclose the Discloser’s CI to any third party without written consent from the Discloser; (iv) limit access to the Discloser’s CI to such employees, contractors and agents as require access to the CI in order for the Recipient to perform its obligations under the Terms and Conditions and subject to each such party signing a confidentiality agreement no less stringent than this section 5 (Confidential Information).
5.3 Required disclosure. The Recipient may disclose the Discloser’s CI if required to do so under any applicable law, regulation or order of a competent court with jurisdiction; provided, however, that the Recipient shall give the Discloser prompt written notice of any such legal request, sufficient to allow the Discloser to object to the request and/or seek a protective order or, if such notice is prohibited by law, the Recipient shall disclose the minimum amount of CI required under the applicable legal mandate.
6.1 Termination by us for cause. Without limiting any of our rights or remedies and without liability, we may in our sole discretion suspend, limit or terminate your use for cause if:
6.1.1 you infringe our or a third party’s intellectual property rights or breach our acceptable use terms;
6.1.2 we reasonably consider that your actions could negatively reflect on us or our users; or
6.1.3 you fail to pay an amount you owe to us within ten (10) days of receiving notice of non-payment (except where you are reasonably and in good faith disputing applicable charges and you co-operate diligently in resolving the dispute). If you are suspended for non-payment, we may charge a re-activation fee to reinstate your access.
6.2 Suspension for risk. We may suspend your account without liability if we detect or suspect that your access is creating a security vulnerability for the Itarmi Platform or any users, in which case we shall try to limit the suspension and resolve the issues causing the suspension.
6.3 Termination for cause by either party. Either party may terminate this Agreement for cause, as to any or all services: (i) by giving thirty (30) day’s written notice to the other party of a material or persistent breach if the breach remains uncured at the end of such period; or (ii) immediately, if the other party becomes insolvent, has a liquidator, administrator or receiver appointed for the whole or any part of its assets or business, or an order or resolution is made for its winding-up, dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), or analogous or comparable event in any jurisdiction.
6.4 Consequences of termination. On termination of our agreement, you must immediately cease to use the Itarmi Platform. If we terminate your access to the Itarmi Platform for cause, our agreement will automatically terminate.
6.5 Free services. In our absolute discretion, we may suspend, limit or terminate the availability of services, products or features made available on an unpaid trial or free basis, for any reason at any time without notice or liability.
6.6 Beta Services. Beta Services are only available by our invitation and/or approval. We reserve the right to remove or limit access to Beta Services at any time without notice or liability.
6.7 Previous termination. If we previously terminated your access, you must not seek re-access without notifying us of this fact in writing and obtaining our express written consent.
7.1 Limitations not applicable. Nothing in our Terms and Conditions shall exclude or limit the liability of any party where this is not permitted by law, including liability in respect of death or personal injury resulting from negligence, fraudulent misrepresentation or fraud.
7.2 No indirect damages. EXCEPT IN RESPECT OF YOUR LIABILITY FOR CUSTOMER EXCEPTIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF FORESEEABILITY OF LOSS, NO PARTY WILL IN ANY CIRCUMSTANCES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL LOSS OF ANY KIND, HOWSOEVER ARISING, OR ANY LOSS OF PROFITS, BUSINESS, REVENUE OR OPPORTUNITY, ARISING OUT OF IN CONNECTION WITH THE ITARMI PLATFORM OR SERVICES PROVIDED THROUGH IT.
7.3 Disclaimer of Warranties. THE ITARMI PLATFORM IS PROVIDED ON AN “AS IS” BASIS AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITARMI DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING THE ITARMI PLATFORM, INCLUDING ANY IMPLIED WARRANTIES RELATING TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AVAILABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE. ITARMI DOES NOT REPRESENT OR WARRANT THAT THE ITARMI PLATFORM IS OR WILL BE FREE FROM BUGS, ERRORS OR OTHER PROGRAM LIMITATIONS.
7.4 Liability cap in relation to Customers. EXCEPT IN RESPECT OF YOUR LIABILITY FOR CUSTOMER EXCEPTIONS, THE PARTIES AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF A PARTY TO THE OTHER PARTY WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE BY THE CUSTOMER TO US FOR USE OF THE ITARMI PLATFORM AND OUR SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED HOWEVER THAT, IF YOU HAVE ONLY USED FREE SERVICES IN THAT PERIOD, OUR MAXIMUM AGGREGATE LIABILITY WILL BE ONE HUNDRED (100) POUNDS STERLING.
7.5 Liability cap in relation to Engineers. THE PARTIES AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF EITHER AN ENGINEER OR US WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE BY US TO THE ENGINEER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED HOWEVER THAT, IF NO AMOUNT HAS BEEN PAID IN THAT PERIOD, OUR MAXIMUM AGGREGATE LIABILITY OF ONE HUNDRED (100) POUNDS STERLING.
7.6 Third party services. WE DO NOT RECOMMEND THIRD PARTY WEBSITES OR SERVICES LINKED IN THE ITARMI PLATFORM. YOU MUST USE YOUR OWN INDEPENDENT JUDGEMENT.
7.7 Other limitations. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 SHALL APPLY IN ADDITION TO ANY OTHER LIMITATIONS OF LIABILITY IN THE TERMS AND CONDITIONS.
7.8 Your agreement. YOU AGREE THAT, WITHOUT YOUR AGREEMENT TO THE ABOVE LIMITATIONS ON LIABILITY, WE WOULD NOT PROVIDE YOU WITH ACCESS TO THE ITARMI PLATFORM.
8.1 General. All amounts invoiced are due and payable within thirty (30) days of the date of the invoice, unless otherwise agreed in writing by the parties. All payments for our services are non-refundable, except as provided for in the Terms and Conditions.
8.2 Payment by credit card or bank debit. If you are paying by credit card or bank debit, you authorise us to: (i) charge your credit card or bank account for all fees, and (ii) use a third party to process payments and you consent to the disclosure of your information to such third party.
8.3 Payment information. You will keep your contact, bank account, billing and credit card information (where applicable) correct and up-to-date in the Itarmi Platform. We will not be liable to recover payments or compensate you if your account information is incorrect.
8.4 Deductions. All amounts payable to Itarmi will be paid in full without any deduction or set-off, except for any deduction required by law. If a deduction is required by law, the payer will pay such additional amount as will ensure that (after any required deduction) Itarmi receives the same final net amount that it would have received if no deduction had been required. You must account to the relevant tax authority for any tax deduction within the applicable time limit and provide us with a valid tax certificate.
8.5 Exclusive of sales tax. All fees we charge are exclusive of any valued added tax (VAT), sales taxes, customs levies, charges and duties due in any relevant jurisdiction, which you agree to pay in addition. We shall provide a valid VAT invoice where applicable. If you are registered for VAT within the European Union, you must provide us with your VAT registration number.
8.6 Overdue amounts. Without prejudice to our rights, we may charge interest on any overdue amount at the statutory rate, accruing daily and compounding monthly, and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, as well as reasonable legal and enforcement costs. We will be entitled to allocate payments received from you to set off against, deduct from or to settle, in full or in part, any current or future liabilities of yours or sums you owe to us, in any order or manner we determine.
9.1 Compliance. Each party shall: (i) comply with all applicable laws; (ii) not seek or accept a benefit that involves bribery or corruption; (iii) not promote, induce or assist a breach of contract or legal duty.
10.1 Contact. You may contact us by e-mail about the Terms and Conditions at firstname.lastname@example.org or, for another matter, at the e-mail address we have indicated for that matter. You agree that we may contact you by e-mail at the e-mail address you have provided to us, or we may call you or send a text message or mobile notification using the mobile number you provided to us. We may use the method we think suitable in the circumstances. Either party may also give any written notice using postal mail or physical delivery pursuant to the Terms and Conditions at the other party’s current registered address.
10.2 Receipt of notice. Any communication by e-mail or through the Itarmi Platform shall be deemed to be received on the date it is sent if that is a Business Day, otherwise the next Business Day. Any notice by postal mail or physical delivery shall be deemed to be received on the date of delivery as evidenced by receipt issued by postal mail service or independent delivery service if it is a Business Day, otherwise the Business Day following such delivery.
11.1 Terms and Conditions. The provisions of this section 11 (Definitions) apply to all documents within the Terms and Conditions.
11.2 Your information. Whenever you access the Itarmi Platform, you represent and warrant that the information you have provided about yourself is correct and complete. You will promptly notify us of any corrections or updates if that information ceases to be correct or complete.
11.3 Insurance. During the term of this agreement, we shall at our own cost, maintain insurance with reputable insurers for public liability, professional indemnity, personal injury and product liability, with minimum liability limits of one million pounds sterling (£1,000,000) per claim and two million pounds sterling (£2,000,000) in aggregate for all claims in a year.
11.4 Entire agreement. Our Terms and Conditions are the entire agreement between us in relation to their subject matter and supersede all other agreements.
11.5 No reliance. You acknowledge and agree that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in our Terms and Conditions. You shall have no claim for innocent or negligent misrepresentation based on any statement in our Terms and Conditions.
11.6 No waiver. No relaxation or delay by us in enforcing our Terms and Conditions or any provision of escalation management procedures will constitute a waiver and shall not restrict or prejudice our rights and remedies. An effective waiver may only be given expressly in writing. A waiver of a breach will not be deemed to waive any later or continuing breach by you.
11.7 Severability. Each provision of our Terms and Conditions operates separately. If any provision or part of a provision of our Terms and Conditions is found to be illegal or unenforceable, the rest of our Terms and Conditions (or part of the relevant provision) shall remain in force.
11.8 No third party rights. Nothing in the Terms and Conditions, express or implied, is intended to or shall confer on any third party any right, benefit or remedy of any nature under the Terms and Conditions. The Terms and Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.
11.9 Event outside our control (force majeure). Neither party will be in breach or liable for delay or failure in performing any of its obligations if the delay or failure results from events, circumstances or causes beyond its reasonable control (including acts of God, power failure, failure of telecommunications networks or internet service provider, industrial action, epidemic, civil unrest, fire, flood, storms, earthquakes, terrorism, war or governmental action).
11.10 No transfer. You will not assign or transfer this agreement without our prior written consent, except that you may assign this agreement to a successor by reason of merger, reorganisation, sale of all or substantially all of your assets, change of control or operation of law, provided that such successor does not own or operate software that competes with the Itarmi Platform.
11.11 Relationship of the parties. Our Terms and Conditions do not create a relationship of employment, agency, joint venture or partnership between us.
11.12 Survival of terms. Termination shall not extinguish accrued rights. Any rights or obligations that by their nature are reasonably intended to survive termination shall survive termination of our agreement (including rights and obligations in respect of termination of access, confidential information, data protection, intellectual property rights, limitations of liability, payments, status of engineers, governing law and legal jurisdiction and the provisions of this section 11).
11.13 Time limit for claims. Except in respect of Customer Exceptions, no Party may bring any claim more than one (1) year after the cause of action accrued.
11.14 Customer Affiliates. A Customer and its Affiliates shall be jointly and severally liable for all of their liabilities in relation to the Terms and Conditions. No Loss shall be recoverable twice.
11.15 Updated terms. We periodically update some or all of our Terms and Conditions. If you have an active account with Itarmi, we will let you know when we do so, by e-mail and/or in-app notification. If you access the Itarmi Platform and/or use our services after being notified of an update, you will be deemed to have accepted the updated Terms and Conditions.
11.16 Governing law and courts. Our Terms and Conditions and their subject matter are governed by the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction in respect of any dispute or claim arising out of or in connection with our Terms and Conditions and their subject matter.
END OF MASTER TERMS
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