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TrafficCake Limited is a company registered in England and Wales (Company No. 08250233) and whose registered address is Third Floor, 12 East Passage, London, EC1A 7LP.
1. THE AGREEMENT
1. This Agreement governs your relationship with us and your use of the StatusCake Service and replaces any and all previous versions of the Agreement.
2. When you submit your completed Sign-Up Form on the StatusCake Service website (the “StatusCake Website”) you are acknowledging your acceptance and agreement to bound by all the terms and conditions set out in this Agreement as may be amended and/or modified from time-to-time.
3. The information that you complete and then submit to us in the Sign-Up Form or as otherwise provided to us, or requested by us, in the course of using the StatusCake Service must be truthful and complete at all times. If any or all of the information you have provided us with changes, then it is your responsibility to update it on the systems or notify us in writing by email.
4. This Agreement is formed (the “Effective Date”) your submission of the Sign-Up Form and our creation of your StatusCake customer account (“Customer Account“).
5. You acknowledge, accept and agree that we may at any time, in our sole and absolute discretion, modify and/or amend any of the terms of this Agreement (“Agreement Changes”).
6. We may notify you of any Agreement Changes by either: (a) sending an email to the relevant contact details you submitted on your Sign-Up Form; or (b) by posting the new version of the Agreement on the StatusCake Website.
7. You acknowledge, agree and accept that we have the right to make Agreement Changes without notice and without cause, and that such Agreement Changes shall be effective as soon as we have notified you under Clause 1.6 above. By continuing to use StatusCake Services after any Agreement Changes you are acknowledging your acceptance of the same.
8. Where there is a conflict between any of the content set out in the StatusCake Services, and/or any correspondence entered into between you and us (whether written or otherwise), and/or this Agreement, then the Agreement shall prevail.
9. It is your responsibility to visit the StatusCake Website frequently to ensure that you have the latest version of the Agreement.
2. PROVISION OF THE STATUSCAKE SERVICE
1. The StatusCake Service shall be provided for your use as of the Effective Date in accordance with this Agreement.
2. You acknowledge and agree that provision of the StatusCake Service is conditional upon you: (a) adhering to all the terms and conditions of this Agreement; and (b) promptly providing us with all reasonable assistance and information as we may reasonably require from time-to-time to enable us to deliver the StatusCake Service to you.
3. TYPES OF CUSTOMER ACCOUNT
1. There are three types of Customer Account available to you:
(a) a free account, sometimes referred to as a “community” account (“Free Account”);
(b) a paid account, the different levels of which may be referred from time-to-time as a “Superior”, “Business” or “Enterprise” account (each a “Paid Account”); and
(c) a free trial of our Paid Account (each a “Free Paid Trial Account”).
2. The Free Paid Trial Account allows you to have access, free of charge, to all those feature and benefits of a Paid Account for a period of seven (7) days without charge (the “Trial Period”). At the end of the Trial Period you can either upgrade to a Paid Account, or if no upgrade is made then your account will downgrade to a Free Account.
3. You are only permitted to have one (1) Free Paid Trial Account. It is a breach of this Agreement to sign-up for multiple Free Paid Trial Accounts. Any Customer found breaching this Clause 3.3. may be permanently prohibited from using the StatusCake Service.
4. Details of the features of the Free Account, along with the costs and features of the Paid Accounts can currently be found on the payment plan page of the StatusCake Website (the “Payment Plan”).
5. Subject to your adherence of all of the terms of this Agreement you will be entitled for the term of this Agreement to those features, test limits, and prices that were available on the Free Account or Paid Account on the Effective Date. (“Grandfathered Features”).
6. It is not permitted to sell or other transfer your account to a third party without the prior written consent of StatusCake.
4. FREE ACCOUNTS
1. You are only permitted to have one (1) Free Account. It is a breach of this Agreement to sign-up for multiple Free Accounts. Any Customer found breaching this Clause 4.1 may be permanently prohibited from using the StatusCake Service.
2. It is a condition of your Free Account that it remains active. For the purposes of this Agreement “active” means that your Free Account has been logged into within the last one-hundred-and-fifty (150) days. Any Free account not meeting this criteria will be deemed “Abandoned”.
3. Whilst we will endeavour to remind customers thirty (30) days before their Free Account becomes Abandoned, it is your responsibility to ensure that your account is active, regardless of whether any reminder has been received.
4. We have the right to pause, suspend, or delete any Abandoned Free Account in our absolute discretion.
5. PAID ACCOUNTS PAYMENTS
1. Payment Plans can be signed-up for on a month-by-month basis (a “Monthly Plan”) or purchased for a year in advance (a “Yearly Plan”) and each auto-renews in the following manner: (a) he Monthly Plan shall be renewed on a monthly basis, one (1) month from you signing-up for your Paid Account and each month thereafter (each a “Monthly Renewal Date”), until such time as you cancel your Paid Account; and (b) the Yearly Plan shall be renewed on a yearly basis, one (1) year from you signing-up for your Paid Account and each year thereafter (each a “Yearly Renewal Date”), until such time as you cancel your Paid Account.
2. Save where you make Payment By Invoice, where you purchase a Yearly Plan the cost is discounted by two (2) months so that the plan fee is calculated as ten (10) times the cost of a Monthly Plan (the “Yearly Plan Discount”).
3. Where you sign-up for a Paid Account using a credit or debit card inside the StatusCake Service application, then the price of your Paid Account will continue as per the Payment Plan on the Effective Date (the “Grandfathered Price”) until such time as: (a) you cancel your account as set out in Clause 9.1 below; (b) you downgrade your account as set out in Clause 6.1 below; or (c) you are in default of any payment due in relation to your Paid Account.
3. From time-to-time we may increase the price of our Paid Accounts. In the event that the price of a Payment Plan is increased (“New Prices”) we will not apply New Prices to Customers who qualify for the Grandfathered Price.
5. Where you do not qualify for the Grandfathered Price you will be entitled to continue using your Paid Account at the price you signed-up to until the next Monthly Renewal Date or Yearly Renewal Date as applicable. By continuing to use your Paid Account beyond this date you accept that we will be entitled to charge you the New Prices.
5. If you do not accept the New Prices then you should cancel your Paid Account prior to the next Monthly Renewal Date or Yearly Renewal Date as applicable, however no pro-rata refund will be given for the period of time between the Cancellation Date and the Finish Date.
6. UPGRADING & DOWNGRADING A PAID ACCOUNT
1. In the event that you decide to upgrade a Paid Account to a higher level of account, by way of example only, from a Superior Account to a Business Account (each your “Original Paid Account” and an “Upgraded Paid Account“) then you will have access to the features of the Upgraded Paid Account immediately upon making the relevant payment for that Upgraded Paid Account. The Monthly Renewal Date or Yearly Renewal Date (as applicable) for your Upgraded Paid Account will be extended by the number of days that were still to run on your Original Paid Account until the next Monthly Renewal Date or Yearly Renewal Date (as applicable).
2. In the event that you decide to downgrade your Paid Account to a lower level of account, by way of example only, from a Business Paid Account to a Superior Paid Account (each your “Original Paid Account” and a “Down-Graded Paid Account“) then your account will be down-graded from the date on which your account would otherwise have renewed.
3. Where you have been entitled to a Grandfathered Price on your Original Paid Account you will not be entitled to any Grandfathered Price on your Down-Graded Paid Account and you will be charged the price that is in place for that Down-Graded Paid Account at the time at which your downgrade takes effect.
3. Where you have been entitled to Grandfathered Features on your Original Paid Account you will not be entitled to any Grandfathered Features on your Down-Graded Paid Account and you will be only be entitled to those features and test limits that are in place for that Down-Graded Paid Account at the time at which your downgrade takes effect.
7. SMS CREDITS
1. Where you have a Paid Account that is entitled to inclusive SMS credits, by way of example only, where a Superior Paid Account is entitled to seventy-five (75) SMS credits per month (“Paid Account Monthly Credits”), these Paid Account Monthly Credits cannot be rolled over from one month to another and do not have a cash value.
2. Prior to purchasing any SMS credits, by way of example only, where you have a Free Account or wish to purchase SMS credits in addition to your Paid Account Monthly Credits (“Additional SMS Credits”), you should check that Additional SMS Credits can be used in both your country of residence and the mobile network you wish to use them on (“SMS Availability“).
3. No refund will be given if you purchase Additional SMS Credits where they are unable to be utilised and/or delivered for reasons that are not within our immediate control, including but not limited to a lack of SMS Availability; where an SMS alert has failed to be delivered due to issues with your cell-phone carrier, cell-phone networks, or your cell-phone itself; or where you have incorrectly added the wrong cell-phone number to a contact group.
4. Additional SMS Credits do not have a cash value but may be rolled-over from one month to another and do not expire.
8. PAYMENT BY INVOICE
1. Subject to our prior written approval, payment for a Yearly Plan on Business or Enterprise may be made by bank transfer upon receipt of invoice (“Payment By Invoice”).
2. No Yearly Plan Discount or other discounting is available when making Payment By Invoice.
3. When making Payment by Invoice, payment must be made in full in cleared funds without any deduction (whether for taxes, bank fees or any other otherwise) within thirty (30) days from receipt of invoice.
4. If you fail to pay any amount due and payable under this Agreement, then you will pay us interest on such overdue amount from the due date until the actual date of payment at a rate of two per cent (2%) per annum above the Bank of England base rate. Interest will accrue on a daily basis and be compounded quarterly.
5. The Parties agree that failure to make payment of any due invoice will be a material breach of this Agreement. Notwithstanding the forgoing we reserve the right to suspend any Paid Account where payment has not been made by the due date.
4. For the avoidance of doubt any Paid Account that is made via Payment By Invoice will auto-renew in the manner as set out in Clause 5.1 above. If you wish to cancel your Paid Account where you make Payment By Invoice then you must notify us in writing by email no later than thirty-five (35) days before the renewal date.
5. Any terms on a purchase order, invoice or other documentation provided by you and completed by us to facilitate your Payment By Invoice do not amend this Agreement and do not constitute variations to this Agreement as set out in Clause 22.5 below.
9. ACCOUNT CANCELLATION
1. Subject to Clause 8.4 above, you may cancel your Paid Account at any time (“Cancellation Date”) however you will continue to receive the features and benefits of your Paid Account until the end of the current billing period (the “Termination Date”) when your Paid Account will be immediately downgraded to a Free Account. No pro-rata refund will be given for the period of time between your Cancellation Date and the Termination Date.
2. It is your responsibility to ensure that you have cancelled any subscription in place for your Paid Account. You must cancel your Paid Account within the StatusCake Service application (“In-App Cancellation“). Save for cancellations made under Clause 8.4 above, no cancellations are valid unless made by you via the In-App Cancellation.
3. From the Cancellation Date your account will no longer qualify for any Grandfathered Price and/or Grandfathered Features.
10. AUTHORISED USE OF THE STATUSCAKE SERVICE
1. In consideration of you providing us with the information you gave us with when you signed-up for a Customer Account, and where applicable in consideration of your payment for a Paid Account, and subject to the other provisions of this Agreement, you are granted a non-exclusive, non-transferable licence, for the duration of this Agreement, to access and use the StatusCake Service and the Customer Data.
2. Except as expressly set out in this Agreement, all rights in and to the StatusCake Service including any software and data (collectively and singularly the “StatusCake Software”) are reserved to us.
3. You shall not: (a) permit any third party to access or use the StatusCake Service or StatusCake Software or use the StatusCake Service or StatusCake Software on behalf of any third party; (b) copy, modify, adapt or create derivative works from the StatusCake Software or any output from the StatusCake Software; (c) attempt to discover, gain access to or reverse engineer the StatusCake Service or the StatusCake Software; (d) attempt to interfere with the proper working of the StatusCake Software or the StatusCake Service and, in particular, not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the StatusCake Software or StatusCake Service or any website, computer system, server, router or any other internet-connected device; or (e) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, the StatusCake Software or the StatusCake Service; and shall not permit any third party to do any of the foregoing.
4. Without prejudice to the foregoing you must not use StatusCake, the StatusCake Service or any other service that we may offer from time-to-time in any way that is unlawful, illegal or in any other way causes harm or detriment to us and/or other users of StatusCake, the StausCake Service and /or our services (“Service Harm”). Such usage may include, but not be limited to, adding a disproportionate amount of websites, tests or other requests into StatusCake, the StatusCake Service and/or services, taking into account at all times, the level of account that you are on and the level of resources that your requests will demand (“Fair Use”). We reserve the right in our sole and absolute discretion to limit, restrict and/or terminate any account which causes Service Harm or breaches our Fair Use policy.
5. You may only use the StatusCake and the StatusCake Service for monitoring websites owned and/or controlled by you. You are not authorised under this Agreement to use StatusCake and/or the StatusCake Service to monitor any third party websites (which shall include for the avoidance of doubt, any website which is not owned and/or controlled by you and where you do not have prior written permission from the website owner to monitor their website). Without prejudice to the foregoing, such use may include, but shall not be limited to, the monitoring of third party websites for the purposes of creating research or reports on those websites for whatever purpose.
6. You must not use StatusCake, the StatusCake Service or any other service that we may offer from time-to-time in any way that is unlawful, illegal or in any other way causes harm or detriment to any third parties. Such usage may include, but is not limited to attempting to test on or make requests to a website that does not belong to you; using the StatusCake Service to “keep-alive” a website, any application, or bot; or using the StatusCake Service in a manner or a purpose for which in our sole and absolute discretion it is not intended.
6. The StatusCake Service is for your own use only and you may not, without our prior written consent (which we may withhold in our absolute discretion), allow any third party to use the StatusCake Service, re-sell or otherwise offer for sale the StatusCake Service.
7. Where we believe, in our sole and absolute discretion, that you are, or are likely to become in breach of any provision of this Clause 10, we shall be entitled to immediately upon written notice suspend and/or terminate your StatusCake User Account and prohibit you or any associates from signing-up to any other StatusCake User Account in the future. Where you have a Paid Account, no refund (pro-rata or otherwise) shall be due to you upon termination.
11. USE OF NAME AND LOGO & INTELLECTUAL PROPERTY RIGHTS
1. You agree that we may use your name or logo on the StatusCake Website announcing that you are a customer of the StatusCake Service. If you do not wish your logo to be used on the StatusCake Website you should email us.
(“Our Trade Marks”) and you agree, acknowledge and accept that any use of any trade mark, domain name, trade or service name that contains Our Trade Marks (or any element thereof) and/or is confusingly similar to Our Trade Marks is not authorised without our prior written consent.
3. You agree, accept and undertake that: (a) you will not register or attempt to register any domain name, trade mark or trading or service name (anywhere in the world) which includes Our Trade Marks (or any element thereof) and/or is confusingly similar to Our Trade Marks; (b) any and all use of Our Trade Marks by you (including any domain name or trade mark registered by you under Clause 5.3(a), inures to our sole benefit and that you do not obtain any such domain name and/or trade mark as a result of such use; (c) you will at your sole cost and responsibility transfer to us upon demand any domain name or trade mark application or registration registered by you under Clause 5.3(a); and (d) you will not challenge or attack our right to Our Trade Marks or challenge our ownership of them in any way.
4. You are not permitted, other than in accordance with this Agreement to use any of our Intellectual Property Rights without our prior written consent. Our “Intellectual Property Rights” include, but not be limited to any and all rights in existing and future trade marks, service marks, trading or business names, domains names, registered designs, copyright, computer software and code, database rights, topography rights, moral rights, trade secrets, know-how and any other similar forms of protection throughout the world (whether or not registered), for the full period of time that such rights and can be protected for, and any extensions and/or renewals of the same.
5. You agree, accept and undertakes that you will not challenge or attack our right to Intellectual Property Rights or challenge our ownership of them in any way.
6. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the StatusCake Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
12. CUSTOMER DATA & SERVICE DATA
1. The Customer Data shall be owned by you. “Customer Data” means the analytical data that we may provide you with from time-to-time in relation to the websites that you wish to be monitored – including by way of example only, the online availability of those website(s) that you monitor (singularly and collectively “Your Websites”). You may only use the Customer Data for the internal purposes of your business (or as otherwise permitted under this Agreement) and always in accordance with all Applicable Laws.
2. We will have the right to use the Customer Data in an anonymised and/or aggregated form (“Aggregated Data”) provided always that it is not possible for the relevant recipient of the Aggregated Data to identify you or your websites.
3. Any data which is not Customer Data shall be considered “Service Data” and shall be owned by us.
13. PUBLIC REPORTING
1. We may from time-to-time offer a public reporting facility (“Public Reporting”) whereby you can display the uptime (or such other statistics that may be made available through Public Reporting) of any websites you are monitoring.
2. You may not add any website or feed to the Public Reporting facility where the content and/or material on such website or feed is potentially libellous, malicious, obscene, against any Applicable Law, sexually explicit, pornographic or in our sole and absolute discretion other unsuitable (“Unsuitable Website”).
3. Where we find that an Unsuitable Website has been added to the Public Reporting facility we will request by email that you ensure that the Unsuitable Website is removed from any Public Reporting facility in your User Account immediately (“Removal Request”).
4. Where a Removal Request is not complied with we reserve the right to remove the Unsuitable Website ourselves from your Public Reporting facility.
5. In the event that we you have several Removal Requests made against you, and/or Unsuitable Websites are added to your Customer Account following warnings from us, then we reserve the right to terminate your Customer Account and no refund, where you have a Paid Account, will be issued.
1. Further to Clauses 9 above you may cancel your Paid Account at any time, however no pro-rata refund will be given for the period of time between the Cancellation Date and the Termination Date.
2. In the event that you experience any problems with the StatusCake Service you should contact a member of our staff by email or through the live-chat facility, if available, on the StatusCake Website.
3. We will work with you to resolve any issues that you may have with your Customer Account but no refunds will be given (except as required by law) to Customers who have by way of example only, signed-up for a Paid Account but no longer wish to use the StatusCake Service, or for so called “non-use”.
15. LEGAL COMPLIANCE
1. You may only use the StatusCake Service and/or the StatusCake Software and/or the Customer Data in accordance with all Applicable Laws.
2. You warrant that without prejudice to the generality of the above: (a) that Your Websites shall be and remain lawful; and (c) that Your Websites do not promote any products, goods or services which are not lawful in any jurisdiction in which they’re made available.
3. StatusCake warrants that: (a) it has the right to enter into this Agreement and to provide the StatusCake Service as contemplated by this Agreement; and (b) it will provide the StatusCake Services using reasonable care and skill.
4. If any of the warranties in Clause 15.3 are breached you must notify us as soon as possible and give us a reasonable amount of time to fix the problem and (if necessary) to make available a corrected version of the StatusCake Service or a reasonable way to work around the problem that is not materially detrimental to you. We will take any such remedial steps at no additional charge to you. And provided we are able to do this, then this shall be your sole and exclusive remedy in relation to any breach by us under this Agreement, and subject only to Clause 18.1 below, we will have no other obligation or liability in relation to any breach.
5. You agree and accept that we cannot be held liable for and do not guarantee: (a) the continuous availability of the StatusCake Service and/or StatusCake Website; (b) the response time of the StatusCake Service and/or the StatusCake Website; (c) the accuracy of the Customer Data in relation to Your Websites; and/or (d) the success of the StatusCake service in detecting whether or not Your Websites are live and functioning properly, nor do we guarantee that we will be able to contact you to inform you of the same.
6. Except as otherwise expressly set out in this Agreement, and subject only to Clause 18.1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the StatusCake Websites, the StatusCake Services and/or the StatusCake Software or to anything else supplied, provided or produced by us under this Agreement.
7. Without prejudice to the generality of Clauses 15.5 and 15.6 above, in particular we give no warranties as to the operation of the StatusCake Service, StatusCake Website and/or the StatusCake Software and/or that the provision of the Customer Data to you will be uninterrupted, contaminant-free and/or error-free and/or that they will meet your requirements.
16. CONFIDENTIAL INFORMATION
1. Either Party may disclose the other’s confidential information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
1. We will indemnify you against all loss or damage that you incur or suffer as a result of any claim by a third party that your access and use of the StatusCake Software and/or the StatusCake Service infringes the intellectual property rights of any third party. This indemnity shall not apply in respect of any claim to the extent such claim arises as a result of: (a) the use or combination of the StatusCake Software and/or the StatusCake Service with material or services not supplied by us or of which we were not aware; (b) modifications to the StatusCake Software and/or the StatusCake Service carried out by anyone other than us; (c) where we have modified the StatusCake Service and/or StatusCake Software with any design, function or functionality, specification or instructions or otherwise as requested by you; or (d) your use of the StatusCake Service and/or StatusCake Software has been in breach of this Agreement.
2. In the event that any claim is made under Clause 17.1 above, we shall, at our sole option, and at our own cost and expense, make all reasonable efforts, as soon as reasonably possible to: (a) procure for you the right to continue accessing and using the StatusCake Software and/or the StatusCake Service (as the case may be), in accordance with this Agreement, without infringement; or (b) replace or modify the StatusCake Software and/or the StatusCake Service (as the case may be) with software and/or services of substantially equivalent specification so as to avoid the infringement; and provided we do so, we shall have no further liability to you in respect of the infringement claim.
3. You will indemnify us against any and all losses or damages that we incur or suffer as a result of: (a) any breach by you, or of any your employees, agents or contractors, of you warranties, undertakings and/or obligations under this Agreement; (b) any claim by a third party as a result of your use of the StatusCake Service relating to any of Your Websites which breaches any Applicable Laws; and/or (c) any infringement by you, or any of your employees, agents or contractors, of any of our intellectual property rights, including but not limited to, in the StatusCake Website, the StatusCake Service and/or the StatusCake Software.
4. Wherever an indemnity is given in this Agreement by one Party (the “Indemnifying Party”) to the other (the “Indemnified Party”), such indemnity shall be conditional upon: (a) the Indemnified Party promptly notifying the Indemnifying Party in writing of any claim which is subject to the indemnity; (b) the Indemnified Party ensuring that no admission as to liability or any settlement or compromise of any such claim is made without the prior written consent of the Indemnifying Party; (c) the Indemnifying Party being entitled, upon request and at its cost and expense, to assume exclusive conduct of such claim (which shall include the right to conduct any proceedings or action in relation to, negotiate the settlement of, and to conduct all discussions and dispute resolution efforts in connection with such claim, provided that no settlement of a claim which would prejudice any rights of the Indemnified Party shall be entered into without the Indemnified Party’s written consent, not to be unreasonably withheld or delayed); (d) the Indemnified Party lending the Indemnifying Party all reasonable assistance in the defence of such claim and/or the negotiation of any settlement, at the Indemnifying Party’s cost; and (e) the Indemnified Party using commercially reasonable endeavours to mitigate any loss or damage.
18. LIABILITY OF THE PARTIES
1. Liability: (a) for death or personal injury caused by negligence; (b) for fraudulent misrepresentation or for any other fraudulent act or omission; or (c) for any other liability which may not lawfully be excluded or limited; is not excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
2. Subject to Clause 18.1 above, we will not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers, contracts or opportunity; (d) loss of or damage to reputation or goodwill; (e) loss of anticipated savings; (f) loss of any software or data; (g) loss of use of hardware, software or data; (h) loss or waste of management or other staff time; or (i) indirect, consequential or special loss; arising out of or relating to this Agreement.
3. Subject to Clauses 18.1 and 18.2 above, our total liability arising out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited, in aggregate for all claims arising during the term of this Agreement, up to a maximum liability the amount paid by you under any Payment Plan in the preceding twelve (12) months.
19. TERM OF THE AGREEMENT
1. This Agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue in force until terminated by either Party in accordance with Clause 20 below.
20. TERMINATION OF THE AGREEMENT
1. Either Party may terminate this Agreement by giving the other written notice if the other: (a) materially breaches any term of this Agreement and it is not possible to remedy that breach; (b) materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within thirty (30) days of being requested in writing to do so; (c) becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an is order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within twenty-eight (28) days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
2. For the purposes of this Clause 20.2, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other Party into the same position which (save as to the date) it would have been in if the breach had never occurred. The parties acknowledge and agree that any breach by the Client of any of the provisions of Clauses 10, 11, and 15 shall be a material breach that is incapable of remedy.
3. We are entitled to terminate this Agreement without cause on providing you with twenty-four (24) hours notice; such notice to be sent the email address you provided us with when you signed-up to the StatusCake Service. Where we terminate without cause you shall be entitled to a pro-rata refund, where applicable, from the date of termination until the date of your next Monthly Renewal Data or Yearly Renewal Date as applicable (“Pro Rata Refund”).
4. Without prejudice to the other provisions of this Clause 20, we may, in addition, terminate this Agreement, or alternatively, may terminate or suspend access to and use of the StatusCake Service, by giving you written notice if you are in persistent or repeated breach of any of your obligations under this Agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied) (“Suspended Customer Account”). For the avoidance of doubt you will not be entitled to any refund for any period of time during with you have a Suspended Customer Account.
5. Upon termination under this Agreement for any other reason whatsoever: (a) you will cease to access, and discontinue all use, of the StatusCake Website, the StatusCake Services and the Customer Data, along with any and all other TrafficCake Services that you have signed up to; (b) any save in respect of any Pro Rata Refund, any sums of money already paid across to us by you will become forfeited.
6. The termination of this Agreement for any reason will not affect: (a) any accrued rights or liabilities which either Party may have by the time termination takes effect; or (b) the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination.
7. Without prejudice to the foregoing, Clauses 4, 5, 12.3, 15-18 (inclusive) and 22 shall survive termination of this Agreement.
21. FORCE MAJEURE
1. Neither Party will be liable to the other for any breach of this Agreement (other than a failure to pay charges) which arises because of any circumstances which the defaulting party cannot reasonably be expected to control (which shall include interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing but, for the avoidance of doubt, shall not include shortage or lack of available funds), provided that the defaulting party: (a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely breach; (b) uses reasonable efforts to mitigate the effects of the circumstances and breach so as to minimise or avoid the breach; (c) uses reasonable efforts to resume performance as soon as reasonably practicable; and (d) could not have avoided the breach by taking steps that it ought reasonably to have taken in light of the matters known to it before the circumstances arose.
22. GENERAL PROVISIONS
1. You are not allowed to sub-license or assign, sub-contract or delegate any or all of its rights or obligations under this Agreement without our prior written consent.
2. All notices and consents relating to this Agreement (but excluding any proceedings or other documents in any legal action) must be in writing and can be provided by email.
3. Unless the parties expressly agree otherwise in writing, if a party: (a) fails to exercise or delays exercising or only exercises partially any right or remedy provided under this Agreement or by law; or (b) agrees not to exercise or to delay exercising any right or remedy provided under this Agreement or by law; then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.
4. If any provision of this Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this Agreement or this Agreement as a whole. If any provision of this Agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
5. All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
6. Except to the extent that this Agreement expressly provides otherwise, nothing in this Agreement shall or is intended to create a partnership or joint venture between the Parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither Party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.
7. A person who is not a party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. No third party’s consent shall be required to rescind or vary this Agreement.
8. This Agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous Agreements between the Parties relating to such subjects. Provided always that nothing in this Clause 22.8 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this Agreement and each Party acknowledges that it has not been influenced to enter this Agreement by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other Party has said or done or committed to do, except as expressly recorded in this Agreement.
9. This Agreement is governed by English law. Both Parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter, but we are also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its intellectual property rights.
Terms & Conditions – Last Updated 9 October 2020
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