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These StatusCake.com (hereinafter referred to as “StatusCake”, “TrafficCake Limited“, “us”, “we” or “our”) Terms &
Conditions (the “Terms”)
our GDPR Compliance Statement, Privacy &
Cookie Policy, and StatusCake Data Processing
Agreement, along with the Sign-Up Form (the “Sign-Up Form”) that you
filled in when you signed-up to use the StatusCake products and/or services
(collectively the “Agreement“),
contain the complete terms and conditions and understanding of the relationship
between you and StatusCake (each a “party”
together the “parties”),
and your use of the StatusCake website, product and Services (the “StatusCake Service(s)”).
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) the
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.
2. “StatusCake” is a registered trade mark in the UK (UK00002639535), EU (EU017948495), and the United States of America (88099619)
(“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.
14. REFUNDS
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).
17. INDEMNITIES
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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