Updated: April 21, 2022
Canvasflow or (“the Company”) has expertise in the provision of responsive content authoring and design, multi-channel platform integration, content transformation and the operation, hosting and maintenance of cloud-based platforms.
These terms and conditions (“the Agreement”) is the contract between you (“the Client”) and the Company to purchase Canvasflow software and use the Services of the Company.
You must read the Agreement carefully as you will be asked to expressly agree to them before you can register on the Company Website or purchase any of the Products and Services.
If you have a query regarding any of the Services, please contact us at email@example.com.
Unless expressly stated otherwise the following definitions shall apply to the terms used in this Agreement:
”Support” is amongst one of the Services provided by the Company, which means all the help material provided by the Company accessible via the Company Website including, but not limited to, help prompts, knowledge-base, getting started guides, and FAQs;
”Client”, ”you” and ”your” means you together with any company or other business entity you are representing (if any);
”Client Content” means all materials created, supplied and developed by the Client whilst using the Companies Services;
”Commencement Date” means the date of this Agreement;
”Company”, ”Canvasflow” is registered under company number 0986492 with registered office at Mill House, High Road, Epping, Essex, CM16 4DY;
”Company Website” means the website of the Company which advertises and sells the Services and Software in accordance with this Agreement;
”Confidential Information” means all information passing from one party to the other party relating to the business of the disclosing party that if affirmatively used by a competitor of the disclosing party would cause the disclosing party substantial competitive, including but not limited to trade secrets, drawings, know-how, techniques, source code and object code, business and marketing plans and projections, arrangements and agreements with third parties, client information, formulae, suppliers, concepts not reduced to material form, designs, plans and models. If Confidential Information is disclosed in tangible form, it shall be clearly designated in writing as such by the disclosing party. If Confidential Information is disclosed other than in writing, the information deemed to be Confidential Information shall be confirmed in writing as such within thirty days of such disclosure;
”Existing Clients” means clients who have made one or more purchases (including, without limitation, by means of the Company Website or otherwise) or Services generally sold by the Company;
”Expenses” means the out of pocket expenses incurred by the Company in acquiring anything reasonably necessary for it to perform the requirements imposed on it by this Agreement and set forth on the applicable Invoice;
”Insolvent” means the occurrence of all or any of the following events:
- any meeting of creditors of the Client being held or any arrangement or
- composition with or for the benefit of any of its creditors (including any voluntary arrangement as defined in the Insolvency Act 1986 (“the Act”)) being proposed or entered into by or in relation to the Client; or
- a supervisor receiver administrator administrative receiver provisional liquidator interim receiver mortgagee chargee or other incumbrancer taking possession of or being appointed in respect of the whole or any part of the Assets of the Client or a trustee in bankruptcy being appointed in respect of the Client or any of its assets; or
- the Client ceasing the carrying out of his or its business as a whole or becoming unable to pay its debts within the meaning of Section 123 Section 222 Section 223 Section 224 or Section 268 of the Act; or
- a meeting being convened for the purpose of considering any resolution for the making of proposals for a voluntary arrangement the winding up bankruptcy or dissolution of the Client; or
- the presentation or making as the case may be of a petition for an administration order or a winding up petition whether under part IV or part V of the Act or otherwise or a petition under Section 164 of the Act or application for an interim order under Part VIII of the Act.
”Intellectual Property” means all intellectual property rights anywhere in the world (including present and future intellectual property rights) relating to any Confidential Information, business names and logos, copyright, database rights, patents, trade or service marks, designs, software, computer data, generic rights, software and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration or protection of those rights;
”Interest Rate” means interest at a rate equal to 4% per annum above the base lending rate from time to time of Lloyds Bank plc;
”Materials” means all materials owned by the Company used in the provision of the Services, including software and source code;
”New Clients” means clients who (i) are directed to the Company Website or otherwise; and (ii) register their details in order to open an account through the Company Website pursuant to such redirection; and (iii) are not Existing Clients at the date of such registration;
”Online Conduct Policy” means the policy setting out the terms and conditions on which the Client agrees to utilise the Company Website, network, systems, products and Services;
”Personnel” means any employees, agents or contractors of the Company;
”Service Fee” means the fee for Services as set out in clause 7 to be paid by the Client for the purchase of Services from the Company under this Agreement;
”Term” means the period between the Commencement Date and the end date of this Agreement as specified in clause 12 of this Agreement; and
”the Services” means the services which may be provided by the Company to the Client under this Agreement which include, without limitation, Assistance, hosting, maintenance, and backup which may be varied at any time by the Company with or without notice.
2. In this Agreement, unless the context otherwise requires:
- Clause, schedule and paragraph headings do not affect the interpretation of this agreement;
- A reference to a clause or a schedule is a reference to a clause of, or schedule to, this agreement. A reference to a paragraph is to a paragraph of the relevant schedule, and a reference to an appendix is to the relevant appendix to this agreement;
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns;
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated;
- Words in the singular include the plural and, in the plural, include the singular;
- A reference to one gender includes a reference to the other gender;
- A reference to a particular statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it;
- Writing or written includes e-mail;
- Documents in agreed form are documents in the form agreed by the parties to this agreement and initialled by them or on their behalf for identification;
- Where the words include(s) including or in particular are used in this agreement, they are deemed to have the words “without limitation” following them;
- Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done
- Other and otherwise are illustrative and shall not limit the sense of the words preceding them
- Headings have been inserted for convenience only and shall not affect the interpretation of this Agreement.
- All orders for Software and Services from you accepted by the Company are subject exclusively and strictly to the following conditions and no alterations proposed by you shall be binding unless we agree in writing.
3. Company’s Obligations
- The Company gives no warranty that access to the Company Website or any site operated by the Company in connection with this Agreement shall be uninterrupted or error-free.
- In the event of any such interruptions to the Company Website, or Services, the Company shall notify the Client by e-mail as soon as reasonably practicable of any such interruption and to its ability to rectify the same.
- The Company agrees to rectify faults or problems and to restore the system to full operational capacity as soon as reasonably practicable.
- The Company agrees and warrants that it will at all times aim to deliver the service commitment as per a signed SLA.The company agrees that response times, resolution times and the right of termination as detailed by a signed SLA, will always take precedence.
- The Company shall be responsible for order entry, payment processing, and provision of the Services, Materials and Links, as well as related client services.
- It is acknowledged and agreed by the Client that both New and Existing Clients who buy products or services from the Company will be clients of the Company and their details will form part of the Company’s Confidential Information.
- The Company shall ensure that it has sufficient, suitable Personnel to perform its obligations under this Agreement, and if the Personnel are temporarily unavailable or unable to perform this Agreement, the Company will immediately notify the Client.
- If the Client contacts the Company via the support channel in relation to a platform fault, within 48 hours the Company shall conduct testing of the platform and Services and report to the Client any problem. The Company reserves the right to extend this timeframe indefinitely for trial accounts.
- The Company may modify the Services in accordance with clause 11 on giving reasonable notice to the Client. In the event such modification substantially changes the Services, the parties shall re-negotiate the terms of this Agreement applicable to such Services. If no agreement is reached within a 2 week period, the agreement should be terminated.
4. Client’s Obligations
The Client agrees and undertakes to:
- observe and perform all of its obligations under this Agreement;
- design and develop Client generated content in accordance with this Agreement and in accordance with any lawful requests and directions of the Company from time to time during the Term;
- allow the Company and its representatives access to Client Content at all times to enable the Company or its representatives to provide the Services set forth in this Agreement;
- not to access or attempt to access password protected, secure or non-public areas of the Company Website or Services, except with the Company’s written Consent.
- The Client acknowledges that the Company’s systems, servers, and equipment may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes outside its control. The Company agrees to use its best endeavours to resolve any issues as soon as possible
- The Client is only eligible to use the Company’s Services during the Term and will not be entitled to do so after the expiration or termination of this Agreement.
- The Client shall provide, at its own cost, all telecommunications services, computers and other equipment or services necessary to enable it to have access to the Company Website and Services.
- The Client undertakes not to sub-license or charge others to use or access the Services without having received the prior written consent of the Company to do so.
5. Client Content
- The Company will not be responsible for the accuracy and/or functionality of the Client Content in the form in which it is provided by the Client or as modified upon and in accordance with the Client’s instructions.
- If the Company reasonably forms the view that the Client Content may be pornographic, defamatory, misleading or deceptive or otherwise in breach of any third party’s rights or in contravention of applicable law, the Company will notify the Client that the Client Content must be removed within forty-eight (48) hoursThe Company reserves the right to remove the client content if, on notification, the Client refuses to remove the offending material.
6. Price and Payment
- The Client shall pay the Company the Services Fee, as set forth on the invoice, (“the Invoice”) in accordance with Clause 7 for the purchase of the provision of the Services.
- The Services Fee is calculated subject to the length of Term selected by the Client when purchasing Services.
- The Company reserves the right to change the Service Fee and Expenses (which includes but is not limited to increasing prices and charging a fee for upgrades and/or Services for which the Company does not currently charge a fee for). If the Client does not accept the changes to the Service Fee and Expenses, it shall be entitled to terminate this Agreement on 14 days’ notice.
- Any modification of the Service Fee does not affect existing contracts and will only take effect at the point of renewal.
- The Company has the right to interrupt the use of its Products and services if invoiced subscriptions are not paid in full on the expiration date.
7. Intellectual Property Rights
- Ownership of and Intellectual Property in all Client Content remains vested at all times in the Client and no rights in the Client Content shall be conferred onto the Company.
- Ownership of pre-existing Intellectual Property used in the creation of Client Content will remain vested at all times in the party who is the owner of such pre-existing Intellectual Property.
- Any pre-existing or other Intellectual Property rights owned by either party and required for the performance by the other party of its obligations under this Agreement shall be licensed to that other party in accordance with clause 9 to this Agreement.
- The Client acknowledges and agrees that the Company will own all Intellectual Property in connection with the Company’s Materials and that all other Intellectual Property in Materials produced or created by the Company or on its behalf, or provided by the Company will remain permanently with the Company regardless of whether such Material is in its original form or in a form modified for the Client’s use. Nothing in Clause 4 shall limit the Client’s ownership of the Intellectual Property in all Client Content.
- The Client acknowledges and agrees that the content contained in advertisements or information presented to the Client through the Company Website and the Services is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
- The Client may not modify the Company’s Materials for any purpose without the prior written consent of the Company.
8. Licences and Title
- The Client agrees that any Materials, works, items or information of whatever nature produced or developed by the Company or under the Company’s direction pursuant to or in the course of providing the Services shall remain the sole and complete property of the Company, whether such property is tangible or is in the nature of Intellectual Property (including copyright and rights of Confidential Information).
- The Client may not alter, modify, or change the Licensed Materials in any way without the prior written approval of the Company and agrees to immediately discontinue such use at such time as this Agreement is terminated. The Company reserves all of its rights in the Licensed Materials and of the Company’s other proprietary rights.
- Any licence created under this Agreement shall terminate upon expiration or termination of this Agreement. Upon termination of this Agreement for whatever reason, the Client shall immediately destroy and delete all Materials and certify to the Company that the Client has done so.
- Neither party shall grant a sub-licence under the licences created pursuant to this clause without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
- The parties acknowledge and agree that the Company may use the client’s name, logos, domain names and trademarks for the purpose of marketing via the Company Website and Services. Published quotations and testimonials are subject to clients explicit approval.
- The Company will not claim specific endorsement from the Client or from claiming that the Company is a preferred provider or otherwise special among other similar contractors.
10. Change of Services
- The Company may from time to time make any change(s) to the Services it provides and shall notify the Client by email specifying what the required change(s) is/are within a reasonable period.
- If a change of Services takes place and the Client does not accept the changes, it shall be entitled to terminate this Agreement on 14 days’ notice.
- This Agreement shall be for a Term of twelve months from the Commencement Date as agreed by the Client when making its order to purchase the Company Software and Services unless otherwise terminated pursuant to its terms.
- This Agreement can be terminated immediately in the event of either Party’s insolvency.
- Each party warrants to the other that it has authority to enter into and to perform its obligations under this Agreement.
- The Company makes no express or implied warranties or representations whatsoever to the Client with respect to the Company Website and/or the Services, Materials, Links or otherwise for the Client’s purposes other than those conditions, warranties, undertakings or representations expressly set out in this Agreement.
- All warranties, conditions and other terms implied by statute or common law (save for the conditions implied under Part II of the Supply of Goods & Services Act 1982) are excluded from the terms of this Agreement to the fullest extent permitted by law.
- The Company shall not be liable for the consequences of any interruptions or errors in respect of the Company Website and/or the Services, Materials, Links or otherwise.
- The Company hereby represents and warrants to the Client that it is the sole and exclusive owner of the Licensed Materials and that it has the right and power to grant to the Client the licence to use the Licensed Materials Marks. The Client’s use of the Services and the Materials shall not infringe the Intellectual Property of any third party.
- The Client shall indemnify and hold harmless the Company and its affiliates, employees, agents, contractors, directors, officers and third-party providers from all liabilities, demands, costs and expenses (including reasonable legal expenses) arising in connection with any Client Content including but not limited to the posting andor transmission of Client Content.(i) the Company’s unauthorised disclosure of personal data or any breach of the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018 and (ii) the Client’s use of the Materials andor the Services.
- The Company hereby agrees and undertakes to indemnify and hold harmless the Client and its associated companies, affiliates and partners, and their respective directors and employees, against any and all claims, actions, demands, liabilities, losses, damages, judgements, settlements, costs and expenses (including legal fees and costs) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses arise out of or are based on: (i) any claim that the Client’s use of the Licensed Materials and/or the Services infringes on any intellectual property rights, or other proprietary right of any third party; or (ii) any misrepresentation by the Company or a representation or warranty or breach of a covenant or agreement made by the Company.
- The Company shall indemnify and hold harmless the Client in respect of any loss, damage, liability, costs or expenses incurred by the Client by reason of the unauthorised disclosure of personal data or any breach of the Data Protection Act 1998.
16. Limitation of Liability
- Notwithstanding anything to the contrary, nothing in this Agreement excludes or limits the Company’s or the Client’s liability for personal injury or death caused by the Company’s or the Client’s negligence or for fraud.
- Neither party will be liable for any indirect, special, or consequential damages, or any loss of revenue, profits, business or data, arising out of or in connection with this Agreement, even if the Company or the Client has been advised of the possibility of such damages.
- The total amount limit for both parties is £250,000 for each event during the period of the Term.
- The Company shall not be liable for defects resulting from improper use of the Company Services by the Client or by another third party directed by the Client.
- To enable each party to comply with its obligation to indemnify the affected party under clause 15, the affected party shall: (i) promptly notify the other party in writing of any claim against it; (ii) give the other party express authority to conduct all negotiations and litigation, and to settle all litigation arising from such claim, whilst having reasonable regard to the other party’s interests in doing so (it being acknowledged that the indemnifying party shall also be required to act in accordance with the advice of its insurer); (iii) Not make any admission of liability or agree to any settlement or compromise of the claim except with the written consent of the indemnifying party (such consent not to be unreasonably withheld, it being acknowledged that the indemnifying party shall not be acting unreasonably if it withholds such consent on the advice of its insurer); and (iv) provide the indemnifying party, at the indemnifying party’s expense, with such available information and assistance as the indemnifying party may reasonably require.
17. Early Termination
In order for the Client to terminate this Agreement before the end of the Term you:
- must email the Company to confirm its request to cancel this Agreement;
- should then receive an email from the Company confirming early termination of this Agreement and requesting payment of any outstanding Service Fees or Expenses;
- must pay the Company any outstanding and undisputed Service Fees or Expenses incurred before the Company received the Client’s notice of termination of this Agreement (the Client will not be liable for Service Fees where termination is due to a Material breach or insolvency).
- must provide the Company with the following information: the Client’s email address; the part of the Services the Client would like to terminate (if applicable); and the reason for early termination of this Agreement (or any part of the Services).
- the Company may, in its sole discretion, refuse to commence, complete or deliver any work or otherwise comply with the provisions of this Agreement on the Company’s part and / or terminate this Agreement or any part of the Services it provides to the Client, if the Client: fails to make undisputed payments in accordance with Clause 7; and / or fails to remove the Client Content immediately in accordance with Clause 4.2; and/or breaches any of its obligations under this Agreement.
- Upon termination of this Agreement by either party for any reason, the Company reserves the right to: collect all undisputed charges, fees, commitments and obligations incurred by the Client prior to the date of termination; delete any Client Content, listings, messages or other information relating to the Client;prohibit the Client’s access to the Client account; and refuse the Client future access to the Services.
- Confidential Information disclosed by either of the parties (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement shall be confidential.
- The Receiving Party shall maintain the confidentiality of all such information and shall not, without the prior written consent of the Disclosing Party (i) utilise the same, directly or indirectly, for its own business purposes or for any other purpose or (ii) disclose the same to any third party. This clause does not apply to any information which (i) is in the public domain; (ii) was in the Receiving Party’s possession before receipt from the Disclosing Party; (iii) was rightfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is developed independently by the Receiving Party without reference to or use of Confidential Information; (v) is required to be disclosed pursuant to an order issued by a court of competent jurisdiction, government authority or applicable law or regulation; or (vi) is disclosed by the Receiving Party to its professional advisors on a confidential basis.
- Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except as provided in this clause.
- Either party may disclose Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement.
- The parties’ obligations to keep any information confidential will survive the termination of this Agreement.
19. Conditions beyond the control of either party
- Conditions beyond the control of either party means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including without limitation where the Company ceases to be entitled to access the Internet or ceases to have access to the Internet for whatever reason, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
- If a party is wholly or partially precluded from complying with its obligations under this Agreement by a condition (or conditions) beyond the control of either party, then that party’s obligation to perform in accordance with this Agreement will be suspended for such time until the condition precluding performance ceases. The suspension is valid for a period of 21 days rectification. If after this period it is not met, the agreement may be terminated. If the Client is the affected party, the Client is not liable to pay pro-rata’d fees for work delivered.
- As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
- The Company’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of the Company’s right to subsequently enforce such a provision or any other provision of the Contract.
- This Agreement (together with the documents referred to therein) constitutes the entire agreement between the parties and supersedes all prior oral or written agreements, understandings or arrangements between them relating to its subject matter.
- Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of employer and employee or principal or franchise and agent between the parties.
- The Client shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder without the prior written consent of the Company.
- If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement which shall remain in full force and effect.
- The Company may modify any of the conditions and provisions of this Agreement at any time in its sole discretion by notifying the Client thereof. If any modification is unacceptable to the Client, its only recourse is to terminate the Agreement.
- In the event of ambiguity or conflict between the provisions of this Agreement, the Outline Conduct Policy and the Schedules the provisions of this Agreement shall prevail.
- This Agreement and the documents referred to in it are made for the benefit of the parties to them and their successors and permitted assigns, and are not intended to benefit, or be enforceable by, anyone else.
- The rights and obligations of the parties shall continue for the benefit of and shall be binding on their respective successors and assigns.
- If this agreement is translated into any language other than English, the English language text shall prevail.
- This Agreement Contract will be governed by the laws of England and the parties submit to the jurisdiction of the English Courts.