Video Agency Services
VALID FROM THE DATE THE SOW IS SIGNED
|Q. I have signed an Order Form; am I now contractually bound, and if so, how long for?|
|Both parties are legally committed to this Agreement once both us and you have signed the Order Form. Our legal relationship will then continue until we have both fulfilled all of our respective obligations under this Agreement, or until terminated.|
|Q. Can I make any changes to the services I need once I have signed an Order Form?|
|Of course! The price set out in the Order Form is based on the number of weeks that we estimate we’ll need to accomplish everything you’ve told us you want to achieve, but we’re happy to be flexible. If you want to change your mind or add anything new, that won’t be a problem as we’ll provide a separate estimate for those additional weeks. To give you an idea of the types of things that might run over and cost more, here’s a non-exhaustive list:|
- Additional amendments
- Additional day / half day shoot
- Additional day / half day edit
- Copywriting Services
- Additional Video Length in Live action and animation – 15, 30, 60 seconds
- Additional Edit Time for Amendments
- Additional Motion Graphics
- Additional Stock per clip
- Additional Shoot Day Required
- Voice Over for corrections after video approval
- Sound Design
- Hard Drives
- Client Archiving
- Additional Exports & Ratio
*Note: Extra time is required if changes are requested after approvals on script, storyboard, shoot and edit.
|Q. Talking of fees, how do I pay you?|
|We issue invoices electronically. We require an initial Production Deposit (as set out in the Order Form) to be paid within 7 (seven) days of the invoice date (or as agreed and provided for in the Order Form). The Production Fee balance (as set out in the Order Form) shall be paid within 7 (seven) days of the delivery of the final product (or as agreed and provided for in the Order Form). Any additional fees shall be paid within 7 (seven) days of the invoice date.|
All payments should be made in full to us via BACS or the SWIFT international payments system. You agree to pay all charges associated with international transfers of funds. Please note, if you are late in paying, we reserve the right to charge interest on the overdue sum at 6 (six) per cent a year above the Bank of England’s base rate from the due date until payment of the overdue sum, whether before or after judgment. We will also have the right to suspend all services until payment has been made in full.
Alternatively, if we are delayed in providing the Production Services, or any final product by the Estimated Project End Date, or the Start Date is extended, all due to your negligence, inaction, or breach of the Agreement, we (notwithstanding any other remedies available to us), have the right to charge you a Delay Fee (as set out in the Order form).
|Q. What is the position regarding intellectual property?|
|Just to be clear, what we’re talking about here is intellectual property rights, meaning “all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world”, which we’ll call “IPR” for short. |
Each party and/or its licensors own the IPR in anything it has developed prior to this Agreement. For us, this means any IPR relating to the Production Services (including all unedited or partially edited footage i.e. rushes), the final product, and any IPR we’ve developed separately from this project and not paid for by you, and for you this means any IPR in text, images, video content, music, talent and other artwork you provide to us (“Client Materials”).
You also grant us the right to copy and modify any materials or brand collateral for us to provide the Production Services and you guarantee that all elements of the materials and brand collateral you provide are either owned by you, or that you have permission to use them. When you provide these materials to us, you agree to protect us from any claim by a third party that we’re using their intellectual property.
Regarding the final product, provided you have paid for the work and the Agreement has not been terminated, we will grant to you a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual, irrevocable, non-transferable licence to use the final product. This means you’ll have the right to use the final product forever, and we cannot take this right away from you. Furthermore, we’ll assign all IPR in the unique footage audio and graphics which have been created solely for you and used in the final product. Those will be yours to own.
Rushes / project files will be kept free of charge for 12 months – after this we will discard or you can pay for us to store or send via HD (we can provide a price for this on request).
As a final word, we’re proud of the work we create and we love to show it off, so we reserve the right to display all aspects of our creative work, including the completed Project on our website, social media channels, newsletters and other marketing collateral.
|Q. I’ve changed my mind, can I terminate the Agreement?|
|Either party will be able to terminate the Agreement by giving written notice to the other, such termination to take effect after the approval of a Stage of Production and prior to us commencing the provision of the Production Services in respect of the subsequent Stage of Production. If the Agreement is terminated, all fees due to us will become payable and if the Agreement is terminated early by you specifically, you may be charged an additional reasonable Cancellation Fee (details of which are set out in the Order Form).|
|Q. You say these are Terms and Conditions, so where’s the “small print”?!|
|Although the language and format of these Terms and Conditions is simple, the intentions are serious, and this contract is a legal document under exclusive jurisdiction of English and Welsh courts. This Agreement is personal to you, and you shall have no right to assign, transfer, charge, subcontract, or deal in any other manner any of your rights under this Agreement without our consent. Furthermore, no one, other than a party to this Agreement and their permitted assignees, shall have any right to enforce any of its terms. We will endeavour to work out all disputes between us, but in the event things progress, the courts of England shall have exclusive jurisdiction. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.|
Using Wooshii As a Creator
|Responding to Wooshii Briefs|
|Creators may not see all briefs. They may be limited by a Creators profile (eg. based on location, skills, or due to confidentiality).|
A Creator must post its Pitch prior to the Pitch Due Date, (shown as GMT/BST). Wooshii reserves the right, to accept or refuse to accept late Pitches.
By posting a Pitch, a Creator offers to contract with the relevant Client and Wooshii (to the extent applicable) for the production and delivery of the Production on the terms and conditions set out in the Brief and the terms and conditions set out in these Terms.
Creator must not disclose its Pitch to any third party unless they are directly involved in the Creator’s production.
|Creators will be informed within 30 days of the Pitch Deadline if Creator’s Pitch was successful or not. |
If we and/or the Client are unable to communicate with the Creator (eg. to select or commission them) within 24 hours of such notification, the Client reserves the right to withdraw its selection of the Creator’s Pitch and commission another Creator without liability of us or the Client to the Creator.
Neither we or the Client will have any liability to a Creator in respect of a failure by the Client for any reason to select a Pitch.
Once a Pitch has been accepted, or if the Client and Creator otherwise agree, Client and Creator consent to us providing each of Client and Creator’s contact details to each other.
|Upon the notification to a creator that a Pitch has been successful the Creator will automatically enter into the below contract (Production Contract).|
To the extent of any inconsistency, any provisions of the Brief will override the terms of the Contract.
|The selected Creator shall provide production services (the “Services”) to Wooshii ltd for the usage specified (the” Usage”) as a producer of creative content more specifically described below (the “Content”) and deliver such Content to Wooshii Ltd in accordance with this Agreement.|
CONTENT AND SERVICES:
Shall be provided as per the brief
Usage: All media cleared for online use in perpetuity. Includes; Music, Voiceover Talent, On-Screen Talent and Stock Imagery etc.
Unless otherwise stated in this Agreement the delivered Content has to meet the Technical Specifications set out in the Schedule.
Delivery Materials shall include:
Proxy Files uploaded to Wooshii Dropbox, within 24 hours of the shoot day (see attachment).
Finished production of Content
Rushes and project files from production of the Content
Any release forms pertinent to the Content and Services
GRANT OF RIGHTS:
Under this agreement the Creator assigns to Wooshii Ltd absolutely all copyright and other interest (including any future interest to which the Creator may become entitled) in the Delivery Materials for the duration of the copyright (including any renewals and extensions).
The Creator shall not prevent Wooshii Ltd or any person authorised by Wooshii ltd from exploiting those rights in any manner.
Any music used must be rights cleared and signed off with Wooshii Ltd prior to delivery. Creators shall remain solely responsible for the clearance of rights necessary to use the Content according to Usage.
Creator is aware of the requirement that persons captured visually e.g. on videos, photographs or graphics need to agree to the publication and the usage of the respective Content (“Appearance Release”).
WARRANTIES AND REPRESENTATION:
Creator represents and warrants that:
it is entitled to grant the rights described in the Grant of Rights paragraph above free of any encumbrance and either owns, or has obtained and paid for licences to use, all materials provided to Wooshii Ltd by the Creator in connection with the production of the Content;
it is under no restriction that would prevent it from performing this agreement; and
the Content will not contain material that is unlawful or will promote illegal or unlawful activities (including illegal product placement).
Creator shall indemnify and hold Wooshii Ltd harmless against all actions, claims, costs (including legal costs and settlement costs and other payments), proceedings, direct and indirect damages, expenses, or fines arising out of any breach or non-performance by Creator, in particular of any warranty given by it or obligation undertaken by it in this Agreement.
In the event of any cancellation Wooshii Ltd will first look to reschedule a Shoot Start. If a new Shoot Start is agreed, it will be without penalty. In the event a new Shoot Start is not possible Wooshii Ltd may cancel a shoot at no charge up to 48 hours before a Shoot Start. In the event Wooshii Ltd cancels a shoot under 24 hours of a Shoot Start time Wooshii will pay 100% of the Commissioning Fee. All events of force majeure which prevent Wooshii Ltd from honouring the Shoot Start will entitle Wooshii Ltd to reschedule the Shoot Start without penalty.
Each party represent and warrant that it shall not disclose to any third party any information with respect to this Agreement except (a) to the extent necessary to comply with law or the valid order of a court of competent jurisdiction in which event the parties so complying will notify the other party as promptly as practical (and if possible prior to making any disclosure), (b) as part of its normal reporting or reviewing procedure to its parent company, its auditors or its attorneys and authorities, (c) already public known information (as to be proven by the disclosing party) or (d) with prior mutual agreement of the parties or (e) in order to enforce its rights pursuant to this Agreement.
CHOICE OF LAW:
This Agreement shall be governed by and construed in accordance with the provisions of UK law. All disputes arising from or in connection with this Agreement shall be referred to the court having subject-matter jurisdiction for commercial matters in the UK.
These terms shall apply to the Agreement entered into between you and Wooshii for access to the Services. By accessing the Services, you confirm that you accept these terms and that you agree to comply with them.
By registering to access the Services, you acknowledge and agree that you have read and understood these terms and have authority to act on behalf of any person for whom you are accessing the Services and are deemed to have agreed to these terms on behalf of any person or entity for whom you are accessing the Services.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
the legally binding contract between you and Wooshii, which is subject to these terms, as may be amended upon notice from time to time;
- Authorised Users
those employees, agents and independent contractors who are authorised to access the Services, as further described in clause 2.2.4;
- Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
- Business Hours
0800 to 1800 local UK time, each Business Day;
- Confidential Information
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7;
- Customer Data
the data inputted by you, Authorised Users, or Wooshii on your behalf for the purpose of using the Services or facilitating your use of the Services;
- Effective Date
the date of this Agreement;
- Excess Data
Customer Data which is stored by or on behalf of Wooshii as part of the Services, which exceeds the fair use data limit;
- Illegal / Unlawful
in breach of any law or regulation, which is effective either in the United Kingdom or in the jurisdiction of the relevant Authorised User(s) who are involved in a Project;
- Initial Term
the initial term of this Agreement, being a period of 1 (one) year commencing on the Effective Date;
- Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
the creation of a single video whether as a stand-alone creation or as part of a series under a single contract;
- Renewal Period
the period described in clause 14.1;
the subscription services for access to the Software provided by Wooshii to you under this Agreement via the Website;
the online software application(s) for video content and communication management service, which is provided by Wooshii to you via the Website as part of the Services;
- Licence Fees
the Licence Fees, which are payable by you to Wooshii for the User Subscriptions;
- Subscription Term
has the meaning given in clause 14.1 (being the Initial Term together with any subsequent Renewal Periods);
- Support Fees
the support fees, which are payable by you to Wooshii for the provision by Wooshii for support services;
- Support Services Policy
Wooshii’s policy for providing support in relation to the Services as made available at the Website;
- User Subscriptions
the user subscriptions purchased by you pursuant to clause 9.1, which entitle Authorised Users to access and use the Services in accordance with this Agreement;
any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
the internet site located at the url wooshii.com or such other website address as may be notified by Wooshii to you from time to time;
Wooshii Limited, a company registered in England and Wales with company number 06862860 with its registered office at Fifth Floor, 55 King Street, Manchester, England, M2 4LQ
1.2 Clause and paragraph headings shall not affect the interpretation of these terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date and shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
2. User Subscriptions
2.1 Subject to you purchasing additional User Subscriptions in accordance with clause 3.1 and clause 9.1, the restrictions set out in this clause 2 and elsewhere in these terms, Wooshii hereby grants to you a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services during the Subscription Term solely for your business operations.
2.2 In relation to the Authorised Users, you undertake that:
- 2.2.1 the maximum number of Authorised Users that you authorise to access and use the Services shall not exceed the number of User Subscriptions that you have purchased from Wooshii from time to time;
- 2.2.2 you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
- 2.2.3 each Authorised User shall keep a secure password for his/her use of the Services, such password shall be changed regularly in accordance with best practice and each Authorised User shall keep his/her password confidential; and
- 2.2.4 you shall maintain a written, up to date list of current Authorised Users and provide such list to Wooshii within 5 (five) Business Days of our written request at any time.
2.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services that:
- 2.3.1 is Unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- 2.3.2 facilitates Illegal activity;
- 2.3.3 depicts sexually explicit images;
- 2.3.4 promotes unlawful violence;
- 2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- 2.3.6 is otherwise Illegal or causes damage or injury to any person or property; and Wooshii reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this clause.
2.4 You shall not:
- 2.4.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
- 2.4.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
- 2.4.3 access all or any part of the Services in order to build a product or service which competes with the Services;
- 2.4.4 subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users; or
- 2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2.
2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Wooshii.
3. Additional User Subscriptions
3.1 You may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the agreed number and Wooshii shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement and upon payment of any additional Licence Fees.
4.1 Wooshii shall, during the Subscription Term, provide the Services to you on and subject to these terms.
4.2 Wooshii shall use commercially reasonable endeavours to make the Services available 24 hours a day, 7 days a week, except for:
- 4.2.1 planned maintenance carried out during the maintenance window of 2200 to 0900 UK time; and
- 4.2.2 unscheduled maintenance performed outside Business Hours, provided that Wooshii has used reasonable endeavours to give you at least 6 (six) Business Hours’ notice in advance.
4.3 Wooshii will, as part of the Services and in consideration of the Support Fees, provide you with Wooshii’s standard customer support services during Business Hours.
5. Customer Data
5.1 You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 You must maintain copies of all Customer Data. Wooshii adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of the Customer Data. In the event of any loss or damage to the Customer Data, your sole and exclusive remedy shall be for Wooshii to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Wooshii. Wooshii shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Wooshii to perform services related to Customer Data maintenance and back-up).
5.3 Wooshii shall, in providing the Services, comply with the Privacy and Security Policy relating to the privacy and security of Customer Data available at the Website, as such document may be amended from time to time by Wooshii in its sole discretion.
5.4 If Wooshii processes any personal data on your behalf when performing its obligations under this Agreement, you acknowledge that you shall be the data controller and Wooshii shall be the data processor and in any such case:
- 5.4.1 you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and Wooshii’s other obligations under this Agreement;
- 5.4.2 you shall ensure that you are entitled to transfer the relevant personal data to Wooshii so that Wooshii may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;
- 5.4.3 you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
- 5.4.4 Wooshii shall process the personal data only in accordance with these terms and any lawful instructions reasonably given by you from time to time; and
- 5.4.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6. Third Party Providers
6.2 By using our Services, you are agreeing to be bound by the YouTube Terms of Service. You can review YouTube’s Terms of Service here YouTube’s Terms of Service.
7. Wooshii’s Obligations
7.1 Wooshii undertakes that the Services will be performed with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by any use of the Services contrary to Wooshii’s instructions, or modification or alteration of the Services by any party other than Wooshii or Wooshii’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Wooshii will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Wooshii:
- 7.2.1 does not warrant that your use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by you through the Services will meet your requirements;
- 7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities: and
- 7.2.3 is not responsible for the outcome of any Project as to content, content usability for the purposes of a user, completion by any agreed due date or at all, acceptance by the instructing party or otherwise.
7.3 Wooshii warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8. Your Obligations
8.1 You shall:
- 8.1.1 provide Wooshii with:
- 18.104.22.168 all necessary co-operation in relation to this Agreement; and
- 22.214.171.124 all necessary access to such information as may be required by Wooshii,in order to provide the Services, including but not limited to the Customer Data, security access information and configuration services;
- 8.1.2 comply with all applicable laws and regulations with respect to your activities under this Agreement;
- 8.1.3 carry out all other responsibilities set out in this Agreement in a timely and efficient manner;
- 8.1.4 ensure that the Authorised Users use the Services in accordance with these terms and shall be responsible for any Authorised User’s breach of these terms;
- 8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Wooshii, its contractors and agents to perform their obligations under these terms, including without limitation the Services;
- 8.1.6 ensure that your network and systems comply with the relevant specifications provided by Wooshii from time to time; and
- 8.1.7 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Wooshii’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
9. Charges and Payment
9.1 You shall pay the Licence Fees to Wooshii for the User Subscriptions in accordance with this clause 9 and the Support Fees in accordance with clause 4.3.
9.2 You shall on the Effective Date provide to Wooshii valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details and you hereby authorise Wooshii to bill such credit card:
- 9.2.1 on the Effective Date for the Licence Fees payable in respect of the Initial Term;
- 9.2.2 upon Wooshii’s agreement of any request made by you to increase the number of Projects or Authorised Users;
- 9.2.3 where you incur Excess Data storage fees pursuant to clause 9.5; and
- 9.2.4 subject to clause 14.1, on each anniversary of the Effective Date for the Licence Fees payable in respect of the next Renewal Period where you have selected to pay the Licence Fees monthly, on the specified day in each month for such monthly payment.
9.3 If Wooshii has not received payment by the due date, and without prejudice to any other rights and remedies of Wooshii:
- 9.3.1 Wooshii may, without liability to you, disable your password(s), account(s) and access to all or part of the Services and Wooshii shall be under no obligation to provide any or all of the Services while such invoice(s) remain unpaid; and
- 9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 6 (six) per cent over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this Agreement:
- 9.4.1 shall be payable in pounds sterling;
- 9.4.2 are, subject to clause 13.3.2, non-cancellable and non-refundable; and
- 9.4.3 are exclusive of value added tax, which shall be added to Wooshii’s invoice(s) at the appropriate rate.
9.5 If, at any time while using the Services, you exceed the agreed amount of data storage space, Wooshii shall charge you, and you shall pay, Wooshii’s then current excess data storage fees. Wooshii’s Excess Data storage fees current as at the Effective Date are set out at on the Website.
9.6 Wooshii shall be entitled to increase the Licence Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.1, the Support Fees payable pursuant to clause 4.3 and/or the Excess Data storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 30 (thirty) days’ prior notice.
9.7 You may from time to time be offered preferential pricing or discounts for the Licence Fees as a result of the number of Authorised Users accessing the Software or the number of Projects that you have subscribed for. Eligibility for such preferential pricing or discounts is conditional upon your acceptance of responsibility for payment of any Licence Fees in relation to all Authorised Users and Projects. Without prejudice to any other rights that Wooshii may have under these terms or at law, Wooshii reserves the right to render invoices for the full (non-discounted) Licence Fees due or suspend or terminate your use of the Software in respect of any or all Authorised Users and/or Projects in the event that any invoices for those Licence Fees are not paid in full by the due date for payment.
10. Proprietary Rights
10.1 You acknowledge and agree that Wooshii and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, these terms do not grant you any Intellectual Property Rights or any other rights or licences in respect of the Services.
10.2 Wooshii confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms.
11. Confidentiality And Compliance With Policies
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
- 11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
- 11.1.2 was in the other party’s lawful possession before the disclosure;
- 11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- 11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6 You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute Wooshii’s Confidential Information.
11.7 Wooshii acknowledges that the Customer Data is your Confidential Information.
11.8 The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
12. Contact – we recommend that you have all of your email notifications turned on to get the best use of the Wooshii platform as such we set these as a defaulted to ‘on’ when your account is first setup. You can change these settings at any time by going to your settings.
13. By using our Service you understand and agree that we are providing a platform for you to where you can post content, including photos and other materials (“User Content”), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service.
14.1 You shall defend, indemnify and hold harmless Wooshii against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services.
14.2 In no event shall Wooshii, its employees, agents and sub-contractors be liable to you for any allegation that the Services infringe a third party’s Intellectual Property Rights to the extent that such liability is based on:
- 14.2.1 a modification of the Services by anyone other than Wooshii;
- 14.2.2 your use of the Services in a manner contrary to the instructions given to you by Wooshii; or
- 14.2.3 your use of the Services after notice of the alleged or actual infringement from Wooshii or any appropriate authority.
15. Limitation of Liability
15.1 Except as expressly and specifically provided in this Agreement:
- 15.1.1 you assume sole responsibility for results obtained from your use of the Services, and for conclusions drawn from such use. Wooshii shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Wooshii by you in connection with the Services, or any actions taken by Wooshii at your direction;
- 15.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
- 15.1.3 the Services are provided to you on an “as is” basis.
15.2 Nothing in this Agreement excludes Wooshii’s liability:
- 15.2.1 for death or personal injury caused by Wooshii’s negligence; or
- 15.2.2 for fraud or fraudulent misrepresentation.
15.3 Subject to clause 15.1 and clause 15.2:
- 15.3.1 Wooshii shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information (including the Customer Data), or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
- 15.3.2 Wooshii’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Licence Fees paid for the User Subscriptions during the 12 (twelve) months immediately preceding the date on which the claim arose.
16. Term and Termination
16.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 (twelve) months (each a Renewal Period), unless:
- 16.1.1 either party notifies the other party of termination, in writing, at least 60 (sixty) days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
- 16.1.2 otherwise terminated in accordance with the provisions of this Agreement, and the Initial Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
16.2 Without affecting any other right or remedy available to it, Wooshii may terminate this Agreement with immediate effect by giving written notice to the you if:
- 16.2.1 you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 14 (fourteen) days after being notified in writing to make such payment; or
- 16.2.2 you commit a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 (fourteen) days after being notified in writing to do so.
16.3 On termination or expiry of this Agreement for any reason:
- 16.3.1 all licences granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Services;
- 16.3.2 each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
- 16.3.3 Wooshii may destroy or otherwise dispose of any of the Customer Data in its possession unless Wooshii receives, no later than 10 (ten) days after the effective date of the termination or expiry of this Agreement, a written request for the delivery to you of the then most recent back-up of the Customer Data. Wooshii shall use reasonable commercial endeavours to deliver the back-up to you within 30 (thirty) days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination or expiry). You shall pay all reasonable expenses incurred by Wooshii in returning or disposing of the Customer Data; and
- 16.3.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17. Force Majeure
Wooshii shall have no liability to you under these terms if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Wooshii’s workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, terrorism, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and Remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21. Entire Agreement
21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
22.1 You shall not, without the prior written consent of Wooshii, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 Wooshii may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
23. No Partnership or Agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. Third Party Rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice given under this Agreement by either party to the other must be by email and will be deemed to have been given on transmission. Notices to Wooshii must be sent to firstname.lastname@example.org or to any other email address notified by email to you by Wooshii from time to time. Notices to you will be sent to the email address provided by you when setting up access to the Software.
26. Governing Law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
To contact Wooshii, please email email@example.com