ClickCease
3 months ago

Terms of service


Effective as of 07/05/2021
    1. Please read these Terms of Service carefully. By using the Providers services you accept the Terms of Service. You can review the current version of our Terms of Service at any time at https://www.motasoft.co.uk/terms-of-service.

      Motasoft reserves the right to update and change the Terms of Service by posting updates and changes to the Motasoft website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you. and if you do not accept such amendments, you must cease using the Services.


    1. Definitions

    2. In these Terms of Service:
      1. Access Credentials” means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
      2. Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
      3. Agreement” means a contract between the parties incorporating these Terms of Service, and any amendments to that contract from time to time;
      4. API” means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
      5. Business Day” means any weekday other than a bank or public holiday in England;
      6. Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day;
      7. Charges” means the following amounts:
        1. such amounts as may be agreed in writing by the parties from time to time;
        2. amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of the Agreement) by the time spent by the Provider’s personnel performing the Support Services (rounded down by the Provider to the nearest quarter hour); and
        3. monthly rolling subscription fee;
      8. Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
      9. Customer
        means the person or entity that the Provider is providing hosted services to;
      10. Customer Confidential Information” means:
        1. any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
          1. was marked or described as “confidential”; or
          2. should have been reasonably understood by the Provider to be confidential; and
        2. the Customer Data;
      11. Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
      12. Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement.
      13. Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
      14. Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
      15. Effective Date
        means the date upon which the Provider begins to provide the Customer with Hosted Services.
      16. Email Services” means email accounts provided by third party providers, sold by Motasoft as a reseller;
      17. EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
      18. Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
      19. Hosted Services” means virtual garage manager, vgm company portal, embeddable booking systems and websites which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms of Service;
      20. Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
        1. any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
        2. any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
        3. a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
        4. an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
      21. Hosted Services Specification
        means the specification for the Platform and Hosted Services and it’s compatibility as set out in Supported Web Browser;
      22. Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
      23. Mobile App” means the mobile application known as vgm technician that is made available by the Provider through the Google Play Store and the Apple App Store;
      24. Personal Data” means personal data under any of the Data Protection Laws;
      25. Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
      26. Provider” means Motasoft Ltd, a company incorporated in England and Wales (registration number 06136734) having its registered office at 28 Malvern Road, Weston Super Mare, Somerset, BS23 4DF;
      27. Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms of Service;
      28. Set Up Services
        means the configuration, implementation and integration of the Hosted Services;
      29. Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
      30. Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
      31. Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
      32. Terms of Service” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms of Service and the Schedules, including any amendments to that documentation from time to time;
      33. Third Party Services” means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider;
      34. UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; and
      35. User Interface” means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
    1. Term

    2. The Agreement shall come into force upon the Effective Date.
    3. The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 19 or any other provision of these Terms of Service.
    1. Set Up Services

    2. The Provider shall provide the Set Up Services to the Customer.
    3. The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided upon or promptly following the Effective Date.
    4. The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 17.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms of Service.
    5. Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.
    6. Setup services includes for our websites includes basic theming of a website on our website platform, and up to 7 pages of customised content, including a home page and a contact page. Additional pages may be subject to to additional Charges, such amounts would be agreed in writing beforehand.
    1. Hosted Services

    2. The Provider shall provide, or shall ensure that the Platform will provide, to the Customer upon the completion of the Set Up Services the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
    3. The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of the User Interface and the API for the internal business purposes of the Customer in accordance with the Documentation during the Term.
    4. The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
      1. the User Interface may only be used through a Supported Web Browser or the Mobile App;
      2. the User Interface may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and
      3. the API may only be used by an application or applications approved by the Provider in writing and controlled by the Customer.
    5. Except to the extent expressly permitted in these Terms of Service or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
      1. the Customer must not sub-license its right to access and use the Hosted Services;
      2. the Customer must not permit any unauthorised application to access or use the Hosted Services;
      3. the Customer must not republish or redistribute any content or material from the Hosted Services;
      4. the Customer must not make any alteration to the Platform; and
      5. the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services .
    6. The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
    7. The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer comply with Schedule 1 (Acceptable Use Policy).
    8. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
    9. The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
    10. The Customer must not use the Hosted Services:
      1. in any way that is unlawful, illegal, fraudulent or harmful; or
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
    11. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
    12. The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
    1. Scheduled maintenance

    2. The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform.
    1. Support Services

    2. The Provider shall provide the Support Services to the Customer during the Term.
    3. The Provider shall provide the Support Services with reasonable skill and care.
    4. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
    1. Customer obligations

    2. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
      1. co-operation, support and advice; and
      2. information and documentation,
      as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
    1. Customer Data

    2. The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement.
    3. The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
    4. The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
    1. Integrations with Third Party Services

    2. The Hosted Services are integrated with certain Third Party Services; and the Provider may integrate the Hosted Services with additional Third Party Services at any time.
    3. Notwithstanding the presence of any Third Party Services integration, particular Third Party Services shall only be activated with respect to the Hosted Services account of the Customer by:
      1. the Customer; or
      2. the Provider with the prior written agreement of the Customer.
    4. The Provider may remove, suspend, deactivate or limit any Third Party Services integration at any time in its sole discretion.
    5. The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.
    6. Additional Charges may be payable by the Customer to the Provider in respect of the activation and/or use of a Third Party Services integration.
    7. Subject to Clause 17.1:
      1. the Provider gives no guarantees, warranties or representations in respect of any Third Party Services; and
      2. the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Services or any provider of Third Party Services.
    8. ‌Email Services offered by The Provider are provided by third parties; The Provider is simply a reseller, therefore, the Email Services are provided as-is.
    9. ‌The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software of the Email Services offered by third parties;
    10. U‌se of the Email Services may be subject to a separate contract or arrangement between the Customer and the relevant third party.
    1. No assignment of Intellectual Property Rights

    2. Nothing in these Terms of Service shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
    1. Charges

    2. The Customer shall pay the Charges to the Provider in accordance with these Terms of Service.
    3. All amounts stated in or in relation to these Terms of Service are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
    4. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation.
    1. Payments

    2. The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.
    3. The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 12.
    4. The Customer must pay the Charges by debit card, credit card, bank transfer, cheque or direct debit (using such payment details as are notified by the Provider to the Customer from time to time).
    5. If the Customer does not pay any amount properly due to the Provider under these Terms of Service, the Provider may charge the Customer interest on the overdue amount at the rate of 2% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month). The Provider acknowledges and agrees that it shall have no right to claim interest or statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and that its contractual rights under this Clause 12.4 constitute a substantial remedy within the meaning of that Act.
    1. Provider’s confidentiality obligations

    2. The Provider must:
      1. keep the Customer Confidential Information strictly confidential;
      2. not disclose the Customer Confidential Information to any person without the Customer’s prior written consent;
      3. use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care; and
      4. act in good faith at all times in relation to the Customer Confidential Information.
    3. Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
    4. This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
      1. is known to the Provider before disclosure under these Terms of Service and is not subject to any other obligation of confidentiality;
      2. is or becomes publicly known through no act or default of the Provider; or
      3. is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
    5. The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
    6. The provisions of this Clause 13 shall continue in force indefinitely following the termination of the Agreement.
    1. Data protection

    2. Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
    3. The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
    4. The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement:
      1. the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 4 (Data processing information); and
      2. Personal Data of the types specified in Section 2 of Schedule 4 (Data processing information).
    5. The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 4 (Data processing information).
    6. The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 14.
    7. The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms of Service or any other document agreed by the parties in writing.
    8. The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
      1. the Provider may transfer the Customer Personal Data internally to its own employees, offices and facilities in the United Kingdom;
      2. the Provider may transfer the Customer Personal Data to its third party processors and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein; and
      3. the Provider may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
    9. Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
    10. The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
    11. The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
    12. The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 14.
    13. The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
    14. The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
    15. The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay.
    16. The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
    17. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
    1. Warranties

    2. The Provider warrants to the Customer that:
      1. the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Service;
      2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under these Terms of Service; and
      3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms of Service.
    3. The Provider warrants to the Customer that:
      1. the Platform will incorporate security features reflecting the requirements of good industry practice.
    4. The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Service.
    5. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms of Service. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
    1. Acknowledgements and warranty limitations

    2. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms of Service, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
    3. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms of Service, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
    4. The Customer acknowledges that the Hosted Services are designed to be compatible only with software set out in Supported Web Browsers; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
    5. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms of Service or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms of Service, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
    1. Limitations and exclusions of liability

    2. Nothing in these Terms of Service will:
      1. limit or exclude any liability for death or personal injury resulting from negligence;
      2. limit or exclude any liability for fraud or fraudulent misrepresentation;
      3. limit any liabilities in any way that is not permitted under applicable law; or
      4. exclude any liabilities that may not be excluded under applicable law.
    3. The limitations and exclusions of liability set out in this Clause 17 and elsewhere in these Terms of Service:
      1. are subject to Clause 17.1; and
      2. govern all liabilities arising under these Terms of Service or relating to the subject matter of these Terms of Service, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms of Service.
    4. The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
    5. The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
    6. The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
    7. The Provider shall not be liable to the Customer in respect of any loss of use or production.
    8. The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
    9. The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 17.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 8.3.
    10. The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
    1. Force Majeure Event

    2. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
    3. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
      1. promptly notify the other; and
      2. inform the other of the period for which it is estimated that such failure or delay will continue.
    4. A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
    1. Termination

    2. The Provider may terminate the Agreement by giving to the Customer not less than 30 days’ written notice of termination. The Customer may terminate the Agreement by giving to the Provider not less than 30 days’ written notice of termination.
    3. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
      1. the other party commits any breach of the Agreement, and the breach is not remediable;
      2. the other party commits a breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
      3. the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
    4. The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
      1. any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
      2. the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 19.3.
    1. Effects of termination

    2. Upon the termination of the Agreement, all of the provisions of these Terms of Service shall cease to have effect, save that the following provisions of these Terms of Service shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 9.6, 12.2, 12.4, 13, 14, 17, 20, 23, 24, 25.1, 25.2, 26 and 27.
    3. Except to the extent expressly provided otherwise in these Terms of Service, the termination of the Agreement shall not affect the accrued rights of either party.
    4. Within 30 days following the termination of the Agreement for any reason:
      1. the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
      2. the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
      without prejudice to the parties’ other legal rights.
    1. Notices

    2. Any notice from one party to the other party under these Terms of Service must be given by one of the following methods (using the relevant contact details set out in Clause 21.2):
      1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery,
      providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
    3. The Provider’s contact details for notices under this Clause 21 are as follows: Unit 4, 154 Cheltenham Road, Bristol BS6 5RL.
    4. The addressee and contact details set out in Clause 21.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 21.
    1. Subcontracting

    2. Subject to any express restrictions elsewhere in these Terms of Service, the Provider may subcontract any of its obligations under the Agreement.
    3. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
    4. Notwithstanding the provisions of this Clause 22 but subject to any other provision of these Terms of Service, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
    1. Severability

    2. If a provision of these Terms of Service is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
    3. If any unlawful and/or unenforceable provision of these Terms of Service would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
    1. Third party rights

    2. The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
    3. The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.
    1. Variation

    2. The Agreement may not be varied except in accordance with this Clause 25.
    3. The Agreement may be varied by means of a written document signed by or on behalf of each party.
    4. The Provider may vary the Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 25.3, the Customer shall have the right to terminate the Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider’s notice.
    1. Entire agreement

    2. The main body of these Terms of Service and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
    3. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
    4. The provisions of this Clause 26 are subject to Clause 17.1.
    1. Law and jurisdiction

    2. These Terms of Service shall be governed by and construed in accordance with English law.
    3. Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.
  1. Schedule 1 (Acceptable Use Policy)

    1. Introduction

    2. This acceptable use policy (the “Policy“) sets out the rules governing:
      1. the use of any website provided by Motasoft, any successor website, and the services available on that website or any successor website (the “Services“); and
      2. the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).
    3. References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to Motasoft (and “we” and “our” should be construed accordingly).
    4. By using the Services, you agree to the rules set out in this Policy.
    1. General usage rules

    2. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
    3. You must not use the Services:
      1. in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
      2. in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
    4. You must ensure that all Content complies with the provisions of this Policy.
    1. Unlawful Content

    2. Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
    3. Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
      1. be libellous or maliciously false;
      2. be obscene or indecent;
      3. infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
      4. infringe any right of confidence, right of privacy or right under data protection legislation;
      5. constitute negligent advice or contain any negligent statement;
      6. constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
      7. be in contempt of any court, or in breach of any court order;
      8. constitute a breach of racial or religious hatred or discrimination legislation;
      9. be blasphemous;
      10. constitute a breach of official secrets legislation; or
      11. constitute a breach of any contractual obligation owed to any person.
    4. You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
    1. Graphic material

    2. Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
    3. Content must not depict violence in an explicit, graphic or gratuitous manner.
    4. Content must not be pornographic or sexually explicit.
    1. Factual accuracy

    2. Content must not be untrue, false, inaccurate or misleading.
    3. Statements of fact contained in Content and relating to persons (legal or natural) must be true.
    1. Marketing and spam

    2. You must not, without the explicit permission of the recipient, use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
    3. Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
    4. You must not send any spam to any person using any email address made available through the Services or that you find using the Services.
    5. You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
    6. You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
    1. Regulated businesses

    2. You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
    3. You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
    4. You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
    1. Monitoring

    2. You acknowledge that we may actively monitor the Content and the use of the Services.
    1. Data mining

    2. You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
    1. Hyperlinks

    2. You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
    1. Harmful software

    2. The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
    3. The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
  1. Schedule 2 (Availability SLA)

    1. Introduction to availability SLA

    2. This Schedule 2 sets out the Provider’s availability commitments relating to the Hosted Services.
    3. In this Schedule 2, “uptime” means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.
    1. Availability

    2. The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 95% during each calendar month.
  1. Schedule 3 (Support SLA)

    1. Introduction

    2. This Schedule 3 sets out the service levels applicable to the Support Services.
    1. Helpdesk

    2. The Provider shall make available to the Customer a helpdesk.
    3. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
    4. The Provider shall ensure that the helpdesk is accessible by telephone, email and using the Provider’s web-based chat system.
    5. The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
    6. The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
    1. Provision of Support Services

    2. The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
    1. Provision of Support Services for provided websites

    2. The Customer may use the helpdesk for the purpose of requesting amendments to their website. Minor amendments and changes are included as part of the support services. The following are examples of requests that may be subject to additional charges, at our discresion. Any additional charges would be agreed, in writing, beforehand:
      1. Retheming the website.
      2. Writing new pages of content.
      3. Designing new artwork.
    1. Limitations on Support Services

    2. The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
      1. the improper use of the Hosted Services by the Customer; or
      2. any alteration to the Hosted Services made without the prior consent of the Provider.
  1. Schedule 4 (Data processing information)

    1. Categories of data subject

    2. The employees and individual subcontractors of the Customer
    1. Types of Personal Data

    2. Names, postal addresses, email addresses and telephone numbers
    1. Purposes of processing

    2. We process personal data that you have given us for the sole purpose of administering enquiries and agreements from/with you, as well as providing information and services in connection with such enquiries and agreements.
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