Terms and Conditions
All contracts that the Provider may enter into from time to time for the provision of the DisplayMapper service shall be governed by these Terms and Conditions and by clicking the Buy Now button and completing the registration process on the DisplayMapper website the Customer thereby accepts these Terms and Conditions as part of a legally enforceable written Agreement.
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account" means an account enabling a person to access and use DisplayMapper;
"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
"Charges" means the amounts:
(a) as shown on the DisplayMapper website; or
(b) charged by an authorised DisplayMapper reseller
"Customer" means the person or entity registering to use DisplayMapper;
"Customer Confidential Information" means any information disclosed by the Customer to the Provider at any time before the termination of the Agreement that at the time of disclosure:
"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 DisplayMapper by the Customer;
"Documentation" means the documentation and information for DisplayMapper produced by the Provider and delivered or made available by the Provider to the Customer on the DisplayMapper website;
"Effective Date" means the date the Customer clicks the Buy Now button and completes the registration process on the DisplayMapper website;
"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, explosions, fires, floods, riots, terrorist attacks and wars;
"Hosted Services" means the DisplayMapper service which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
"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 and know-how.
"Minimum Term" means, in respect of the Agreement, the period of 12 months beginning on the Effective Date;
"Platform" means the platform managed by the Provider and used by the Provider to provide DisplayMapper, including the application and database software for DisplayMapper, the system and server software used to provide DisplayMapper, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means Projection Artworks Limited Highgate Studios, 53-79 Highgate Road, London, NW5 1TL a company incorporated in England and Wales Registration Number 05433951 having its registered office at The Lodge, Crofton, Marlborough, Wiltshire SN83DW
"Provider Indemnity Event" has the meaning given to it in Clause 12.1;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order " means an online order confirmed by clicking the Buy Now button on the DisplayMapper website which incorporates these Terms and Conditions;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, DisplayMapper, but shall not include the provision of training services;
"Supported Web Browser" means [the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall terminate at the end of the period covered by the Charges or until terminated earlier in accordance with Clause 15.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order shall create a distinct contract under these Terms and Conditions.
3.1 The Platform will automatically generate an Account for the Customer on the Effective Date and will provide to the Customer login details for that Account. 4.2 The Provider hereby grants to the Customer a non-exclusive, non-assignable licence to use DisplayMapper by means of a Supported Web Browser during the Term.
3.2 The Provider hereby grants to the Customer a non-exclusive, non-assignable licence to use DisplayMapper by means of a Supported Web Browser.
3.3 The licence granted by the Provider to the Customer under Clause 3.2 may only be used by the officers, employees, agents and subcontractors of the Customer;
3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use DisplayMapper;
(b) the Customer must not permit any unauthorised person to access or use DisplayMapper;
3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to ensure that no unauthorised person may gain access to DisplayMapper.
3.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of DisplayMapper.
3.7 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using DisplayMapper with the authority of the Customer comply with Schedule 1 (Acceptable Use Policy).
3.8 The Customer must not use DisplayMapper in any way that causes, or may cause, damage to the DisplayMapper or Platform or impairment of the availability or accessibility of DisplayMapper.
3.9 The Customer must not use DisplayMapper:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.10 For the avoidance of doubt, the Customer has no right to access the DisplayMapper software code either during or after the Term.
3.11 The Provider may suspend the provision of the DisplayMapper service if any amount due to be paid by the Customer to the Provider under the Agreement is overdue by more than 30 days.
4.1 The Provider shall provide the Support Services with reasonable skill and care.
4.2 The Provider shall provide the Support Services in accordance with Schedule 3 (Support SLA).
4.3 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.
5.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store and export 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, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement.
5.2 The Provider shall create back-ups of Customer Data and shall ensure that each back-up copy is sufficient to enable the Provider to restore the DisplayMapper service to the state they were in at the time the back-up was taken.
5.3 The Provider shall use reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 5.3.
6.1 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
7.1 The Customer shall pay the Charges in accordance with these Terms and Conditions.
7.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any value added taxes, which will be added to those amounts and payable by the Customer if applicable.
7.4 The Provider may elect to vary any element of the Charges by giving the Customer not less than 30 days' email notification of the variation expiring on any anniversary of the date of execution of the Agreement.
8.1 Payment for the charges will normally have been taken by credit card or debit card as part of the registration process or be paid to an authorised DisplayMapper reseller.
8.2 If payment is not received by these methods, the Provider shall issue invoices for the Charges to the Customer and the Customer shall pay these invoices within 15 days.
9.1 The Provider must:
(a) keep the Customer Confidential Information confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
(c) 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;
9.2 Notwithstanding Clause 9.1, 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 in supplying the DisplayMapper service.
9.3 This Clause 9 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) 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.
9.4 The restrictions in this Clause 9 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.
9.5 The provisions of this Clause 9 shall continue in force for a period of 3 years following the termination of the Agreement.
10.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
(b) 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 and Conditions; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
10.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with DisplayMapper Specification;
(b) the Platform will incorporate security features reflecting the requirements of good industry practice.
10.3 The Provider warrants to the Customer that DisplayMapper, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations applicable under English law.
10.4 The Provider warrants to the Customer that DisplayMapper, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person.
10.5 If the Provider reasonably determines, or any third party alleges, that the use of DisplayMapper by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify DisplayMapper in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use DisplayMapper in accordance with these Terms and Conditions.
10.6 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 the Agreement.
10.7 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. 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.
11.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that DisplayMapper will be wholly free from defects, errors and bugs.
11.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that DisplayMapper will be entirely secure.
12.1 The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities and damages suffered or incurred by the Customer and arising directly as a result of any breach by the Provider of these Terms and Conditions (a "Provider Indemnity Event").
12.2 The Customer must:
(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
(b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
(d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
Without prejudice to the Provider's obligations under this Clause the Provider's obligation to indemnify the Customer under Clause 12.1 shall not apply unless the Customer complies with the requirements of this Clause 12.2.
13.1 Nothing in the Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
13.2 The limitations and exclusions of liability set out in this Clause 13 and elsewhere in the Agreement:
(a) are subject to Clause 13.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
13.3 Neither party shall be liable to the other in respect of any losses arising out of a Force Majeure Event.
13.4 [Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings, any loss of revenue or income, any loss of use or production, any loss of business, contracts or opportunities, any loss or corruption of any data, database or software, special, indirect or consequential loss or damage,
13.5 The aggregate liability of each party to the other under the Agreement shall not exceed the greater of:
(a) £500 and
(b) the total amount paid and payable by the Customer to the Provider under the Agreement.
14.1 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.
14.2 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:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 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.
15.1 Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination.
15.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and:
(i) the breach is not remediable; or
(ii) 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
(b) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
15.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);
15.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
(a) 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
(b) the Provider has given to the Customer at least 15 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 15.4.
16.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.10, 9, 12, 13, 16, 19, 20, 21, 22, 23.1, 23.2, 24, 25 and 26.
16.2 The termination of the Agreement shall not affect the accrued rights of either party.
16.3 Within 30 days following the termination of the Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) 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.
17.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
18.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
18.3 Notwithstanding any other provision of these Terms and Conditions, 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.
19.1 The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights under these Terms and Conditions
20.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
20.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
21.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
21.2 If any unlawful and/or unenforceable provision of the Agreement 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.
22.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
22.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
23.1 The Agreement may not be varied except in accordance with this Clause 28.
23.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.
23.3 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 28.3, 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.
24.1 The Services Order, the main body of these Terms and Conditions 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.
24.2 Neither party will have any remedy in respect of any misrepresentation made to it upon which it relied in entering into the Agreement.
24.3 The provisions of this Clause 29 are subject to Clause 18.1.
25.1 The Agreement shall be governed by and construed in accordance with English law.
25.2 Any disputes relating to the Agreement shall be subject to the jurisdiction of the courts of England and Wales.
26.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
26.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
26.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Schedule 1 (Acceptable Use Policy)
1.1 This acceptable use policy (the "Policy") sets out the rules governing the use of DisplayMapper.
1.2 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 Projection Artworks Ltd and "we" and "our" should be construed accordingly.
1.3 By using the Services, you agree to the rules set out in this Policy.
2.1 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.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3.1 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.
10.1 You acknowledge that we do not actively monitor the Content or the use of the Services.
Schedule 2 (Availability SLA)
1.1 This Schedule 2 sets out the Provider's availability commitments relating to DisplayMapper.
1.2 In this Schedule 2, "uptime" means the percentage of time during a given period when DisplayMapper are available at the gateway between public internet and the network of the hosting services provider for DisplayMapper.
2.1 The Provider shall use reasonable endeavours to ensure that the uptime for DisplayMapper is at least 99% during each calendar month.
2.2 The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.
3.1 In respect of each calendar month during which DisplayMapper uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with these provisions.
3.2 The service credits earned by the Customer shall entitle the Customer to one month’s free use of the Display Mapper service for each month the uptime falls below the threshold set in 2.1 above
3.4 Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the uptime guarantee in Paragraph 2.14.
4.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's equipment, systems or networks;
(d) any breach by the Customer of the Agreement; or
(e) scheduled maintenance carried out in accordance with the Agreement.
Schedule 3 (Support SLA)
1.1 This Schedule 3 sets out the service levels applicable to the Support Services.
2.1 The Provider shall make available to the Customer an email helpdesk in accordance with the provisions of this Schedule 3.
2.2 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.
2.3 The Provider shall ensure that the helpdesk is accessible by email and using the Provider's web-based ticketing system.
2.4 The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours..
2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
3.1 The Provider shall use reasonable endeavours to resolve issues raised through the Support Service promptly, and in any case within 48 hours.
4.1 The Support Services shall be provided remotely.
5.2 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of DisplayMapper by the Customer; or
(b) any alteration to DisplayMapper made without the prior consent of the Provider.