TERMS AND CONDITIONS
swatcheditor™ ltd, a company incorporated under the laws of England and Wales with registered number 10886265 and having its registered address at studio 3, 37 Main Street, Pembroke, SA71 4JS (“se”).
You wish “se” to create and host a cloudbased workshop for your designs together with the functionality for visualising by real-time editing or viewing and sharing links or downloading images as a high resolution png, all on the terms and conditions set out in this Agreement. This Agreement comprises:
(1) the Commercial Particulars as set out below; and
(2) the terms and conditions as set out below”
Fees VIEWER - £19 per month or £209 per year (excluding VAT). There is a limit of 50 swatch uploads at any one time.
Fees EDITOR - £49 per month or £539 per year (excluding VAT). There is a limit of 200 swatch uploads at any one time.
Fees EDITOR PLUS - £99 per month or £1089 per year (excluding VAT). There is a limit of 900 swatch uploads at any one time.
The fees include basic customisations to the Hosted Site in accordance with the guidelines as made available by “se” from time to time.
TERMS AND CONDITIONS
All capitalised terms used in these Terms and Conditions have the meanings set out in clause 15.
1. HOSTING SERVICES
1.1. ”se” will provide the Hosting Services and otherwise perform its obligations under these Terms and Conditions in accordance with all applicable provisions of these Terms and Conditions and all applicable laws.
1.2. ”se” will use commercially reasonable efforts to make the Hosting Services available 24 hours a day, 7 days a week, except for:
(a) planned downtime which “se” will schedule to the extent reasonably practicable during weekends;
(b) any unavailability caused by circumstances beyond “se” reasonable control, including acts of God, acts of government, lightning, flood, exceptionally severe weather, fire, earthquakes, explosions, war, civil unrest, acts of terror, acts or omissions of local or central government or other competent authorities; and computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within “se”'s possession or reasonable control, and denial of service attacks; or
(c) legal or regulatory restrictions imposed on “se” which prevent “se” from providing the Hosting Services.
2. THE HOSTED SITE
2.1. The Hosted WORKSHOP will display all of your Swatches which have been uploaded through your Hosted Site account control panel.
(a) It is your sole responsibility to verify the identity of the customers you share links with.
(b) ”se” is not a party to, and does not play any role in, any of the Sales Contracts for the Designs on the Hosted Site or to any other dealings between you and the Hosted Site Buyers. For the avoidance of doubt, “se” does not obtain any commission in respect of the sale of any Designs on the Hosted Workshop.
2.2. You acknowledge that although the Hosted Workshop contains functionality for the viewing of the Swatches, it does not provide payment services.
2.3. ”se” may change the Hosted Site (or any part thereof) at any time, including the availability of any feature, database, or content. “se” may also impose limits on certain features and services of parts or all of the Hosted Site. “se” will give reasonable notice of such changes or limitations where it is reasonably possible to do so.
3. YOUR RESPONSIBILITIES
3.1. You undertake that you will:
(a) perform your obligations under these Terms and Conditions in accordance with all applicable provisions of these Terms and Conditions and all applicable laws; and
(b) provide “se” with reasonable notice of any circumstances that you have prior knowledge of that may affect the normal operation of the Hosting Services; and
(c) co-operate with “se” in all matters relating to the Hosting Services.
3.2. You will use reasonable effort to prevent unauthorised access to or use of the Hosted Site or any other security breach, and will contact “se” immediately of any such unauthorised access to or use. “se” will not be liable for any Losses that you may incur as a result of any such unauthorised access other than where such use arises due to the breach of contract or negligence of “se”. However, you may be held liable for any Losses incurred by “se” as a result of any such unauthorised use.
3.3. You must not request or permit anyone other than “se” or an authorised nominee of “se” to provide, diagnose, interpret, troubleshoot or access the Hosted Site in any way, shape or form, without the prior written consent of “se”, not to be unreasonably withheld or delayed.
4. YOUR INTELLECTUAL PROPERTY RIGHTS
4.1. Subject to the license in clause 4.2, all rights, title and interest in your intellectual property rights will remain vested in you.
4.2. You hereby grant to “se” a non-exclusive, royalty-free, worldwide licence to your intellectual property rights:
(a) to the extent required by “se” to fulfil its obligations under these Terms and Conditions;
(b) to use, display or include, as applicable, your Trade Marks that you submit to “se” for use (i) on app.swatcheditor.com; (ii) in online or mobile communications outside swatcheditor (iii) when making announcements of the availability of your company as a swatcheditor user; (iv) in marketing presentations; (v) in company lists that appear on “se”’s website or elsewhere online; and
(c) to otherwise market your website or fulfil “se” obligations under these Terms and Conditions.
5.1. In consideration of “se” providing the Hosting Services you will pay to “se” the fees set out in the Commercial Particulars.
5.2. ”se” will issue invoices to you monthly in advance, or annually in advance where such a payment is specified in the Commercial Particulars. The fees will be payable by you to “se” on the date of the invoice.
5.3. All sums payable under these Terms and Conditions are payable in pounds sterling and are exclusive of value added tax and any other taxes, charges or duties to which the supply of goods or services may be subject or give rise.
5.4. If any withholding type tax is levied on a payment to “se”, then you must increase the amount paid to “se” so that the amount received after the withholding tax is deducted is the full amount “se” would have received if no withholding deduction had been made.
6. OWNERSHIP RIGHTS IN THE HOSTED SITE
6.1. The software, workflow processes, user interface, designs and other technologies provided by “se” as part of the Hosted Site are the proprietary property of “se” and its licensors. All right, title and interest in and to such items, including all associated intellectual property rights, remain with “se”. You must not remove or modify any proprietary marking or restrictive legends within the Hosted Site. “se” reserves all rights unless expressly granted under these Terms and Conditions.
6.2. You must not:
(a) sell, resell, rent or lease the Hosted Site or use it in a service provider capacity;
(b) attempt to gain unauthorised access to the Hosted Site or related systems or networks;
(c) reverse engineer or otherwise decompile any aspect of the Hosted Site except to the extent permitted by law; or
(d) access the Hosted Site to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
(e) copy any assets and functionality of assets or workings of the workshop
6.3. By submitting ideas, suggestions or feedback to “se” regarding the Hosted Site, you agree that such items submitted do not contain confidential or proprietary information; and you hereby grant “se” an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
6.4. You are not granted any rights or licence in respect of the “se” Trade Marks, which are and will remain the sole and exclusive property of “se”.
7. YOUR USE OF THE HOSTED SITE
7.1. You must not access or use the Hosted Site in any manner or for any purpose other than as expressly permitted by these Terms and Conditions.
7.2. You may only use the Hosted Site for commercial purposes and in accordance with the applicable laws.
7.3. You must not:
(a) use the Hosted Site to store or transmit indecent, obscene, pornographic, blasphemous, infringing, defamatory, libellous or otherwise objectionable, unlawful or tortious material, or material which violates third party rights; or
(b) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws and regulations.
7.4. You are solely responsible for:
(a) your acts and/or omissions in connection with the Hosted Site (including any resulting loss or damage that “se” may suffer); and
(b) any breach or failure to comply with your obligations under these Terms and Conditions, and the consequences thereof (including any resulting loss or damage that “se” or any third party may suffer).
8.1. You will indemnify and hold harmless “se” from and against any Losses incurred by “se” for any third party claims arising from or in connection with:
(a) your use of the Hosted Site in breach of these Terms and Conditions;
(b) any assertion that any of your Designs infringes any copyright and rights in the nature of copyright of a third party or defames any person;
(c) your breach of a Sale Contract; and
(d) the use by any Hosted Site Buyer of any of your Designs in accordance with the Hosted Site Ts&Cs.
9. NO LIABILITY
9.1. Except as expressly set out in these Terms and Conditions, to the maximum extent permitted by law “se” hereby excludes all warranties and representations of any kind, express or implied, regarding the Hosted Site, including warranties and representations:
(a) as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of the Hosted Site;
(b) that the Hosted Site will meet your requirements;
(c) that the Hosted Site will function uninterrupted or error-free; and
(d) that the Hosted Site is secure, free from attack, interference, hacking or other security intrusion, or free of malicious programs or other harmful components.
9.2. To the maximum extent permitted by law “se” hereby excludes all warranties and representations of any kind, express or implied, regarding the Hosted Site Ts&Cs, including warranties and representations regarding the suitability of such Hosted Site Ts&Cs for the Hosted Site, your Designs and/or your business.
9.3. Nothing in these Terms and Conditions will operate to exclude or limit “se”'s liability for (a) death or personal injury caused by “se”'s negligence, (b) fraud or (c) any other liability which cannot be excluded or limited under applicable law.
9.4. Subject to clause 9.3, “se” will have no liability to you or any other person for any damage or loss of any kind, whether such damage or loss is direct, indirect, special or consequential and whether it arises in contract, tort (including negligence) or otherwise, even if such loss was reasonably foreseeable or “se” has been advised of the possibility of such loss. In particular, “se” will have no liability, obligation or responsibility whatsoever in relation to (a) loss of profits; (b) loss of sales, income, business or opportunity; (c) loss of anticipated savings; (d) loss of, or damage to, reputation or goodwill; or (e) loss of use of, or corruption to, software, data or information.
9.5. Your submission of information in connection with the Hosted Site is at your sole risk, and to the maximum extent permitted by law, “se” hereby disclaims any and all liability to you for any loss or liability relating to such information in any way. You are responsible for backing up your own systems and data.
10. SECURITY AND DATA PROTECTION
10.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
10.2. The terms controller, processor, process, personal data, data subject and personal data breach in this clause 10 shall have the meanings given to those terms in the applicable Data Protection Legislation.
10.3. The parties acknowledge that for the purposes of the Data Protection Legislation, you are the controller and “se” is the processor of personal data relating to Visitors. The Appendix sets out the scope, nature and purpose of processing by “se”, the duration of the processing and the types of personal data and categories of data subject.
10.4. Without prejudice to the generality of clause 10.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Visitors’ personal data to “se” for the duration and purposes of this Agreement.
10.5. Without prejudice to the generality of clause 10.1, “se” shall, in relation to any personal data relating to Visitors processed in connection with the performance by “se” of its obligations under this Agreement:
(a) process that personal data only on your written instructions unless “se” is required by applicable laws to otherwise process that personal data. Where “se” is relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, “se” shall promptly notify you of this before performing the processing required by the applicable laws unless those applicable laws prohibit “se” from so notifying you;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless “se” has your prior written consent and the following conditions are fulfilled:
(i) you or “se” has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) ”se” complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) ”se” complies with reasonable instructions notified to it in advance by you with respect to the processing of the personal data;
(e) assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, personal data breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify you without undue delay on becoming aware of a personal data breach;
(g) at your written direction, delete or return to you personal data and copies thereof on termination of this Agreement which cannot be deleted or obtained by you, unless required by applicable law to store the personal data; and
(h) if required by Data Protection Legislation, maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and
(i) allow for audits by you subject to the following conditions: (a) to be conducted at such times as agreed with “se” to ensure minimal disruption to its business; (b) on reasonable notice; (c) subject to “se” obligations of confidentiality owed to third parties; (d) by a suitably qualified independent auditor; (e) the scope, methodology and timing of vulnerability scans or penetrations tests to be pre- agreed by “se” before being undertaken and shall be subject to a separate written agreement; and (f) not more than once per year except where an additional audit is required in the same twelve month period because there has been an actual personal data breach or reasonable suspicion of a personal data breach. “se” shall provide all information reasonably necessary and cooperate fully with such audit. Any such audit shall be undertaken at your own cost, and you shall reimburse “se” for its reasonable costs incurred on a time and materials basis in facilitating an audit. You agree to provide a copy of the audit results to “se”. For the avoidance of doubt, all audit results will be considered “se” confidential information.
10.6. You consent to “se” appointing third-party processors of personal data under this Agreement. “se” confirms that it will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 10. As between you and “se”, “se” shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 10.
10.7. Please read the “se” Privacy Notice which also governs your use of the Hosted Site.
10.8. ”se” may use non-personally identifiable data within the Hosted Site for purposes of enhancing the Hosted Site, aggregated statistical analysis, technical support and other business purposes.
11. TEMPORARY SUSPENSION
11.1. ”se” may at any time immediately suspend your right to access or use any part or all of the Hosted Site, without liability to you and in addition to any other rights and remedies of “se”, if “se” determines in its sole discretion that:
(a) the access or use by you of the Hosted Site poses a material security risk to “se” or any third party, or may subject “se” or any third party to material liability;
(b) a Hosted Site Buyer makes a material complaint about you;
(c) ”se” has reasonable grounds to suspect that you have engaged in fraudulent activity in connection with the Hosted Site; or
(d) you are in material breach of these Terms and Conditions.
11.2. If “se” suspends your right to access or use any part or all of the Hosted Site:
(a) ”se” will use reasonable endeavours to notify you of such suspension as soon as reasonably practicable; and
(b) you will remain responsible for all fees that are payable during the period of the suspension.
12. TERM AND TERMINATION OF THE AGREEMENT
12.1. “The Agreement will take effect from the date you click “Submit” on any of the Plan submission form, namely “viewer” “editor” “editor plus”. If you selected the monthly option, either party may terminate the Agreement at any time by sending written notice of at least one 1 month to the other party. If you selected the yearly option the Agreement will continue for a period of 12 months; thereafter either party may terminate the Agreement at any time by sending written notice of at least one 1 month to the other party. This clause 12.1 is subject to the other termination provisions of this Agreement.”
12.2. ”se” may terminate the Agreement at any time with immediate effect by written notice to you if any act or omission by you results in a temporary suspension described in clause 11.
12.3. Upon the expiry or termination of the Agreement for any reason:
(a) neither party will have any further right or obligation with respect to the other party except as set out in this clause 12.3 and those clauses which expressly or by implication are intended to come into or continue in force on or after termination of the Agreement;
(b) all accounts and all details of Hosted Site Buyers will be deleted; and
(c) any and all amounts outstanding and any unpaid amounts due and owed under the Agreement will become immediately due and payable.
12.4. The expiry or termination of the Agreement for any reason will not prejudice or affect the accrued rights, remedies obligation or liabilities of the parties existing at termination.
13. NOTICES AND COMMUNICATIONS
13.1. When you use the Hosted Site or send emails to “se”, you are communicating with “se” electronically. “se” will communicate with you by e-mail. You consent to receive communications from “se” electronically and you agree that all notices and communications that “se” provides you electronically satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws specifically require a different form of communication.
13.2. All notices that you are required or desire to give to “se” must be in writing and sent:
(a) by registered post or courier to swatcheditor ltd, studio 3, 37 Main Street, Pembroke, Wales, SA71 4JS, UK and marked for the attention of the The Director; and such notices will be deemed to be received by “se” three (3) Business Days after the date on which they are sent by registered post or courier; or
(b) by email provided that the email is sent from the email address as detailed in your account on the Hosted Site; and such notices will be deemed to be received by “se” immediately. If for any reason you send an email from a different email address “se” will not take any responsibility if it does not receive the email for any reason, including if it is categorised as spam.
14.1. No variation or amendment will be made to the Agreement unless it is made by a written instrument which expressly purports to amend the Agreement and is executed by or on behalf of each party.
14.2. You may not assign or transfer the Agreement without “se”’s prior written consent, such consent not to be unreasonably withheld or delayed.
14.3. ”se” will be entitled without consent to sub-contract or delegate all or any of its obligations under the Agreement but “se” will remain primarily responsible for all acts and omissions of its sub-contractors as though they were its own.
14.4. Each of you and “se” are independent contractors with respect to each other. Nothing contained in the Agreement is intended to, will be deemed to, or will create any partnership or joint venture between the parties.
14.5. A failure or delay by a party at any time or for any period to enforce any of its rights under the Agreement will not constitute a waiver of such rights or the right at any time subsequently to enforce any provisions of the Agreement.
14.6. Each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach by the other party of these Terms and Conditions. Accordingly, without prejudice to any other rights or remedies that a party may have, a party may be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms and Conditions.
14.7. If any of these Terms and Conditions is found to be invalid, unenforceable or illegal, then such provision will be severed and will not affect the validity and enforceability of any remaining Terms and Conditions.
14.8. No third party will have any rights under, or be able to enforce, the Agreement.
14.9. The Agreement constitutes the entire agreement between the parties and supersedes all previous arrangements between the parties relating to its subject matter. Each party acknowledges that that it has not relied on any oral or written representation (whether made negligently or innocently) other than as expressly set out in the Agreement. Nothing in this clause 14.9 will limit or exclude any liability for fraud.
14.10. The Agreement is governed by and construed in accordance with English law. Any dispute or claim arising in connection with the Agreement or any non-contractual dispute will be subject to the exclusive jurisdiction of the English courts.
15.1. In these Terms and Conditions the following terms will have the following meanings:
“Business Day” means any calendar day other than a Saturday, Sunday or a public bank holiday in England;
“Data Protection Legislation” (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”); (ii) the Data Protection Act 2018; and (iii) any other applicable laws and regulations relating to the processing of personal data and privacy.
“Design” means prints, patterns graphics and any other form of your design;
“Hosted Site” means the website which displays your Designs which have been uploaded via your Hosted Site account control panel.
“Hosted Site Buyer” means a buyer which is registered by you to use the Hosted Site;
“Hosted Site Ts&Cs” means the terms and conditions applicable to the Hosted Site, including the terms of sale for the purchase of Designs via the Hosted Site, and as may be modified by you from time to time;
“Hosting Services” means the services provided by “se” to host the Hosted Site;
“Losses” means any and all losses, costs, damages, expenses and other charges (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs);
“Sale Contract” means the contract created between you and a Hosted Site Buyer for any of your Designs on the Hosted Site;
“Trade Marks” means trade marks, trade names, service marks, logos, domain names, and other distinctive brand features;
“Visitors” means visitors to the Hosted Site.
15.2. In interpreting these Terms and Conditions (unless the context otherwise requires) any phrase introduced by the terms "including", "includes", “in particular”, “for example” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
Subject matter of processing
“se” providing you with website hosting services.
Duration of processing
The duration of the Agreement plus the period required for both parties to exercise their rights and perform their obligations after termination of the Agreement.
Nature and purpose of processing
“se” performs the following processing activities:
Complying with legal obligations Dispute management.
Maintaining and enhancing products and services.
Providing products and services Supporting network and system security.
Types of personal data
IP address; cookies, login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices Visitors use to access the Hosted Website; bank details; contractual details including services provided; location details; name and contact information; role; areas of design interest; job title; VAT number; purchase history.
Categories of data subjects