Superia Commerce Limited Terms & Conditions of Service

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation to the Superia platform and services. You will be asked to agree to these terms and conditions before becoming a customer.

You should print a copy of these terms and conditions for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our website in future.

These terms and conditions are available in the English language only.

If you have any questions or complaints about our services, please contact us by writing to Superia Commerce Ltd, 73 Heathcliff Road, Tyseley, Birmingham B11 3RB or via our contact page.

1. Definitions and Interpretation

1.1 In the Agreement:

"Add-ons" means the optional Platform-based Services, additional to a Package, that are offered by Superia and purchased by the Customer;

Agreement” means the agreement between Superia and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedule) and the Customer Information Page, and any amendments to the Agreement from time to time;

"Agreement Month" means:

(a) a period starting at the time of execution of the Agreement on the Effective Date, and ending at midnight at the end of the same day of the following calendar month; and

(b) a period starting immediately after the end of an Agreement Month, and ending at the same time on the same day of the following calendar month;

"Superia" means Superia Commerce Ltd, a company incorporated in England and Wales (registration number 07334150) having its registered office at 73 Heathcliff Road, Tyseley, Birmingham B11 3RB;

Business Day” means any week day, other than a bank or public holiday in England;

Business Hours” means between 09:00 and 17:00 London time on a Business Day;

Charges” means the amounts payable by the Customer to Superia under or in relation to the Agreement (as set out on the Superia website from time to time);

Confidential Information” means:

(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to Superia during the Term that is marked as “confidential”, described as “confidential” or should have been understood by Superia at the time of disclosure to be confidential;

(b) any credit card or debit card details supplied by the Customer to Superia; and

(c) all information concerning the users and customers of the Customer;

"Custom Design" means a custom design of the appearance of the Customer Website created by Superia in accordance with Clause 4;

"Customer" means the company or other entity, partnership or sole trader, identified as the customer on the Customer Information Page;

"Customer Information Page" means the document made available by Superia to the Customer during the order process that specifies the identity of the Customer, the identity of the Customer Representative and the Customer's address for contract notices, and that is agreed by the Customer during the order process;

"Customer Materials" means:

(a) all works and materials uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or system using the Customer's account; and

(b) all Feedback;

"Customer Representative" means the person identified as such in the Customer Information Page;

"Customer Website" means a website created by the Customer using the Platform and hosted by Superia under the Agreement;

"Custom Functionality" means customisations to the Platform software created by Superia in accordance with Clause 4;

Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:

(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors or of any other person using the Customer's login details; or

(b) an incompatibility between the Platform and any other system, application, program, software or code not specified as compatible by Superia;

Effective Date” means the date that the Agreement comes into force as specified in Clause 2;

"Feedback" means any comments, suggestions or other feedback sent by the Customer to Superia concerning the Platform or Services, whether sent using dedicated feedback systems, by email, or otherwise;

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 or problems with the internet or a part of the internet, hacker 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);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (including 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);

"Logo" means a graphic trade mark representing the Customer or a product or service of the Customer created by Superia for the Customer under Clause 4;

"New Functionality" means new functionality that is introduced to the Platform by an Update;

"Package" means the package of Platform-based Services offered by Superia and purchased by the Customer;

"Permitted Purpose" means the purpose of creating, publishing and operating a single Customer Website having some or all of the features permitted by the Package and Add-ons purchased by the Customer, excluding any website that falls within the definition of Prohibited Websites;

Personal Data” has the meaning given to it in the Data Protection Act 1998;

Platform” means the software platform known as "Superia" that is owned and operated by Superia, and that will be made available to the Customer as a service via the internet under the Agreement (including the Customer Website and including the POP email and webmail functionality made available under the Agreement);

"Prohibited Websites" means websites that:

(a) are in whole or in part pornographic, obscene, indecent, illegal or unlawful;

(b) sell furs, skins or other animal products, weapons (excluding toys), or products that are pornographic, obscene, indecent, illegal or unlawful; or

(c) have as a purpose the distribution or publication of any pornographic, obscene, indecent, illegal or unlawful material;

Services” means all the services provided or to be provided by Superia to the Customer under the Agreement, including the Support Services;

"Support Services" means support and maintenance services provided or to be provided by Superia to the Customer in accordance with Clause 5;

Term” means the term of the Agreement; and

Updates” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform (excluding Custom Designs and Custom Functionality).

1.2 In the Agreement, 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.

1.3 The Clause headings do not affect the interpretation of the Agreement.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

2. Agreement and Term

2.1 The advertising of the Platform and the Services on the Superia website constitutes an “invitation to treat”; and the Customer's order for the Platform and the Services constitutes a contractual offer. No contract will come into force between Superia and the Customer unless and until Superia accepts the Customer's order in accordance with the procedure detailed in this Clause 2.

2.2 The parties may enter into the Agreement either by following the online order procedure set out in Clause 2.3 or, where Superia agrees, by following the email order procedure set out in Clause 2.4

2.3 In order to enter into the Agreement via the online order procedure, the parties must take the following steps: (i) the Customer must select the required Package and Add-ons from the menu on the Superia website; (ii) if the Customer does not have an account with the website, the Customer must then create an account with the Superia website, and in any case the Customer must log in; (iii) once the Customer is logged in, the Customer must confirm its agreement to the terms of the Agreement (including the Customer Information Page); (iv) the Customer will then be able to submit its first payment by credit or debit card; (v) after payment has been submitted, Superia will send to the Customer an initial acknowledgement; and (vi) once Superia has attempted to verify the identity, credit-worthiness and bona fides of the Customer, Superia will either send the Customer an order confirmation (at which point the Agreement will come into force) or Superia will confirm to the Customer that Superia does not accept the Customer's offer to contract (in which case the Customer will be refunded the full amount paid to Superia). Before the Customer has placed its order, the Customer will have the opportunity of identifying whether any input errors have been made. The Customer may correct any input errors before placing its order using the Superia website interface.

2.4 In order to enter into the Agreement via the email order procedure, the parties must take the following steps: (i) Superia must send to the Customer a copy of the Agreement, including a completed Customer Information Page; (ii) the Customer must send to Superia an email confirming that the Customer agrees to the terms of the Agreement (this is the Customer's offer to contract); and (iii) Superia must indicate its acceptance of the Customer's offer by email to the Customer (in which case the Agreement will come into force when the acceptance email is dispatched by Superia).

2.5 Once in force, the Agreement will continue in force indefinitely, unless terminated in accordance with Clause 17.

3. The Platform

3.1 The Platform will automatically generate an account for the Customer following the completion of the procedure set out in Clause 2.3, enabling the Customer to access the Platform. In appropriate cases, Superia will manually generate an account for the Customer following the completion of the procedure set out in Clause 2.4, enabling the Customer to access the Platform.

3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, Superia hereby grants to the Customer a non-exclusive licence to:

(a) use the Platform via the Platform's content management system for the Permitted Purpose via any current standard web browser;

(b) access the Platform via FTP for the purposes of uploading, downloading or deleting files that are used by the Customer Website for the Permitted Purpose; and

(c) use the Platform's POP email and webmail facilities,

in each case during the Term only.

3.3 The licence granted by Superia to the Customer under Clause 3.2 is subject to the following limitations:

(a) the Platform may only be used by the employees, agents and sub-contractors of the Customer and:

(i) where the Customer is a company, the Customer's officers;

(ii) where the Customer is a partnership, the Customer's partners; and

(iii) where the Customer is a limited liability partnership, the Customer's members;

(b) the Customer agrees to and will comply at all times with the terms of the acceptable use policy set out in the Schedule to the Agreement, and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy; and

(c) the Customer must not use the Platform to create or host or publish any Prohibited Website.

3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by Superia to the Customer under this Clause 3 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;

(b) the Customer must not re-publish or re-distribute the Platform in any way; and

(c) the Customer must not alter or adapt or edit the Platform.

3.5 For the avoidance of doubt, the Customer has no right to access or view the object code or source code of the Customer Website or the Platform, either before, during or after the Term.

3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of Superia.

3.7 The Customer shall ensure that no unauthorised person will access the Platform using the Customer's account.

3.8 The Customer must not use the Customer Website or Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

3.9 The Customer must not use the Customer Website or Platform:

(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 The Customer acknowledges that the Customer's access to the Customer Website and the Platform will be limited, and that the Customer will have no administrative rights in relation to the server or servers on which the Customer Website is hosted, nor any right to require changes to the configuration of such server or servers.

3.11 Where Superia registers or attempts to register a domain name on behalf of the Customer, the following provisions shall apply.

(a) Superia does not warrant or represent that it will be able to register any specific domain name on behalf of the Customer.

(b) Superia may reject in its sole discretion any request to register a particular domain name.

(c) The Customer warrants that the information submitted for the purposes of a domain name registration is current, accurate and complete, that it has the legal right to apply for and use the domain name, and that its use of the domain name will not infringe any person's Intellectual Property Rights or other legal rights.

(d) The Customer acknowledges that domain names will be subject to the rules and policies from time to time of the relevant registry or registration authority, and the Customer agrees to abide by all such rules and policies.

(e) Superia will not offer any advice in relation to any actual or potential domain name dispute, and will have no liability in respect of the suspension or loss of a domain name by the Customer as a result of any domain name arbitration procedure or court proceedings.

(f) Superia will send a renewal notification email to the email address specified by the Customer approximately 8 weeks before the domain name renewal date. If the Customer wishes to cancel the renewal of the domain name, the Customer must notify Superia in writing within 14 days following the date of sending of the renewal notification email. If the Customer fails to do so, then the Customer will be liable to Superia for the applicable Charges in respect of the renewal of the domain name. Notwithstanding this potential liability, Superia shall have no obligation to attempt to renew a domain name unless Superia receives a notice requesting renewal from the Customer during the 14 day period referred to above.

4. Design and Development Services

4.1 This Clause 4 shall apply where the parties agree (whether via the purchase of a suitable Add-on by the Customer or otherwise) that Superia will create:

(a) a Custom Design;

(b) Custom Functionality; and/or

(c) a Logo,

on behalf of the Customer.

4.2 The services provided by Superia in the creation of a Custom Design, Custom Functionality or a Logo shall be subject to such limitations agreed between the parties (including limitations specified in the description of an Add-on purchased by the Customer). Such limitations will include a specific number of revisions of the Custom Design, Custom Functionality or Logo. Once that number of revisions has been performed by Superia, then no further services shall be provided by Superia in relation to that Custom Design, Custom Functionality or a Logo. In the event that upon the instructions of the Customer Superia exceeds any such limitation, Superia shall have the right to charge the Customer additional Charges, such Charges to be calculated by Superia acting reasonably. Where the number of revisions is not expressly agreed between the parties, Superia will give the Customer at least one opportunity to review and comment upon any Custom Design, Custom Functionality or Logo.

4.3 Where this Clause 4 applies, the Customer must provide to Superia any website content (such as text, images, video and sound files) to be incorporated into the Customer Website through the Services. The Customer acknowledges that the performance of the Services by Superia may depend upon the timely provision of such content. Accordingly:

(a) if content is not provided within 4 weeks following a written request for such content then Superia may unilaterally vary the applicable Charges to reflect any variations in Superia's standard rates from time to time and any increase in third party costs arising as a result of the delay; and

(b) if content is not provided within 8 weeks following a written request for such content then the Customer will be deemed to be in material breach of the terms of the Agreement, and without prejudice to Superia's other rights and remedies, Superia shall have the right to terminate the Agreement and immediately be paid all amounts due in respect of the Custom Design or the Custom Functionality under the terminated Agreement.

4.4 Any timetable or delivery date relating to the creation of a Logo, a Custom Design or Custom Functionality and agreed between the parties shall be an estimated timetable or estimated delivery date only, and accordingly Superia shall not be in breach of the terms of the Agreement by virtue of any failure to meet such timetable or delivery date.

4.5 Upon the completion of the development of any Custom Design or Custom Functionality, Superia will make it available to the Customer for review and testing, and within 30 days following the date when the Custom Design or Custom Functionality is made available to the Customer, the Customer will notify Superia in writing either:

(a) that the Custom Design or Custom Functionality conforms with the terms of the Agreement; or

(b) that the Custom Design or Custom Functionality does not conform with the terms of the Agreement.

4.6 Subject to Clause 4.7, where the Customer gives Superia a notice under Clause 4.5(b), then Superia shall remedy the defect in the Custom Design or Custom Functionality within a reasonable period and without charging the Customer in respect of the remedy.

4.7 Where:

(a) the Customer gives to Superia a notice under Clause 4.5(a); or

(b) the Customer fails to give to Superia any notice under Clause 4.5 within the period specified in that Clause; or

(c) the Customer gives to Superia a notice under Clause 4.5(b) but Superia (acting reasonably) determines that the Custom Design or Custom functionality does in fact conform with the terms of the Agreement,

then the Customer Website shall be deemed to be completed and accepted, and any further work upon the Custom Design or Custom Functionality shall be subject to the payment of additional Charges.

4.8 From the date when Custom Functionality or a Custom Design is first made available to the Customer, the Custom Functionality or Custom Design shall form part of the Platform under the Agreement, and accordingly from that date the Customer's rights to use the Custom Functionality or Custom Design shall be governed by Clause 3.

4.9 All Intellectual Property Rights in Custom Functionality shall, as between the parties, be the exclusive property of Superia.

4.10 Subject to the payment by the Customer of all amounts due by the Customer to Superia in respect of the Custom Design, Superia hereby assigns to the Customer all of its Intellectual Property Rights in any Custom Design. This assignment shall be effective on the date of acceptance or deemed acceptance of the Custom Design by the Customer.

4.11 Subject to the payment by the Customer of all amounts due by the Customer to Superia in respect of the Logo, Superia hereby assigns to the Customer all of its Intellectual Property Rights in any Logo. This assignment shall be effective on the date of acceptance or deemed acceptance of the Logo by the Customer.

4.12 The Customer will be responsible for procuring any third party co-operation (including co-operation from the Customer's design agency) reasonably required by Superia to enable Superia to fulfil its obligations under this Clause 4.

4.13 The Customer acknowledges that Superia may make any Custom Functionality available to its other Customers at any time, without restriction and without obligation to the Customer, notwithstanding that the Customer may have paid Superia for the development of the Custom Functionality.

4.14 In relation to Custom Designs, the Customer acknowledges that:

(a) image files used by Superia in the creation of a Custom Design (including .psd, .ai and .png files) will be not be supplied by Superia to the Customer except where the parties have expressly agreed otherwise in writing; and

(b) artwork incorporated into a Custom Design will typically be created at a resolution of 72dpi and will therefore be unsuitable for print,

and any materials supplied or Services performed by Superia outside the scope of this Clause 4.14 will usually be subject to the payment of additional Charges by the Customer.

4.15 The Customer acknowledges that a Custom Design may not always exactly match an agreed graphic design, because of differences in the way that web browsers render web pages.

4.16 In relation to Logos, the Customer acknowledges that they will usually be delivered in .ai, ,.png, .eps, .psd, .jpg and .gif formats, and the supply of Logos in any other format may be subject to the payment of additional Charges by the Customer.

5. Hosting and Support Services

5.1 Superia will host the Customer Website on the Platform during the Term.

5.2 Superia may suspend the publication of the Customer Website and/or access to the Platform in order to carry out scheduled or emergency maintenance.

5.3 Scheduled maintenance shall be carried out outside Business Hours.

5.4 Superia will make available an online ticket-based helpdesk facility for the purposes of:

(a) assisting the Customer with the proper use of the Platform; and/or

(b) determining the causes of errors and fixing errors in the Platform.

5.5 The Customer must make all requests for Support Services through the helpdesk, and all such requests must include at least the following information: the Customer's name, the Customer's website address, and adequate information about the problem or issue giving rise to the request.

5.6 Superia will:

(a) respond promptly to requests for Support Services made through the helpdesk by a Customer Representative; and

(b) use reasonable endeavours to resolve issues raised by the Customer Representative within 12 Business Hours following the raising of the issue.

5.7 The Customer acknowledges that all Support Services will be provided remotely, unless expressly agreed otherwise by Superia.

5.8 Superia shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by the improper use of the Platform or by the addition, installation or use of non-Superia code.

5.9 The Customer acknowledges that from time to time during the Term Superia may apply Updates to the Platform, and that such Updates may result in changes to the appearance and/or functionality of the Platform.

5.10 Superia will make back-ups of the Customer Materials stored on the Platform once in each 24 hour period during the Term.

5.11 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to Superia under this Clause 5, Superia shall, if so directed by the Customer, use reasonable endeavours to promptly restore the Customer Materials from the most recent available back-up copy.

5.12 Superia may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.

6. Customer Instructions

The Customer will ensure that all instructions in relation to the Agreement will be given by the Customer Representative to Superia, and Superia:

(a) may treat all such instructions as the fully authorised instructions of the Customer; and

(b) has no obligation to comply with any other instructions in relation to the Agreement without first obtaining the consent of the Customer Representative.

7. Customer Materials

7.1 The Customer shall ensure that the Customer Materials supplied by the Customer to Superia conform to any specifications and/or descriptions of such Customer Materials previously agreed between the parties in writing.

7.2 The Customer grants to Superia a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.

7.3 Subject to Clause 7.2, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.

7.4 The Customer warrants and represents to Superia that the Customer Materials, and their use by Superia in accordance with the terms of the Agreement, will not:

(a) breach any laws, statutes, regulations or legally-binding codes;

(b) infringe any person's Intellectual Property Rights or other legal rights; or

(c) give rise to any cause of action against Superia or the Customer or any third party,

in each case in any jurisdiction and under any applicable law.

7.5 Where Superia reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 7, Superia may:

(a) delete or amend the relevant Customer Materials; and/or

(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.

7.6 Any breach by the Customer of this Clause 7 will be deemed to be an irremediable material breach of the Agreement for the purposes of Clause 17.1.

8. Trial Period: Development Site

Where the Customer signs-up for a trial development website to be hosted on the Platform, all of the provisions of the Agreement shall apply, subject to the following:

(a) the trial development website shall remain available for 14 days, after which it, and all the Customer Materials stored on it, shall be irretrievably deleted;

(b) the Customer shall have no obligation to pay any licence charges in respect of the trial development website; and

(b) either party may terminate the Agreement immediately by giving written notice to the other party at any time.

9. Free Customer Websites

Where the Customer signs-up for free basic Customer Website to be hosted on the Platform, all of the provisions of the Agreement shall apply, subject to the following:

(a) each Customer may sign up for a single free Customer Website only;

(b) the Customer shall have no obligation to pay any licence charges in respect of the free Customer Website; and

(b) either party may terminate the Agreement immediately by giving written notice to the other party at any time.

10. Charges and Payment

10.1 The Charges under the Agreement will consist of the following elements:

(a) the Charges in respect of a Package or Add-on as specified on the Superia website on the Effective Date; and

(b) any other Charges agreed in writing by the parties,

in each case subject to variation in accordance with this Clause 10;

10.2 Where other Charges are to be calculated by reference to an hourly or daily rate, the following rates shall apply: GBP £50.00 per hour (subject to variation in accordance with this Clause 10).

10.3 Where the parties agree that Superia will provide Services under Clause 4 to the Customer, then such agreement will be subject to the Customer paying to Superia a non-refundable deposit, the amount of such deposit being 50% of the total agreed amount in respect of those Services unless the parties agree otherwise in writing.

10.4 All Charges stated in or in relation to the Agreement are stated exclusive of any applicable VAT, unless the context requires otherwise.

10.5 Superia may vary the Charges and/or its hourly or daily rate by giving to the Customer not less than 30 days' written notice of the variation.

10.6 The Customer must pay the Charges as follows:

(a) Charges in respect of any Package during an Agreement Month must be paid by the Customer before the start of that Agreement Month;

(b) Charges in respect of any Add-on must, subject to Clause 10.6(c), be paid by the Customer upon the purchase of that Add-on; and

(c) the non-refundable deposit in respect of the creation by Superia of any Custom Functionality, Custom Design or Logo must be paid in advance of the provision of the relevant Services, and the balance of the Charges in respect of such Services must be paid within 14 days following the issue of an invoice by Superia for the payment of such Charges.

10.7 Superia will send invoices in respect of the Charges, made out to the Customer, by email to the Customer Representative.

10.8 Charges must be paid by credit card, debit card or PayPal via the Superia website or by credit card or debit card via telephone. In addition, Superia may retain the payment details of the Customer, and upon Charges becoming due under the Agreement, may request the relevant amount using those payment details without obtaining the further consent of the Customer.

10.9 If the Customer does not pay any amount properly due to Superia under or in connection with the Agreement, Superia may:

(a) charge the Customer the costs of any debt collection agency, solicitors or other third party appointed in relation to the debt, plus interest on the overdue amount at the rate of 8% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10.10 Superia may suspend access to the Platform and the provision of any or all Services if any amounts due to be paid by the Customer to Superia under the Agreement are or become overdue.

12. Warranties and Representations

12.1 The Customer warrants and represents to Superia that it has the legal right and authority to enter into and perform its obligations under the Agreement.

12.2 Superia warrants to the Customer:

(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;

(b) that it will perform its obligations under the Agreement with reasonable care and skill;

(c) that the Platform will operate without Defects; and

(d) the Platform (excluding for the avoidance of doubt the Customer Materials) will not infringe any person's Intellectual Property Rights in England and Wales and under English law.

12.3 The Customer acknowledges that:

(a) subject to Clause 12.2(c), complex software is never wholly free from defects, errors and bugs, and Superia gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;

(b) Superia does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible by Superia;

(c) technical issues may prevent a Custom Design or Custom Functionality from exactly complying with a specification agreed between the parties, and providing Superia has used reasonable endeavours to overcome the relevant technical issues, Superia shall not be in breach of the terms of the Agreement by virtue of any such non-compliance; and

(d) Superia will not and does not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) Superia does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.

12.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. 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.

13. Indemnity

The Customer will indemnify and will keep indemnified Superia against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by Superia and arising as a result of any breach by the Customer of Clause 3 or Clause 7.4.

14. Limitations and Exclusions of Liability

14.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c) limit any liability of a party in any way that is not permitted under applicable law; or

(d) exclude any liability of a party that may not be excluded under applicable law.

14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in the Agreement:

(a) are subject to Clause 14.1;

(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and

(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.

14.3 Superia will not be liable to the Customer in respect of any loss of profits, income, revenue, use, production or anticipated savings.

14.4 Superia will not be liable to the Customer for any loss of business, contracts or commercial opportunities.

14.5 Superia will not be liable to the Customer for any loss of or damage to goodwill or reputation.

14.6 Superia will not be liable to the Customer in respect of any loss or corruption of any data, database or software.

14.7 Superia will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

14.8 Superia will not be liable to the Customer for any losses arising out of a Force Majeure Event.

14.9 Superia's liability to the Customer in relation to any event or series of related events will not exceed the greater of:

(a) £1,000.00; and

(b) the total amount paid or (if greater) payable by the Customer to Superia under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.

15. Data Protection

15.1 The Customer warrants to Superia that it has the legal right to disclose all Personal Data that it does in fact disclose to Superia under or in connection with the Agreement.

15.2 Superia warrants to the Customer that:

(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Superia on behalf of the Customer; and

(b) it has in place appropriate security measures (both technical and organisational) against:

(i) unlawful or unauthorised processing; and

(ii) loss or corruption,

of Personal Data processed by Superia on behalf of the Customer.

16. Confidentiality, Publicity and Feedback

16.1 Superia will:

(a) keep confidential and not disclose the Confidential Information to any person save as expressly permitted by this Clause 16; and

(b) protect the Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

16.2 Confidential Information may be disclosed by Superia to Superia's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound to maintain the confidentiality of the Confidential Information disclosed.

16.3 The obligations set out in this Clause 16 shall not apply to:

(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b) Confidential Information that is in possession of Superia prior to disclosure by the Customer;

(c) Confidential Information that is received by Superia from an independent third party who has a right to disclose the relevant Confidential Information; or

(d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.

16.5 Notwithstanding the confidentiality obligations set out in this Clause 16, Superia may issue press releases and make other public statements referring to the Customer as a customer of Superia, without the prior consent of the Customer.

16.6 The Customer acknowledges that the Customer Website will include a hyper-linked credit to Superia, which will only be removed upon the payment of a credit removal fee of GBP £500.00.

16.7 In addition to the rights granted under Clause 7, the Customer grants to Superia a worldwide irrevocable royalty-free licence to use, modify, copy, distribute, transmit, publicly display and publish the Feedback, and to sub-license to third parties any of the foregoing rights.

17. Termination

17.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party commits any material breach of any term of the Agreement, and:

(a) the breach is not remediable; or

(b) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so.

17.2 Either party may terminate the Agreement immediately by giving written notice 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); or

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

17.3 Either party may terminate the Agreement at the end of any Agreement Month by giving written notice of termination to the other party prior to the end of that Agreement Month.

17.4 The Agreement will automatically terminate at the end of an Agreement Month if the Customer does not pay any Charges due, in advance, in respect of the following Agreement Month.

17.5 Superia may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to Superia any amount due to be paid under the Agreement by the due date.

18. Effects of Termination

18.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 4.3(b), 7 (in relation to Feedback only), 10.9, 13, 14, 16, 18 and 21.

18.2 Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.

19. Notices

19.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or fax number given below (or as notified by one party to the other in accordance with this Clause).

Superia:
Superia Commerce Ltd, 73 Heathcliff Road, Tyseley, Birmingham B11 3RB.

The Customer:
The addressee, address or email address set out on the Customer Information Page.

19.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a) where the notice is delivered personally, at the time of delivery;

(b) where the notice is sent by recorded signed-for post, 48 hours after posting; and

(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

20. Force Majeure Event

Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

21. General

21.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

21.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

21.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

21.4 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

21.5 The Customer hereby agrees that Superia may freely assign any or all of its contractual rights and/or obligations under the Agreement. Save as expressly provided in the Agreement, the Customer must not without the prior written consent of Superia assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any of its contractual rights and/or obligations under the Agreement.

21.6 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

21.7 Subject to Clause 14.1:

(a) the Agreement and the acceptable use policy referred to herein constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and

(b) 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.

21.8 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

 


Schedule

Acceptable Use Policy

(1) This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services available via superiacommerce.co.uk including for the avoidance of doubt the POP email and webmail services (the “Service”) and any content that you may submit to the Service (“Content”).

By using the Service, you agree to the rules set out in this Policy.

(2) General Restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

(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) Unlawful and Illegal Material

You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its publication on the Service) must not:

(a) be libellous or maliciously false;

(b) be obscene or indecent;

(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;

(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;

(e) constitute negligent advice or contain any negligent statement;

(f) constitute an incitement to commit a crime;

(g) be in contempt of any court, or in breach of any court order;

(h) be in breach of racial or religious hatred or discrimination legislation;

(i) be blasphemous;

(j) be in breach of official secrets legislation; or

(k) be in breach of any contractual obligation owed to any person.

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

(4) Graphic Material

Content must not depict violence in an explicit, graphic or gratuitous manner.

Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.

(5) Harmful Software

You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.

You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

(6) Factual Accuracy

Content must not be untrue, false, inaccurate or misleading.

(7) Negligent Advice

Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:

(a) illness, injury or death; or

(b) any other loss or damage.

(8) Spam

Content must not constitute spam.

You must not use the Service to transmit or send unsolicited commercial communications.

You must not use the Service to market, distribute or post chain letters, ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar schemes, programs or materials.

(9) Gambling

You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

(10) Netiquette

Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.

Content must not be grossly offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.

Content should not cause annoyance, inconvenience or needless anxiety.

(11) Hyperlinks

You must not link to any website or web page containing material that would, were it posted on the Service, breach the terms of this Policy,

(12) Breaches of this Policy

We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.

Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

(a) delete or edit any of your Content;

(b) send you one or more formal warnings;

(c) temporarily suspend your access to a part or all of the Service; and/or

(d) permanently prohibit you from using a part or all of the Service.

(13) Report Abuse

If you become aware of any material on the Service that contravenes this Policy, you must notify us.


Date effective: 6th July 2011