Customer Terms & Conditions
In these Terms, the following definitions shall apply globally:
“Account” means the online account that allows You access to Our Platform through one or more unique username(s) and password(s) allocated to You.
“Applicable Law” means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal and all codes of practice having force of law.
“Assets” or “End Products” means, with respect to a Space, the professional photographs, Stak verified floorplan (including measurements in GIA/NIA and IPMS), virtual tour (360° visualisations), digital brochure, analytics and such other of the Stak Materials relating to such Space made available by Us to You through the Platform in response to a Statement of Work.
“Brand” means all representations of trading names or brand(s) operated by any of Our companies anywhere in the world, Our registered and unregistered trademarks, service marks, trade dress, trade names, corporate names (including legal, assumed and fictitious names), logos, slogans, internet domain names, addresses and other computer identifiers, rights in telephone numbers and other indicia of source or origin, together with all translations, adaptations, derivations, and combinations of any of the foregoing and any Intellectual Property Rights in them, all applications for registration, registrations, and renewals in connection therewith, and all goodwill associated with any of the foregoing.
“Brand Guidelines” means the guidelines We maintain for the use of Our Brand which are available on request.
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Cancellation Policy” means the policy that applies if You cancel a Property Capture or We are unable to proceed with a Property Capture and is available on the stak.co website.
“Charges” means any and all fees payable by You for Our Services, as set out in the Statement of Work and/or any other Contract entered into between the parties or, where not set out in the Statement of Work and/or other Contract for a particular scope of Service, our standard fees in place from time to time and available on request.
“Commencement Date” has the meaning given in clause 1.1.
“Contract” means a contract between Us and You for the supply of Services in accordance with these Terms.
“Control” has the meaning given in section 1124 of the Corporation Tax Act 2010 and the expression “Change of Control” shall be construed accordingly.
“Customer” means the entity which requests the Services from Us by way of a Statement of Work.
“Data Protection Law” means any Applicable Law relating to the processing, privacy, and use of Personal Data including: (i) the GDPR; (ii) the UK Data Protection Act 2018; (iii) the GDPR as it forms part of the domestic law of the UK by virtue of the European Union (Withdrawal) Act 2018, as amended; (iv) the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); and (v) the UK Privacy and Electronic Communications Regulations 2003 (SI 2003/2426); and (vi) all local laws or regulations implementing or supplementing the UK or EU legislation mentioned above.
“End Products” has the meaning given under “Assets”, above.
“GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company and any subsidiary from time to time of a holding company of that company, “subsidiary” and “holding company” having the meanings set out at section 1159 Companies Act 2006.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Late Payment Interest” means 8% plus the Bank of England base rate.
“Notice Period” means at least 30 days’ prior written notice which must expire on the last Business Day in a calendar month.
“Personal Data” has the meaning given to that term by the GDPR.
“Platform” means Our Website, applications and software hosted on Our servers, proprietary hardware, software and applications and any other hardware or software used or operated by Us or on Our behalf by a third party, to provide Our Services now or in the future.
“Raw Data” means the point clouds (E57, B2G or other such similar file formats), the unprocessed photos, and unprocessed photospheres.
“Services” means Space Capture and generation and provision of the Assets by Us and/or appointed representatives to You via Our Platform and including services that are incidental or ancillary to such services.
“Space” means any house, apartment, indoor space or building in relation to which You instruct us to provide Services.
“Space Capture” means the digital capture of the Space carried out by Us or Our Representatives using our proprietary technology for the purpose of creating the Assets.
“Stak Materials” means all information, data and databases, text, images, audio, software, scripts, graphics, photos, sounds, music, 360° visualisations, floor plans, audio-visual combinations, interactive features, visual interfaces, web pages, records, reports, documents, papers, drawings, designs, transparencies, logos, typographical arrangements and all other materials in whatever form, including but not limited to hard copy and electronic form that We create in connection with the supply of the Services to You hereunder, including without limitation, the Assets and all such materials that You may view on, access through, commission, create, acquire or contribute to on Our Platform.
“Statement of Work” means the statement of work agreed by the parties (including by email) which contains details of the Space, the Services and Assets in scope, the arrangements for the Space Capture, and other relevant information.
“Term” has the meaning given in clause 10.1.
“Terms” means the terms and conditions in this document as amended from time to time in accordance with clauses 11.2 and 11.3.
“VAT” means value-added tax or any equivalent tax chargeable in the UK or elsewhere.
“Virus” means any thing, device, software, code, file or program which may in Our reasonable opinion adversely affect the operation, security, availability, user experience of the Platform or Our operations, including, without limitation, viruses, Trojan horses, worms, logic-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
“We, Us, Our” refers to Digital Reality Corp Limited, registered in England with company number 09696838 of 42 Berkeley Square, Mayfair, London, W1J 5AW and all subsidiary companies and trading names internationally.
“Website” means Our website located at https://stak.co/ or such other URL as We may nominate from time to time.
“You” or “Your” means the Customer.
“Your Client” means any person You are facilitating access to and/or are helping benefit from Our Services, including without limitation, any vendor, landlord, tenant or building manager, or any representative of any vendor, landlord, tenant or building manager, of any Space.
In these Terms:
(i) a “person” includes a natural person, corporation, partnership, limited liability company, association, trust, corporate or unincorporated body (whether or not having separate legal personality);
(ii) references to the singular include the plural and vice versa;
(iii) these Terms shall be binding on, and enure to the benefit of, the parties to any Contract and their respective personal representatives, successors, and permitted assigns, and reference to any party includes its personal representatives, successors, and permitted assigns;
(iv) reference to “writing” or “written” includes emails;
(v) reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time;
(vi) reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
(vii) any obligation on a party not to do something includes an obligation not to allow that thing to be done;
(viii) reference to these Terms or to any other agreement or document referred to in these Terms is a reference to these Terms or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time;
(ix) references to clauses are to clauses of these Terms; and
(x) any words following the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Submitting a signed Statement of Work to Us constitutes an acceptance by You to purchase Our Services in accordance with these Terms, at which point the Contract between Us and You will begin and the provision of the Services will commence (the “Commencement Date”), subject to clause 11.1.
- We reserve the right to decline acceptance of a request for Services by You without giving any reasons.
- To access our Services you need to set up an Account with Us, which will allow You to log in to Our Platform. To set up an Account please contact Us at firstname.lastname@example.org. Your Account is intended for use by You and Your employees and representatives only. You must keep your password(s) and username(s) secure and not share or allow access to Your Account with any third party. Further information on User Accounts is listed under section 7.4 (Seat Licence)
- Subject to this clause 2, We will supply the Services specified in the Statement of Work to You substantially in accordance with the Statement of Work, according to the Terms and with reasonable skill and care.
- We will use reasonable endeavours to meet any performance dates specified in the Statement of Work but any such dates shall be estimates only and time for performance by Us shall not be of the essence of the Contract.
- We reserve the right to make any changes to the Services that We deem necessary to comply with any Applicable Law or request from recognized legal authority or which do not in Our opinion materially and detrimentally affect the nature or quality of the Services. Any such change will amend the Services as described in the Statement of Work.
- Once the Statement of Work is agreed in accordance with clause 1.1, We may in Our sole discretion accept additions and variations by You to the original Statement of Work. You undertake that all such additions or variations received by Us from You are properly authorised and approved by You as if they formed part of the original Statement of Work and You have sufficient systems and processes in place to prevent misuse and as such agree to pay any corresponding fees for such additions or variations.
- Some of Our Services may include the facility to order products or services at an additional cost to You without requiring a signature or written confirmation from You. You agree to accept any additional Charges when such orders are made by any person accessing Our Platform using username(s) and password combinations associated with Your Account.
- We reserve the right to refuse to perform any Services if in Our view:
6.1. the Services pose unacceptable risks to Our Platform or personnel;
6.2. You have not followed any reasonable pre-Service advice that We provided and, as a result, we would need to spend additional time or resources in order to complete the Services; or
6.3. You failed to notify Us sufficiently in advance of any requirements that we need to follow (including in respect of safety, equipment and access) in order to complete the Services.
- We will only conduct the Space Capture where it is safe to do so. We reserve the right to refuse to enter a Space or conduct the Space Capture if, in our reasonable opinion, it is not sufficiently safe. Such circumstances may include but are not limited to: slip and fall hazards, hazardous substances, unmanaged asbestos, biological hazards, excessive noise, polluted atmospheres, the presence of animals, the presence of squatters or undisclosed occupants, unsound structures, inadequate lighting, extreme weather conditions and other contractors working on the site, where such circumstances cannot be controlled through reasonably practicable means. Further provisions on the consequences if We are unable to proceed with (or if You cancel) a Property Capture are set out in Our Cancellation Policy.
- If the performance of Our obligations under the Contract is prevented or delayed by any act or omission of You or Your agents or representatives (including any failure to give Us reasonable notice of hazards, safety measures, access or equipment requirements and/or any similar information regarding the Space which we require to carry out the Space Capture), then, without prejudice to any other right or remedy We may have, We shall be allowed an extension of time to perform Our obligations equal to such period of prevention or delay.
- We shall not be liable for any non-conformance in Our provision of the Services as against these Terms, to the extent any such non-conformance is caused wholly or partly by the use of the Services contrary to Our instructions, by any act or omission or You or Your agents or representatives (including any change to the Assets made by any party other than Us or Our duly authorised contractors or agents), or by any failure by You to comply with these Terms or Your obligations under the Contract. If the Services do not conform with these Terms as a result of the foregoing, We will, at our sole discretion, use reasonable commercial efforts to correct any such non-conformance (and we may charge you for our reasonable costs of implementing such correction, in addition to the Charges), or cancel the Services. If We cancel the Services We will provide a refund of the Charges paid in respect of the affected Services on a prorated basis for the unexpired part of the period to which such Charges apply, less any reasonable costs or expenses incurred by Us.
- You acknowledge that access to the internet, mobile phone networks or other communication media necessary for the provision of Our Services is inherently associated with risks including Viruses, data security, piracy, non-availability of services and unreliability of data transmission. We do not warrant that any of the Services will be provided without interruption, delay or error or that they will meet Your requirements. We reserve the right to suspend all or part of the Services to undertake routine or emergency maintenance from time to time.
- Your rights to use Our Platform and the Services are granted to You only, and shall not be considered granted to any other member of Your Group or any other third party.
- Our Platform, the Services and all Stak Materials (including the Assets) are provided as-is with no warranty as to quality, suitability, or fitness for any particular purpose, except as expressly provided in these Terms.
- Accuracy Warranty
13.1. Subject to clauses 2.13.2 and 2.13.3, We warrant that the floorplans in the form provided to You by Us as part of the Assets will be accurate to within 99% of the Space’s size, excluding uninhabitable or inaccessible parts of the Space, including but not limited to cellars, eaves and unconverted loft spaces, as at the date of the Space Capture (the “Accuracy Warranty”, “Stak Verified”).
13.2. We shall not be liable for any failure of the floorplans to comply with the Accuracy Warranty, to the extent: (i) caused by any information provided by You or Your employees or representatives, or Your failure to provide any information required by Us to generate the Assets; (ii) caused by any failure or fault in the hardware used by Us for the Space Capture; (iii) We are unable to fully access any parts of the Space for reasons beyond Our control; or (iv) any parts of the space and perimeter walls are obstructed by furniture, equipment, vehicles or anything else which prevents a complete capture; (v) any parts of the property are deemed unsafe, or a health hazard.
13.3. The Accuracy Warranty shall not apply to the extent that You make any change or alteration whatsoever to the Assets or treat the Assets in any way prohibited by these Terms.
- The Assets will be made available to You via Your Account on the Platform.
- Any concerns You may have about the quality or completeness of the Assets must be notified by You to Us in writing within 7 days of Our first publication of the Assets to You on the Platform. If you do not notify us of Your concerns within this period, you will be deemed to have accepted the Assets. Please note that any changes requested by You may require another full Space Capture to be booked and/or incur an additional charge.
- We aim to respond promptly to any concerns You may have about the quality or completeness of the Assets. Save as provided in clause 2.9, should the Assets not comply with the standards set out in these Terms We will correct such non-conformance at Our own cost. If it is not possible or practicable for us to correct the non-conformance We may, at our sole discretion, cancel the Services and provide a refund of any Charges paid in respect of the affected Services. Subject to clause 9.5, correction of the non-conformance, or cancellation and refund of the Services, represents our sole liability and Your sole remedy in the event of Our provision of non-conforming Assets.
- You agree to:
1.1. ensure that any information provided by You to form the basis of the Statement of Work is complete and accurate;
1.2. cooperate with Us in all matters relating to the Services;
1.3. provide for Us, Our agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Space(s);
1.4. where previously agreed, supply such equipment and accommodation necessary to allow Us to perform the Services;
1.5. provide Us with such information as we may reasonably require in order to enable us to provide the Services, and you will ensure that such information is at all times accurate in all material respects;
1.6. inform Us of all relevant health and safety, security and other relevant requirements that apply at any Space within a reasonable period of time in advance of Our accessing such Space;
1.7. without prejudice to clause 6, obtain and maintain all necessary consents, permissions and applicable licences which may be required for the operation of Your business and Your use and receipt of the Services in all cases before the Commencement Date of the Contract;
1.8. observe and comply with any Applicable Law;
1.10. act (and will procure that Your Clients act) with best professional practice at all times and not do anything or allow anything to occur which may bring (in Our reasonable opinion) Us or Our Platform into disrepute;
1.11. provide and keep up to date with Us working valid email addresses and telephone numbers and will immediately advise Us of any circumstances that would prevent You from receiving emails or calls from Us; and
1.12. keep any access methods, credentials, usernames and password combinations to Our Platform secure from misuse or access by third parties (except as permitted by these Terms) and We hereby exclude any liability for any losses resulting from breach of this obligation.
- You undertake that:
2.1. You or Your Clients have not and will not misrepresent the nature of Your business and/or intended use of Our Services to Us; and
2.2. You will cooperate with Us in Our supply of Services and in resolving any matters regarding the Services.
- In consideration of the provision of the Services by Us to You, You will pay the Charges for the Services in full. We accept no liability for any failure or delay in providing any of the Services if caused by reasons that we deem reasonably to be within Your control, and You will remain liable to pay all Charges in connection with such Services, whether or not provided.
- If You dispute any amount raised in an invoice We send, You must notify Us within 5 days from the date of the invoice. Otherwise You will be deemed to have accepted the invoice.
- Unless otherwise stated in Your Application or expressly notified to You by Us in writing:
3.1. We shall invoice You in arrears of each month for those Services which were performed during that month;
3.2. You will make payment within 10 days from the date of the invoice, payable by direct debit using the bank account details set out in the invoice; and
3.3. the Charges are exclusive of VAT, which, if applicable, shall be payable by You in addition to the Charges.
- Without prejudice to any other right or remedy We may have, if You fail to make any payment due to Us in accordance with the payment terms described in clause 4.5, We reserve the right to:
4.1. charge Late Payment Interest on the overdue amounts, together with any reasonable legal fees, costs and expenses which we incur and can demonstrate we have incurred as a result of seeking payment from You, until the date We receive payment from You;
4.2. suspend Your access to the Services and Our Platform until such time as all amounts due are paid in full; and
4.3. require payment of the Charges upfront for any future Services that we may agree to provide to You.
- If We terminate Your Contract with Us pursuant to clause 10.3.2 due to non-payment and You or any entity with substantially the same beneficial ownership re-applies for Services under a new Contract, We will require all outstanding amounts to be paid before supplying any Services and We reserve the right to charge a reconnection fee of £500 to validate your ability to pay future Charges and cover additional administration expenses that we may incur.
- All sums payable to Us under any Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax to the extent required by Applicable Law).
- As between You and Us: (a) You will own all of the Intellectual Property Rights in Your Trademarks and the Assets (once they have been created and delivered) (“Your IP”); and (b) We will own all of the Intellectual Property Rights in Our Brand, the Platform and the Stak Materials, to the extent that it does not constitute Your IP (“Our IP”). All files and software used to create the Assets, or from which the Assets are derived, will constitute Our IP (“Raw Data”).
- To the extent that any right, title or interest in Your IP vests in Us at any time, We hereby assign such right, title or interest to You by way of present or future assignment as applicable. To the extent that any right, title or interest in Our IP vests in You at any time, You hereby assign such right, title or interest to Us by way of present or future assignment as applicable.
- With the exception of the provisions in this clause 5.3, You have no right to use Our Brand. You have the non-exclusive right to use Our Brand in the normal course of Your business and in connection with Your enjoyment of the Services. You must comply with Our Brand Guidelines when using Our Brand. We reserve the right to terminate, on 30 days’ written notice, Your right to use the Brand granted in this clause for any reason in Our sole and absolute discretion. Upon termination You must immediately cease using Our Brand, although this will not require You to remove Our Brand from any materials that You have already produced (provided that such materials were produced in compliance with Our Brand Guidelines).
- You grant to Us a non-exclusive, worldwide, royalty-free, perpetual licence to use Your IP on Our Platform to publicise Our relationship with You, and to use and incorporate Your IP as part of the Assets. We will comply with all reasonable instructions notified by You to Us in writing regarding Our use of Your Trademarks. In addition, You grant to Us a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual, sublicensable, transferable and irrevocable licence to access, use, copy, reproduce, republish, modify and share the Assets for any purpose whatsoever.
- We will host the Assets for you for a duration and charges set out in the Statement of Work (SOW). You will receive a monthly invoice outlining any charges associated with hosting the Assets.
- You are responsible for downloading and storing the Assets in a secure location. We are not liable for any loss of access to the Assets as a result of Us withdrawing or suspending Your access to the Stak Materials or the Platform in accordance with these Terms.
- With the exception of the Assets, You shall not copy, reproduce, republish, share or distribute any Stak Materials or any content of Our Platform without our prior written consent.
- In this clause 6, unless the context otherwise requires:
6.1. “Controller”, “Data Subject”, “Personal Data” “Personal Data Breach”, “Process”, “Processing” and “Processor” have the meanings given to those terms by the Data Protection Law;
6.2. “Customer Personal Data” means any Personal Data provided by or on behalf of You to Us, or collected by Us on Your behalf;
6.3. “Processing Instructions” means Your instructions for Processing Customer Personal Data, as set out in Your Application or these Terms, and otherwise as provided in writing by or on behalf of You to Us from time to time.
- You and We acknowledge that for the purposes of the Data Protection Law, You are the Controller and We are Your Processor acting on Your behalf in respect of any Customer Personal Data Processed by Us for the purpose of performing the Services and carrying out Your instructions in connection with any Contract.
- You shall ensure that You only provide Customer Personal Data to Us as is required to enable us to perform the actions described in clause 6.2.
- You shall ensure You have a legal basis to transfer Customer Personal Data to Us and allow us to perform the actions described in clause 6.2.
- Unless set out otherwise in this clause 6, Processing of Customer Personal Data as described in clause 6.2 shall be undertaken by Us in accordance with the following parameters:
5.1. Subject-matter, nature and purpose of the Processing: Our provision of the Services to You and carrying out Your instructions in connection with any Contract.
5.2. Duration of Processing: Processing of Customer Personal Data by Us shall be carried out during the Term, provided that Customer Personal Data shall not be Processed for longer than is necessary for the purpose for which it was collected or is being Processed (except where a statutory exception applies).
5.3. Customer Personal Data in scope: We may Process the following types/categories of Customer Personal Data: (i) Customer Personal Data, consisting of: names, addresses, email addresses and such other Personal Data which may be provided to Us in connection with our provision of the Services; and (iii) sensitive Customer Personal Data/other special categories of Customer Personal Data which may be provided to Us in connection with our provision of the Services.
5.4. Data subjects: The group of data subjects set out in the relevant Statement of Work and/or Contract, or otherwise affected by the Processing of their Customer Personal Data consists of the on-site and other contacts that we require to provide the Services.
- As Processor We will only act upon and Process Customer Personal Data in accordance with the Processing Instructions, unless required by Applicable Law. Customer Personal Data will be used by Us in accordance with and for the purposes set out in the Processing Instructions and only where necessary to provide the Services to You. If We are ever unsure as to the parameters or lawfulness of the instructions issued by You, We will revert to You for the purpose of seeking clarification or further instructions.
- We shall cooperate and assist You with any data protection impact assessments (“DPIAs”) and consultations with (or notifications to) relevant regulators as required by Data Protection Law in relation to the Customer Personal Data and the Services. You shall pay any costs incurred by Us in respect of Our obligations under this clause 6.7.
- We shall forward to You without undue delay and otherwise cooperate with and assist You promptly with any requests from data subjects of any Customer Personal Data pursuant to Data Protection Law. You shall pay any costs incurred by Us in respect of Our obligations under this clause 6.8.
- We shall: (i) ensure that Our personnel will not Process Customer Personal Data except in accordance with this clause 6; and (ii) procure that Our personnel are contractually obligated to maintain the security and confidentiality of any Customer Personal Data and this obligation continues even after their engagement ends.
- We shall: (i) at Your option, securely delete or return all copies of Customer Personal Data unless and to the extent required by Applicable Law to retain a copy; and (ii) cease Processing such Customer Personal Data after the business purposes for which Customer Personal Data was collected or transferred have been fulfilled (or earlier upon Customer’s written request).
- We will implement and maintain throughout the Term appropriate technical and organisational measures, internal controls and information security routines intended to protect Customer Personal Data against accidental, unauthorised or unlawful access, disclosure, alteration, loss, or destruction, which shall at all times be of at least the minimum standard required by Data Protection Law so as to ensure a level of security for the Customer Personal Data appropriate to the risk.
- If We become aware that any personal data breach has occurred, We shall without undue delay, notify You of the personal data breach and provide sufficient information to allow You to report the personal data breach and/or notify affected data subjects as required under Data Protection Law.
- We shall promptly (and in any event within 72 hours) inform You if We receive a complaint or request relating to Our obligations under Data Protection Law relevant to this clause 6 and shall provide You with relevant details of such complaints or requests.
- You provide general consent to allow Us to engage subprocessors for the purposes of Us providing the Services where:
14.1. We inform You of any intended changes concerning the addition or replacement of subprocessors, thereby giving You the opportunity to object to such changes; and
14.2. subprocessors are contractually bound to equivalent obligations as are contained in this clause 6. We shall also remain fully liable to You where any subprocessor fails to fulfil its data protection obligations, as well as for any acts or omissions of the subprocessor regarding its Processing of Customer Personal Data.
- We (or any subprocessor) shall only transfer Customer Personal Data from the UK to a country outside the UK where such transfer: (i) is subject to appropriate safeguards; and (ii) otherwise complies with Data Protection Law.
- We shall make available to You all information necessary to demonstrate Our compliance with Our obligations under this clause 6 and allow for and contribute to audits, including inspections, conducted by You or another auditor mandated by You. You agreed to provide Us a 28 day notice of any such event, and agree to deliver such notice in writing. You further agree to limit to limit audits to no more than once per year, and agree that they will be conducted during regular business hours in the UK. You shall pay any costs incurred by Us in respect of Our obligations under this clause 6.16. Information and audit rights only arise under this clause 6.16 to the extent that the remainder of the Contract does not otherwise give You information and audit rights meeting the relevant requirements of Data Protection Law.
- Each party represents and warrants that it shall comply with Data Protection Law at all times.
- It is Your responsibility to ensure that You have the requisite technical capabilities necessary to access the Platform, the Assets and receive the benefit of the Services.
- You undertake that You will not upload to Our Platform, or use Our Platform to access, store, distribute or transmit any material, or allow Our Services to be used for any activity, which:
2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, racially or ethnically offensive, constitutes or facilitates terrorist activity;
2.2. is illegal or facilitates illegal activity;
2.3. is deceiving or fraudulent, or has any fraudulent purpose or effect;
2.4. depicts sexually explicit images;
2.5. promotes unlawful violence;
2.6. is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability;
2.7. infringes any third party Intellectual Property Rights or breaches confidentiality;
2.8. has, in Our opinion, a detrimental effect on the functionality, availability, security or quality of Our Platform or the quality or accuracy of our Services;
2.9. is or behaves like a Virus;
2.10. is inaccurate or would be construed as misleading; or
2.11. causes damage or injury to any person or property.
- You must not, except strictly to the extent that Your right to do so cannot be excluded under Applicable Law:
3.1. attempt to scrape, reproduce, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (except the Assets) or Our Platform in any form or media or by any means;
3.2. attempt to decompile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of software which is part of Our Platform;
3.3. access all or any part of the Services or Our Platform in order to build a product or service which competes with the Services;
3.4. interfere with, damage or disrupt any part of Our Platform or any computer systems, equipment, software or networks on or through which Our Platform is stored or operated; or
3.5. attempt to obtain, or assist third parties in obtaining, access to the Services, the Stak Materials and/or our Platform, except to the extent permitted in accordance with these Terms.
- Seat Licences
4.1. Schedule A (Seat Licences) sets out the preliminary list of Seat Licences (User Accounts) to be created by Us for You.
4.2. Each Seat Licence will be associated with one natural person unless otherwise agreed to in Schedule A.
4.3. At your written request, or that of any existing User Account associated with your Assets on Stak Hub, we will create additional user Accounts. Requests must be submitted to email@example.com.
4.4. We will maintain a list of Accounts associated with your organisation(s) and unit(s) which you will be able to review as needed by requesting the list from firstname.lastname@example.org
4.5. The number of Accounts, names, and any charges associated with those Accounts will, and reported on your monthly invoice.
4.6. At your written request, or that of any existing User Account associated with your Assets on Stak Hub, we will remove user Accounts. Requests must be submitted to email@example.com. Requests must be received 10 business days prior to the end of the month.
- You must use all reasonable efforts to prevent any unauthorised access to or use of, Your Account and the Services and, in the event of any such unauthorised access or use, promptly notify Us.
- We may monitor Your use of Our Platform and monitor Your activity on Our Platform for security purposes.
- You must fully cooperate with Us where any law enforcement authorities, regulators or court order requests or directs Us to disclose the identity or locate anyone with access to Our Platform or Our services in breach of these Terms.
- You shall not use data sourced from Us or Our Platforms referencing Your relationship with Us without Our prior written consent.
- We reserve the right, without liability to Us, and without or prejudice to any other rights or remedies We may have, to delete, modify, disable or suspend Your access to Your Account, and/or Your access to any of the Stak Materials, Our Platform or Our Services, if we reasonably suspect that you are in breach of this clause 7.
- You will keep in strict confidence any information of a confidential nature disclosed to You by Us, Our employees, agents or subcontractors, and any other confidential information concerning Our business, customers, suppliers products or services which You obtain, except as permitted by clause 8.2.
- You may disclose the confidential information described in clause 8.1 to:
2.1. those employees, agents or subcontractors who reasonably need to know it for the purpose of exercising Your rights and discharging Your obligations under the Contract and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those set out in this clause 8; and
2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- This clause 8 shall survive termination of the Contract.
- If the email addresses and telephone numbers You provide to Us for the purpose of Us providing the Services are not able to receive incoming calls or messages, We will not be liable for any loss or potential loss You suffer as a result of not receiving such calls or emails.
- Our Platform may include links to third-party sites or services that are not owned or controlled by Us. We make no representations or warranties as to the suitability, quality or availability of any third party sites or services and accept no liability for any loss or damage you may suffer or incur in connection with Your use of them. We encourage You to thoroughly read any terms and conditions of their use.
- You will indemnify Us against all third-party claims and all liabilities, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by Us as a result of or in connection with:
3.1. any alleged or actual infringement, whether or not under Applicable Law, of any third party's Intellectual Property Rights or other rights arising out of the use of Your Trademarks by Us in accordance with Your instructions;
3.2. any misuse of Our Brand by You, or use of our Brand by You which is not in accordance with the Brand Guidelines;
3.3. any change or alteration You make to the Assets;
3.4. personal injury and/or property damage caused by any act or omission committed by You in connection with the subject matter of this Contract; and
3.5. any breach by You of the Contract or any negligent act or omission committed by You in connection with the subject matter of this Contract.
- Clauses 2.16 and 9.6 set out Our entire financial liability to You in respect of any liability arising out of or in connection with the Contract.
- Nothing in the Terms limits or excludes Our liability to You for death or personal injury caused by Our negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited under Applicable Law.
- Subject to clause 9.5:
6.1. We shall only be responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence. Loss or damage is foreseeable if it is an obvious consequence of our breach or if they were contemplated by you and us at the Commencement Date;
6.2. although We take all reasonable steps to protect Our systems using virus checking software, please note that any content downloaded from Our Platform is at your own risk. We do not accept liability for any loss or damage that You suffer as a result of any distributed Viruses resulting from Your use of Our Platform. You are responsible for protecting Your computer systems and other devices from exposure to Viruses by the use of anti-virus software, firewalls and any other technical measures necessary;
6.3. We will under no circumstances whatsoever be liable to You whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of or damage to goodwill, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of reputation, loss or damage to Stak Materials (including reformatted data or any change or alteration You make to the Assets) or any indirect or consequential loss arising under or in connection with the Contract; and
6.4. Our total liability to You in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances annually exceed a sum equal to the Charges payable by You pursuant to such Contract in the twelve (12) month period before the occurrence of the act or omission giving rise to the claim.
6.5. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.6. Clauses 9.3 to 9.6 shall survive termination or expiry of the Contract.
- The Contract will come into effect as set out in clause 1 and will continue until the Services set out in the Statement of Work or Contract have been completed (the “Term”).
- Either party may terminate the Contract at any time by giving notice to the other party equal to the Notice Period. If You or We terminate pursuant to this clause 10.2 You will remain liable for all Charges for Services provided. If We terminate pursuant to this clause 10.2, We will provide a refund of the Charges paid in respect of any Services not provided.
- Without prejudice to any of Our other rights in the Terms, We may terminate the Contract immediately at any time on written notice to You if:
3.1. You breach the Terms and that breach is irremediable or, if that breach is capable of remedy, You fail to remedy such breach within 14 days of being notified of the breach in writing;
3.2. You fail to pay any amount due under the Contract on the due date for payment, and have not notified us in accordance with clause 4.2 that you wish to dispute the invoice to which that payment relates; or
3.4. if an order is made or a resolution is passed for Your winding-up or an order is made for the appointment of an administrator to manage Your affairs, business and property or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given to You by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of Your assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or You take or suffer any similar or analogous action in consequence of debt or (being an individual) are deemed either unable to pay Your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply or (being a limited liability partnership) suffer any similar or analogous event anywhere in the world; or
3.4. You undergo a change of Control.
- Without prejudice to any other rights or remedies We may have, if We have reason to suspect that You are neither willing nor able to comply with the Terms, or are in breach of the Terms, then We can immediately at our sole option, terminate or suspend the provision of the Services, withdraw or suspend Your access to Stak Materials and the Platform, and/or restrict or delete Your Account.
- On termination of the Contract for any reason:
5.1. You will immediately pay any outstanding unpaid Charges and interest;
5.2. in respect of Services supplied but for which no invoice has been submitted, We will submit an invoice, which shall be payable by You immediately on receipt;
5.3. You will return or, at Our sole discretion and instruction, destroy, all Stak Materials (except the Assets), products, materials or other items which contain Our Brand; and
5.4. You will permanently erase or delete any of Our confidential information which is in Your possession or control;
5.5. You will immediately cease using all of Our Intellectual Property Rights and Services and will cease to access, or attempt to access, the Platform and the Stak Materials (other than Assets which You have already downloaded);
5.6. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected;
5.7. Our licence to use Your Trademark as set out in clause 5.4 shall continue unaffected; and
5.8. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
5.9. Should you require a transfer of assets at the end of, or after the end of, the term (as set forth under this section 10), you agree to:
5.9.1. Provide a minimum 5 business days for us to acknowledge your request and an additional 20 business days for us to prepare and transfer the assets.
5.9.2. Work with your Stak account manager to outline the specific requirements and method of transfer using reasonable electronic methods of transfer.
5.9.3. Pay an asset transfer fee that reflects the work required to prepare the transfer files, and package the assets. The specific transfer fee will depend on the size of the files and the requirements set forth in section 10.5.9.2.
5.9.4. You agree to pay 50% of the asset transfer fee after requirements have been confirmed and before work is to begin on preparing the transfer files. You further agree to pay the remaining 50% of the asset transfer fee upon delivery of the assets.
- We will not be in breach of this Contract nor liable for delay in performing or failure to perform any of Our obligations under the Terms if such delay or failure results from events, circumstances or causes beyond Our reasonable control.
- We may update or amend the Terms or Brand Guidelines from time to time as per the terms of this clause.
2.1. If We update or amend the Terms, You will be notified at least 7 days prior to the change taking effect. You may object to any updates or amendments by notifying Us in writing before the changes come into effect. We will attempt to resolve Your objection within 5 Business Days of receipt. If a resolution cannot be reached then this Contract may be terminated subject to the Notice Period and the amended conditions will not apply to You during the Notice Period.
2.2. If We do not receive notification of any objections then You will be deemed to have agreed to the changes which will become binding when the changes come into effect.
2.3. We will not be entitled to amend these Terms in a way which enables us to render no performance, or to render a performance which is substantially different from what was originally required of Us.
- Except as set out in the Terms, any variation, including the introduction of any additional terms and conditions to the Contract, shall only be binding when agreed in writing and signed by Us.
- Any written notice required to be given to a party in connection with this Contract must be delivered by hand or sent by pre-paid mail with proof of postage or by email to such other nominated contacts as notified by the parties to each other in writing from time to time. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- These Terms and the documents referred to herein or on Our Website together constitute the entire agreement between the parties with regard to their subject matter and no other terms, conditions, warranties or statements (unless fraudulent) will apply. Each party acknowledges that in entering into the Contract it does not do so on the basis of, and does not rely on any representation (unless made fraudulently) warranty or other provision not expressly contained in the Terms and the documents referred to herein or on Our Website.
- Each of the provisions of these Terms (or part of any provision) is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that shall not affect the legality, validity or enforceability of the other provisions of these Terms. The provision itself shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under the Terms or the documents referred herein shall not prevent the exercise of that or any other right.
- Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- You may not assign or transfer any benefit, interest or obligation under the Contract without Our prior written consent. With the exception of any member of Our Group, for the purposes of the Contracts (Rights of Third Parties) Act 1999 no one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms. Any attempted assignment or transfer in violation of this clause shall be void. The parties irrevocably agree to any dispute or claim arising out of or in connection with this Contract will be governed by and construed in accordance with the law of England and Wales and that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Contract (including non-contractual disputes or claims).