In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
"Business day" - means a day other than a Saturday, Sunday or a public holiday in England.
"the Commencement Date" - means the date on which this Agreement shall become effective as on the date you register with us.
"Confidential Information" - means all information which is expressly marked as confidential or which is manifestly of a confidential nature or which is confirmed in writing to be confidential within 7 days of its disclosure.
"the Initial Period" - means the first payment period of this Agreement as specified in the chosen price plan.
"the Services" - means the services to be provided by Soldigo in accordance with the terms of this Agreement namely i) provision of the Software and ii) Hosting services relating to the use of the Software only.
"the Software" - means various Soldigo software as a service accessible for use on-line as described in our website at the time you register but not including any additional functionality not included at the time of your original subscription. In the event that additional functionality is added to your subscription whether by upgrade or otherwise, these terms shall apply mutatis mutandis to such subsequent additional functionality
"the Specification" - means the description of the software offered as part of the Services describing the facilities and functions thereof and available during any free trial period given to Customer.
"the Website" - means the website created by Customer using the Software
In this Agreement:
- reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
- words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa;
- any reference to a party to this Agreement includes a reference to his successors in title and permitted assigns; and
- the headings to the Clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
2. Rights Granted over the Software
2.1 Subject to the provisions of this Agreement, Soldigo hereby grants to Customer the non-exclusive non-assignable worldwide limited right to use the Software solely for Customer's business operations.
2.2 Customer has the right to use the Software to construct its Website, upload, display and store data and print off and store reports for the purposes of its business only.
2.3 Customer acknowledges that it has no licence to download the Software and has the right to use the Software only as part of the Services.
2.4 Notwithstanding any other limits on liability contained within this Agreement Soldigo's sole obligation to Customer concerns access to the operation of the Software and does not extend to any other service, including, but not limited to advice or guidance on how to use the Software, perform the Customer's business, financial management or performance of the Customer's business within lawful or regulatory frameworks applying to Customer's business or other.
3.1 The Customer appoints Soldigo to manage hosting of the Website on its behalf in accordance with the provisions contained in this Agreement.
3.2 Soldigo shall make arrangements to store the Website on a suitable system to which Customer has access for the purposes of on-going maintenance and to make available the Website for access by users of the internet from and including the Commencement Date.
3.3 Soldigo agrees to arrange for performance of such system maintenance and other actions as are reasonably required to maintain access to the Website.
3.4 Soldigo shall use its reasonable endeavours to arrange for continuous access to the Website but shall not be responsible for periods when servers are not functioning due to i) server and software maintenance and ii) technical errors where reasonable efforts are ongoing to repair such errors.
3.5 Soldigo shall, on written request by the Customer, suspend availability of the Website over the Internet as soon as reasonably possible
4. Access and use
4.1 In order to accept Soldigo's Services you must register with us as directed, including creating a password and supply the name of your store together with other information as directed. It is a condition of this agreement that you are over the age of 18 years old and by applying to register with us you are warranting that you, and any person you authorise to use your system created using the Services, as over the age of 18 years old.
4.2 On or after the Commencement Date, Soldigo shall supply the Customer access to the Services by means of a user account including login and password. Customer shall supply to Soldigo with other contact and identity information prior to the Commencement Date, and access details are supplied to Customer on the basis of this information supplied to Soldigo. Soldigo takes no responsibility for Customer being unable to gain access to the Services in the event the information supplied to it is inaccurate. Customer undertakes that all information it supplies to Soldigo is accurate.
4.3 If Soldigo shall become aware, or shall suspect, that any unauthorised person has obtained or has attempted to obtain access to the Customer's account including its data stored thereunder then Soldigo shall notify the Customer and shall forthwith change the Customer's security password. The Customer shall notify Soldigo promptly if it becomes aware, or shall suspect, that any unauthorised person has obtained or has attempted to obtain access to the Customer's account including its data stored thereunder, and Soldigo shall change the Customer's security password.
4.4 Soldigo shall make the Services available to the Customer at all times subject to reasonable maintenance requirements to the Software or Hosting and subject to Customer's obligations hereunder to provide its own telecommunications means to access the Services. Soldigo shall use its reasonable endeavours to anticipate and communicate to Customer periods when the Services will not be available and provided it has complied with this obligation Soldigo shall have no liability to Customer for any denial of access by Customer or the public (as appropriate) to the Services during these periods.
5. Additional Marketing Advice
5.1 From time to time Soldigo has the right tosupply optional marketing advice in the form of newsletters, blogs, e-books, events, personalised store templates or other in addition to Services provided under a payment Plan. Such advice requires use of your email address and other contact details as supplied by you. These communications may also extend to advice on the better use of existing or new features of Soldigo's Services.
5.2 As part of your use of Soldigo's Services you are required to use reasonable efforts to keep yourself informed of current marketing advice and trends
5.3 You acknowledge that any marketing advice given by Soldigo is given in order to keep you informed of current marketing trends and is given without reference to your particular business and you should not rely on it. You are advised to take marketing advice particular to your business.
5.4 Soldigo reserves the right to levy a charge for any marketing advice provided it is notified to you in advance or in respect of any payment Plan as advertised to you and subscribed to by you.
6. Charges and payment
6.1 For 30 days from the Commencement Date Customer shall have a free trial period of 30 days in which to review and consider the function of Soldigo's Services. At any time after that period Customer may opt to continue the use of the Services as accessed upon the Commencement Date (the "Free Plan") or to access and use the extended functionality of the Services at charge according To the plan(s) advertised by Soldigo and chosen by Customer
6.2 Notwithstanding anything else written in this Agreement, with respect to the Free Plan, Soldigo retains the right to discontinue, exclude or limit any part of the Services at any time without liability to Customer and makes no representation as to whether the Services are fit for Customer's purpose.
6.3 Other than clause 6.2 above the terms of this Agreement apply to Services with extended functionality. Customer shall pay the charges for such Services periodically in advance as in accordance with the chosen Plan for the price paid as indicated in the Customer request ("the Fees") and in a currency chosen at the discretion of Soldigo from time to time. For the avoidance of doubt once charges become due they are payable in their entirety for the entire period in advance notwithstanding any information on the breakdown of such charges contained in Soldigo's advertising material. In the event Customer wishes to change its chosen price plan or Soldigo lawfully terminates the extended functionality then Customer shall remain liable for unspent pro rata time on the original price plan signed up to subject only to Soldigo's optional waiver communicated to Customer under the terms of the Agreement.
6.4 Customer shall pay the Fees to Soldigo in accordance with the subscription order by means of Stripe, Braintree, PayPal, Card payment or other method as offered by Soldigo solely at the discretion and choice of Soldigo and Customer hereby gives Soldigo all permissions necessary and agrees to sign such documents as may be required for Soldigo to take payments in such manner.
6.5 Soldigo may disable Customer's access to and use of extended functionality of the Services and Soldigo shall be under no obligation to provide any or all of the Services when any payment due under this Agreement remains unpaid.
6.6 The charges payable under this Agreement are exclusive of Value Added Tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law unless otherwise stated.
6.7 For the avoidance of doubt Soldigo reserves the right to make additional charges for additional functionality or upgrades to the Services provided that Customer may decide to cancel their subscription or not take on such upgrades.
7. Duration & Automatic Renewal
7.1 The Services shall commence on the Commencement Date, shall continue for the Initial Period and shall be automatically renewed thereafter in accordance with the chosen price plan. Subject to clause 6.2 above, either party may terminate this Agreement by communicating to the other party in good time prior to the date of renewal but shall be subject to earlier termination as provided elsewhere in this Agreement.
7.2 Soldigo shall be entitled at any time and from time to time after the expiry of the Initial Period to increase the Fees to accord with any change in Soldigo's standard scale of charges by giving to the Customer not less than 30 days' written notice prior to the Customer due date for renewal of the chosen price plan. Where and whenever such notice is given, the Customer shall have the right to terminate this Agreement as from the date on which such notice expires by giving to Soldigo written notice of termination not less than 30 days before such date.
8. Preparation of data & use of Services
8.1 Customer shall have sole responsibility for the preparation, presentation and use of its data in and in conjunction with the Website including but not limited to,
- Soldigo shall not be responsible for any fault or error in the Customer's use of its data in conjunction with the Services
- Soldigo takes no responsibility for the relationship between Customer and those viewing and purchasing from Customer's Website ("the Buyers") for which Customer is solely responsible, including terms of viewing, terms of purchase, disputes, communications
- Adherence to Data Protection laws including provision of privacy policies to its users (in respect of which Customer agrees to act as Data Controller)
- Use of Customer's own third party payment provider chosen from those offered by Soldigo.
8.2 Customer must ensure for itself that any terms and conditions for the sale and purchase of its products using the Services are notified to its purchasers as Soldigo takes no responsibility whatsoever for providing or enforcing such terms.
8.3 Customer retains all ownership and intellectual property rights in and to its data associated with the Website and the look and feel created by Customer in the construction of the Website. Soldigo or its licensors retain all ownership and intellectual property rights to the Software and to any copyright domains, trademarks, goodwill used or created by Soldigo.
8.4 It is solely Customer's responsibility to ensure that it has the necessary technology to access the Services.
8.5 Customer may not:
- remove or modify any program markings or any notice of Soldigo's or its licensors' proprietary rights;
- make the programs or materials resulting from the Services available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted for the specific program license or materials from the Services you have acquired in writing);
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Soldigo;
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Software or Soldigo materials available, to any third party other than, as expressly permitted under the terms of the Agreement.
8.6 The rights granted to Customer under the Agreement are also conditioned on the following:
- the rights of any user licensed to use the Services (e.g., on a "named user" basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the Services);
- except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
- Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
8.8 Customer hereby confirms that they are familiar with the requirements of PCI DSS system for payment card security. Customer must and hereby agrees to obtain PCI compliance on the way they handle buyers' credit card data, to contact their payment provider for further information on use of such system. Customer hereby acknowledges and agrees that it is entirely responsible for obtaining and using the PCI system and accordingly Soldigo has no responsibility or liability whatsoever to Customer thereof. Customer hereby indemnifies Soldigo fully for Customer’s use or failure to use the PCI system.
9. Off-line storage
9.1 Soldigo shall maintain sufficient copies as would reasonably be expected under current and evolving industry expectations against the destruction, loss or unauthorised alteration of the Customer's Website, and shall institute reasonable security procedures to restrict the destruction, corruption or unauthorised access to the Website, data and data files, including back up material. It is Customer's responsibility to maintain records of its data to ensure any higher degree of data security and to satisfy any legal or regulatory obligations on record keeping, disclosure or other that Customer is subject to.
9.2 Soldigo in no way makes any representations nor takes on responsibility concerning any legal or regulatory requirements that Customer may be subject to and does not accept liability for meeting Customer's obligations in this regard.
10. Maintenance of the Services
10.1 If the Customer shall become aware of any fault in the Services then the Customer shall promptly notify Soldigo. Upon receipt of such notification (or upon receipt of a similar notification from one of Soldigo's other customers) Soldigo shall forthwith use its reasonable endeavours to procure that such fault is corrected in a reasonable period.
10.2 Soldigo does not guarantee the continued access to and use of those aspects of the Services that rely on the use of third party systems such as, but not limited to third party social media platforms, listing sites, search engines, chat rooms or other and any reference to functionality within the Services that depends on such third party systems continuing to function is hereby expressly limited in this way.
10.3 In the event of any failure or breakdown of the Services with consequent loss or spoiling of the Customer's data or any part thereof which is not as a result of Customer's actions Soldigo shall use such security copies to reconstitute the Customer's data free of charge as soon as reasonably practicable after the Services are available for use again (in accordance with known priorities). In all other event, Soldigo may levy a reasonable charge to reconstitute Customer's data.
10.4 This clause states the entire liability of Soldigo for any loss or spoiling of the Customer's data caused by any failure or fault in the Services. Soldigo shall not be liable for any other loss or damage sustained or incurred by the Customer as a result of any failure or fault in the Services.
11. Content of Customer's data and Website
11.1 The Customer undertakes that the Customer's data prepared and used in conjunction with the Services and in the Website shall not be or contain anything that is unlawful, obscene, blasphemous, threatening, malicious, discriminatory, defamatory, offensive or inappropriate to Soldigo's business aims in any way whatsoever, and that it does not breach the rights, including any intellectual property rights of third parties or harm the reputation of Soldigo in any way. Further Customer undertakes to ensure that nothing in the use of the Services or content of its data conflicts with lawful regulatory requirements. Whilst Soldigo takes no responsibility for ensuring Customer's compliance with such requirements Soldigo reserves the right to monitor any or all of Customer's use of the Services and to suspend all or part of the Services in the event Soldigo forms a reasonable suspicion that Customer's use of the Services might breach Customer's obligations under this clause. Any decision taken by Soldigo under this clause may be taken at Soldigo's absolute discretion and may be effected immediately. In the event Soldigo suspends all or part of the Services for reasons under this clause, Soldigo shall have no obligation to refund any part of Fees paid by Customer for the Services or part thereof.
11.2 The Customer will indemnify Soldigo and keep Soldigo fully and effectively indemnified against all actions, proceedings, claims, demands, damages and costs (including legal costs on a full indemnity basis) occasioned to Soldigo as a result of any breach of the said undertakings.
12. Data protection, IP rights & confidential information
12.1 With respect to its use of the Services Customer acknowledges that it shall be the data controller for any and all personal data processed by it using the Services (whether Customer's own or that of the Buyer), and it shall abide by and process such data in accordance with existing Data Protection laws at time to time in force in the European Union.
12.2 The Customer shall indemnify Soldigo against any claim by any third party for alleged infringement of any copyright or other intellectual property rights which arises as a result of the storage or processing of any of the Customer's data through the Services.
12.3 The Customer shall treat as confidential all Confidential Information supplied to it by Soldigo. These obligations shall not extend to any information which was rightfully in the possession of the Customer prior to the commencement of negotiations leading to this Agreement or which is otherwise public knowledge or becomes so at a future date (other than as a result of a breach of this clause).
13.1 The Customer acknowledges that the Services are not being made available to the Customer to meet the Customer's individual requirements and that it is therefore the responsibility of the Customer to ensure that the facilities and functions described in the Specification meet the Customer's requirements.
13.2 In the event Customer is provided with a free trial period, whether or not Customer uses the Services during this period, it acknowledges that it has had the opportunity to test its requirements of the Services and by continuing to use the Services then Customer accepts the Services meet the facilities and functions described in the Specification and that the Services meets the requirements of the Customer and are fit for purpose.
13.3 Notwithstanding anything else in this Agreement any warranty term or condition expressed or implied by law is hereby excluded to the fullest extent possible including but not limited to merchantability or fitness for purpose of the Services and it is the Customer's responsibility to ensure that the Services fulfils its needs.
14.1 Notwithstanding anything else contained herein, this Agreement may be terminated or Customer's access to extended functionality suspended (at Soldigo's absolute choice) by Soldigo forthwith on giving notice to the Customer if the Customer
- shall fail to pay any sum due under the terms of this Agreement and such sum remains unpaid for 14 days after written notice from Soldigo that such sum has not been paid; or
- commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 14 days after the receipt of a request from Soldigo to do so, to remedy the breach (such request to contain a warning of such party's intention to terminate); or
- shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for bankruptcy or winding-up (otherwise than for the purpose of a bona fidescheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
14.2 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of Soldigo nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
14.3 In the event Customer improperly terminates the Agreement, and in particular but limited to the Customer not having paid all charges due at the moment of termination, Soldigo has the right to restrict access to the Services and without any obligation to deliver up Customer's data to it, though in these circumstances Soldigo will continue to hold the data securely and confidentially.
14.4 In any event Soldigo shall not be required to hold Customer's data for a period exceeding 3 monthsafter any termination of this Agreement.
15.1 Customer does not have the right to assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part.
15.2 No waiver of any right by Soldigo under this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated to Customer in writing.
15.3 Any legal costs, expenses or charges incurred by Soldigo in recovering any outstanding payments shall be paid by the Customer on a full indemnity basis.
15.4 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
15.5 Customer acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
15.6 Notices under this Agreement shall be delivered in written form including email or messaging from Soldigo to Customer via the Services and such notices shall be considered delivered instantly.
15.7 This Agreement shall be governed by and construed in accordance with the laws of England. Any dispute which may arise between the parties concerning this Agreement shall be determined by the English Courts and the parties hereby submit to the exclusive jurisdiction of the English Courts for such purpose subject only to an obligation on the parties to enter into one round of mediation in good faith to attempt settlement of any dispute prior to bringing any action before the court.
15.8 If for any reason any of the terms set out in this Agreement are held to be illegal and/or unenforceable then the remainder of the agreement shall continue in force but without those particular terms subject to the option of Soldigo to terminate the Agreement in which case Customer shall only be liable for charges under the chosen price plan on a pro rata basis.
15.9 Any failure or delay by Soldigo in enforcing or exercising any of the terms or rights or powers arising under this contract shall not constitute a waiver of those terms or rights or powers and shall not affect Soldigo's right to enforce or exercise them at some later stage.
15.10 The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to this Agreement.
16. Force majeure
16.1 Notwithstanding anything else contained in this Agreement, Soldigo shall not be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of Customer) provided however that any delay by a sub-contractor or supplier of Soldigo so delaying shall not relieve that party from liability for delay except where such delay is beyond the reasonable control of the subcontractor or supplier concerned. Subject to Soldigo promptly notifying Customer in writing of the reasons for the delay (and the likely duration of the delay), the performance of Soldigo's obligations shall be suspended during the period that the said circumstances persist and Soldigo shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of Customer (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law):
- any costs arising from such delay shall be borne by the party incurring the same;
- Soldigo may, if such delay continues for more than 2 weeks, terminate this Agreement forthwith on giving notice in writing to Customer in which event neither party shall be liable to the other by reason of such termination;
- both parties will in any event use all reasonable endeavours to avoid or mitigate the impact of any event of force majeure and to recommence performance of their obligations under this Agreement as soon as reasonably possible.
17. Liability, limitation & indemnity
17.1 The Customer shall indemnify Soldigo and keep Soldigo fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by the Customer, its employees, agents or subcontractors.
17.2 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law (for which no limit applies), the liability of Soldigo under this Agreement in respect of each event or series of connected events shall not exceed the price paid by Customer to Soldigo in the 12 months preceding occurrence of such event or series of events.
17.3 Notwithstanding anything else contained in this Agreement, Soldigo shall not be liable to Customer for loss of profits or contracts (other than, in the case of Soldigo, its net loss of future revenue from this Agreement), loss of goodwill or for any special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever.