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Terms and Conditions

 

Terms and Conditions relating to your Use of TOMMIE



1. Introduction

This Agreement is between TOMMIE Systems Ltd ('the Company') and you ('you' in this Agreement means either (a) the individual or entity that registered and/or provided the Company his/ her credit or direct debit information for the Service [as defined below] or, (b) if the Service is being purchased on behalf of an entity by an individual authorised to purchase the Service on behalf of such entity the 'you' means such entity) as an authorised user of the TOMMIE Service ("the Service"). The following terms and conditions ('the Terms') govern the provision and your use of the Service. This Agreement, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by the Company (collectively, the 'Agreement'), constitutes the entire agreement between the Company and you regarding the Service, and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. Please read the Terms carefully before registering for the Service. You accept the Terms by clicking the "YES, I HAVE READ AND AGREE TO THE TERMS AND CONDITIONS" checkbox during the registration process.



2. Access

In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service and/or telephony fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.

You are permitted to add further users to your account ('the Additional Users') using the User Accounts Administration screen within the Service.

Access to the Service will be provided to you and the Additional Users, once you have accepted the Terms and completed the registration process. Your use and that of the Additional Users of the Service in any manner, which is prohibited by these Terms, may result in termination or suspension of the Service. You and any Additional User are responsible for maintaining the confidentiality of the account login details including all usernames and passwords, and are fully responsible for all activities that occur under your account.

We reserve the absolute right to suspend, terminate, or modify, for any or no reason, any username and/or password provided to you for use with the Service. If you have any support enquiries concerning the Service you should contact Customer Support by email to support@tommie.co.uk. If you have any billing enquiries you should contact the Company by email to accounts@tommie.co.uk.



3. Licence and Intellectual Property Right

You are granted a non-exclusive, non-transferable, revocable licence with effect from your acceptance of the Terms to use the Service (and any software incorporated therein ('the Software')).

You acknowledge and agree that the Service and Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that the content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.

Save for the limited licence provided for above, you agree that you or any Additional User shall have no proprietary or other interest or rights in the Service.

You acknowledge that the Service is designed to be self contained and has not been built with a data export facility.

You agree that you will not (other than to the strict extent that such act cannot be restricted by law):

(a) copy the whole or any part of the Software;

(b) modify, merge or combine the whole or any part of the Software with any other software;

(c) assign, transfer, distribute, sell, lease, rent, sub-licence, charge or otherwise deal in or encumber the Software;

(d) adapt, translate, reverse engineer, decompile or disassemble the whole or any part of the Software.



4. Member Conduct

You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages and other materials ('Content'), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not the Company, are entirely responsible for all Content that you upload, save, store or otherwise transmit via the Service. The Company does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You acknowledge that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will the Company be liable in any way for any Content, including, but not limited to, of any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, or otherwise transmitted via the Service.

You agree to not use the Service to:

i. upload, post, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

ii. harm minors in any way;

iii. impersonate any person or entity, including, but not limited to, the Company official, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

iv. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

v. upload, post, or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

vi. upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;

vii. upload, post or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation;

viii. upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

ix. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

x. intentionally or unintentionally violate any applicable law or regulation including, but not limited to, regulations promulgated by any securities exchange.

You acknowledge that the Company does not pre-screen Content, but that the Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, the Company and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by the Company or submitted to the Company in any and all parts of the Service.

You agree that the Company may access, preserve, and disclose your account information and Content: (a) to any subsidiary or affiliated companies worldwide for the purpose of providing the Content to you in an efficient manner; (b) for the purpose of properly administering your account in accordance with the standard operating procedures of the Company or its affiliated or subsidiary companies; and (c) if required to do so by law or in the good faith belief that any such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Terms; (iii) respond to claims that any Content violates the rights of third-parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of the Company, its users and the public.

You acknowledge that the technical processing and transmission of the Service, including your Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. The Company reserves the right to terminate your access to some or all parts of its Service if you withdraw your consent in this paragraph at any time.



5. Changes to Service

The Terms may be changed (including any reasonable change to the Fee (as defined below) for use of the Service) at any time provided that any change to the Fee will only take effect 30 days after the date of notification.

Any changes to the service will be notified to you by e-mail to the address you provided to the Company on registration.



6. Charges & Payments

Subject to you activating the account by selecting the Activate button on the Admin Dashboard screen ('Activation'), you will be permitted a 30 Day Free Trial Period ('The Free Trial Period') to use the Service. You acknowledge that certain features within the Service will not be available unless and until Activation. The Free Trial Period shall commence on Activation and you acknowledge that Activation does not amount to a subscription to the Service as defined below.

During the Free Trial Period you will be permitted to subscribe to the Service by providing the Company with valid credit card or Direct Debit information and authorising the Company to take payment of the Fee (as defined below) for use of the Service after the Free Trial Period. You acknowledge that in order to automatically continue using the Service after expiry of the Free Trial Period you must provide valid credit card or Direct Debit information before the Free Trial Period expires. Failure to provide valid credit card or Direct Debit information before the end of the Free Trial Period will result in the account being automatically suspended at the end of the Free Trial Period.

Once the Free Trial Period has expired, and assuming you have provided valid credit card or Direct Debit information, your account will automatically transfer to a subscription based arrangement ('the Subscription') whereby on a monthly basis, your account will be charged a daily fee for each user who has been active for all or part of every day during that month. Full and complete particulars of the daily fee can be found at the following website www.tommie.co.uk/prices.

The total fee due at the end of each month (the 'Monthly Fee') will be payable in arrears by credit card or Direct Debit. Such sums are expressed to be exclusive of VAT. The first Monthly Fee will cover the period from the end of the Free Trial Period until the last day of the same month. Subsequent Monthly Fees will cover the period from the first day of the month until the last day of that month.

Details of the Monthly Fee due for a particular month will be posted as a PDF file to your TOMMIE website on the first working day of the following month, viewable in the 'Billing' section. You acknowledge that the invoice amount may vary from month to month as it will depend on the number of active users on your account during each month and the number of days in the month.

The Company shall be permitted to take payment of the Fee, in accordance with the credit card or Direct Debit information you provide, after 14 days of the invoice.

You will be permitted 14 days from the date of the invoice ('the Notice Period') to notify the Company of any disputes you have relating to any charge in the invoice ('the Dispute'). The Company shall use reasonable endeavours to resolve the Dispute before expiry of the Notice Period. In the event that the Dispute is not fully resolved within the Notice Period and to such extent as possible, the Company will flag as "under investigation" any unresolved invoice that remains in dispute ('the Disputed Invoice'). Any invoice that is not flagged as "under investigation", will become due forthwith and payment taken by the Company in accordance with this clause.

The Company will investigate the Disputed Invoice and will notify you of a decision within 14 days of the end of the Notice Period ('the Decision'). You acknowledge that the Decision shall be final and binding on you and it shall not be disputed.

The Decision will identify any Disputed Invoice which the Company no longer deems as being in dispute and that remains owing and due from you ('the Resolved Invoice'). Payment for the Resolved Invoice will be taken on or before the next payment run which will normally take place on the 14th day of the following month.

If we do not receive payment from the card issuer or your bank, you agree to pay us all amounts due upon demand.

Commercially reasonable actions to validate your credit or Direct Debit details may be taken.

If for any reason your credit or Direct Debit information cannot be validated or the transaction is prevented from occurring the Company will make all reasonable endeavours to make you aware of this. If, following these endeavours, no effort is made to remedy the situation by you and the transaction remains outstanding for longer than 5 days the Company reserves the right to terminate or suspend the account at this time.



7. Your Responsibilities

You unconditionally agree:

(a) to provide true, accurate, current and complete information about yourself and Additional Users as prompted by the Service's registration form (such information being the "Registration Data") and

(b) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof);

(c) to notify us promptly by e-mail to accounts@tommie.co.uk if you suspect unauthorised use of the Service. Until you notify us, you remain responsible for such unauthorised use;

(d) to provide accurate and complete registration information (including, but not limited to, your name, postal or e-mail address, phone number, credit card or direct debit information) and to promptly report any changes in such information to us;

(e) that you are responsible for providing and maintaining all computer equipment and software necessary for you to access the Service;

(f) not to resell, remarket, or otherwise redistribute any portion of the Service;

(g) to comply with all applicable laws, regulations, or conventions, including, but not limited to, those related to child pornography, gambling or gaming, obscenity, securities, intellectual property rights, data privacy, import/export of data and taxes, or misleading or deceptive conduct;

(h) that you shall be responsible for all activities of the Additional Users relating to their use or misuse of their account or the Service;

(i) that you will ensure all Additional Users are fully informed and made aware of all Terms including any restrictions placed upon your use and their use of the Service herein.

You warrant that by registering for and continuing to use the Service that you are of legal age and capacity.



8. Special Admonitions for International Use

Recognising the global nature of the Internet, you agree to comply with all local laws and rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United Kingdom and the country in which you reside (if different from the aforementioned).



9. Links

The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the Company has no control over such sites and resources, you acknowledge and agree that the Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.



10. Term and Termination

Subject to clause 6 the Service shall be provided to you initially for the Free Trial Period and shall terminate upon expiry of that period unless and until your account is changed to a Subscription.

Within 2 weeks of the end of the Free Trial Period the Company will endeavour to notify you by email that your Free Trial Period is due to expire and invite you to subscribe to the Service.

Following Subscription, the Service will be provided to you for a minimum period of 30 days commencing on the date the Free Trial Period ends and shall continue unless and until you notify us in writing by email of your intention to terminate the Service.

It is agreed that in the event that you wish to terminate the Subscription, subject to the terms of this Agreement, you must provide the Company notice in writing at least 30 days before the date you would like the subscription to end ("the Termination Notice Period"). The Subscription shall terminate at the end of the Termination Notice Period and you acknowledge that your account will be suspended and you will be prevented from accessing it after the Termination Notice Period has lapsed.

In addition, the Company may withdraw the Service or you may require that the Company cease to provide the Service if:-

(a) either you or the Company commits any material breach of the Terms and fails to remedy such breach within thirty (30) days after receipt of written notice of the same except in the case of failure to pay in which case the period is five (5) days;

(b) any party becomes or is deemed insolvent, ceases to trade or has a liquidator, receiver, manager, administrator or administrative receiver or similar office appointed in respect of the whole or part of its business or enters into any arrangement or composition with its creditors or is wound up otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumed all of its obligations, or is unable to pay its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986, or is made bankrupt, or undergoes a similar or analogous event in any jurisdiction.

Termination Consequences

In the event of termination of these Terms in accordance with this Clause 10 and the expiry of the Free Trial Period, the Company shall continue to store all of your data, which is in our possession ('the Stored Data') for a period of six (6) months from the date of termination or the end of the Free Trial Period. During this six (6) month period, you may make arrangements to collect the data. After the expiration of this period, your data will be removed from the server and destroyed. The Stored Data will only be provided to on your request in this period and on the condition that you provide the Company with a fee of £500 + VAT for administrative charges.

In the event that you request the Stored Data within the six (6) month period following the date of termination or the end of the Free Trial Period, the Company shall make it available to you in the form of simple text files only. You acknowledge that the Company shall not be responsible for any Stored Data that can not be converted into the simple text file format or which may be lost on conversion into that format. You further acknowledge that it is your sole responsibility to reassemble the data from the simple text files supplied by the Company.



11. Suspension

The Company reserves the right to suspend your use of the Service and that of any Additional User whether individually or collectively at any time and for any length of time that the Company deems fit ('the Suspended Period'). An account which has been suspended will only be reactivated at the discretion of the Company. During the Suspended Period no charges will be incurred by you for any users that the Company suspends.

You will be permitted to suspend any Additional User ('the Suspended User') through the User Account Administration screen. You will be permitted to re-instate the Suspended User at any time after suspension. You will not incur a charge in relation to any Suspended User during the period in which he is suspended. Usual charges shall apply to the Additional User once you remove him from suspension and re-instate him as a user.



12. Disclaimer or Warranties

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED TERM OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY TERM AS TO THE PROVISION OF SERVICES TO A STANDARD OF REASONABLE CARE AND SKILL OR AS TO NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.

THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THE TERMS.



13. Limitation of Liability

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

In any event your sole right and exclusive remedy and our exclusive liability in the event of any material breach of the Terms by the Company, is to require the cessation of the Service as provided in Clause 10 and to recover your direct damages up to a maximum of the amount you have actually paid to the Company for the Service in the previous 6 months from the date of termination.

Nothing in the Terms shall exclude or limit either party's liability for death or personal injury arising from its negligence or that of its servants, agents or employees.



14. Indemnity

You agree to defend, indemnify and hold us, our affiliates, contractors, service providers, employees, agents harmless from and against any and all liabilities, cost and expenses, including reasonable legal fees related to or arising from, any breach by you or any Additional User of the Terms, failure by you or any Additional User to perform your obligations, your or the Authorised Users use of the Service.



15. Notices

Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally on the Service.

You should send all written notices relating to the Service either to the following address:
TOMMIE Systems Limited
c/o Ashcombe House
5 The Crescent
Leatherhead
Surrey
KT22 8DY;
or by email to accounts@tommie.co.uk.

You acknowledge that you are responsible for ensuring that any notices you send to The Company are received by The Company. If any time limits apply to the period of notice under the Terms you are responsible for meeting such time limits.



16. General

These Terms constitute the entire agreement between you and us, superseding any prior oral or other agreements about the Service.

Your use of the Service after the effective date of a change of the Terms constitutes your continued acceptance of the Terms and the Service, as amended.

If any provision of these Terms is determined to be invalid, all other provisions remain in force



17. Governing Law

These Terms will be governed by English Law and disputes relating to them will be submitted to the exclusive jurisdiction of the English courts.