Terms & Conditions (Services)
1. APPLICABILITY
1.1. These terms and conditions (“Terms”) apply to the online purchase of digital signage software services by clients (“Client”, “you”, “your” and “yours”) via the website www.troudigital.com (“Website”). The Services are offered by Neo Media Signage Limited trading as TrouDigital (“TrouDigital” and “we”, “us” and “our”). It is important to read and understand these Terms before you make a purchase.
1.2. TrouDigital offers a software-as-a-service digital signage solution (“Services”). TrouDigital only offers its Services to business clients, not consumers. Therefore, when you purchase our Services, you warrant that you are acting for business purposes and that you are not acting for purposes that are wholly or mainly outside your trade, business, craft or profession.
1.3. When you purchase Services you express your acceptance of these Terms and you enter into a binding legal agreement with us. You agree to be bound by these Terms. If you do not agree to any of the provisions of these Terms, you should not purchase and use our Services.
1.4. These Terms may be complemented with other documents, addendums or specific terms. Such documents, addendums or specific terms, together with these general Terms, form your agreement with us (“Agreement”).
1.5. Any terms and conditions or similar documents of the Client shall expressly not be applicable. No other terms are implied by trade, custom, practice or course of dealing.
2. DEFINITIONS
2.1. In these Terms, the following expressions have the following meanings:
Authorised Users means those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services, the amount of which is set out in the licence purchased;
Business Day means a day other than a Saturday, Sunday or bank or public holiday;
Client Data means any data owned by the Client;
Data Usage Limit means the 500MB combined storage limit applying to standard licences;
Screen means any screen the content output of the Software is displayed on, no matter the device used;
Software means the online software application provided by TrouDigital as part of the Services;
Subscription Fees means the fees payable by the Client for the use of the Services as set out in the licence purchased;
Subscription Term means the standard licence term of 12 months and any renewal periods.
3. GRANT OF RIGHTS
3.1. Subject to you purchasing the Services, full payment of the Subscription Fees and these Terms, we grant you a non-exclusive, non-transferable right, without the right to grant sublicences, to:
– permit Authorised Users to use the Services and to display the content output of the Software on one (1) Screen per Authorised User;
– during the Subscription Term;
– solely for your internal business operations.
3.2. In relation to the Authorised Users, you undertake that:
3.2.1. the maximum number of Authorised Users that you authorise to access and use the Services shall not exceed the amount of Authorised Users you have purchased a licence for. Authorised User accounts cannot be shared or used by more than one individual at the same time, but you are entitled to remove one individual as an Authorised User and replace them with another individual in accordance with the terms of our Agreement;
3.2.2. each Authorised User only displays content output of the Software on one (1) Screen;
3.2.3. you shall maintain a written, up to date list of current Authorised Users and provide such list to us within five (5) Business Days of our written request at any time;
3.2.4. you shall keep storage of data within the Data Usage Limit;
3.2.5. you shall permit us or our designated auditor to audit the Services in order to establish the name and password of each Authorised User and your data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business.
3.3. If we find out that you are exceeding your licence limits in any way, for example because the amount of Authorised Users or the amount of Screens the content output is displayed on by each Authorised User is exceeded, we have the right to upgrade your licence to reflect the actual use and adjust the Subscription Fees accordingly. You agree to pay us such adjusted Subscription Fees.
3.4. You acknowledge that the Services do not include:
3.4.1. any services, systems or equipment required to access the internet (and that you are solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by you in connection with use of the Services);
3.4.2. dedicated data back up or disaster recovery facilities (and you should ensure that you at all times maintain backups of all Client Data); or
3.4.3. legal, accounting or other professional or regulated services and that, except as expressly stated in the Agreement, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.
3.5. The rights provided under this clause 3 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client, unless expressly otherwise stated in your licence.
4. PROHIBITED ACTIVITIES
4.1. You shall not access, store, distribute or transmit any viruses, or any material during the course of your use of the Services that:
(a) are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
4.2. You shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
– attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of our Software (as applicable) in any form or media or by any means; or
– attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) subject to clause 15.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under clause 3; or
(f) introduce or permit the introduction of, any virus into our network and information systems.
4.3. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
5. ADDITIONAL AUTHORISED USERS
5.1. Subject to clause 5.2, you may, from time to time during the Subscription Term, purchase the rights to add Authorized Users to your licence in excess of your current licence limit. We shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement. If you wish to extend your licence, please notify us in writing.
5.2. If we approve your request to add Authorized Users to your licence, you shall, within 30 days of our invoice date, pay us the applicable fees for such additional Authorized Users and, if such additional Authorized Users are purchased part way through the initial Subscription Term or a renewal period (as applicable), such fees shall be pro-rated from the date of activation by for the remainder of the initial Subscription Term or then current renewal period (as applicable).
6. SERVICES, CHANGES, MAINTENANCE AND SUPPORT
6.1. We shall, during the Subscription Term, provide the Services to you on and subject to these Terms.
6.2. We may at our absolute discretion make changes to the Services, for example modify the features and functionalities of the Services, without giving you prior notice, provided such changes do not negatively impact your use of the Services. In the event we make changes that may negatively impact your use of the Services, we will give you at least 14 days’ prior written notice before the changes taking effect.
6.3. If you reasonably believe that such changes we have notified you about negatively impact your use of the Services you may terminate the Agreement by giving us written notice before the changes take effect. In the event of such termination you will receive a refund of any Subscription Fees paid in advance.
6.4. We shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for routine maintenance carried out – as much as reasonably possible – during off peak hours. We will use reasonable endeavours to give you advance notice of any planned maintenance. You acknowledge that you may receive no advance notification for downtime caused by Events Outside our Control or for other emergency maintenance.
6.5. We will, as part of the Services and at no additional cost, provide you with access to our support website, which includes the TrouDigital Knowledge base. If you wish to have access to enhanced support services these will be made available to you at our then current support rates.
7. PASSWORDS
7.1. You are solely responsible to keep the passwords you have been provided with or have chosen confidential at all times. You shall ensure that you will choose passwords which contain a combination of numbers, letters and special characters instead of commonly-used passwords and you shall change passwords on a regular basis. We cannot be held liable for any losses, damages and expenses arising out of or connected with unauthorized access or lost or stolen passwords.
8. FEES AND PAYMENT
8.1. You shall pay the Subscription Fees in accordance with this clause and your licence.
8.2. Payment is made on a monthly or annual basis, as set out on your licence.
8.3. When you make a purchase, you shall provide us with valid, up-to-date and complete credit or debit card details or approved purchase order information acceptable to us and any other relevant valid, up-to-date and complete contact and billing details.
8.4. If you provide us with credit or debit card details, you hereby authorise us to bill such credit or debit card for the Subscription Fees payable in respect of the initial Subscription Term and – subject to clause 14.1 – each renewal period.
8.5. If you provide us with approved purchase order information, we shall invoice you for the Subscription Fees payable in respect of the initial Subscription Term and – subject to clause 14.1 – at least 30 days prior to the start of the renewal period, and you shall pay each invoice within 30 days after the date of such invoice.
8.6. If we have not received payment within 30 days after the due date, and without prejudice to any other rights and remedies:
8.6.1. we may, without liability to you, disable the Client’s password, account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
8.6.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.7. All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 13.2, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
8.8. If, at any time whilst using the Services, you exceed the Data Usage Limit, we will send you an e-mail notification. If you do not keep within the Data Usage Limit within 7 days of such notification, we will charge you, and you agree to pay, our then current excess data storage fees.
8.9. We are entitled to increase any fees, including the Subscription Fees, at the start of each renewal period upon 60 days’ prior notice to you. For the avoidance of doubt: increased fees will not apply to the current Subscription Term.
9. INTELLECTUAL PROPERTY
9.1. You acknowledge and agree that TrouDigital and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services and the Software.
9.2. We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights we purports to grant under, and in accordance with, these Terms.
10. CLIENT DATA
10.1. In the course of your use of our Services we may have access to Client Data stored/hosted on our servers. We acknowledge that Client Data are your property and we shall not have nor claim any right, title or interest in any such Client Data.
10.2. We shall treat Client Data confidential at all times and we shall not disclose it to any third party. We will only allow a minimum of our personnel access to Client Data on a strict need-to-know basis. Such personnel will also be under an obligation of confidentiality.
10.3. You are solely responsible for backing-up Client Data. To the maximum extent permitted by applicable law, we shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Client Data.
11. INDEMNITY
11.1. The Client shall indemnify, keep indemnified and hold harmless TrouDigital from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it as a result of the Client’s breach of the Agreement.
11.2. This clause shall survive termination or expiry of the Agreement.
12. WARRANTIES
12.1. Subject to the remainder of this clause we warrant that:
12.1.1. the Services shall operate materially in accordance with its description when used in accordance with the Agreement under normal use and normal circumstances during the Subscription Term; and
12.1.2. we will provide the Services with reasonable care and skill.
12.2. You acknowledge that the warranty of clause 12.1 does not apply to free or trial Services or to support services provided in connection with the same. Free or trial Services and support services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.
12.3. The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. You acknowledge that such risks are inherent in cloud services and that we shall have no liability for any such delays, interruptions, errors or other problems.
12.4. If there is a breach of any warranty in clause 12.1 we shall at our option: use reasonable endeavours to repair or replace the impacted Services within a reasonable time or (whether or not it has first attempted to repair or replace the impacted Services) refund the Subscription Fees for the impacted Services which were otherwise payable for the period during which we were in breach of any such warranty (provided such period is at least 14 consecutive days). To the maximum extent permitted by law, this clause 12.4 sets out your sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 12.1.
12.5. The warranties in clause 12.1 are subject to the limitations set out in clause 13 and shall not apply to the extent that any error in the Services arises as a result of:
12.5.1. incorrect operation or use of the Services by you or any Authorised User (including any failure to meet minimum specifications);
12.5.2. use of any of the Services other than for the purposes for which it is intended;
12.5.3. use of any Services with other software or services or on equipment with which it is incompatible;
12.5.4. any act by any third party (including hacking or the introduction of any virus or malicious code);
12.5.5. any modification of Services (other than that undertaken by us or at our direction); or
12.5.6. your breach of the Agreement.
12.6. You acknowledge that no liability or obligation is accepted by us (howsoever arising whether under contract, tort, in negligence or otherwise):
12.6.1. that the Services shall meet the Client’s individual needs, whether or not such needs have been communicated to us;
12.6.2. that the operation of the Services shall not be subject to minor errors or defects; or
12.6.3. that the Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible.
12.7. Other than as set out in this clause 12, and subject to clause 13.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
13. LIMITATION OF LIABILITY
13.1. The extent of our liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause.
13.2. Subject to clause 13.5, our total aggregate liability in respect of the Services (and all support services provided in connection with the same) howsoever arising under or in connection with the Agreement shall not exceed an amount equal to the Subscription Fees for the relevant Subscription Term paid by the Client in the 12-month period immediately preceding the first incident giving rise to any claim under our Agreement.
13.3. Subject to clause 13.5, we shall not be liable for consequential, indirect or special losses.
13.4. Subject to clause 13.5, we shall not be liable for any of the following (whether direct or indirect):
(a) loss of profit;
(b) destruction, loss of use or corruption of data;
(c) loss or corruption of software or systems;
(d) loss or damage to equipment;
(e) loss of use;
(f) loss of production;
(g) loss of contract;
(h) loss of opportunity;
(i) loss of savings, discount or rebate (whether actual or anticipated); and/or
(j) harm to reputation or loss of goodwill.
13.5. Notwithstanding any other provision of our Agreement, our liability shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
13.6. This clause shall survive the termination or expiry of our Agreement.
14. TERM AND TERMINATION
14.1. The Agreement comes into force when you click ‘accept’ and, unless terminated earlier in accordance with these Terms or by the mutual agreement of the parties, shall continue for a period of 12 months, after which it shall be automatically renewed for a further 12 months.
14.2. If the Client wishes the Agreement to terminate after the initial or any further periods of 12 months, the Client has to give at least 21 days’ prior written notice to TrouDigital.
14.3. Trial subscriptions can be terminated by either party any time within the 14-day trial period.
14.4. We may terminate the Agreement immediately at any time by giving notice in writing to you if:
14.4.1. you commit a material breach of the Agreement and such breach is not remediable;
14.4.2. you commit a material breach of the Agreement which is not remedied within 30 days of receiving written notice of such breach; or
14.4.3. you have failed to pay any amount due under the Agreement on the due date and such amount remains unpaid within 14 days after you have received notification that the payment is overdue.
14.5. Immediately on termination or expiry of the Agreement (for any reason), the rights granted by us under the Agreement shall terminate and you shall (and shall procure that each Authorised User shall) stop using the Services.
15. EVENTS OUTSIDE OUR CONTROL
15.1. We shall have no liability to you under this Agreement if we are prevented from or delayed in performing our obligations under this Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
16. PERSONAL INFORMATION
16.1. We will collect and process certain information from you which may be considered personal information. Please refer to our Privacy Policy for more information on how we treat such personal information.
17. ASSIGNMENT
17.1. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.
17.2. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
18. VARIATION
18.1. No variation of this Agreement shall be effective unless it is in writing and signed by you and us.
19. SEVERANCE
19.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
19.2. If any provision or part-provision of this Agreement is deemed deleted the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. WAIVER
20.1. If we do not insist that you perform any of your obligations under the Agreement, or if we do not exercise our rights or remedies against you, or if we delay in doing so, that will not mean that we have waived our rights or remedies against you or that you do not have to comply with those obligations. If we do waive any rights or remedies, we will only do so in writing, and that will not mean that we will automatically waive any right or remedy related to any later default by you.
21. THIRD-PARTY RIGHTS
21.1. This Agreement is between you and us. A person or entity who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
22. ENTIRE AGREEMENT
22.1. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
22.2. Each party acknowledges that it has not entered into the Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement.
22.3. Nothing in the Agreement shall limit or exclude any liability for fraud.
23. NOTICES
23.1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at the address set out in the order (if to the Client) or at the below address (if to TrouDigital), or such other address as may have been notified by that party for such purposes.
TrouDigital,
1st Floor North, Kenneth Dibben House
Enterprise Road
Southampton Science Park
Southampton
SO16 7NS
United Kingdom
23.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
24. JURISDICTION AND GOVERNING LAW
24.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
24.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
