Terms and conditions of BrandSwap Limited
These terms and conditions (the “Agreement”) govern the Customer’s access to the Services (as defined below). The Customer agrees to be bound by the terms of the Agreement by (1) clicking a box indicating acceptance through BrandSwap’s website or (2) using the Services. The terms of the Agreement shall apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
If the individual accepting the Agreement is accepting on behalf of an organisation or legal entity, such individual represents and warrants that they have the full power and authority to bind such organisation or legal entity to the Agreement, in which case the term “Customer” shall apply to such organisation or legal entity. If the individual accepting the Agreement does not have such authority or does not agree to the terms of the Agreement, such individual must not accept the Agreement and may not use the Services.
1. Definitions and interpretation
- The following definitions and rules of interpretation apply in these Terms and Conditions.
BrandSwap: means BrandSwap Limited a company registered in England and Wales with company number 14244549 whose registered office is at 1 Barons Court, Graceways, Whitehills Business Park, Blackpool, FY4 5GP.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party to the other party, whether before or after the date of the Agreement, including:
(1) All information relating to the business, customers, clients, suppliers, marketing strategies and campaigns or market opportunities of the Disclosing Party;
(2) All technical or commercial know-how, operations, processes, product information, trade secrets, software (including source code) or proposals for services or products; and
(3) Any other information of a confidential or proprietary nature not generally known to the public, whether of a technical, business, or other type and which could reasonably have been understood by the Receiving Party to be proprietary or confidential (including information marked as “Confidential”).
Customer: means the person, organisation or other legal entity that purchases the Services from BrandSwap.
Data Processing Agreement: the separate data processing agreement entered into by BrandSwap and the Customer in respect of any Personal Data (as defined in the Data Processing Agreement) which BrandSwap may process on behalf of the Customer when providing the Services.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time which apply to the processing of Personal Data (as defined in the Data Processing Agreement) when providing the Services, as further detailed in the Data Processing Agreement.
Disclosing Party: the party disclosing Confidential Information.
Documentation: the documents made available to the Customer by BrandSwap online via [https://brandswap.com/] or such other web address notified by BrandSwap to the Customer from time to time which set out a description of the Services and the user instructions for the Services.
Effective Date: the date on which the Customer confirms acceptance of the terms of the Agreement or begins using the Services, whichever is earlier.
Fees: the fees payable by BrandSwap to the Customer under the Agreement in accordance with clause [ ].
Normal Business Hours: [8.00 am to 6.00 pm] local UK time, each Business Day.
Personnel: the officers, employees, representatives, agents, subcontractors or consultants engaged by a party.
Privacy Notice: BrandSwap’s privacy notice, made available to the Customer by BrandSwap online via [https://brandswap.com/privacy/] or such other web address notified by BrandSwap to the Customer from time to time.
Receiving Party: the party receiving Confidential Information.
Service Level and Support Policy: BrandSwap’s policy, made available to the Customer by BrandSwap online via [https://brandswap.com/brandswap-service-level-and-support-policy/] or such other web address notified by BrandSwap to the Customer from time to time, which sets out:
(1) Service levels and service credits relating to the availability of the Services; and
(2) The standard support services offered by BrandSwap in relation to the Services.
Services: the subscription services provided by BrandSwap to the Customer under the Agreement via [https://brandswap.com/brandswap-service-level-and-support-policy/], or any other website notified to the Customer by BrandSwap from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by BrandSwap as part of the Services.
Term: the term of the Agreement, being the Initial Term together with any subsequent Renewal Periods.
Terms and Conditions: these terms and conditions as amended from time to time in accordance with clause 1.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision.
- A reference to writing or written excludes fax but not email.
- BrandSwap shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
- In providing the Services to the Customer, BrandSwap shall comply with the availability and service credit requirements set out in the Service Level and Support Policy.
- BrandSwap will, as part of the Services and at no additional cost to the Customer, provide the Customer with BrandSwap’s standard customer support services set out in the Service Level and Support Policy. The Customer may purchase enhanced support services separately at BrandSwap’s then current rates.
- BrandSwap shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and BrandSwap shall give the Customer prior notice of any proposed changes in any such event.
3. Data protection
4. Third party providers
5. BrandSwap’s obligations
- BrandSwap undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to BrandSwap’s instructions, or modification or alteration of the Services by any party other than BrandSwap or BrandSwap’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, BrandSwap will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.
- Does not warrant that:
- The Customer’s use of the Services will be uninterrupted or error-free; or
- That the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.
- Is not responsible for and shall have no liability to the Customer for:
- The content of websites of third parties;
- Any failures or loss or damage resulting from any defects in the Customer’s hardware, software or IT systems or their incompatibility with the Services;
- Any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- The Agreement shall not prevent BrandSwap from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
- BrandSwap warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
6. Customer’s obligations
- The Customer shall:
- Co-operate with BrandSwap in all matters relating to the Services;
- Provide BrandSwap in a timely manner with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate and complete in all material respects;
- Comply with all reasonable instructions given by BrandSwap to the Customer relating to the Services;
- Without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
- Carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner;
- Obtain and maintain all necessary licences, consents, and permissions necessary for BrandSwap, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
- Ensure that its network and systems comply with any relevant specifications provided by BrandSwap from time to time;
- Ensure that its employees, contractors or any other personnel hold the necessary skills, knowledge and experience to assist BrandSwap in providing the Services;
- Ensure that all user credentials (e.g. usernames and passwords) remain confidential and that the Customer and its personnel do not disclose such credentials to any unauthorised third party. The Customer will notify BrandSwap immediately upon discovery of an unauthorised disclosure of such credentials or any unauthorised access to the Services;
- Preview all content or other material provided as a part of the Services and shall satisfy itself, whether by testing or otherwise, that such content or material is acceptable, suitable, appropriate and safe to use before the Customer posts such content or material on its website;
- Remain liable to BrandSwap for all use of the Customer’s account, including by the Customer’s Personnel or third parties;
- Inform BrandSwap promptly:
- Of any problems with the Customer’s receipt of the Services or of any circumstances which come to the Customer’s attention which could impede or otherwise affect BrandSwap’s performance of the Services, providing as much detail as possible; or
- If the Customer makes any structural changes to its website which could impede or otherwise affect the Customer’s receipt of the Services or BrandSwap’s performance of the Services; and
- Be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to BrandSwap’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
- Except to the extent expressly permitted under the Agreement, the Customer shall not:
- Use the Services, or allow them to be used, for unlawful purposes or for the publication, linking to, issue or display of any unlawful or objectionable material (including any pirated content, material which is obscene, threatening, malicious, harmful, abusive, defamatory or which breaches any third party’s intellectual property rights or which encourages criminal acts or contains any virus, worm, malware, trojan horse or harmful code);
- Reverse engineer, decompile, disassemble or otherwise attempt to obtain the source code, object code or underlying structure, ideas or algorithms of the services or any software or data related to or provided with the Services;
- Copy, modify, translate or create derivative works based on the Services or the Documentation;
- Rent, lease, sublicense, provide access to, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services to a third party;
- Use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to BrandSwap;
- Remove or obscure any proprietary or other notices or labels from the Services or Documentation; or
- Otherwise use the Services or Documentation outside of the scope of the rights granted in the Agreement. The Customer will use the Services and the documentation only for its own business operations and not otherwise outside of the scope of the express rights granted in the Agreement.
- If BrandSwap’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, BrandSwap shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
- Without limiting or affecting any other right or remedy available to it, BrandSwap may suspend or limit the Customer’s access to the Services, in whole or in part and without incurring any liability to the Customer if:
- There is any breach of the obligations set out at clauses 1(i) or 6.2 above;
- This is necessary to enable BrandSwap to carry out urgent maintenance of or repairs to BrandSwap’s systems;
- The Services are being used by the Customer in an unauthorised, inappropriate or fraudulent manner or the Customer permits, enables or facilitates the use of the Services by a third party in an unauthorised, inappropriate or fraudulent manner;
- BrandSwap is required to do so by a court order or an order or instruction from a competent administrative authority; or
- BrandSwap determines (acting reasonably) that such action is necessary to prevent disruption or harm to BrandSwap’s systems or to other customers or third parties, or to respond to any actual or potential security or availability concern.
7.Fees and payment
- All Fees payable to the Customer by BrandSwap under this Agreement shall be paid in accordance with this clause 7.
- The basis for calculation of the Fees and the frequency of payment of the Fees by BrandSwap shall be agreed separately by the parties in writing. Thereafter, the customer can view up to date information relating to the Fees and their payment via the BrandSwap dashboard, which BrandSwap shall make available to the customer online via [https://brandswap.com/] or such other web address notified by BrandSwap to the Customer from time to time.
- BrandSwap shall make all payments of the Fees into the bank account nominated to BrandSwap by the Customer.
8. Proprietary rights
- The Customer acknowledges and agrees that BrandSwap and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer 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 or the Documentation.
- BrandSwap confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
9. Confidential Information
- The Receiving Party shall not disclose, use, or communicate the Disclosing Party’s Confidential Information to any person, except:
- Its Personnel or advisers who need to know such information for the purposes of exercising the Receiving Party’s rights or carrying out its obligations under or in connection with the Agreement. The Receiving Party shall ensure that its Personnel or advisers to whom it discloses the Disclosing Party’s Confidential Information are subject to obligations of confidentiality corresponding to those which bind the Receiving Party; and
- To the extent the Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of the disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 1(b), it takes into account the reasonable requests of the Disclosing Party in relation to the content of the disclosure.
- Notwithstanding the foregoing, the restrictions of this Clause 9 shall not apply to information that:
- Was already in the public domain at the time of its communication to the Receiving Party;
- Enters the public domain through no fault of the Receiving Party subsequent to the time of its communication to the Receiving Party;
- Was in the Receiving Party’s lawful possession free of any obligation of confidence at the time of its communication to the Receiving Party;
- Is developed by the Receiving Party independently of and without reference to Confidential Information; or
- Is lawfully disclosed to the Receiving Party by a third party, provided the Receiving Party does not know of any obligation of confidentiality restricting disclosure by the third party.
- A party shall not be in breach of its obligations under this Clause 9 if it is required to disclose any Confidential Information by law, rule, regulation, regulatory authority, judicial or governmental order or other legal process, provided the Receiving Party provides, if reasonably practicable or legally permissible, at least 7 calendar days’ prior written notice to the Disclosing Party prior to any disclosure.
- The Receiving Party shall take all reasonable steps to ensure that the Confidential Information to which it has access is not disclosed or distributed by its Personnel or advisers in violation of the terms of this Agreement.
- The Customer shall defend, indemnify and hold harmless BrandSwap against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
- The Customer is given prompt notice of any such claim;
- BrandSwap provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
- The Customer is given sole authority to defend or settle the claim.
- BrandSwap shall defend the Customer against any claim that the Customer’s use of the Services or Documentation in accordance with the Agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
- BrandSwap is given prompt notice of any such claim;
- The Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to BrandSwap in the defence and settlement of such claim, at BrandSwap’s expense; and
- BrandSwap is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, BrandSwap may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
- In no event shall BrandSwap, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- A modification of the Services or Documentation by anyone other than BrandSwap; or
- The Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by BrandSwap; or
- The Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from BrandSwap or any appropriate authority.
- The foregoing and clause 3(b) state the Customer’s sole and exclusive rights and remedies, and BrandSwap’s (including BrandSwap’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of liability
- Except as expressly and specifically provided in the Agreement:
- The Customer assumes sole responsibility for all content and other materials provided as part of the Services which is posted to the Customer’s website. BrandSwap shall have no liability for any loss or damage caused as a result of such content or other materials, or by errors or omissions in any information, instructions or scripts provided to BrandSwap by the Customer in connection with the Services, or any actions taken by BrandSwap at the Customer’s direction;
- All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
- The Services and the Documentation are provided to the Customer on an “as is” basis.
- Nothing in the Agreement limits or excludes the liability of either party:
- For death or personal injury caused by BrandSwap’s negligence;
- For fraud or fraudulent misrepresentation; or
- Any matter for which it would be unlawful for the parties to exclude liability.
- Subject to clause 1 and clause 11.2:
- BrandSwap shall not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for any loss of profit, loss of use, loss or interruption of business, depletion of goodwill, loss of revenue, loss or corruption of data or information, pure economic loss or any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in connection with the Agreement; and
- BrandSwap’s total aggregate liability in in contract (including in respect of the indemnity at clause 2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid or payable by BrandSwap under the Agreement during the 12 months immediately preceding the date on which the claim arose.
- Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of BrandSwap’s Intellectual Property Rights.
12. Term and termination
- The Agreement shall commence on the Effective Date and, unless otherwise terminated as provided in this clause 12, shall continue until either party gives the other at least 30 days written notice to terminate the Agreement.
- Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
- Fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
- Commits a material breach of any other term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- Takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause;
- Suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- On termination of the Agreement for any reason:
- All licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
- Each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
- Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. Force majeure
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two (2) months, the party not affected may terminate the Agreement by giving thirty (30) days’ written notice to the affected party.
14. General provisions
- Variation: No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver: A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
- Rights and remedies: Except as expressly provided in these Terms and Conditions, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- Severance: If any provision or part-provision of the 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 the Agreement.
- Entire Agreement: The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
- Assignment: The Customer shall not, without the prior written consent of BrandSwap, assign, transfer, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. BrandSwap may at any time assign, transfer, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
- No partnership or agency: Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Third party rights: The Agreement does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Notices: Any notice required to be given to a party under or in connection with the Agreement shall be delivered by email. Where BrandSwap requires the Customer to provide an email address, the Customer is responsible for providing BrandSwap with its most current email address. In the event that the last email address provided to BrandSwap is not valid, or for any reason is not capable of delivering to the Customer any notices required or permitted by the Agreement, BrandSwap’s dispatch of the email containing such notice will nonetheless constitute effective notice. The Customer may give notice to BrandSwap at the following email address: [email@example.com]. Any notice shall be deemed to have been received at the time of transmission.
- Governing law: The 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 interpreted in accordance with the law of England and Wales.
- Jurisdiction: 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 the Agreement or its subject matter or formation (including non-contractual disputes or claims.