Subscriber Terms and Conditions
The following General Terms and Conditions are intended to create a legally binding agreement between you and Fair Custodian Ltd for the provision of subscription and other goods and services and the use of the faircustodian.com website and its subdomains.
0.1 The following definitions apply
(a) “Agreement” means the agreement to provide subscription and other goods and services of which these General Terms and Conditions form part;
(b) “Subscription Period” means the time period for which you have agreed to use the Service;
(c) “Employee” means a person working for the Subscriber at the Offices;
(d) “Data Protection Materials” means the proprietary materials designed for use by Fair Custodian for Subscribers and presented in a user friendly format on the Website or any part thereof as the context admits;
(e) “Service” means any one or more of the services agreed to be provided by Fair Custodian to the Subscriber;
(f) “Force Majeure” means circumstances beyond Fair Custodian’s control, including but not limited to acts of God, war, civil unrest, strike, lock‐out or other industrial action and transport or computer failure including any failure or breakdown of related systems upon which the operation of the Product is dependant;
(g) “General Terms and Conditions” means these terms and conditions;
(h) “Office(s)” means the offices of the Subscriber at the location(s) specified in the Agreement;
(i) “Fair Custodian” means Fair Custodian Limited (registered number11609558) whose registered office is Fair Custodian, Office 0.09, Proto, Abbott’s Hill, Gateshead, NE8 3DF;
(j) “Start Date” means the commencement date of a Subscription Period;
(k) “Subscriber” means the recipient of the Service whether or not a Subscription Fee is being paid therefor;
(l) “Subscription Fee” means the fee for the provision of the Service;
(m) “Website” means the Fair Custodian website which is currently located at faircustodian.com including all subsidiary pages;
(n) “Authorised Users” means those employees, agents and independent contractors of the Subscriber who are authorised by the Subscriber to access and use the Solution on behalf of and for the sole benefit of the Subscriber.
1.1 The Agreement shall commence on the Start Date and shall continue for the Subscription Period unless and until terminated in accordance with the terms of this Agreement.
1.2 Either party may terminate this Agreement upon providing not less than 30 days written notice to the other party, such notice not to expire prior to the end of the then current Subscription Period. In the event the Subscriber terminates prior to the end of a Subscription Period, the Subscriber shall be liable to pay the Subscription Fees for the remainder of that Subscription Period.
2. PAYMENT OF PRICES AND FEES
2.1 The Subscriber will use the online payment service on the Website to pay for the service they have selected from the price list on the Website.
2.2 After expiry of the first Subscription Period, Fair Custodian may increase the Subscription Fee on giving the Subscriber not less than 30 days’ written notice.
2.3 The Subscription will automatically renew for each subsequent Subscription Period unless either party terminates this Agreement in accordance with the terms of this Agreement.
2.4 All prices and fees payable by the Subscriber are inclusive of value added tax (VAT).
2.5 The price for any goods or services supplied by Fair Custodian which are NOT included in the Subscription Fee shall, in the absence of a written agreement exchanged between Fair Custodian and the Subscriber, be charged at the rates indicated in Fair Custodian’s published price list or otherwise agreed in writing.
3.1 During the Subscription Period and subject to the terms and conditions of this Agreement, Fair Custodian shall provide the Service.
3.2 As part of the Service, Fair Custodian grants to the Subscriber a limited, non-exclusive, non-transferable and non-sub-licensable licence to access and use the Service and the for its own internal business purposes.
3.3 The Subscriber acknowledges and accepts that the Service is hosted by Fair Custodian’s trusted third party hosting service provider(s) based within the European Union.
3.4 The Agreement only permits access to the Service by persons who are Authorised Users. In relation to the Authorised Users, the Subscriber undertakes that each Authorised User shall keep a secure password for his/her use of the Service and shall keep the password secure and confidential;
3.5 The Subscriber acknowledges and agrees that it is responsible for all acts and omissions of an Authorised User and for ensuring their compliance with the terms of this Agreement.
3.6 The Subscriber shall not access, store, distribute or transmit via the Service any Viruses, Malware, or any material during the course of its use of the Service that:
3.6.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.6.2 facilitates illegal activity;
3.6.3 depicts sexually explicit images;
3.6.4 promotes unlawful violence;
3.6.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.6.6 is otherwise illegal or causes damage or injury to any person or property; and Fair Custodian reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s access to the Service in the event of any breach of the provisions of this clause.
3.7 The Subscriber shall not and shall not attempt to:
3.7.1 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:
(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service (as applicable) in any form or media or by any means; or
(b) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service;
3.7.2 access all or any part of the Service in order to build a product or service which competes with the Service;
3.7.3 use the Service to provide services to third parties;
3.7.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorised Users;
3.7.5 attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 3;
3.7.6 use or knowingly permit the use of any security testing tools in order to prove, scan or attempt to penetrate the security of the Service; and/or
3.7.7 use or launch, or knowingly permit the use or launch of, any automated system, including “robots”, “spiders” or “offline readers” that access the Service.
3.8 The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, shall promptly notify Fair Custodian in writing.
3.9 Access to the Service is licensed and not sold. The Subscriber shall not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Service aside from the limited licenses granted under this Agreement. Fair Custodian and its licensors shall retain all right, title and interest in and to the Service and all Intellectual Property Rights in the Service as well as any modifications or enhancements made to the Service.
4. EXCLUSION OF IMPLIED WARRANTIES
4.1 While Fair Custodian takes all reasonable care to ensure that the Data Protection Materials are accurate and up to date, Fair Custodian makes no representations, warranties or undertakings about any of the information content or materials provided on the Website (including, without limitation, any as to quality, accuracy, completeness or reliability).
4.2 Fair Custodian makes no representations or warranties in regard to the Product or the Software and excludes all representations, conditions and warranties express or implied arising by operation of law or otherwise to the fullest extent permitted by law.
4.3 The Website is provided on an “AS IS” and “AS AVAILABLE” basis without any representation or endorsement made and without warranty of any kind whether express or implied. This means that the implied warranties of satisfactory quality, fitness for a particular purpose, non‐ infringement, compatibility, security and accuracy shall not apply to the Website.
4.4 No warranty is given that the functionality of the Website will be uninterrupted or error free, that defects will be corrected or that the Website or the server that makes it available are free of viruses or anything else which may be harmful or destructive.
5. EXCLUSIONS AND LIMITATIONS OF LIABILITY
5.1 Fair Custodian expressly excludes all liability to the Subscriber for any indirect, special, incidental and/or consequential loss and/or damage which may arise in respect of the Data Protection Services and/or their use or non‐availability, revenue, goodwill and anticipated savings, to the fullest extent permitted by law.
5.2 Fair Custodian does not exclude liability for death or personal injury arising as a result of its negligence or that of its employees, agents or authorised representatives.
5.3 If the Subscriber is unable to access all or part of the Data Protection Services because it does not have access to any necessary third party software or equipment, this shall not constitute a breach of this Agreement by Fair Custodian (and shall not entitle the Subscriber to a refund of any Subscription Fees already paid).
5.4 Fair Custodian shall not be liable for any delay or failure to perform any obligations if the delay or failure results from an event of Force Majeure. If a force majeure event occurs, Fair Custodian will notify the Subscriber as soon as practicable. If the event of Force Majeure continues for more than 14 days, either party shall have the right to cancel the Agreement and the Subscriber will be entitled to a refund of the Subscription Fee from the date of cancellation.
5.5 Fair Custodian is not a legal advisor and does not warrant that the Service, and/or any Documents will meet the customer’s legal or other obligations. The Subscriber is solely responsible for obtaining its own legal advice as to whether the fService, and any Documents comply with the Subscriber’s obligations under the Data Protection Legislation and other applicable laws.
7. FAIR CUSTODIAN’S OBLIGATIONS
7.1 Fair Custodian undertakes that the Service will be provided with reasonable skill and care.
7.2 Fair Custodian:
7.2.1 does not warrant that the Subscriber’s use of the Service will be uninterrupted or error-free or that the Service, and/or the information obtained by the Subscriber through the Service, including Documents, will meet the Subscriber’s requirements;
7.2.2 is not responsible for 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 Subscriber acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
7.2.3 shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for planned maintenance and unscheduled maintenance.
7.3 will, as part of the Service, provide the Subscriber with Fair Custodian’s standard customer support during Business Hours as further detailed by Fair Custodian on the Website and as may be amended from time to time.
7.4 warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8. SUBSCRIBER’S OBLIGATIONS
8.1 The Subscriber shall provide Fair Custodian with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all information as may be reasonably required by Fair Custodian; in order for Fair Custodian to provide the Service.
8.2 The Subscriber warrants that:
8.2.1 all user information including information regarding Authorised Users is accurate and that such information will be updated as necessary to maintain its completeness and accuracy;
8.2.2 it will comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.2.3 it will ensure Authorised Users use the Service in accordance with the terms and conditions of this Agreement and the Subscriber shall be responsible for any Authorised User’s breach of this Agreement;
8.2.4 it will establish adequate operational back-up systems and procedures to ensure recovery and continuity of its systems and operations in the event of a failure of the Service;
8.2.5 it will ensure that its network and systems comply with the relevant specifications provided by Fair Custodian from time to time;
8.2.6 it will use current, industry-standard anti-malware protection solutions to reduce the risk of passing Viruses into the Service; and
8.2.7 it will be solely responsible for procuring and maintaining its network connections and telecommunications links.
9. GOVERNING LAW AND JURISDICTION
9.1 The Agreement shall be construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts to settle any disputes, which may arise in connection with it.