THIS AGREEMENT SETS OUT THE TERMS AND CONDITIONS WHICH GOVERN YOUR ACCESS TO AND USE OF WORLDPAY'S "TECKNASHOP" WEB STORE DEVELOPMENT SOFTWARE.
By registering to use and making payment for services, you are agreeing to use the services under these terms and conditions. You are also agreeing to be legally bound by these conditions.
1.1
Provided that you have paid all of the licence fees and other sums payable
in respect of your access to and use of the Software WorldPay grants you
a non-exclusive and non-assignable right to access and use the Software
on your Internet Service Provider's server(s) for the purpose of building
a web store without a payment processing facility. To obtain access to
WorldPay's Card Payment Processing Services you are required to enter
into a separate agreement.
1.2
Save only to the extent that the same cannot be prevented by law, you shall
not:
Copy or permit others to copy the whole or any part of the Software, or arrange or create derivative works based on the Software;
Modify, merge or combine the whole or any part of the Software with any other Software
Adapt, translate, decompile, reverse-engineer, or disassemble the Software or permit others to do so.
Assign, transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Software to any other person.
1.3
You shall be solely responsible for making or arranging for back-up copies
to be made of all data that you use in conjunction with the Software in
accordance with good data processing practice.
2.1
All intellectual property and other proprietary rights (including copyright
and related rights) in the Software are and shall remain owned solely
by WorldPay or its suppliers.
2.2
You agree not to remove, suppress or modify in any way any proprietary
marking, including any trade mark or copyright notice on or in the Software
or which are visible during its operation.
2.3
You shall permit WorldPay to check the use of the Software by you at all
reasonable times.
2.4
You acknowledge and agree that certain facilities provided by the Software
(including but not limited to search engine registration and domain name
registration) are dependent upon services (including web hosting services) provided by third parties suppliers
and WorldPay makes no warranties or representations whatsoever in relation
to the performance or continuity of those facilities.
3.1
You acknowledge and agree that the Software cannot be tested in every possible
combination and it is not within WorldPay's control how and for what purpose
the Software is used by you. The Software has not been prepared to meet
your individual requirements and it is your responsibility to ensure that
the facilities and functions of the Software meet your requirements.
3.2
Except as expressly provided for in this Agreement, WorldPay does not make
any warranties, express or implied, regarding the Software, including
any implied warranty of quality, merchantability or fitness for a particular
purpose or implied warranties arising from course of dealing or course
of performance.
3.3
WorldPay is not responsible for the security of any data residing on your
server or any other computer used or controlled by you.
3.4
WorldPay's total liability under or in connection with this Agreement or
any claim for indemnity or contribution will not exceed in aggregate payments
made by you to your ISP or authorised
vendor to access the Software.
3.5
Under no circumstances, including negligence, shall WorldPay be liable
for any indirect, incidental, consequential, special or exemplary damages
arising from this Agreement, including but not limited to loss of revenue
or lost profits.
3.6
WorldPay warrants that the Software when used properly will provide the
functions and facilities described in WorldPay's TECKNASHOP feature
list. WorldPay does not warrant that the operation of the Software will
be uninterrupted or error free.
3.7
WorldPay's obligation and your exclusive remedy under clause 3.6 is limited
to WorldPay (at its own expense) using all reasonable endeavors to rectify
any non-conformance with the warranty by repair (by way of a patch, work
around, correction or otherwise) within a reasonable period of time or
at WorldPay's option replacing the Software accessed by you in whole or
in part.
3.8
WorldPay will not be liable for any failure of the Software attributable
to any modification to the Software by either you in default of your obligations
under this Agreement or by persons other than you, or by combination of
the Software with other software or equipment without WorldPay's express
prior written consent.
4.1
WorldPay will indemnify you for all damages awarded under any final judgment
by a court of competent jurisdiction or agreed by WorldPay in final settlement to the extent that the Software as used by
you in accordance with this Agreement infringes the copyright or other
intellectual property rights of any third party, provided that:
such infringement is not caused by or contributed to by your acts other than the use of the Software in accordance with this Agreement.
WorldPay is promptly notified by you in writing of the details of the claim;
WorldPay has sole control of the defence of such claim and all related settlement negotiations; and
you give WorldPay all reasonable assistance at WorldPay's reasonable expense in connection with such claim.
4.2
WorldPay will have no liability for any claim of infringement based on:
use of other than the latest unaltered current release of the Software as supplied to you;
use or combination of the Software with equipment, programs or data not supplied by WorldPay; or
your refusal to use modified or replacement Software supplied or offered to be supplied by WorldPay.
4.3
This section 4 states the entire liability of WorldPay with respect to
the infringement or alleged infringement of any third party intellectual
property right of any kind by the Software.
5.1
You are responsible for the consequences of any unauthorised access to
or use of the Software.
5.2
You will indemnify WorldPay in respect of any third party claim for any
loss, damage or expense including loss of profit or revenue occasioned
by or arising directly or indirectly from any unauthorised access to or
use of the Software.
6.1
You are responsible for payment of all costs, fees and expenses payable
to third parties arising out of the operation of your webstore (including
but not limited to maintaining domain name registration and ISP subscription)
as well as maintaining access to all necessary hardware and software needed
to run the Software.
6.2
Domain name registration facilities included in the Software are provided
by third parties. Registration or use by you of any domain name in conjunction
with your web store will be subject to the terms and conditions imposed
by the third party and any terms and conditions or policies imposed by
the ultimate registration authority. You are solely responsible for ensuring
that any domain name that you register or use in connection with the Software
complies with applicable trade mark laws and does not infringe any third
party's rights. You accept that WorldPay will not be obliged to refund
any sums paid by you in connection with your web store in the event that
any domain name registered or used by you is placed on hold, is de-registered
or otherwise made unavailable to you. WorldPay will not take any part
in any dispute between you and a third party regarding a domain name registered
or used by you.
6.3
You acknowledge and agree that you are solely responsible for the content
(including any text, images or other information) included on your web
store. WorldPay may periodically monitor your web store and may disclose
any content or records included in it as may be required to satisfy any
law, regulation or government request. WorldPay reserves the right to
suspend your access to the Software if it considers in its sole discretion
that your web store contains content that (1) is defamatory; (2) is offensive,
unlawful or dangerous; or (3) violates any third party's copyright or
other intellectual property rights. You agree that WorldPay shall not
be liable to you for any action WorldPay takes to suspend your access
to the Software in accordance with this Agreement.
7.1
WorldPay may terminate this Agreement with immediate effect by giving notice
to you if you:
fail to comply with any of the provisions of this Agreement and (in the case of a failure which is capable of being rectified), you do not rectify such failure within five (5) working days of WorldPay's notice to you;
are a company and become insolvent, convene any meeting of creditors, pass a resolution for winding up, suffer a petition for winding up, have an administrative receiver or receiver appointed over the whole or part of your assets, or suffer the appointment of an administrator; or
are an individual and commit any act of bankruptcy or compound with your creditors or come to any arrangements with any of your creditors.
7.2
Either you or WorldPay may terminate this Agreement upon any reason for
sixty (60) days notice to the other party.
7.3
On termination of this Agreement however caused, your authorisation to access and use the Software will automatically
cease and you undertake immediately to cease accessing or using the Software.
7.4
The provisions of section 3 (Defects Warranty and Limitation of WorldPay's
Liability) and section 8 (Confidentiality) shall survive any termination
of this Agreement.
You agree that you shall keep secret and confidential and shall only use for the purpose of performing your obligations under this Agreement all information or material of a technical or business nature or relating in any way to the Software or WorldPay's business, products or services.
9.1
This Agreement is personal to you and you may not assign, sub-licence,
or otherwise transfer your rights or obligations under it without WorldPay's
prior written consent.
9.2
WorldPay reserves the right to fulfill any of its duties and powers under
this Agreement by the use of agents and sub-contractors but WorldPay shall
remain primarily liable for their performance.
9.3
WorldPay may assign the benefit of this Agreement.
If any part of this Agreement is found otherwise to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
A failure of either you or WorldPay to exercise any right provided for in this Agreement shall not be deemed to be a waiver of any right unless such failure is confirmed expressly in writing by the relevant party to be a waiver.
Neither you nor WorldPay shall be liable for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of nature or causes that are beyond your or our reasonable control.
This Agreement is the complete and exclusive statement of the agreement between you and WorldPay relating to its subject matter.
This Agreement will be governed by and construed in accordance with the law of England and Wales and both you and WorldPay agree to submit to the exclusive jurisdiction of the courts of England and Wales.
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