Create More Terms of Service
(1) Blog Authentic Ltd a company incorporated in England and Wales with registered number 10647614 whose registered office is at 6 Brading Road, Brighton, East Sussex, BN2 3PD
(2) The Blogger signed up to using Create More widget and administration service. (Customer)
1. In this Agreement, the following words are defined:
this agreement for the provision of the Services (as defined below) including any schedules;
in relation to either party, any information (whether or not stated to be confidential or marked as such) which that party discloses to the other, or which the other party obtains from any information disclosed to it by that party, either orally or in writing or by any other means, under or in connection with this Agreement;
all documents, items, plans, products, goods and materials supplied by the Supplier, including any methodologies, ideas, designs, computer programs, data, disks, tapes, and reports, in whatever form, which are developed, created, written, prepared, devised or discovered by the Supplier or its agents, sub-contractors, consultants and employees in relation to the Services;
the date on which the Agreement is signed by all parties;
any equipment, systems, tools, cabling, items, materials or facilities requested or used directly or indirectly in the supply of the Services, by the Supplier or its sub-contractors;
Intellectual Property Rights
any invention, patent, utility model right, copyright and related right, registered design, unregistered design right, trade mark, trade name, internet domain name, design right, design, service mark, database rights, topography rights, rights in get-up, rights in goodwill or to sue for passing off and any other rights of a similar nature or other industrial or intellectual property rights owned or used by the Supplier in any part of the world whether or not any of the same is registered (or capable of registration), including applications and the right to apply for and be granted, extensions or renewals of, and rights to claim priority from, such rights and all equivalent or similar rights or protections which subsist now or will subsist in the future;
the services which are set out and described in Schedule 1 of this Agreement, together with any other services which the Supplier provides or agrees to provide to the Customer through the change control procedure set out below (Change Control);
the charges for the Services, which are set out in Schedule 2 of this Agreement;
the users who sign up to pay the Blogger through the Create More programme;
the description or specification for the Services as set out in Schedule 1 of this Agreement or as otherwise agreed between the parties through Change Control;
any day other than a Saturday, Sunday or public holiday in England.
2. In this Agreement, unless the context requires a different interpretation:
a. the singular includes the plural and vice versa;
b. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of this Agreement;
c. a reference to a person includes firms, companies, government entities, trusts and partnerships;
d. "including" is understood to mean "including without limitation";
e. reference to any statutory provision includes any modification or amendment of it;
f. the headings and sub-headings do not form part of this Agreement; and
g. "writing" or "written" will include fax and e-mail unless otherwise stated.
Provision of Services
3. The Supplier shall provide the Services to the Customer on the terms and conditions of this Agreement from the Effective Date and as set out in Schedule 1.
4. The Services will be provided by the Supplier either:
a. on an on-going basis; or
b. in response to each request from the Customer for the specified period in Create More payment schedules.
5. The Agreement begins on the Effective Date and will continue until either party serves notice to terminate under the clause below (Termination).
6. The Supplier shall provide the Services (including any Deliverables) in accordance with the Specification in all material respects. Time is of the essence for any dates for delivery of the Services under this Agreement, unless specifically stated otherwise in any schedule.
7. The Supplier shall perform the Services with reasonable care and skill, in accordance with:
a. generally recognised commercial practices and standards in the applicable industry; and
b. all laws and regulations applicable to the Services, including all laws and regulations related to (i) anti-bribery and corruption, and (ii) data protection.
8. No amendment shall be made to Schedule 1 except on terms agreed in writing by the Parties in accordance with the clause below Change Control.
9. The Customer must:
a. co-operate with the Supplier in all matters relating to the Services;
b. provide, in a timely manner, materials and any information as the Supplier may reasonably require; in the case of information, the Customer shall ensure that it is accurate in all material respects;
c. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the date on which the Services are to start;
10. The Customer is wholly responsible for any services they agree to provide the Supporter known as ‘perks’. The Customer is in no way responsible for the non-delivery of any services agreed between the Blogger and the Supporter.
11. Any disputers raised by a Supporter will go through the Create More Dispute process.
a. The Blogger must comply with the dispute process otherwise the Supporter will be automatically refunded their money.
b. The Create More Dispute outcome is binding for all parties.
c. If the Blogger is consistently reported and found to not be delivering promised services known as ‘perks’ this Agreement will be terminated.
12. The Supplier shall promptly notify the Customer of:
a. any delays or problems from time to time in the provision of the Services of which the Supplier becomes aware;
b. any circumstances from time to time which may prevent the Supplier from providing the Services in accordance with this Agreement together with (where practicable) recommendations as to how such circumstances can be avoided; and
c. any complaint (whether written or not) or other matter which comes to its attention and which it reasonably believes may give rise to any loss by or claim against the Customer or which may result in any adverse publicity for the Customer.
13. The Customer shall, without limiting any right or remedy of the Customer, promptly report to the Supplier any defects in the Supplier's performance of the Services as soon as reasonably practicable after any such defect comes to the attention of the Customer.
14. Where any defect in the provision of the Services is reported to the Supplier by the Customer or otherwise comes to the attention of the Supplier, the Supplier shall, without limiting any other right or remedy of the Customer, use its reasonable endeavours to provide such further services as are necessary in order to rectify the default as soon as is reasonably practicable and give the Customer a credit against the Service Charges calculated in accordance with Schedule 2.
Charges, Payment And Time Records
15. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Service Charges as set out in Schedule 2 which specifies whether the charges are on a time and materials basis, a fixed price basis or a combination of both. Time is of the essence for the payment of the Service Charges.
16. All charges quoted to the Customer are inclusive of VAT.
17. Where Services are provided for a fixed price, the total price for the Services is set out in Schedule 2. Upon completion of the Services or when an agreed instalment is due, the Supplier shall invoice the Customer for the charges that are then payable, together with any Equipment, materials and expenses, which have not been expressly included in the fixed price and VAT.
18. The Supplier and the Customer shall pay all amounts due under this Agreement in full without any deduction except as required by law and neither party shall be entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any amount due, in whole or in part.
19. Any Change to the Service provided by the Supplier shall be based on the Service Charges or, if this is not appropriate, shall be a fair and reasonable.
20. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, provided that the Supplier gives the Customer reasonable notice of such changes and that such changes do not materially affect the nature/scope of the Services or the Service Charges.
21. The Supplier shall indemnify the Customer against any claim by any other person that the provision of the Services to the Customer in accordance with this Agreement infringes any Intellectual Property Rights of that other person.
Liability and Insurance
22. If the Supplier's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
23. Nothing in this Agreement limits or excludes either party's liability for:
a. death or personal injury caused by its negligence;
b. fraud or fraudulent misrepresentation; or
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
d. any other liability which cannot be limited or excluded by applicable law.
24. Subject to the above clause and the clause above (Indemnity), neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of or damage to goodwill;
f. loss of use or corruption of software, data or information;
g. any indirect or consequential loss.
25. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
26. During this Agreement, the Supplier and the Customer shall each maintain in force with a reputable insurance company, insurance sufficient to indemnify risks for which they may be responsible, including for their respective sub-contractors, agents and employees, in connection with the Services and shall, on either parties' request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
27. Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
a. where required by law, court order or any governmental or regulatory body;
b. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
c. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
d. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
e. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.
28. Subject to the clause below, the Supplier reserves all Intellectual Property Rights (if any) which may subsist in any Deliverables, or in connection with, the provision of the Services. The Supplier reserves the right to take such action as may be appropriate to restrain or prevent the infringement of such Intellectual Property Rights.
29. The Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services.
30. If this Agreement is terminated, this licence will automatically terminate.
31. Each party warrants and represents that it has made, and undertakes that at all times during the term of this Agreement it will maintain, any notification and registration required under the Data Protection Act 1998 (DPA) that relate to the performance of its obligations under this Agreement.
32. Each party undertakes that in the performance of this Agreement it will comply with the DPA, and in particular the Data Protection Principles set out in the DPA, and with any guidance issued from time to time by the Information Commissioner.
33. The Supplier and its agents, sub-contractors, consultants or employees shall:
a. comply with all applicable laws, regulations, statutes, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Bribery Laws);
b. not commit an offence under sections 1, 2 or 6 of the Bribery Act 2010;
c. comply with any relevant industry code related to Anti-Bribery (Bribery Policies);
d. shall have, maintain, and enforce throughout the term of this Agreement its own policies and procedures, to ensure compliance with the Bribery Laws and the Bribery Policies; and
e. promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement.
34. The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this Agreement to the expiry of 12 months after the last date of supply of the Services or termination of this Agreement (whichever is the latest), solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Supplier in the provision of the Services.
Circumstances beyond the control of either party
35. Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
36. Such causes include, but are not limited to: power failure, Internet Service Provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, governmental action, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question.
37. The party affected by a circumstance beyond its control shall use all reasonable endeavours to mitigate the effect of the force majeure upon the performance of its obligations.
38. The corresponding obligations of the other party will be suspended to the same extent as those of the party affected by a force majeure event.
39. If the delay continues for a period of 90 days, either party may terminate or cancel the Services to be carried out under this Agreement.
40. Either party may terminate this Agreement by giving the other party 4 weeks' prior written notice.
41. A party may terminate the Agreement immediately by giving written notice to the other party if that other party:
a. does not pay any sum due to it under the Agreement within 14 days of the due date for payment;
b. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied);
c. persistently breaches any term of the Agreement;
d. is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
e. is a company over any of whose assets or property a receiver is appointed;
f. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
g. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
h. undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
i. (if an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
Consequences of Termination
42. On termination or expiry of this Agreement:
a. the Supplier shall immediately pay to the Customer all of the Customer’s outstanding payments;
b. the Customer shall, within a reasonable time, remove all Create More materials and information from their websites or profiles.
43. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
44. Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
45. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
46. No party may assign, transfer or sub-contract to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
47. No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
48. The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
49. Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
50. A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
51. If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
52. Unless specifically provided by the parties, nothing in the Agreement will establish any employment relationship, partnership or joint venture between the parties, or mean that one party becomes the agent of the other party, nor does the Agreement authorise any party to enter into any commitments for or on behalf of the other party.
53. Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first class post to or left by hand delivery at the other party's registered address or place of business, or sent by email to the other party's main business email address as notified to the sending party. Notices:
a. sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second Working Day and, where posted from or to addresses outside the United Kingdom, on the tenth Working Day following the date of posting;
b. delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and
c. sent by email will be deemed to have been received on the next Working Day after sending.
Governing law and jurisdiction
54. This Agreement will be governed by and interpreted according to English law. All disputes and claims arising under the Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the English courts.
55. By ticking the box and signing up to the Create More Service you are accepting these terms of service.
SCHEDULE 1 SPECIFICATION OF SERVICES
Create More Widget and Payment Programme
Blog Authentic supply a payment administration programme using Moonclerk
Blog Authentic will reasonably market the programme to potential supporters for the Blogger.
Services covered in the contract:
- Supplying payment buttons and links
- Providing sign-up forms for the Supporter
- Provide a payment platform back-end
- Manage monthly payouts
- Marketing and promotion of the Create More tool
- Managing disputes
SCHEDULE 2 CHARGES
Use of Wordpress widget or embed image
Blog Authentic Create More fee
Stripe service charges
2.9% + .30¢ per transaction