START A FIRE

Terms and Conditions

13 / 03 / 2019

The following agreement sets out the terms and conditions of use of the Start A Fire software platform between:
PARTIES

(1) 89up Ltd, incorporated and registered in England and Wales with company
(2) "The Customer” (You)

BACKGROUND

The parties have agreed that the Host shall provide the Customer with access to the Start A Fire online software platform (the “Software”) including related services subject to the terms and conditions set out below.

AGREED TERMS

1. Interpretation The definitions and rules of interpretation in this clause apply in this agreement.

1.1 Definitions: Acceptance: the acceptance or deemed acceptance of the Software by the Customer, in accordance with Clause 3

Business Day: any day other than a Saturday, Sunday or public holiday in England when banks in London are generally open for business.
Charges: the charges in respect of the Services set out in Schedule 3.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is a) identified as confidential at the time of disclosure; or b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
Defects: has the meaning given in clause 3.4.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: the content provided to the Host by the Customer from time to time for incorporation in the Software.
Non-Host Defects: the defects described in clause 3.5.
Personal Data: has the meaning set out in Article 4(1) of the GDPR.
Services: the hosting and related services to be provided under this agreement as described in Schedule 1.
Site: the website at [https://www.startafire.co] to be hosted by the Host under this agreement.
Software: the Start A Fire online platform software provides the functions and tools on the Site, as described in Schedule 1.
UK Data Protection Regulation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
Visitor: a visitor to the Site.

1.2 Clause and Schedule headings shall not affect the interpretation of this agreement.

1.3 References to clauses and Schedules are (unless otherwise provided) references to the clauses and Schedules of this agreement.

1.4 If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.9 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a visitor to that website.

2. Services 2.1 Start A Fire, our campaigning platform, helps organisations and activists create more impact. The Software is a lightweight intelligent CRM that allows users to build a supporter community, undertake online advocacy, and drive donations. Start A Fire key features include: Email supporters with customisable HTML emails Petition MPs and individual action targets such as judges, ministers or international bodies Create fundraising actions (third party integration required) Understand who is responding to your campaigns 3. Acceptance 3.1 Acceptance of these Terms and Conditions is required before any use of the Software. 4. Customer responsibilities 4.1 The Customer shall be responsible for the accuracy and completeness of the Materials. 4.2 The Host shall not be liable for any delays in implementing the Services resulting from the Customer's failure to fulfil any of its obligations. 5. Charges and payment 5.1 Following Acceptance, the Host shall issue a monthly VAT invoice in respect of the Charges, and the Customer shall pay to the Host the Charges in accordance with Schedule 3 i.e. within 30 days of the date of the Host’s invoice. 5.2 All Charges are exclusive of VAT. 5.3 If the Customer fails to make any payment due to the Host under this agreement by the due date for payment, then, without limiting the Host's remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time but at 4% a year for any period when that base rate is below 0%. 6. Warranties 6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement. 6.2 The Host shall perform the Services with reasonable care and skill. 6.3 The Host warrants that the Site will perform substantially in accordance with the Site Specification for the duration of this agreement. If the Site does not so perform, the Host shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the terms of this clause 6.3. 6.4 This agreement sets out the full extent of the Host’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded. 7. Limitation of remedies and liability 7.1 Nothing in this agreement shall operate to exclude or limit the Host’s liability for: 7.2 (a) death or personal injury caused by its negligence; or (b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (c) fraud; or (d) any other liability which cannot be excluded or limited under applicable law. Neither party shall be liable under or in connection with this Agreement or any collateral contract for any: (a) loss of revenue; (b) loss of actual or anticipated profits; (c) loss of contracts; (d) loss of the use of money; (e) loss of anticipated savings; (f) loss of business; (g) loss of opportunity; (h) loss of goodwill; (i) loss of reputation; (j) loss of, damage to or corruption of data; or (k) any indirect or consequential loss, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise. 7.3 Subject to clause 7.1, and clause 8.4 (in respect of the Host), the Host's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the total Charges payable by the Customer to the Host under this agreement in that calendar year. 8. Intellectual property rights 8.1 The Host retains all Intellectual Property Rights in the Software and grants the Customer a licence to the extent required to utilise the services under this agreement. 8.2 The Customer retains all Intellectual Property Rights in the Materials, and grants the Host a licence to such Intellectual Property Rights to the extent required to perform its obligations under this agreement. 8.3 All Intellectual Property Rights in any works arising in connection with the performance of the Services by the Host (Works) shall be the property of the Host, and the Host hereby grants to the Customer a non-exclusive licence to such Intellectual Property Rights for the purposes of utilising the Services. 8.4 The Customer shall indemnify the Host against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe any Intellectual Property Rights of a third party. 8.5 The indemnities in clause 8.4 and clause 9.3 are subject to the following conditions: 8.6 (a) the indemnified party promptly notifies the indemnifier in writing of the action or claim; (b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent; (c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and (d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim. The indemnities in clause 8.4 and clause 9.3 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party. 8.7 At its own expense, the Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to clause 9.2 8.8 If any action or claim of the type referred to in clause 8.4, the Customer shall: (a) promptly notify the Host in writing of the action or claim; (b) make no admissions or settlements without the Host's prior written consent; (c) give the Host all information and assistance that the Host may reasonably require; and (d) allow the Host complete control over the litigation and settlement of any action or claim. 9. Site content 9.1 The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred [or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content). 9.2 The Host shall include only the Materials on the Site. The Customer acknowledges that the Host has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. 9.3 The Host may remove content from the Site where it reasonably suspects such content is Inappropriate Content provided that the Host shall notify immediately the Customer if it becomes aware of any allegation that content on the Site may be Inappropriate Content and gives the Customer a reasonable opportunity to amend it. 9.4 The Customer shall indemnify the Host against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content. 10. Data protection 10.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this clause 10, Applicable Laws means (for so long as and to the extent that they apply to the Host) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK. 10.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Host is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Schedule 2 sets out the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject. 10.3 Without prejudice to the generality of clause 10.1, the Customer will ensure it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data for the duration and purposes of this agreement. 10.4 Without prejudice to the generality of clause 10.1, the Host shall, in relation to any Personal Data processed in connection with the performance by the Host of its obligations under this agreement: (a) process that Personal Data only on the written instructions of the Customer unless the Host is required by Applicable Laws to otherwise process that Personal Data. Where the Host is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Host shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Host from so notifying the Customer; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); (c) not transfer any Personal Data outside the European Economic Area unless the following conditions are fulfilled: - the Customer or the Host has provided appropriate safeguards in relation to the transfer; - the Data Subject has enforceable rights and effective legal remedies; - the Host complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and - the Host complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data; (d) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (e) notify the Customer without undue delay on becoming aware of a Personal Data breach; and (f) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless (i) the Customer is not registered with a Data Protection Authority in the European Union and/or (ii) is required by Applicable Law to store the Personal Data. 10.5 The Customer consents to the Host appointing Lucidica as a third-party processor of Personal Data under this agreement. The Host confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement, incorporating terms which are substantially similar to those set out in this clause 10. As between the Customer and the Host, the Host shall not be liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 10. 10.6 The Host may, at any time of not less than 30 days’ notice revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement). 11. Security of network and information systems 11.1 The Host shall notify the Customer within a reasonable period of time if it becomes aware of any security incident affecting its network and information systems and that could potentially affect the Customer, and respond without delay to all queries and requests for information from the Customer about any security incident, whether discovered by the Host or the Customer, in particular bearing in mind the extent of the Customer's reporting obligations under applicable network and information security legislation and that the Customer may be required to comply with statutory or other regulatory timescales. 12. Term and termination 12.1 This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 12, or upon either party giving not less than one month’s written notice to the other. 12.2 Without affecting any other right or remedy available to it, the Host may terminate this agreement with immediate effect by giving 2 working days written notice to the Customer if: (a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 60 Business Days after being notified in writing to make such payment; (b) the Customer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 Business Days after being notified in writing to do so; (c) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company or limited liability partnership is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986; (d) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer; (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); (g) the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer; (i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within 28 days; 12.3 (j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(c) to clause 7.2(j) (inclusive); or (k) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business. On termination or expiration of this agreement; (a) all licences granted to the Host under this agreement shall terminate immediately; (b) the Host shall provide all such assistance as is requested by the Customer to transfer the Materials to the Customer or another service provider, subject to payment of the Host's expenses reasonably incurred. (c) any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect. 12.4 Termination or expiry of this 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. 13. Force majeure 13.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. 14. Confidentiality 14.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. 14.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received. 14.3 The obligations set out in this clause 14 shall not apply to Confidential Information that the receiving party can demonstrate: (a) is or has become publicly known other than through breach of this clause 14; or (b) was in the possession of the receiving party prior to disclosure by the other party; or (c) was received by the receiving party from an independent third party who has full right of disclosure; or (d) was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement. 14.4 The obligations of confidentiality in this clause 14 shall not be affected by the expiry or termination of this agreement. 15. Notices 15.1 Any notice given to a party under or in connection with this agreement contract shall be in writing and shall be: 15.2 (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (b) sent by email to the address specified at the end of this agreement Any notice shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the Business Day after posting or at the time recorded by the delivery service. (c) if sent by email, at 9.00 am on the next Business Day after transmission. 15.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. 16. Announcements 16.1 No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction. 17. Assignment 17.1 Neither party may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under this agreement, in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. 18. Entire agreement 18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to web hosting services. 18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement. 19. Third party rights 19.1 This agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. 19.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person. 20. Variation 20.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 21. Waiver 21.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 22. Rights and remedies 22.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law. 23. Severance 23.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement. 23.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. 24. No partnership or agency 24.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. 24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person. 25. Governing law 25.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. 26. Jurisdiction 26.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation. This agreement has been entered into on the date stated at the beginning of it.