Externable.com Terms and Conditions
Updated on 03/03/2021 1:30PM
These terms and conditions (Terms and Conditions) are a legally binding contract between you (the Customer, you and your) and OWWARE Ltd (a company registered in England and Wales with company number 12026913) (OWWARE Ltd, externable.com, we, us and our), registered at 75 Shelton Street, Covent Garden, London, WC2H 9JQ, United Kingdom.
Terms and Conditions (‘T&C’) contain the terms under which OWWARE Ltd provide their Services to you and describe how the Services may be accessed and used.
You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.
If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
1. Fees and Payments
1.1. Fees for Services.
You agree to pay to OWWARE Ltd any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service (“Paid Services” and “Fee(s)”, respectively). If you wish to receive or use such Paid Services, you are required to pay all applicable Fees in advance. You will be billed using the billing method you select through your account management page. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
OWWARE Ltd reserves the right to change its Fees at any time, upon notice to you if such change may affect your existing subscriptions. If you received a discount, trial or other promotional offer, OWWARE Ltd shall have the right to automatically and without notice renew your subscription to such OWWARE Ltd Service(s) at the full applicable Fee.
All Fees shall be deemed to be in GBP, except as specifically stated otherwise in writing by OWWARE Ltd. To the extent permitted by law (and unless specified otherwise by OWWARE Ltd in writing), all Fees are exclusive of all taxes (including value added tax, sales tax, goods and services tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all applicable Taxes relating to your use of the OWWARE Ltd (externable.com) Services, or to any payments or purchases made by you. If OWWARE Ltd is obligated to collect or pay Taxes for the Fees payable by you, and whether or not such Taxes were added and collected from you for previous transactions, such Taxes may be added to the payment of any outstanding Fees and will be reflected in the Invoice for such transaction. We recommend that you verify the existence of any additional fees you may be charged by third parties in connection with the purchase of Paid Services or in connection with the renewal thereof (such as international transaction fees, currency exchange fees or fees due to banks or credit card companies). OWWARE Ltd is not responsible for any such additional fees or costs.
As part of registering or submitting information to receive Paid Services, you also authorize OWWARE Ltd to request and collect payment and service fees (or otherwise charge, refund or take any other billing actions) from our payment provider or your designated banking account, and to make any inquiries OWWARE Ltd may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your payment, credit card or banking account provider (e.g., updated expiry date or card number as may be provided to us by your credit card company).
You must keep a credit card stored with OWWARE Ltd payment processor Stripe to pay for your Paid Services. You will be able to identify your Stored Card by its last four digits as in your Billing Portal Page.
1.2. Payment Processor.
Payment processing services on externable.com operated by OWWARE Ltd are provided by Stripe and are subject to the Stripe Terms of Service. By agreeing to these terms or continuing to operate externable.com by OWWARE Ltd, you agree to be bound by the Stripe Terms of Service, as the same may be modified by Stripe from time to time. As a condition of OWWARE Ltd enabling payment processing services through Stripe, you agree to provide OWWARE Ltd accurate and complete information about you and your business, and you authorize OWWARE Ltd to share it and transaction information related to your use of the payment processing services provided by Stripe.
Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel renewal through your online account management page, or by contacting our customer support. While we will be sad to see you go, you may cancel renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
1.4. Price Changes.
OWWARE Ltd may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. OWWARE Ltd will provide you with advance notice of any change in fees.
1.5. Overage Fees.
Unless otherwise stated, any overage fees incurred by you will be billed in arrears. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
2.1. General remarks and GDPR.
- is or becomes public (other than through breach of these Terms by OWWARE Ltd);
- was lawfully known to OWWARE Ltd before receiving it from you;
- is received by OWWARE Ltd from a third party without knowledge of breach of any obligation owed to you; or
- was independently developed by OWWARE Ltd without reference to your Content. OWWARE Ltd may disclose your Content when required by law or legal process, but only after OWWARE Ltd, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
OWWARE Ltd will store and process your Content in a manner consistent with industry security standards. OWWARE Ltd has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
If OWWARE Ltd becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (“Security Incident”), OWWARE Ltd will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. OWWARE Ltd will also reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by OWWARE Ltd.
3. Your Content
3.1. You Retain Ownership of Your Content.
You retain ownership of all of your intellectual property rights in your Content. OWWARE Ltd does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. Limited License to Your Content.
3.3. Content Responsibility
The Services display content provided by others that is not owned by OWWARE Ltd. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. OWWARE Ltd is not responsible for any actions you take with respect to Your Content, including sharing it publicly. Under no circumstances will OWWARE Ltd be liable for any Content, any other third-party content or materials, or any loss or damage resulting from your use of, or reliance on, such Content or other third-party content or materials. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
And specifically regarding Your Content:
- you confirm you own all rights in and to any content uploaded or provided by you, or imported, copied or uploaded by OWWARE Ltd (externable.com) Services for you, to your Portal (“Your Content”), including any designs, images, animations, videos, audio files, fonts, logos, code, illustrations, compositions, artworks, interfaces, usernames, information you provide for the purpose of creating a subdomain name, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the Your Content, as necessary to legally access to, import, copy, use, publish, transfer or license such Your Content, by you and us or any of our affiliates;
- you have (and will maintain) the full power, title, licenses, consents and authority to allow OWWARE Ltd (externable.com) to access any websites, web pages and/or other online services, for the purpose of importing, copying, displaying, uploading, transmitting and/or otherwise using, Your Content.
- Your Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to upload, import, copy, possess, post, transmit, display or otherwise use, in the country in which you or your User Platform’s visitors and users (“End Users”) reside, or for OWWARE Ltd and/or your End Users to access, import, copy, upload, use or possess in connection with the OWWARE Ltd (externable.com) Services;
- you have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of Your Content, and you will adhere to all laws applicable thereto.
3.4. Content Review.
You acknowledge that, in order to ensure compliance with legal obligations, OWWARE Ltd may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. In the event your Content includes third-party brands, logos or other source identifiers, we may require you to submit a statement of non-affiliation before you may use such Content in connection with the Services. However, OWWARE Ltd otherwise has no obligation to monitor or review any content submitted to the Services.
3.5. Third Party Resources
OWWARE Ltd may publish links in its Services to internet websites maintained by third parties (such services, “Third Party Services”, and such providers, “Third Party Service Providers”). OWWARE Ltd does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners. Customer agrees that its use of those Third Party Services may be subject to terms and conditions and policies (including any amendments or modifications to those terms and conditions and policies) that are specific to such Third Party Services, and that it shall be bound by such terms and conditions and policies.
3.6. Customer Lists
OWWARE Ltd may identify you (by name and logo) as a OWWARE Ltd Services customer on OWWARE Ltd (externable.com) website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
3.7. Other IP Claims
OWWARE Ltd respects the intellectual property rights of others, and we expect our users to do the same. If you believe a OWWARE Ltd user is infringing upon your intellectual property rights, you may report it through email.
4.1. Legal Compliance
You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.
4.2. Prohibited use.
Customer shall not, and shall not permit any users of Customer’s applications hosted by OWWARE Ltd as part of the Selected Services (such applications, “Customer Applications”, and such users, “Users”) or any other party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject OWWARE Ltd to liability to third parties, including:
- unauthorized access, monitoring, interference with, or use of OWWARE Ltd or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Customer Application or Selected
- interference with others’ usage of the Selected Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks;
- unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting;
- use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting;
- distribution of advertisement delivery software unless
- the User affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and
- the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft’s “add/remove” tool);
- infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right;
- collection, storage, publication, transmission, viewing or other use of any content that, in OWWARE Ltd’s opinion,
- is obscene,
- constitutes or promotes child pornography,
- is excessively violent, incites or threatens violence, or contains harassing content or hate speech,
- is illegally unfair or deceptive,
- is defamatory or violates a person’s privacy, or
- creates a safety or health risk to an individual or the public;
- any other activity that places OWWARE Ltd in the position of fostering, or having liability for, illegal activity in any jurisdiction;
- any activity that violates the acceptable use policy or similar set of terms of any Third Party Service Providers for Third Party Services that have been made available to Customer; or
- attempting to probe, scan, penetrate or test the vulnerability of an OWWARE Ltd system or network or to breach OWWARE Ltd’s security or authentication measures, whether by passive or intrusive techniques. If any IP address or responding to any Customer Application becomes listed on Spamhaus, Spews, NJABL or any other reputable abuse database, then Customer will be deemed to be in breach of this Section 5.2, regardless of whether or not the IP numbers were listed as a result of Customer’s actions. OWWARE Ltd may suspend the provision of Selected Services to Customer if Customer or a User engages in any of the foregoing activities.
- copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the OWWARE Ltd Website, the externable.com Services (or any part thereof), any Content offered by OWWARE Ltd or Third Party Services for use and display within User Platforms (“Licensed Content”) and/or any part thereof in any way, or publicly display, perform, transmit or distribute any of the foregoing without OWWARE Ltd’s prior written and specific consent and/or as expressly permitted under the OWWARE Ltd Terms;
- use any illegal action to collect login data and/or passwords for other websites, third parties, software or services;
- phish, collect, upload, or otherwise make available credit card information or other forms of financial data used for collecting payments, unless done in accordance with any applicable law, including, with the PCI DSS standard when applicable;
- publish and/or make any use of the OWWARE Ltd (externable.com) Services or Licensed Content on any website, media, network or system other than those provided by OWWARE Ltd, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the OWWARE Ltd (externable.com) Services, Licensed Content and/or User Platform (or any part thereof), except as expressly permitted by OWWARE Ltd, in advance and in writing;
- use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the OWWARE Ltd (externable.com) Services (or its data and/or Content), or in any way reproduce or circumvent the navigational structure or presentation of any of the OWWARE Ltd (externable.com) Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the OWWARE Ltd (externable.com) Services;
- act in a manner which might be perceived as damaging to OWWARE Ltd’s reputation and goodwill or which may bring OWWARE Ltd into disrepute or harm;
- purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use OWWARE Ltd or OWWARE Ltd Marks and/or variations and misspellings thereof;
- impersonate any person or entity or provide false information on the OWWARE Ltd (externable.com) Services and/or User Platform, whether directly or indirectly, or otherwise perform any manipulation in order to disguise your identity or the origin of any message or transmittal you send to OWWARE Ltd and/or any End Users;
- falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that OWWARE Ltd or any third party endorses you, your User Platform, your business, your User Products, or any statement you make;
- reverse look-up, trace, or seek to trace another User of OWWARE Ltd (externable.com) Services, or otherwise interfere with or violate any other User’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the OWWARE Ltd (externable.com) Services and/or User Platform without their express and informed consent;
- disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the OWWARE Ltd (externable.com) Services, User Platform, the account of another User(s), or any other systems or networks connected to the OWWARE Ltd (externable.com) Services, by hacking, password mining, or other illegitimate or prohibited means;
- probe, scan, or test the vulnerability of the OWWARE Ltd (externable.com) Services or any network connected to the OWWARE Ltd (externable.com) Services;
- upload to the OWWARE Ltd (externable.com) Services and/or User Platform or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
- take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the OWWARE Ltd (externable.com) Services or OWWARE Ltd’s systems or networks connected to the OWWARE Ltd (externable.com) Services, or otherwise interfere with or disrupt the operation of any of the OWWARE Ltd (externable.com) Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
- use any of the OWWARE Ltd (externable.com) Services and/or User Platform in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising;
- access to OWWARE Ltd (externable.com) Services, User Accounts, Licensed Content and/or User Content, through any means or technology (e.g. scraping and crawling), other than our publicly supported interfaces.
- sell, license, or exploit for any commercial purposes any use of or access to the Licensed Content and/or OWWARE Ltd (externable.com) Services, except as expressly permitted by the OWWARE Ltd Terms;
- violate, attempt to violate, or otherwise fail to comply with any of the OWWARE Ltd Terms or any laws or requirements applicable to your use of the OWWARE Ltd (externable.com) Services.
- access or use the Services for benchmarking or similar competitive analysis purposes or in order to build a competitive product or service.
- Development and Test instance of the Portal cannot be used for production operation, they are only there to test functionality before releasing to production instance.
You acknowledge and agree that your failure to abide by any of the foregoing or any misrepresentation made by you herein may result in the immediate termination of your User Account and/or any Services provided to you – with or without further notice to you, and without any refund of amounts paid on account of any such Services.
Customer shall take all reasonable security precautions in connection with its use of the Selected Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Selected Services and shall change its passwords periodically. If the Customer Application is hacked or otherwise accessed by a third party without authorization, then OWWARE Ltd may take the Customer Application offline until OWWARE Ltd determines that the intrusion is finally resolved.
4.4. Cooperation with Investigations and Legal Proceedings
OWWARE Ltd may, without notice to Customer:
- report to the appropriate authorities any conduct by Customer or Users that OWWARE Ltd believes violates applicable criminal law; and
- provide any information that it has about Customer or its Users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
5. OWWARE Ltd Intellectual Property
Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). Except as permitted by OWWARE Ltd’s Brand and Trademark Use Policy, these Terms do not grant you any right to use OWWARE Ltd’s trademarks or other brand elements.
All rights, title and interest in and to the OWWARE Ltd (externable.com) Services, including any and all copyrightable materials or any other content thereof which is or may be subject to any intellectual property rights under any applicable law (including any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, documentation, derivatives and versions thereof, the “look and feel” of the OWWARE Ltd (externable.com) Services, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered (collectively, “Intellectual Property”), and any derivations thereof, are owned by and/or licensed to OWWARE Ltd.
Subject to your full compliance with the OWWARE Ltd Terms and timely payment of all applicable Fees, OWWARE Ltd hereby grants you, upon creating your User Account and for as long as OWWARE Ltd wishes to provide you with the OWWARE Ltd (externable.com) Services, a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to use the OWWARE Ltd (externable.com) Services and Licensed Content, for the purpose of generating and displaying your User Platform to End Users and offering your User Products (as defined below) therein, solely as expressly permitted under the OWWARE Ltd Terms, and solely within the OWWARE Ltd (externable.com) Services.
The OWWARE Ltd Terms do not convey any right or interest in or to OWWARE Ltd’s Intellectual Property (or any part thereof), except only for the limited license expressly granted above. Nothing in the OWWARE Ltd Terms constitutes an assignment or waiver of OWWARE Ltd’s Intellectual Property rights under any law.
In addition to the above, certain fonts made available to you within the OWWARE Ltd (externable.com) Services, are licensed to OWWARE Ltd by a third party provider, and are therefore subject to additional license terms of such provider.
The Services may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at our Website in documentation page and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
6. Account Management
6.1. Keep Your Password Secure.
If you have been issued an account by OWWARE Ltd in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account or portal instance. You, and not OWWARE Ltd, are responsible for any activity occurring in your account (other than activity that OWWARE Ltd is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify OWWARE Ltd immediately. Accounts may not be shared and may only be used by one individual per account.
6.2. Keep Your Details Accurate.
OWWARE Ltd occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
6.3. Remember to Backup.
You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, OWWARE Ltd will not be liable for any failure to store, or for loss or corruption of, your Content.
6.4. Account Inactivity
OWWARE Ltd may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
6.5. Customer Success
OWWARE Ltd may assign you a customer success manager (“CSM”). The CSM may review your use of the Services and your Content to help you to more effectively use the Services, including by providing reporting and usage insight.
7. User Requirements
7.1. Legal Status
You can subscribe to Services only if you represent legally registered business/organization. Individuals cannot subscribe for the Services. You warrant that you represent validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United Kingdom or other applicable law from receiving the Services, or are on the United Kingdom list of sanctioned people and countries, you are not permitted to purchase any paid Services from OWWARE Ltd. You will ensure that:
- your end users do not use the Services in violation of any export restriction or embargo by the United Kingdom; and
- you do not provide access to the Services to persons or entities on any of the above lists.
8. Suspension and Termination of Services
8.1. By You.
You can terminate your Subscription and delete your account at any time through our support channel. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. You will not be charged again for that Subscription unless you purchase a new one. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons:
- we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing;
- a refund is required by law; or
- we, in our sole discretion, determine a refund is appropriate. For clarity, we will not grant a refund where you have used our Services, unless the termination is due to our material, uncured breach or a refund is required by law.
8.2. By OWWARE Ltd.
OWWARE Ltd may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. OWWARE Ltd may suspend performance or terminate your Subscription for any of the following reasons:
- you have materially breached these Terms and failed to cure that breach within 30 days after OWWARE Ltd has so notified you in writing;
- you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or
- you fail to pay fees for 30 days past the due date.
Additionally, OWWARE Ltd may limit, suspend, or terminate the Services to you:
- if you fail to comply with these Terms,
- if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or
- if we are investigating suspected misconduct by you.
Also, if we limit, suspend, or terminate the Services you receive, depending upon the reason, we will endeavour to give you advance notice and an opportunity to obtain a copy of your Content from that Service. However, there may be time sensitive situations where OWWARE Ltd may decide that we need to take immediate action without notice. OWWARE Ltd will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. OWWARE Ltd has no obligation to retain your Content upon termination of the applicable Service.
8.3. Further Measures.
If OWWARE Ltd stops providing the Services to you because you repeatedly or egregiously breach these Terms, OWWARE Ltd may take measures to prevent the further use of the Services by you, including blocking your IP address.
9. Changes and Updates
9.1. Changes to Terms.
OWWARE Ltd may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the OWWARE Ltd website. If an amendment is material, as determined in OWWARE Ltd’s sole discretion, OWWARE Ltd will notify you by email. Notice of amendments may also be posted to OWWARE Ltd’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require OWWARE Ltd to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
9.2. Changes to Services.
OWWARE Ltd constantly changes and improves the Services. OWWARE Ltd may add, alter, or remove functionality from a Service it provides to you at any time without prior notice. OWWARE Ltd may also limit, suspend, or discontinue a Service provided to you at its discretion. If OWWARE Ltd discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from that Service. OWWARE Ltd may remove content from the Services it provides you at any time in our sole discretion, although we will endeavour to notify you before we do that if it materially impacts you and if practicable under the circumstances.
Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account. It is not allowed to downgrade to Basic plan due to technical limitations.
All trial subscriptions in all plans run at reduced performance. The declared performance is restored when trial is converted into Paid Service. Trial expiry is communicated in the website at subscription creation stage.
9.5. Portal hosting
All portals provisioned to you as part of Services are hosted in Microsoft Azure subscription controlled by Owware Ltd. Performance of each portal subscription defined in OWWARE Ltd (externable.com) website refers to values declared by Microsoft Azure. OWWARE Ltd may change declared performance of each subscription in case Microsoft Azure hosting platform changes parameters of their hosting services. You accept that your website will be hosted on third-party infrastructure.
9.6. Portal performance and parameters
Each Subscription operates under one Microsoft Azure App Service Plan (“Server”), so all portal instances (development/test/production) share it and their performance is limited to what Server parameters may deliver. The Server parameters depend on Subscription Plan you choose. Portals may have different traffic, different level of customizations complexity and different volume of content, so the final performance depends on multiple factors and cannot be guaranteed, apart from objective values like Server parameters, like memory or virtual cores etc.
9.7. Version upgrades
OWWARE Ltd (externable.com) keeps improving the Service and thus new versions of the software will be made available for users. OWWARE Ltd will not automatically force new versions of the Portal to existing portals to avoid incompatibility with your changes and Customizations; instead you will be given an option in Account Management Page to apply upgrade to selected Portal. You can, but you don’t have to apply the upgrade. By not applying the upgrade you accept that you don’t run the latest version of the application and thus it may expose you to instability and security risks.
It is highly recommended that you always take a backup of your Portal before you apply the upgrade. If your plan is not allowing you to take on-demand backups, you should apply upgrade after system backup has been taken, so that you could revert to the last working and up to date version in case of upgrade issues. If your plan allows you to have more than one Portal instance, it is recommended to upgrade development and test instances first and test the new version before applying production upgrade.
Certain components of the Services can be highly customized as a part of the platform extension flexibility (Customizations). You are responsible for any additional software, code or third party services you create or use under your subscription. You acknowledge that you understand that use of third-party software may cause instability, security breach and expose your confidential data (including passwords and secrets).
NOTWITHSTANDING ANYTHING TO THE CONTRARY, OWWARE LTD MAKES NO WARRANTIES WHATSOEVER REGARDING THIRD PARTY SERVICES OR USER CUSTOMIZATIONS. WITHOUT LIMITING THE FOREGOING, OWWARE LTD SHALL HAVE NO LIABILITY FOR LOSS, DESTRUCTION, ALTERATION OR UNAUTHORIZED ACCESSTO DATA OR OTHER CONTENT STORED OR TRANSMITTED USING THIRD PARTY SERVICES OR CUSTOMIZATIONS.
11. Notices and Communications.
All Customer notices to OWWARE Ltd under this Agreement (including notices required to be in writing) may be sent to OWWARE Ltd via e-mail. OWWARE Ltd notices to Customer under this Agreement shall be given
- via email to the individual designated as Customer’s “Customer Contact” when signing up for the Selected Services online through the OWWARE Ltd Website,
- as specified in these Terms and Conditions
Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
11.2. Communications with Customer.
OWWARE Ltd shall communicate with Customer regarding day-to-day operational issues using email, the OWWARE Ltd Website, and the product user interface, as relevant.
11.3. Customer Responsibilities.
Customer shall be responsible for
- ensuring that Customer email addresses used in communicating with OWWARE Ltd are kept current and that spam and other filters for such email accounts are configured to accept emails from OWWARE Ltd, and
- routinely checking the OWWARE Ltd Website and product user interface for additional information relevant to Customer’s use of the Selected Services.
During the term of this Agreement and for 12 months thereafter, Customer agrees that it shall not solicit for employment any employee of OWWARE Ltd with whom it has had direct contact in connection with this Agreement unless agreed otherwise in written. Notwithstanding the foregoing, Customer shall not be precluded from
- hiring an employee of OWWARE Ltd who independently approaches Customer, or
- conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If Customer violates this provision, in addition to any other right OWWARE Ltd may have at law or in equity, Customer shall make a one-time payment to OWWARE Ltd in the amount of thirty percent (30%) of the employee’s then-current annual base salary.
12.2. Force Majeure.
Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
12.3. Dispute resolution
- If a dispute arises out of or in relation to this Agreement, either party may notify the other in writing in which case a nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. In the event that the parties are unable to resolve the dispute within 60 days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to one of the Managing Director, Chief Executive or Chief Operating Officer (Senior Executive) of that party.
- If the parties are unable to resolve the dispute within 14 days following referral to the Senior Executive of the relevant parties, then the parties must seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in London (UK) unless all three arbitrators mutually agree on an alternative city. The arbitration rules will be the London Court of International Arbitration Rules.
- Nothing in this clause 22, shall prevent a party from seeking urgent injunctive relief before an appropriate court with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in appropriate jurisdiction.
13. Disclaimers and Limitations of Liability
While it is in OWWARE Ltd’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY GUIDANCE OR RECOMMENDATIONS THEREIN ARE PROVIDED “AS IS” AND OWWARE LTD DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
13.2. Exclusion of Certain Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, OWWARE LTD, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF OWWARE LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF OWWARE LTD, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO OWWARE LTD FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) GBP 1000.00.
If you are a business, you will indemnify and hold harmless OWWARE Ltd and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) (“Indemnification Amounts”) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.
You will indemnify and hold Indemnified Entities harmless from any Indemnification Amounts arising out of a breach of your obligation to ensure your tax exemption certificate, if any, accurately reflects your current tax status.
13.5. Separate contracting
Under this T&C Services OWWARE Ltd will provide native platform bug fix. Any additional work, contracting or support to the customer requires separate agreement and is not covered in this document.
14. Other Terms
You may not assign these Terms without OWWARE Ltd’s prior written consent, which may be withheld in OWWARE Ltd’s sole discretion. OWWARE Ltd may assign these Terms at any time without notice notifying you.
14.2. Entire Agreement.
These Terms (including the Additional Terms) constitute the entire agreement between you and OWWARE Ltd, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
14.3. Independent Contractors.
The relationship between you and OWWARE Ltd is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
14.5. No Waiver.
A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
To the extent any conflict exists, the Additional Terms prevail over this T&C with respect to the Services to which the Additional Terms apply.
If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
14.8. Third Party Beneficiaries.
There are no third party beneficiaries to these Terms.
The following sections will survive the termination of these Terms: 1, 2, 3.2, 3.3, 4, 5, 8.3, 10, 11, 12, 13, 14, 15
15. Appendix 1 - GDPR Terms for Customers
15.1. Effective Date and Definitions.
These additional terms will apply to you from May 25, 2018, where you are a customer operating as a “data controller” of “personal data” of “data subjects” located in the EU (as those terms are defined in the GDPR) in your use of the Services.
The terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the GDPR.
15.2. Processing Instruction.
By requesting the Services and agreeing to these Terms and the OWWARE Ltd privacy policies, you are providing us with instructions to process any personal data collected by you through the Service, on your behalf.
15.3. Customer Obligations.
You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to OWWARE Ltd so that OWWARE Ltd may lawfully process and transfer the personal data in accordance with these Terms. You shall ensure that relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws and have sole responsibility for the accuracy, quality and legality of personal data processed by OWWARE Ltd in the provision of the Services.
15.4. OWWARE Ltd Obligations.
Where OWWARE Ltd is processing personal data on your behalf, it will:
- only do so on your documented instructions and in accordance with applicable law, including with regard to transfers of personal data to a third country or an international organization, and the parties agree that these terms and the OWWARE Ltd privacy policies constitute such documented instructions;
- ensure that all OWWARE Ltd personnel involved in the processing of personal data have committed themselves to confidentiality;
- where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by OWWARE Ltd and is not otherwise available to you through your account and user areas or on OWWARE Ltd websites, provided that you provide OWWARE Ltd with at least 14 days’ written notice of such an information request;
- promptly redirect a data subject to you where they are seeking to exercise their rights in respect of any personal data collected by you through use of the Services, and where the data subject has difficulty reaching you directly, we will assist them in doing so where possible;
- upon deletion by you, not retain personal data from within your account other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 9-12 months after data is deleted from an account);
- to the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services; and
- inform you immediately if, in our opinion, an instruction to process personal data you have provided infringes the GDPR.
15.5. OWWARE Ltd sub-processors.
OWWARE Ltd uses trusted partners in facilitating certain elements of our Services (“sub-processors”). By agreeing to these Terms, you provide a general authorization to OWWARE Ltd to engage onward sub-processors, subject to compliance with the requirements set out here. If you wish to receive a list of sub-processors who handle personal data for OWWARE Ltd please email us. On completion of this form and entry of your details through our system, you will receive updates when we add any new sub-processors to this list and you will have 15 days to object to any additions to the list before the change is implemented by us. If you object to a particular sub-processor, who we cannot disassociate from your Services, your sole remedy will be to terminate your subscription relating to the Services that cannot be reasonably provided without the objected-to new sub-processor. Such termination will be without a right of refund for any fees prepaid by you for the period following termination.
OWWARE Ltd will be liable for the acts and omissions of its sub-processors to the same extent OWWARE Ltd would be liable if performing the services of each of those sub-processors directly under these Terms, except as otherwise set forth in these Terms and OWWARE Ltd ensures that all sub-processors on the sub-processor list are bound by contractual terms that are in all material respects no less onerous than those contained in these Terms.
15.7. Security Measures.
OWWARE Ltd has, taking into account the state of the art, cost of implementation and the nature, scope, context and purposes of the Services and the level of risk, implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data. At reasonable intervals, OWWARE Ltd tests and evaluates the effectiveness of these technical and organizational measures for ensuring the security of the processing.
You will allow one month for OWWARE Ltd to respond to any audit request which you make. No person/party conducting an audit on your behalf, shall be, or shall act on behalf of, a competitor of OWWARE Ltd (“Auditor”). You will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than 1 audit in that same year (in which circumstances you and OWWARE Ltd will, in advance of any such audits, agree upon a reasonable reimbursement rate for OWWARE Ltd’s audit expenses). The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Services to vary this format for audit):
- OWWARE Ltd agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of OWWARE Ltd’s (or OWWARE Ltd affiliate’s) most recent penetration tests, which summary shall include remedial actions taken by OWWARE Ltd resulting from such penetration tests.
- The scope of the certifications and penetration tests provided will be limited to OWWARE Ltd systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Services obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by OWWARE Ltd.
- You will promptly notify and provide OWWARE Ltd with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.
The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this section sets out the entire scope of your audit rights as against OWWARE Ltd.
15.9. International Transfer.
To the extent applicable, OWWARE Ltd relies (in order of precedence) upon any adequacy decisions made by the European Commission at any time; OWWARE Ltd Europe UC also relies on standard contractual clauses for data transfers to other third parties based in countries outside the European Economic Area, the United States, or countries that do not have adequate levels of data protection as determined by the European Commission. To the extent applicable, you appoint OWWARE Ltd as your agent for purposes of entering into any standard contractual clauses for such purposes on your behalf under these Terms. If you hold a qualifying account and are availing of the OWWARE Ltd Data Processing Agreement with standard contractual clauses, the terms set out in that Data Processing Agreement with standard contractual clauses are supplementary to these Terms and, where there is a conflict between the terms of that Data Processing Agreement with standard contractual clauses and these Terms, the terms of the Data Processing Agreement with standard contractual clauses will prevail.
15.10. Liability for Data Processing.
The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this section shall be as set out in these terms, unless otherwise agreed in writing.