FILE FX TERMS OF BUSINESS
The following terms and conditions govern your use of the Resource supplied by File FX and the Resource and/or Content available therein.
This licence agreement (the “Licence”) is a legal agreement between you (Licensee or you) and File FX LLP a company registered with number 0C365302 and whose registered office is at 35 Ballards Lane, London, N3 1XW (“FILE FX, we, our or us”) for the Resource as defined in this Licence and subject to the terms herein. We do not sell the Resource to you. We remain the owners of the Resource and its Content (as defined) at all times.
If you have any questions regarding these terms of business you can contact us at:
Address: FILE FX LLP, 201-202 Upper Street, London , N1 1RQ, UNITED KINGDOM
Registered office: 35 Ballards Lane London N3 1XW Registration No. OC 365302
In these terms and conditions, the following definitions have the following meanings:
“Authorised Users” means your employees, staff and any other such persons as requested by you in writing (such request shall always be subject to our discretion). In the event that we reject such request for authorised use, the indicated person shall not be permitted to use the Resource and/or Content. Freelancers or subcontractors of the Licensee shall not be considered Authorised Users unless agreed between the parties in writing;
“Content” means all text, contact details or other material made available to you by File FX in physical, electronic or any other form regardless of whether the same has been amended, divided or incorporated into any other material;
“Effective Date” means the date that you first log in to the Resource or your acceptance of this Licence Agreement (by way of signature on a hard copy version and/or by way of electronic acceptance of this Licence Agreement by clicking the appropriate icon at the end of these terms); whichever is the earlier;
“Fee” as set out on the Website as at the Effective Date or as agreed in a Confirmation Email (as defined) by File FX;
“Intellectual Property Rights (IPR)” means all patents, trademarks, service marks, copyright, design right, database rights, know-how, processes, trade practices and other intellectual property rights whatsoever, whether registered or unregistered anywhere in the world;
“Login Details” means the personal username and password which will be supplied to you upon registration, allowing you to access and use our Website, Resource, Content and any other associated benefits;
“Term” means the period of rights of access to the Resource and/or Content granted to you in accordance with this Licence Agreement (and confirmed by File FX in a Confirmation Email);
“Resource” the File FX data bank accessed either electronically via the Login Details, whereby you are provided with access to online use of restricted areas of our Website where you can view Content and your account information.
“Website” means the website operated by File Fx at the domain www.filefx.co.uk.
3.1 By accepting these terms, you warrant that you have the authority to bind your company (be it as an employee or otherwise) to the terms herein.
3.2 In order to use our Resource and/or Content, it is necessary for you to provide and register certain information with us. You warrant that all information and representations submitted by you are complete, accurate and truthful.
3.3 We reserve the right to reject any application for access to our services for any reason, without cause and without compensation to you.
3.4 Without prejudice to our rights, File FX may suspend your access to our Website, Resource or Content, at any time, and without liability to you, if, in our reasonable opinion, such action is necessary to safeguard our Website, Resource and/or Content. You will not be entitled to a refund of all or part of the Fee for the duration of this period of suspension.
4.1 Upon payment of the Fees, as and when they fall due, we grant you a non-exclusive, non-transferrable licence to access the Resource and use the Content solely for your own marketing or self-promotional purposes (the “Purpose”) and where agreed to by File FX to make the same available to Authorised Users for the Purpose only.
4.2 In respect of all Resource(s) and/or Content that is accessed or downloaded via our Website, all licences to use the Resource and/or Content shall last only for the Term and upon expiration of the Term or termination of this Licence Agreement; you agree that you shall make no further use of the Resource and/or Content (in any format).
4.3 In the event that you wish to expand your access to the Resource and/or Content, we may, at our discretion, upgrade your Licence for an additional fee (as set out in a Confirmation Email). This shall terminate the original Licence and commence a new licence under these terms (“New Licence”). For the avoidance of doubt, the New Licence shall be subject to a full Term unless otherwise agreed by File FX.
4.4 You agree and acknowledge that:
4.4.1 you shall receive no other rights other than the non-exclusive right as it is granted in accordance with clause 4.1 to access and use the Resource and its Content;
4.4.2 you shall not copy the Resource and its Content except in respect of the Purpose, or where such copying is incidental to normal use of the Resource;
4.4.3 you shall not sell, rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Resource or Content;
4.4.4 you shall not make alterations to, or modifications of, the whole or any part of the Resource nor permit Resource or Content to be combined with, or become incorporated in, any other programs;
4.5 you hereby warrant that only one Authorised User shall have access to the Login Details, Resource and/or Content. In the event that you require more than one Authorised User, additional fees shall apply (as set out in a Confirmation Email). For the avoidance of doubt, each new Authorised User shall require separate permission to use the Resource and/or Content.
5. Access to and use of the Resource and/or Content
5.1 You agree and warrant that:
5.1.1 you shall bring the terms of this Licence Agreement to the attention of all Authorised Users and ensure their compliance with same;
5.1.2 you shall permit Authorised Users only to use the Resource and will supervise and control use of the Resource, ensuring that it is used by its Authorised Users for the Purpose only and in accordance with the terms of this Licence Agreement;
5.1.3 you shall not provide or otherwise make available the Resource in whole or in part, in any form to any person other than your Authorised Users without our prior written consent;
5.1.4 you will keep safe and not disclose the Login Details provided to you by File FX for access to the Resource on the Website except to Authorised Users and will use your best endeavours to ensure that Authorised Users do the same;
5.1.5 you shall inform us if at any point you consider that your Login Details have been compromised and/or are being used by someone else. You agree to take such action as is required and/or is requested by us to prevent unauthorised use.
5.2 For the avoidance of doubt, any artist, illustrator, photographer, production company, photographic library, photographic agent, illustrators agent or other enterprise that is promoted using the Resource and/or Content, is considered a separate “promotional entity” and must be registered with us in order to be authorised to access and use the Resource and/or Content. Use of the Resource and/or Content for or by a promotional entity without being registered with us is a breach of this Licence Agreement.
6. Storage and Protection
6.1 You shall take reasonable measures to ensure that no use of the Content and/or Resource is made outside of the rights granted in these terms including protecting against access of the Resource and/or Content by unauthorised third parties.
6.2 Wherever any Resource and/or Content are made available by you on any computer network you shall take reasonable measures to ensure that the Resource and/or Content cannot be viewed by any unauthorised third party.
7.1 For the purposes of this Licence Agreement, any references to “the Fees” shall be a reference to the amount payable to File FX in exchange for access to the Resource, Content and/or specific Content as set out on the Website and/or as confirmed by File FX by its email to the Licensee following the placing of its order (the “Confirmation Email”).
7.2 For the agreed Term, you shall be liable to pay an annual Fee, which shall be payable either as a One Off payment or on a “Monthly Payment Plan” (as agreed between the parties). In the absence of agreement, you shall be liable for a One Off Payment before we provide you with access to the Resource and/or Content. You undertake to advise us if there are any subsequent issues with such payment method or, in the event that a Monthly Payment Plan is agreed, if the standing order or direct debit is cancelled.
7.3 You warrant that the credit/debit card that is being used is yours or that you are authorised to use it. All credit/debit card and transactions are subject to validation checks and authorisation by the card issuer.
7.4 All Fees are expressed exclusive of VAT which shall be paid by you at the prevailing rate unless otherwise specified.
7.5 All monies due to File FX must be paid in pounds sterling net of any bank charges.
7.6 If items shown on our Website are not available or are incorrectly priced or incorrectly described, we shall not be obliged to sell you the items as shown.
7.7 We reserve the right to change at any time and without previous notice, data packages and/or fees offered on the Website.
7.8 Monthly payments are due on the day of the month first agreed with you. In the absence of written agreement, such payment will be due on the Effective Date and every subsequent date of the month thereafter (for completeness, if the Effective Date is 1 August, each monthly payment will fall on the 1st of each month). All overdue accounts will carry interest at the rate of 4% per annum above the base rate for the time being of Barclays Bank plc from the date payment fell due to the date of actual payment.
8. Copyright and other Intellectual Property Rights
8.1 The Licensee acknowledges that all intellectual property rights (including applications in respect thereof) in the Website, Resource and Content anywhere in the world belong to, vest in and/or are the exclusive property of File FX, that rights in the Website, Resource and/or its Content are licensed (not sold) to the Licensee and that the Licensee has no rights in, or to, the Website, Resource and/or its Content other than the right to use them in accordance with the terms of this Licence Agreement.
8.2 The Licensee acknowledges that it has no right to have access to the Website, Resource and/or its Content in source code form or in unlocked coding or with comments.
8.3 The integrity of the Resource and/or its Content is protected by technical protection measures so that the intellectual property rights, including copyright, in the Resource and/or its Content are not misappropriated. You acknowledge and accept that File FX includes seed entries (“Seeds”) in every Resource and collection of Content. These Seeds are used by File FX to monitor use of the Content. These Seeds may or may not be genuine businesses and File FX does not accept responsibility for any costs incurred by you in approaching such Seeds.
8.4 You can view, print or download Content for the Purpose, subject to clause 14.4, but you cannot otherwise copy, edit, vary, reproduce, publish, display, distribute or transmit in any form whatsoever Content without our express permission. You must not frame or link to our Website or any part of it without our permission.
8.5 ‘FILE FX’ is a registered trademark and this, together with all service marks and logos contained on or in our Website are owned by us (the “Trade Marks”). You cannot use, copy, edit, vary, reproduce, publish, display, distribute, store, transmit, commercially exploit the Trade Marks without our prior written consent.
9. Delivery and Cancellation
9.1 If File FX provides a delivery date for any Resource and/or Content, time is not of the essence in respect of that delivery date.
9.2 You may cancel your Licence Agreement with us prior to first use of the Login Details, by notice in writing to us (which may be by e-mail) quoting your reference number. After which point you shall not be permitted to access the Resource and/or Content. In the event that you use the Login Details to access the Resource, you shall be deemed to have accepted these terms and will not be entitled to a refund of the Fee.
9.3 We confirm that the data that you buy will at the time of delivery to you correspond to the description given by us. Every description or specification of the data that we sell is given in good faith based upon information received by us subject to clause 9.4.
9.4 All warranties other than those set out above, conditions and terms relating to fitness for purpose, merchantability or condition of goods, whether implied by statute or common law or otherwise are hereby excluded to the fullest extent permitted by law.
9.5 Each of the parties acknowledges that, in entering into this Licence Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in this Licence Agreement.
9.6 The Resource and/or Content may be added to or withdrawn from our Website or otherwise changed without notice.
10. Limitation of Liability
10.1 You acknowledge that the following provision reflects a fair allocation of risk. These terms set out our entire liability to you and all other liability of us to you and all warranties relating to the accuracy or suitability of Resource and/or Content for your purposes or that the Resource and/or Content is up to date is hereby excluded, provided that nothing shall exclude or restrict our liability for fraudulent misrepresentation and/or for death or personal injury (including but not limited to sickness and death) to the extent that such injury results from our negligence or wilful default, or that of our servants, agents or subcontractors.
10.2 You agree that our total liability to you shall not exceed (death or personal injury excepted) the Fee paid by you to us in the six months prior to the event giving rise to the liability, including where such liability arises out of our negligence.
10.3 In no event shall we be liable to you whether in contract, tort, by statute or otherwise in respect of any loss of profits and/or for any special, indirect, incidental or consequential loss or damage arising out of or in connection with the Content or Resource, including without limitation: increased costs of working, loss of revenue, loss of anticipated savings, loss of business and/or goods, loss of goodwill, loss of use, loss and/or corruption of data and/or other information or benefits. For the avoidance of doubt, neither the types of loss and/or damage specified above nor any similar types of loss and/or damage shall constitute direct loss for the purposes of this Licence Agreement.
10.4 You agree to notify us of any claim or allegation that the Resource and/or Content infringe any third party rights within ten days of becoming aware of the same.
10.5 File FX does not guarantee the accuracy of any Resource and/or Content.
11.1 You will fully indemnify and keep us and all our directors, employees, agents and associate companies, indemnified against all losses and damages (including loss of profits, special, indirect, incidental or consequential loss or damage, loss of goodwill and any reasonable legal costs or sums paid in settlement of any claim or proceedings brought against us by a third party) arising due to any breach of these terms by you.
12. Restrictions of the Internet
12.1 You acknowledge that:
12.1.1 we have no control over the Internet which is a global decentralised network of computer systems. Accordingly, access to our Website cannot be error free or uninterrupted and may be variable; and
12.1.2 information, benefits and other material accessible over the Internet, including via our Website may contain computer viruses, worms, Trojan horses, cancelbots, or other harmful and destructive components. We are not liable and will not be liable for any direct, indirect, incidental or other loss or damages which result or may result from your access to or use of the Internet. We strongly recommend that you maintain sufficient and updated anti-virus benefits on any hardware used to access our Website and/or access material on our Website.
12.1.3 Where access to the Resource, Content and/or Website in a given month excluding scheduled maintenance downtime as a result of a fault at our end is restricted, the Licence Agreement termination date will be extended at our sole discretion.
13.1 In the event that you choose to make a One Off Payment, this Licence Agreement shall commence on the Effective Date and shall continue for the Term as agreed. Prior to the expiry of the Term we will send you a notice by e-mail notifying you that the current period is approaching expiry. Your Login details, the Licence granted herein and access to the Resource and/or Content shall automatically cease on expiry of the Term.
13.2 We shall be entitled to terminate this Licence Agreement and immediately remove, cancel or suspend access to and use of the Resource and/or Content upon any actual or suspected breach by the Licensee of any part of this Licence which is not remedied within 7 days of File FX giving written notice of such breach (including, without limitation, failure to pay the Licence Fee and/or in the event that you or your company becomes insolvent in any jurisdiction). For the avoidance of doubt, on termination or expiry of this Licence Agreement for any reason the Licensee and Authorised Users shall make no attempt to access the Resource and/or Content. Termination shall be without prejudice to the accrued rights of either party.
13.3 We may terminate the Licence at any time, provided the Licensee is refunded a reasonable amount (in the Supplier’s opinion) which shall be calculated pro rata in accordance with the total days of usage. Days are to be defined as any day in the week Monday to Sunday.
14. Use of Resource and/or Content by you after termination/expiration of Licence Agreement
14.1 You are not authorised to use the Resource and/or Content outside of the terms of this Licence Agreement and in particular outside the Term. Should you or your Authorised User still do so, you agree and we reserve the right to recover the unauthorised use you or your Authorised User have made of the Resource and/or Content which shall be calculated at a rate of the full subscription fee for the data used (“Usage Fees”). This is without prejudice to all our other rights and remedies.
14.2 The Usage Fees shall be payable by you within 14 days of our giving you notice.
14.3 In the event that we determine that you or an Authorised User have supplied the Resource and/or Content (in whole or in part) to an unauthorised third party, you agree that you shall be personally liable for the Usage Fees of the unauthorised third party’s access.
14.4 On termination, and subject to our direction, you shall:
14.4.1 destroy or return to us all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Resource and/or Content;
14.4.2 erase all File FX material (including, without limitation information relating to the Resource and/or Content) from your computer systems and/or devices (including, without limitation, third party email hosting and CRM packages) to the extent possible;
14.4.3 ensure that, to the best of your knowledge, that all File FX material (including, without limitation information relating to the Resource and/or Content) is erased from any computer systems and/or devices (including, without limitation, third party email hosting and CRM packages) of the Authorised Users to the extent possible;
14.4.4 use your best endeavours to ensure each Authorised User’s compliance with this clause 14.4;
14.4.5 delete any and all LinkedIn contacts (or other social media platform connection) that are not considered a Retained Contact (as defined); and
14.4.6 certify in writing to File FX that you have complied with the requirements of this clause, provided that you may retain documents and materials containing, reflecting, incorporating, or based on File FX’s information to the extent required by law or any applicable governmental or regulatory authority, and to the extent reasonable to permit you to keep evidence that you have performed your obligations under this Licence Agreement.
14.5 On expiry of this Agreement, data may be retained from contacts (“Retained Contact”) making reciprocal communication (“Reciprocal Communication”). Data that falls under the classification of Reciprocal Communication shall be:
14.5.1 contacts who have actively requested that you keep in touch with them either verbally, in writing (including email) or via an opt-in link;
14.5.2 contacts who have become a customer, placed an order or requested a quote;
14.5.3 contacts who have submitted “unsubscribe” or “opt-out” responses (but only to facilitate opting them out of any future marketing messages);
14.5.4 For completeness, contacts that merely click or open a link and/or email (or otherwise) that you have sent them (resulting in, by way of example, a read receipt) shall not constitute a Reciprocal Communication and therefore will not result in a Retained Contact.
14.6 For the avoidance of doubt, LinkedIn invitations (or other social media platform connections) shall not fall within the scope of Reciprocal Communications and you and/or the Authorised Users are not permitted to add contacts from the Resource and/or Content using a LinkedIn invitation.
15.1 Any notice required or permitted under these terms shall be in writing (which may be by e-mail as advised by both parties) and shall be deemed to have been properly given:
15.1.1 48 hours after being posted by first class mail (by airmail if sent internationally) with postage prepaid to the address for us as set out in these terms and conditions and for you as set out in the subscription request or other address notified for the purpose of the services; or
15.1.2 if sent by e-mail to File FX, at close of business on the working day after receipt by File FX or the Licensee of the email.
16.1 Provisions 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15 and 16 shall remain in force after termination and/or expiration of this Licence Agreement.
16.2 We reserve the right at any time to modify this Licence Agreement, the Resource and its Content and to impose new or additional terms or conditions on the Licensee’s (and subsequently the Authorised Users’) use of the Resource and/or Content. Such modifications and additional terms and conditions will be communicated to you, and, if accepted, will be effective immediately and will be incorporated into this Licence Agreement. In the event that you refuse to accept such changes, we will have the right to terminate the Licence Agreement. If we are required to make these changes by law, these changes will apply automatically in respect of this Licence Agreement.
16.3 No provision of these terms shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not party to it, except for the avoidance of doubt by those persons from whom we may from time to time license Intellectual Property.
16.4 We may assign our rights or obligations under these terms and conditions at any time. Subject to the other provisions of these terms, you may not assign your rights or obligations under these terms without our prior written consent.
16.5 We shall not be liable for failure to meet our obligations under these terms if we are prevented from or delayed in doing so due to circumstances beyond our reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
16.6 The failure of us to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
16.7 If any provision or part-provision of this Licence 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.
16.8 This Licence Agreement and any document expressly referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter.
16.9 These terms and conditions shall be interpreted in accordance with and governed by English law and the parties shall submit to the exclusive jurisdiction of the English courts.
File Fx LLP
201-202 Upper Street London N1 1RQ
email : email@example.com