1.2 Please read the Terms carefully before you start to use the Services. If you do not agree to the Terms, do not use the Services.
1.3 Codilink may revise the Terms at any time by amending the page at www.footfall123.com/terms-of-use/en. You are expected to check this page from time to time to take notice of such changes, as they are binding on you.
1.4 The Services are owned and provided by Codilink UK Ltd t/a Footfall123, River House, 143-145 Farringdon Rd, London EC1R 3AB (“Codilink”, the Client and Codilink together being the “Parties”).
2. THE SERVICE
2.1 Codilink shall provide the client with one or more web based marketing products which may include , but is not limited to:
a) Footfall123 ToolBox (Footfall123)
b) Footfall123 Facebook marketing app (Social Rocket)
2.2 If Codilink’s performance of its obligations under the Terms is prevented or delayed by:
a) any act or omission of the Client, its agents, subcontractors, consultants or employees;
b) any interruptions, delays or faults affecting any third party platform or website which is monitored by the Service from time to time,
Codilink shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
2.3 Codilink shall maintain the security and integrity of the Client Data (as defined in paragraph 6.4).
2.4 The Client shall:
(a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all the Client Data;
(b) use commercially reasonable efforts to prevent unauthorised access to, or use of, the Services, and notify Codilink promptly of any such unauthorised access or use; and
(c) comply with all applicable laws in using the Services, including any applicable laws, regulatory requirements or generally accepted practices or guidelines which relate to the purpose for which the Client makes use of the Services.
(d) not use as Client Data any individual’s Personal Data for which it is not the legal owner
(e) not use Client Data for which it does not have explicit “opted in” consent from the customers that the Client may use their Personal Data for marketing purposes send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”);
(f) interfere with or disrupt the integrity or performance of the Services or the data contained therein;
(g) attempt to gain unauthorized access to the Services or its related systems or networks; or
(h) use the Services for any purpose, or in any manner, which Codilink has reasonable grounds to consider:
(i) may adversely affect Codilink’s business (which includes damage to Codilink’s reputation or business standing, affecting its profitability, conflict with business strategy of Codilink or conflict with Codilink’s ethical standards and policies); or
(ii) is not appropriate for the nature and purpose of the Services, as envisaged under the Terms.
2.6 If Codilink has reasonable grounds to suspect that the Client has failed to comply with paragraphs 2.4 or 2.5, it shall be entitled to suspend the provision of the Services with immediate effect. Codilink shall then undertake an audit pursuant to paragraph 2.4 or 2.5 and if it determines (acting reasonably) that such failure to comply did not occur, it shall reimburse to the Client (within thirty (30) days of such audit) the Fees paid by the Client in respect of the period during such suspension (calculated on a pro-rata basis). If Codilink determines (acting reasonably) that such failure to comply did occur, it shall have the right to immediately terminate these Terms and charge to the Client an amount of money equal to the value of the remainder of the term committed by the Client in the Pricing Form.
2.7 Codilink shall have the right to periodically perform maintenance on the Services (or the servers and networks which are connected to the Services), which may result in interruption to the provision of the Services. The dates and times of this maintenance shall be advertised by Codilink in advance, via its website or other media. Codilink shall attempt to ensure that minimal disruption is caused by such maintenance.
3. SCANNING DEVICES
3.1 Where the Client elects, in the form which sets out the options and fees for the Services (as made available by Codilink from time to time and accepted by the Client) (the “Pricing Form”), to receive, and Codilink agrees to provide, a scanning device (as described in paragraph 2.1) (the “Device”), the following terms shall apply:
(a) Codilink shall retain ownership in the Device at all times;
(b) the Device shall only be used for purposes envisaged under the Terms (namely the validation of barcodes issued by the Client via the Services);
(c) risk in the Device shall pass to the Client at the point at which the Device leaves Codilink’s premises. The Client shall be fully liable for, and will indemnify and hold harmless Codilink and its Affiliates (as defined in paragraph 10.5) against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by them arising out of or connection with use of, damage to, or the loss or theft of, the Device while in the Company’s possession or under its control; and
(d) if the Device suffers a fault, Codilink will use all reasonable endeavours to repair or replace such Device within seven (7) Working Days (being any day other than a Saturday, Sunday or public holiday in England) of receipt of written notification from the Client of such fault and receipt of the faulty Device. To the maximum extent permitted by applicable law, this paragraph 3.1 sets out the Client’s sole remedy in respect of any faults affecting any Device(s).
4. FEES AND PAYMENT
4.1 The Client shall pay the fees set out in the Pricing Form in respect of all options for the Services that it elects to receive in the Pricing Form from time to time, and Codilink agrees to provide (the “Fees”).
4.2 Codilink may, at any time and at its sole discretion, increase the Fees by giving the Client at least thirty (30) days’ written notice of the increase. Where the Client has paid Fees in advance, such increase shall not take effect until the end of the period in respect of which the Client has paid such Fees.
4.3 Where the Client is required to pay the Fees before it commences use of the relevant part(s) of the Services (as specified in the Pricing Form), the Client shall pay such Fees in accordance with the relevant terms specified in the Pricing Form.
4.4 Where paragraph 4.3 does not apply and the Client has elected to pay by direct debit, please note that Codilink has appointed the BACS Approved Direct Debit Bureau, Eazy Collect Servicess Limited (www.eazycollect.com), to collect Client payments and Eazy Collect will be shown on your bank statement.
(a) Codilink may suspend provision of the Servicess until payment is made; and
(b) if the Client has not paid all outstanding sums in full within thirty (30) days of receipt of notice of late payment from Codilink, Codilink may terminate the Terms immediately.
4.6 Codilink shall have the right to periodically audit the Client’s usage of the Services to ensure that the Client has not underpaid any Fees due.
(a) VAT/IVA and other tax duties and rates;
(b) Bank or currency exchange charges incurred due to payments being made from countries outside of the UK or in currencies other than pounds sterling,
which will be payable by the Client in addition to the Fees where applicable.
5. FAIR USE POLICY
5.1 If the Client elects to subscribe to an unlimited email usage package, as specified in the Pricing Form, usage of such shall be governed by Codilink’s Fair Use Policy.
5.2 The amount of monthly email sends considered to be within the Fair Use Policy shall depend on the subscription package selected by the Client in the Pricing Form and shall be calculated as being five times the maximum size of customer database permitted by the relevant subscription package.
5.3 If the Client’s email usage of the Services exceeds the amount specified in this paragraph 5, Codilink reserves the right to restrict the number of emails permitted to be sent by the Client and/or charge the Client a fee relating to the number of emails sent by the Client above the Fair Use Policy, at the price specified in the Pricing Form.
6. INTELLECTUAL PROPERTY RIGHTS and data
6.1 The Client shall provide to Codilink its logo, and any other data, documents, information and materials (including any image works) that it wishes to use via the Services (the “Client Materials”), in order to enable Codilink to provide the Services. The Client warrants that it has all necessary rights and consents in order to do so.
6.2 As between the Parties, Codilink shall own all Intellectual Property Rights and all other rights in:
(a) the Services;
(b) the data, documents, information and materials provided by Codilink to the Client as part of the provision of the Services (the “Codilink Materials”);
(c) all anonymised records of transactions created or stored on the Services (the “Transaction Data”); and
(d) the contact details (created or stored on the Services) of any customers of the Client who have opted to receive marketing communications from third parties(the “Marketing Data”),
the Codilink Materials, Transaction Data and Marketing Data together being the “Codilink Data”.
6.3 As between the Parties, the Client shall own all Intellectual Property Rights and all other rights in:
(a) the data, documents, information and materials (including the Client Materials) provided by the Client to Codilink as part of its use of the Services pursuant to the Terms, excluding the Marketing Data; and
(b) the data relating to customers of the Client created or stored on the Services, excluding the Transaction Data and the Marketing Data,
together the “Client Data”.
6.5 The Client hereby grants to Codilink a non-exclusive, non-transferable licence to use the Client Data solely to the extent necessary for the provision of the Services.
6.6 The Client acknowledges that it obtains no proprietary rights in the Codilink Data or Services under the Terms. All right, title and interest in and to the foregoing including any and all related Intellectual Property Rights, modifications and additions thereto shall at all times remain with Codilink or any third party from whom Codilink has licensed the foregoing.
6.7 The Client shall not:
(a) create by de-compilation or reverse engineering the Services, or related documentation; or
(b) access the Services in order to:
(i) build a competitive product or services, or
(ii) copy any ideas, features, functions or graphics of the Services.
6.8 The Client hereby grants Codilink the right to use the Client’s name, logo and any respective Transaction Data in order to advertise the fact that the Client is a client of Codilink, and in the preparation of a case study of the Client and its usage of the Services (together the “Case Study Material”). The Case Study Material may be publicised on Codilink’s website, in printed material and other forms of marketing on behalf of Codilink. The Client may request at any time that Codilink refrains from using the Case Study Material. Within 15 working days after receiving such written notice from the Client, Codilink shall remove all references to the Case Study Material in any of its marketing activities.
6.9 For the purposes of these Terms, “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, services marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
7.1 Each Party (the “Recipient”) shall keep any Confidential Information received from or belonging to the other Party (the “Disclosing Party”) secret and not disclose such Confidential Information to anyone (except on a need to know basis for internal use only where necessary to perform its obligations under the Terms to its employees or full time contractors bound by express written secrecy obligations) or use such Confidential Information other than to perform its obligations under the Terms without the prior written consent of the Disclosing Party.
7.2 Paragraph 7.1 shall not apply to any Confidential Information to the extent that:
(a) disclosure is required to or by any court, tribunal or governmental authority with competent jurisdiction;
(b) it is or becomes generally and freely publicly available through no fault of the Recipient or its servants or agents; or
(c) it can be shown to have been independently originated by the Recipient or communicated to it in circumstances otherwise than where its disclosure to the Recipient imparted a duty of confidence.
7.3 For the purposes of this Paragraph 7, “Confidential Information” means the Codilink Data, the Client Data and all other information of a confidential nature concerning the trade secrets or business dealings, methods of business, transactions, plans or affairs of a Party or other party to whom the Party owes a duty of confidence; any document or information marked “Commercial in Confidence” or otherwise expressly designated as confidential; and any information which by its nature the recipient ought reasonably to conclude was confidential information of the other Party, in all cases whether encrypted or not and including all copies of the above on any media (including electronic media) whatsoever.
8. DATA PROTECTION
8.1 The Client warrants and undertakes that:
(a) it has obtained all consents, registrations and notifications (covering the types of processing envisaged by the Terms) required by the Data Protection Legislation in respect of Personal Data to be supplied or disclosed to Codilink;
(b) it will at all times comply with its obligations under the Data Protection Legislation;
(c) Personal Data is accurate and up to date when disclosed; and
Personal Data is processed and disclosed fairly and lawfully (as required by the Data Protection Legislation) by the Client when supplying or disclosing such Personal Data to Codilink.
8.2 The Parties acknowledge that for the purposes of the Data Protection Act 1998, the Client is the Data Controller and Codilink is the data processor in respect of any Personal Data.
8.3 Codilink shall process the Personal Data only in accordance with, and for the purposes described in, the Terms and shall not process the Personal Data for any other purpose unless expressly authorised by the Client.
8.4 Codilink warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected; and
(b) take reasonable steps to ensure compliance with those measures.
8.5 The Client acknowledges that Codilink is reliant on the Client for direction as to the extent to which Codilink is entitled to use and process the Personal Data. Consequently, Codilink will not be liable for any claim brought by a Data Subject arising from any action or omission by Codilink, to the extent that such action or omission resulted directly from the Client's instructions.
(a) Notwithstanding any other provision in the Terms, the Client acknowledges and agrees that Codilink may use the Transaction Data for any purpose (provided it complies with the Data Protection Legislation in doing so).
8.6 Where Codilink provides Personal Data to the Client as part of the provision of the Services, or shares data collected via the Social Rocket Product:
(a) Paragraphs 8.1 to 8.5 (inclusive) shall not apply in respect of such Personal Data.
(b) Codilink warrants and undertakes that it will at all times comply with its obligations under the Data Protection Legislation.
(c) The Client shall process the Personal Data only in accordance with Codilink’s lawful instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by Codilink.
(d) The Client warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(i) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(1) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or
(2) the nature of the data to be protected; and
(ii) take reasonable steps to ensure compliance with those measures.
8.7 For the purposes of this paragraph 8:
(a) “Data Protection Legislation” means the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all other applicable laws and regulations in any jurisdiction relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other regulatory, statutory, governmental or local authority in any jurisdiction; and
(b) “Data Controller”, “Data Processor”, “Data Subjects” and “Personal Data” shall have the meanings given in the Data Protection Legislation.
9.1 Each Party represents and warrants that it has the legal power to enter into the Terms.
9.2 Codilink represents and warrants that:
(a) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof;
(b) the Services will not contain or transmit to the Client any Malicious Code (except for any Malicious Code contained in materials provided by the Client);
(c) it owns or otherwise has sufficient rights in the Services to grant to the Client the rights to use the Services granted herein; and
(d) to the best of Codilink’s knowledge, the Services does not infringe any Intellectual Property Rights of any third party.
9.3 The warranties contained in this paragraph 9 are in lieu of all other warranties or conditions, whether express, implied or statutory, including the implied warranties and conditions of merchantability and fitness for a particular purpose and those arising by statute or otherwise in law or from the course of dealing or usage of trade. In particular, Codilink does not warrant that the services will be error free or will perform in an uninterrupted manner or that the Codilink Materials will be accurate or complete.
10.1 The Client shall indemnify and hold harmless Codilink and its Affiliates against all losses, liabilities and costs (including legal expenses) sustained, incurred or suffered by them as a result of:
(a) any claim, action or proceeding that their use, possession or receipt of the Client Data infringes the Intellectual Property Rights of any third party;
(b) any breach by the Client of paragraph 2.4, 2.5, 7 or 8.
10.3 Nothing in the Terms limits or excludes the liability of Codilink or its Affiliates:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Codilink; or
(c) for any other type of liability that cannot be excluded or limited under applicable law.
10.4 Subject to paragraph 10.3:
(a) Codilink and its Affiliates will not be liable to the Client in contract, tort, misrepresentation or otherwise (including negligence), for any:
(i) loss of profits, loss of business, loss of data, depletion of goodwill and/or similar losses or pure economic loss (whether direct, indirect or consequential);
(ii) indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, which arises out of or in connection with the Terms.
11.1 The Terms shall commence upon the Client’s first use of, or access to, the Services and (unless terminated in accordance with this paragraph 11):
where the Client elects to receive the Services for an initial period of longer than one (1) month, shall continue for such period and thereafter shall automatically renew for further consecutive periods unless the Client gives Codilink at least one (1) month’s written notice of non-renewal via the email address email@example.com (to take effect at the end of the then current period).
11.2 Codilink may terminate the Terms at any time by giving the Client at least thirty (30) days’ written notice.
11.3 On expiry or termination for any reason of the Terms:
(a) Codilink shall make available to the Client the Client Data for download via a secure part of the Services for a period of fifteen (15) days from the effective date of expiry or termination (and thereafter Codilink shall not have any obligation to provide the Client Data to the Client); and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination (including paragraphs 2, 6, 7, 8, 10 and 12), shall not be affected
12. GENERAL TERMs
12.1 Neither Party shall be responsible for any failure to comply with or for any delay in the performance of the terms of the Terms including delays in delivery by Codilink where such failure or delay is directly or indirectly caused by or in any manner arises or results from events reasonably beyond the control of the Parties sought to be charged. These events include, but shall not be restricted to, fire, flood, earthquake, accident, civil disturbances, war, rationing, allocation or embargoes, strikes or labour problems, delays in transportation, acts of God and acts of any government or any branch or agency thereof.
12.2 The failure of either Party to insist on the strict performance of any terms, covenants and conditions of the Terms, or its failure to take advantage of any of its rights hereunder, shall not be construed as a waiver or relinquishment of any such rights or conditions at any future time nor shall it affect the continuance in full force and effect of all the provisions of the Terms.
12.3 If any provision of the Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Terms, and the validity and enforceability of the other provisions of the Terms shall not be affected.
12.4 If a provision of the Terms (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.5 The Terms constitute the whole agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Terms.
12.6 Each Party acknowledges that, in entering into the Terms, it does not rely on any statement, representation, assurance or warranty, whether made negligently or innocently (“Representation”) of any person (whether a party to the Terms or not) other than as expressly set out in the Terms. Each Party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
12.7 Nothing in clause 12.5 or 12.6 shall limit or exclude liability for fraud.
12.8 Where words include(s), including or in particular are used in the Terms, they are deemed to have the words without limitation following them.
12.9 The Client shall not assign its rights and obligations under the Terms without the prior written approval of Codilink. Notwithstanding the foregoing, either Party may assign the Terms, or any of its rights and obligations under the Terms to its parent company or its Affiliates upon written notice to the other Party provided such assigning Party shall remain liable to the non-assigning Party for the assigning Party's obligations under the Terms.
12.10 Codilink reserves the right to sub-contract any part of a Services, to a third party, and Codilink retains responsibility for any such sub-contracted Services.
12.11 The Terms shall enure to the benefit of the Parties and their respective successors and permitted assigns.
12.12 The Parties are independent contractors. The Terms do not create a partnership, franchise, joint venture, agency, fiduciary nor employment relationship between the Parties. A person who is not a Party to the Terms shall not have any rights under applicable law to enforce any term of the Terms.
12.13 Nothing in the Terms shall prohibit or be deemed to prohibit Codilink from providing similar servicess to any other client or third party subject to the provisions of confidentiality referred to in paragraph 7.
12.14 All notices under these Terms shall be in writing (including email) and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second Working Day after sending by confirmed facsimile; or (iv) the second Working Day after sending by email. Notices to Codilink shall be addressed to its Commercial Manager at the above address or firstname.lastname@example.org. Notices to the Client shall be addressed to the name and address provided by the Client upon registration to use the Services
12.15 The Terms shall be governed by, and construed in accordance with, the laws of England and Wales and each Party hereby submits to the exclusive jurisdiction of the courts of England and Wales.