Froo.com Software License Agreement

This Agreement is between you (you) and Froo.com Limited incorporated and registered in England and Wales with company number 05902288 whose registered office is at Unit E Silver End Business Park, Brettell Lane, Brierley Hill, West Midlands, DY5 3LG trading as Frooition (us or we).

IMPORTANT NOTICE TO ALL USERS:
BY PROCEEDING TO LOG IN TO THE SOFTWARE YOU AGREE TO THE TERMS OF THIS AGREEMENT. WE SHALL ONLY PROVIDE THE SERVICES (AS SET OUT BELOW) ON THESE TERMS.

You should print a copy of this Agreement for future reference.

1. SERVICES
1.1. We will supply the eBay store and template hosting services, software platform and related services listed on the previous web page (Services) to you from the date agreed between us in writing until such time as this Agreement is terminated by either party in accordance with Clause 11 below.
1.2. The Services and material provided through our Services is for use only in relation to the enhancement of your listings on eBay. You may only use the Services for this purpose. Any other type of use requires our prior written agreement.
1.3. We may provide some or all of the Services through a third party chosen by us.

2. OUR OBLIGATIONS
We agree to:
2.1. provide the Services with reasonable care and skill;
2.2. provide the Services in accordance with any and all applicable laws, regulations and statute; and
2.3. take reasonable steps to ensure that any materials we produce as part of the Services are fit for any intended purpose agreed between you and us as far as reasonably possible (subject always to Clause 9 below and providing the same are within our ability).

3. YOUR OBLIGATIONS
3.1. You agree that you shall:
3.1.1. provide us with access to, and use of, all information, data and documentation we may reasonably require for the performance of our obligations under this Agreement upon being requested to do so;
3.1.2. ensure that such information, data and documentation is complete and accurate in all material respects; and
3.1.3. notify us of any changes to the information, data and documentation you provide to us where relevant.
3.2. Where we are required to comply with any third party website owner's platform selling policy or similar rules or regulations, you agree that you shall provide us with all reasonable assistance in ensuring that we are able to comply with the same.
3.3. When using our Services, you must not:
3.3.1. transmit or circulate material contained on our website or our Services to a third party (including republication on another website) other than emailing extracts or the page link for review purposes or where we have specifically and expressly created such material to be made available for redistribution by you;
3.3.2. sell, rent or otherwise sub-licence our Services or material on our website;
3.3.3. reproduce, duplicate, copy or otherwise exploit material from our Services or from our website for a commercial purpose (other than in respect of enhancing your listings on eBay);
3.3.4. edit or otherwise modify the Services or any material contained on our website;
3.3.5. copy, email or upload any content or otherwise transmit material which is in any way abusive, deceptive, threatening, defamatory, indecent or obscene, which will harass, any person or which might restrict or inhibit the use and enjoyment of our Services or website by any person;
3.3.6. post, upload, email or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;
3.3.7. post, upload, email or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, restrict, destroy, limit the functionality of or compromise the integrity of any computer software or hardware or telecommunications system;
3.3.8. remove the copyright or trade mark notice(s) from any copies of any material owned by us or our licensors;
3.3.9. use the Services or any materials prepared by us as part of the Services for any unlawful purpose or in violation of any terms and conditions or policies of eBay or their business partners from time to time; nor
3.3.10. attempt to gain unauthorised access to any restricted area of our Services or website.
3.4. You agree to comply with the terms of our fair usage policy, as referred to in Clause 6 below.
3.5. We may take such action as we deem appropriate to deal with the breach of any of the above terms, including suspending or cancelling your account, restricting your access to our Services, or commencing legal proceedings against you (providing that, where any breach is capable of remedy, we have provided you with reasonable notice of such breach and a reasonable opportunity to remedy such breach first).
3.6. We reserve the right to remove from your website or web-store (to the extent that we are able to do so) any content that we reasonably believe fails to comply with this Agreement.

4. ACCESS
4.1. Whilst we shall make every reasonable effort to provide uninterrupted and secure access to our Services and website, access to certain areas of our Services or website may be restricted where determined by us, acting reasonably. The Services and our website are provided on an “as is” basis. We shall not be liable for any loss or damage suffered by you as a result of any inability by you to access the Services or our website (save where this is caused by our gross negligence or wilful misconduct).
4.2. If we provide you with a user ID and/or password to enable you to access restricted areas of our website or other content or Services, you must ensure that such user ID and/or password are kept safe and confidential. You are responsible for all activities that occur under your user ID and/or password.
4.3. We may disable your user ID and/or password at our sole discretion for any reason at any time, including if you breach any provision within this Agreement or any other contractual obligation you owe to us.

5. GRANT AND SCOPE OF SOFTWARE LICENCE
5.1. In consideration of the payment of the fees set out in Clause 8 below we grant to you a non-exclusive, non-transferable licence to use the software provided by us as part of the Services (Software) on the terms of this Agreement.
5.2. You may use the Software to exercise your rights under this Agreement for your internal business purposes only.

6. FAIR USAGE POLICY
Our Services offer our customers the flexibility of unlimited bandwidth, store design hosting and access to our free support service. However, in order to provide a fast and reliable service to all our customers, all usage of our Services is subject to our fair usage policy. This can be seen by clicking here. By proceeding to log in to the software you agree to comply with this policy as amended by us from time to time.

7. INTELLECTUAL PROPERTY RIGHTS
7.1. Unless otherwise stated, we (or our licensors) own all intellectual property rights in the Services and all material we provide to you (including but not limited to the Software). Use of this material is permitted only where expressly authorised by us but we grant you a non-exclusive licence of such intellectual property rights for the purpose of exercising your rights under this Agreement. Your use of the Software will be additionally subject to the terms of our end-user licence agreement (if any) in force from time to time.
7.2. You shall retain the intellectual property rights in any and all materials provided by you to us. However, you shall grant to us a non-exclusive, royalty-free licence to use such material as far as is necessary for us to carry out the Services (and for no other purpose). We shall cease use of any and all materials provided by you upon the termination of expiry of this Agreement. By providing materials to us, you warrant to us that you are either the owner of such materials, or have the owner's express permission to provide such materials to us.
7.3. We cannot guarantee safekeeping or safe storage of any image or data that you upload when using our Services or our website or any other materials provided by you to us, and we accept no liability for loss of any images, data or materials. You are strongly advised to keep copies of all such images, data and materials.
7.4. We shall indemnify you against all damages, losses and expenses arising as a result of any action or claim that the information, documentation or materials we provide infringes any intellectual property rights of a third party other than infringements referred to in Clause 10.4 or where the action or claim arises out of our compliance with any designs, specifications or instructions provided by you.
7.5. The indemnities in Clauses 7.4 and 10.4 are subject to the following conditions:
7.5.1. the indemnified party promptly notifies the indemnifier in writing of the claim;
7.5.2. the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;
7.5.3. the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
7.5.4. the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

8. PAYMENT
8.1. You shall pay the fees quoted by us to you for the Services (Charges). Payments shall be made in such manner and to such account as notified by us to you, unless you raise a genuine dispute in writing before payment falls due (in which case you shall, as soon as reasonably practicable, provide all reasonable assistance to help us resolve such disputes).
8.2. We shall be entitled to change the Charges on providing you no less than [28 days'] prior written notice. If you do not agree with these changes you may terminate this Agreement in accordance with Clause 11.3.
8.3. If you fail to pay any sum due under this Agreement on the due date we reserve the right, without prejudice to any other rights or remedies it may have, to suspend the performance of our obligations under this Agreement (including but not limited to the removal of your eBay store and listing design and/or limiting your access to the Frooition software platform) until such time as you make such payments in full. We shall not be liable for any loss suffered by you as a result of any action taken by us in accordance with this Clause 8.3.

9. WARRANTY
9.1. We warrant to you that:
9.1.1. we shall perform the Services with reasonable skill and care consistent with any applicable industry standards;
9.1.2. any materials and documentation we provide shall be fit for any purpose agreed between the parties in writing and conform with any specifications agreed between the parties in writing in all material respects for a period of 30 days from delivery (Warranty Period); and
9.1.3. we have the right to enter into and fully perform this Agreement.
9.2. The warranties set out in Clauses 9.1.1 and 9.1.2 shall not apply to the extent that any failure to comply is caused by any act or omission of you or any third party (including but not limited to any third party website owner).
9.3. If, within the Warranty Period, you notify us in writing of any defect or fault in the materials provided, we will, at our sole option, either repair or replace the materials, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault. This warranty does not apply if the defect or fault in the materials results from:
9.3.1. you having amended the materials;
9.3.2. us complying with your instructions or from the documentation you have provided to us; and/or
9.3.3. you having used the materials in contravention of the terms of this Agreement.
9.4. We cannot warrant that changes made by a third party website owner (such as eBay) to our website platform will not affect the Services, and we shall not be liable for any damage or loss suffered by you as a result of such changes.
9.5. We shall include only materials that have been provided by or approved you on any web-store. You acknowledge that we have no control over any content placed on the store by visitors and we do not purport to monitor the content of the store. We shall however remove content from the store where we reasonably suspect such content infringes any applicable laws, regulations or third party rights and shall notify you immediately if we become aware of any allegation that any content on the store may be inappropriate.
9.6. This Agreement and the documents referred to in it sets out the full extent of our obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby excluded, including but not limited to quality, completeness and fitness for purpose.

10. OUR LIABILITY
10.1. Nothing in this Agreement shall limit or exclude each party's liability for:
10.1.1. death or personal injury resulting from our negligence;
10.1.2. fraud or fraudulent misrepresentation;
10.1.3. any other liability that cannot be excluded or limited by English law.
10.2. Neither party shall be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
10.2.1. loss of profits, sales, business, or revenue;
10.2.2. business interruption;
10.2.3. loss of anticipated savings;
10.2.4. loss or corruption of data or information;
10.2.5. loss of business opportunity, goodwill or reputation; or
10.2.6. any indirect or consequential loss or damage.
10.3. Subject to the above, our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 125% of the Charges paid by you. This limit shall not apply to Clause 7.4, which shall be limited to the amount that we are successfully able to claim under our insurance.
10.4. You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the information, documentation or materials you provide infringes the intellectual property rights of a third party or any breach by you of the terms of this Agreement, subject to Clause 7.5.

11. TERMINATION
11.1. We reserve the right to terminate and/or suspend this Agreement immediately at any time upon written notice if we have not received instructions or otherwise been able to obtain a response from you by email for a period of 5 working days or more, provided that we have sent at least 5 emails to your specified email address requesting a response; and/or
11.2. We shall further be entitled to shut down any eBay store where:
11.2.1. the store remains inactive for a period of three months or more; and/or
11.2.2. you fail to pay any amount due to us within three months of its due date.
We may at our discretion agree to reactivate an eBay store, but please be aware that this will be subject to payment of a reinstallation and reactivation fee.
11.3. Either party may terminate this Agreement immediately at any time by written notice to the other party if:
11.3.1. that other party commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied;
11.3.2. that other party ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement);
11.3.3. that other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party;
11.3.4. a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that other party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;
11.3.5. the ability of that other party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
11.3.6. any process is instituted which could lead to that other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
11.4. Either party may terminate this Agreement or any of the Services by giving the other not less than 3 months' notice in writing (providing that, where we give notice in accordance with Clauses 8.2 or 14.2, this notice period will be reduced to 7 days).
11.5. Upon termination of this Agreement for any reason:
11.5.1. all rights granted to you under this Agreement shall cease;
11.5.2. you must cease all activities authorised by this Agreement; and
11.5.3. you must immediately delete or remove any materials owned by us from all computer equipment in your possession and immediately all copies of such material and, where requested by us, certify to us that you have done so.

12. CONFIDENTIALITY
12.1. Each party shall protect any information provided by the other which is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure (Confidential Information) against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
12.3. The obligations set out in this Clause 12 shall not apply to Confidential Information which the receiving party can demonstrate:
12.3.1. is or has become publicly known other than through breach of this clause;
12.3.2. was in possession of the receiving party prior to disclosure by the other party;
12.3.3. was received by the receiving party from an independent third party who has full right of disclosure;
12.3.4. was independently developed by the receiving party; or
12.3.5. was required to be disclosed by governmental authority.

13. NOTICES
13.1. Any notice given under this Agreement shall be in writing and delivered personally or sent by pre-paid first-class post, recorded delivery, registered post, fax or email to the address, fax number or e-mail address provided by each party to the other; and
13.2. A notice is deemed to have been received:
13.2.1. if delivered personally, at the time of delivery;
13.2.2. in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day (meaning any day (other than a Saturday or Sunday) when banks are generally open for normal business in London);
13.2.3. in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting;
13.2.4. in the case of registered airmail, five days from the date of posting; or
13.2.5. if deemed receipt under the previous paragraphs of this Clause 10.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

14. OTHER IMPORTANT TERMS
14.1. You represent and warrant that you have authority to bind any business on whose behalf you purchase the Services.
14.2. We may amend this Agreement from time to time by providing you with no less than 28 days' prior notice. If you do not agree with the new Agreement then you should terminate this Agreement in accordance with Clause 11.3 above.
14.3. Neither party shall be permitted to make any media release or public announcement relating to this Agreement unless and until it has explicitly asked the other party in writing and obtained the other party's written consent to the same. Froo shall however be permitted to place an example of the Customer's store design within its client portfolio on its website for promotional purposes.
14.4. A party who becomes aware of any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war) (Force Majeure Event) which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall not be liable for any loss or damage incurred by the other party as a result of a Force Majeure Event providing it complies with its obligations under this clause.
14.5. Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
14.6. This Agreement (and the documents referred to in them) set out the entire agreement between the parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement (or the documents referred to in them).
14.7. This Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
14.8. A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
14.9. If any provision in this Agreement is deemed invalid, void or unenforceable, that term shall be deleted from this Agreement and such deletion shall not affect the validity or enforceability of the remaining provisions.
14.10. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14.11. Any legal proceedings instituted against you by us shall be brought in the courts of your country/state of domicile and any legal proceedings against us by you shall be brought in the courts of England and Wales. This Agreement and such proceedings shall be governed by the laws of England and Wales and each party agrees to submit to the jurisdiction of the courts as set out above.