Powa

Standard terms and conditions

These Terms & Conditions constitute the full legal agreement between you and Powa Technologies Limited (Company Number 06376988) (hereafter referred to as " Powa ")

The terms, conditions, and notices contained in these Terms & Conditions must be agreed to and accepted without qualification or amendment in order to obtain the Services as defined below. By using the Service, you hereby agree in full to all terms and conditions of this Agreement.

1. 1. Definitions
   • 1.1 In this Agreement the following terms shall have the following meanings unless the context requires otherwise:

     Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.

     Buyer: a person who enters into a transaction for the purchase of Products.

     Confidential Information: all information whether technical or commercial where the information is:

     1. a) identified as confidential at the time of disclosure; or
     2. b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

     Customer information means any information, including video, graphics, sound, music, photographs, software, records, data, or any other materials (in whatever form) published or otherwise made available (directly or indirectly) by the Customer, or by any third party on behalf of the Customer, for use in the course of the performance of this Agreement.

     The Customer URL: means the domain name that the Customer may use for the purpose of the use of the Website.

     Inappropriate Content: Any content that infringes any applicable laws, regulations or third party rights (such as, for example, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party intellectual property rights).

     Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including without limitation copyright, know-how, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, and database rights.

     Insolvency or Bankrupcy Proceedings means bankruptcy proceedings or in Scotland sequestration proceedings, becoming insolvent, making any composition or arrangement with creditors or an assignment for their benefit, any execution, distress, diligence or service; or if the Customer is a company being the subject of proceedings for the appointment of an administrator, going into liquidation (except for the purpose of a solvent amalgamation or reconstruction) or having a receiver or administrative receiver appointed over the Customer or any of its assets.

     Monthly Charge: means the monthly charge in respect of the Service being £49.99 (VAT inclusive).

     Name: any name specifically requested by or allocated to the Customer for the provision of the Service including, without limitation, any domain name or mailbox name.

     Product(s) means the goods, services, information or software (including all software applications) which the Customer promotes using the Service and (as applicable) which may be purchased or otherwise acquired by Buyers by means of the Service.

     Service: the service or, where appropriate, part of the service described in Schedule 2 to this Agreement.

     Site: the website to be hosted by Powa pursuant to this Agreement.

     Software: any software used by Powa, or any party acting on Powa's behalf in fulfilling its obligations under this Agreement or otherwise.

     Third Party Information means information, video, graphics, sound, music, photographs, software, data, databases, records, and any other materials (in whatever form) not owned or generated by or on behalf of the Customer, published or otherwise utilised or made available using the Service.

     Powa Group Company means a Powa subsidiary or holding company, or a subsidiary of that holding company, all as defined by Section 736 of the Companies Act 1985, as amended by the Companies Act 1989.

     Written Notice means by email or by post.

   • 1.2 Clause and schedule headings do not affect the interpretation of this Agreement.
   • 1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this Agreement.
   • 1.4 In the event and to the extent only of any conflict between the clauses and the schedules, the clauses shall prevail.
   • 1.5 Words in the singular include the plural and in the plural include the singular
   • 1.6 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
2. 2. Provision of the Service
   • 2.1 Powa shall provide the Service as set out in Schedule 1 to this Agreement in consideration for the due and timely fulfillment of the Customer's obligations under this agreement.
   • 2.2 Use of the Service is at all times subject to the terms and conditions of this Agreement and by using the Services, the Customer confirms their acceptance of, and agrees to be bound by, this Agreement.
   • 2.3 Powa reserves the right to amend or alter in any way these terms and conditions or the Monthly Fee at any time. Powa shall make reasonable endeavours to notify the Customer of any such Changes, including making notice of the same to the Customer, but any change shall take effect even if the Customer fails to receive such notice.
3. 3. Site Content and transactions
   • 3.1 The Customer may only use the Service for lawful purposes
   • 3.2 The Customer will not, nor will the Customer authorise or permit any other person to, use the Service or the Software:
     • a) to send or receive any Inappropriate Content or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise be unlawful and
     • b) to sell goods or services which is in violation of any laws, regulations or codes of practice. The Customer shall take such corrective action as Powa may require in such circumstances promptly following notification from Powa.
   • 3.3 The Customer warrants that Customer information is and will remain accurate and will not include any Inappropriate Content or any other information or material, any part of which, or the accessing of which or use of which would be a criminal offence or otherwise unlawful including the breach of any intellectual property of any other party. Powa reserves the right to remove such content from the Site where, in its sole discretion, Powa suspects such content to be in breach of this clause 3.3.
   • 3.4 The Customer will be solely responsible for the accuracy, completeness, design, creation, maintenance, and updating thereof of all Customer information. Powa shall not be liable for any errors or inaccuracies in any Customer information
   • 3.5 The Customer shall be responsible for obtaining all necessary licenses and consents required to use Customer information (if any, and including but not limited to those from the owners or licensees of any Third Party Information) on the Site and the Customer warrants that such licences and consents have been obtained and will be subject in this regard to the indemnity at clause 12.
   • 3.6 Any breach of this clause 3 by the Customer shall be deemed to be a material breach of this Agreement and shall entitle Powa to immediately terminate the Agreement and, for this purpose, it shall be irrelevant whether the Customer was aware of the content of any material so transmitted or not. Notwithstanding and in addition to clause 8, Powa may suspend the Service without notice with immediate effect if, in Powa's reasonable opinion, the Customer is in breach of this clause 3 and Powa may refuse to restore the Service until the Customer gives Powa an acceptable assurance that there will be no further contravention.
   • 3.7 The Powa name and logo shall be displayed on each page of the Site. The Customer shall not make any alterations to the Powa name and logo, nor shall the Customer make any other use of the Powa name and logo.
4. 4. Registering for the service
   • 4.1 The Customer warrants that the name, address and payment information that the Customer provides when the Customer registers for the Services is correct and the Customer agrees to update its account immediately in the event of any changes in any change to such details.
   • 4.2 The Customer warrants that, if is an individual, it is at least 18 years of age and that it possesses the legal right and ability to enter into this Agreement and to use Powa's services in accordance with this Agreement.
   • 4.3 The Services are provided for the sole use of the Customer and no other user. The Customer is therefore expressly prohibited from in any way transferring, selling or in any other way providing the Services onto to any other third party.
5. 5. Warranties
   • 5.1 Other than as cannot be excluded in law, Powa expressly excludes all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose in relation to the provision of the Service.
6. 6. Charges and payment
   • 6.1 On initial Registration, the Customer will be charged for one month's Subscription. Thereafter the Customer will then be charged for the Monthly Subscription two weeks before the commencement of each month
   • 6.2 Upon successful receipt of payment in accordance with clause 6.2, Powa shall notify the Customer within 5 working days of receipt by email and a VAT invoice shall be available on the Customers account.
   • 6.3 If the Customer fails to make the payment as set out at 6.2 (a "Payment Failure"), the Customer will then have two weeks in which to satisfy this obligation. If the Customer shall have still failed to make any such payment within that 2 week period, Powa shall be entitled to immediately terminate the provision of the Service.
   • 6.4 In the case of a repeated Payment Failure (being more than twice in any 12 month period) Powa will be entitled to immediately terminate the provision of the Service to the Customer.
   • 6.5 In the case of any termination of the Services, Powa shall make all reasonable endeavours to retain data collected by Powa of the Service provided to the Customer for a further period of 4 weeks following termination to enable the Customer to reengage with the same data should the Customer choose to do so. Should the Customer not so choose, all such the Customer data shall be deleted by Powa.
   • 6.6 Charges will be invoiced and paid in pounds sterling. All charges are subject to Value Added Tax (VAT).
   • 6.7 The Customer will be entitled to a full refund of the monthly fee paid on initial Subscription to Powa should the Customer not be satisfied with the Services as delivered, on the condition that
     • a) the Customer notify Powa in writing within the first 14 days from that initial Subcription; and
     • b) the Customer has not registered or transfered a domain name to its Site within such 14 day period.
7. 7. Security
   • 7.1 The Customer shall not attempt to circumvent system security or access the source code of the Software.
   • 7.2 The Customer shall keep confidential any passwords or other security information relating to the Software and / or the Service.
   • 7.3 The Customer is responsible for the security and proper use of all user IDs, passwords, used in connection with the Service and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people
   • 7.5 The Customer must immediately inform Powa if there is any reason to believe that a user ID, password issued by Powa has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
   • 7.6 The Customer must not change or attempt to change a user ID, password, or other security device issued by Powa unless authorised to do so. If the Customer forgets or loses a user ID, password, or other security device issued by Powa, the Customer must contact Powa immediately and then complete such security checks as Powa deems appropriate.
   • 7.7 Powa reserves the right to suspend access to the Service if at any time Powa considers that there is or is likely to be a breach of security or if the Customer fails to comply with Powa´s instructions or requests in relation to security matters.
   • 7.8 Powa reserves the right (at its sole discretion) to require the Customer to change any or all of the passwords used by the Customer in connection with the Service.
8. 8. Term and Termination
   • 8.1 Either party may terminate this Agreement on giving the other not less than 30 days notice.
   • 8.2 If the Customer chooses to terminate in accordance with clause 8.1, the Customer must complete the Cancellation Form located at: http://support.powa.com/index.php?_m=tickets&_a=submit (selecting Cancellation request), or by sending an email to cancellations@powa.com, whereby the Customer will be advised to complete the form at http://support.powa.com/index.php?_m=tickets&_a=submit to initiate Cancellation.
   • All Cancellations are subject to a 30 day termination period from the next scheduled billing date.  The exceptions to this are:
     - where the cancellation request is received within 5 days post the last billing date, account termination is applied 30 days from the last billing date.
     e.g. where the Customer's billing date is the 1st March. An Account cancellation must be received by the end of March 6th for account termination to be valid for 31st March.
     Where a cancellation request is received on March 7th, the termination date for that account would be 30 days from the next billing date i.e. the next billing date is 1st April, the termination date would be May 1st.
     - The Customer will be entitled to a full refund of the monthly fee paid on initial Subscription to Powa should the Customer not be satisfied with the Services as delivered, on the condition that:
     a) the Customer notifies Powa by completing the Cancellation Form located at http://support.powa.com/index.php?_m=tickets&_a=submit (selecting Cancellation request), within the first 14 days from that initial Subcription; and
     b) the Customer has not registered or transfered a domain name to their Powa Dashboard Account during that 14 day period.
   • 8.3 The Customer will only be able to terminate this Agreement immediately in the following instances:
     1. a) the material breach by Powa of its obligations under this Agreement where Powa has failed to remedy such breach within 28 days of being notified by the Customer of the breach in writing; or
     2. b) Powa becoming subject to Bankruptcy or Insolvency Proceedings; or
     3. c) Powa has been fraudulent or attempted to be fraudulent or has committed any other criminal offence in connection with the provision of the Service.
   • 8.4 Powa may (without prejudice to any other right or remedy it may have under this agreement) terminate the Service without notice if:
     1. a) the Customer does not pay the Monthly charge in accordance with clause 5 of this Agreement
     2. b) the Customer breaches this Agreement, and where such breach is capable of remedy, fails to remedy the breach within 5 Business days of receipt of written notice from Powa to do so, other than where such breach is determined to entitle Powa to immediate termination; or
     3. c) the Customer becomes subject to Bankruptcy or Insolvency Proceedings; or
     4. d) the Customer has been fraudulent or attempted to be fraudulent or has committed any other criminal offence in connection with the use of the Service; or
     5. e) the Customer or anyone else under the Customer's control, with or without the Customer's knowledge or approval, uses the server capacity of the Site or the Software made available to it in any way which, in Powa´s opinion, is, or is likely to be, detrimental to the provision of the Service to the Customer or any other the Customer of Powa´s.
9. 9. Limitation of Remedies and Liability
   • 9.1 Nothing in this agreement shall operate to exclude or limit either party´s liability for:
     1. a) death or personal injury caused by its negligence; or
     2. b) fraud; or
     3. c) any other liability which cannot be excluded or limited under applicable law.
   • 9.2 Powa shall not be liable to the Customer or any third party for any indirect, incidental, sequential or consequential loss or damages arising under this Agreement, including by example only, loss of profits, business, earnings or opportunity arising under or in connection with this Agreement.
   • 9.3 Other than as stated in clause 9.1, Powa shall not be liable to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement.
   • 9.4 The provisions of this Agreement and the rights and remedies of the parties under this Agreement are cumulative and are without prejudice and in addition to any rights or remedies a party may have at law or in equity.
   • 9.5 The Customer accepts that Powa is neither obligated nor able to edit, review or modify Customer information or Third Party Information and that Powa does not examine the use to which the Customer puts the Service. However, Powa reserves the right to remove any Customer information or Third Party Information if Powa reasonably believes such information breaches any laws or regulations or any third party´s rights.
   • 9.6 Powa excludes all liability of any kind in respect of Customer information, Third Party Information, any other material which can be accessed using the Service and is not responsible in any way for any goods (including software) or services provided advertised, sold or otherwise made available by means of the Service.
10. 10. Intellectual Property Rights
    • 10.1 All Intellectual Property Rights in Customer information (the "the Customer Intellectual Property") are and shall remain the property of the Customer and its licensors.
    • 10.2 Except for where provided for at clause 9.1, all Intellectual Property Rights in the Software, any supporting or associated material to the Software, or any Software developed by Powa in fulfilling its obligations under this Agreement or in connection with this Agreement, whether the Software or material is particular to the Customer or not, and any other material provided to or made accessible to the Customer by Powa as a result of this Agreement (the "Powa Intellectual Property") are and shall remain the sole property of Powa and its licensors.
    • 10.3 The Customer grants to Powa a non-transferable, royalty free licence to use the Customer Intellectual Property for the purposes of performing its obligations under this Agreement
11. 11. Taxation
    • 11.1 The Customer acknowledges that it is exclusively responsible for checking the accuracy of each transaction or computation carried out using the Service, including the calculation and imposition of any applicable taxes, duties and charges of whatever nature and for all documentation relating to such transactions and computations, including without limitation and as applicable the creation of invoices, VAT or other tax records, and shipping documentation.
    • 11.2 The Customer is solely responsible for the filing of appropriate returns and the payment of any and all taxes and duties of whatever nature applicable to the Customer or any third party arising out of the Customer´s use of the Service and will indemnify Powa fully against liability for any such taxes and duties.
    • 11.3 Powa does not provide nor does Powa agree to provide any advisory services to the Customer regarding taxation or any customs or other import/export duties. The provision of the Service does not constitute the provision of such advice and all such computations are based solely on data supplied or created by the Customer. Accordingly, the Customer must check the validity and accuracy of any computations or similar functions performed using the Service.
12. 12. Third Party Transactions
    • 12.1 The Customer shall remain solely responsible for any transactions of any kind entered into between the Customer and Buyers or any other third parties accessing or acting in reliance on the Service, or any information on the site. Powa will not be a party to or in any way responsible for any transaction between the Customer and a Buyer or other third party.
    • 12.2 The Customer agrees to indemnify and keep Powa indemnified from any claim brought by a third party resulting or arising from the Customer´s use of the Service, any breach of its obligations under clauses 3 and 6 of this Agreement by the Customer, Powa´s hosting of the Service, or any claim brought by a third party resulting or arising in any way from any Customer information or any other material provided by the Customer to Powa.
    • 12.3 The indemnity at clause 12.2 includes all costs, expenses, damages, awards, fees (including reasonable legal fees) and judgments finally awarded against Powa arising from any relevant claims. Furthermore, the Customer agrees it will provide Powa with notice of such claims, gives Powa full authority to defend, compromise or settle such claims and to give all reasonable assistance necessary to defend such claims, at the Customer´s sole expense. Powa agrees that any actions taken in respect of such claims will be taken in consultation with the Customer.
13. 13. Data Protection
    • 13.1 Powa may collect, process, control, use and transmit data obtained from and about the Customer in the course of providing the Service. The Customer agrees that any such data may be passed on to other Powa Group Companies even when these companies are based outside the European Union but only where Powa has put in place protections over such data that are of equivalent strength as that it has in place within the UK.
    • 13.2 Both parties shall comply with their obligations under the Data Protection Act with regards to any Personal Data (as defined in the Data Protection Act) it receives as a result of this Agreement. In particular, the Customer agrees to:
      1. keep secure all information relating to Buyers it acquires using the Service; and
      2. keep personal data or other information subject to European, UK, or other applicable Data Protection legislation in accordance with all applicable Data Protection and privacy requirements (of whatever jurisdiction) and
      3. not to use or disclose such information for any unlawful purpose.
    • 13.3 In this clause 13, Personal Data has the meaning given in the Data Protection Act 1998.
14. 14. Force Majeure
    • 14.1 If either party is unable to perform any obligation under this Agreement because of a matter beyond that party's reasonable control such as lightning, flood, exceptionally severe weather, fire, explosion, war, acts of terrorism, civil disorder, industrial disputes (whether or not involving employees of either party) or acts of local or central government or other competent authorities, or events beyond the reasonable control of suppliers to either party, that party will have no liability to the other for that failure to perform.
15. 15. Confidentiality
    • 15.1 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
    • 15.2 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, or in the case of Powa the employees of a Powa Group Company or their suppliers who need to know the information. Confidential Information may not be disclosed to any other party without the written consent of the other party.
    • 15.3 The obligations set out in this clause 15 shall not apply to Confidential Information which the receiving party can demonstrate, with written evidence:
      1. is or has become publicly known other than through breach of this clause 15; or
      2. was in possession of the receiving party prior to disclosure by the other party;or
      3. was received by the receiving party from an independent third party who has full right of disclosure; or
      4. was independently developed by the receiving party without any breach of this Agreement as evidenced by written records; or
      5. was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement
    • 15.4 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this Agreement, but will remain in effect for 2 years after the termination of this Agreement
16. 16. Notices
    • A notice given under this agreement:
      
    • 16.1. shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
    • 16.2 shall be delivered by email.
17. 17. Publicity
    • 17.1 Powa may publicise the Customers use of the Powa service in any way that it deems reasonably appropriate.
18. 18. Assignment
    • 18.1 The Customer will not assign, resell, sublease or in any other way transfer the Service (or any element thereof), or any of its rights or obligations under the terms of this Agreement without the prior written consent of Powa.
    • 18.2 Contravention of this restriction in any way, whether successful or not will entitle Powa to terminate the Service and/or the Agreement immediately.
    • 18.3 Powa may assign or transfer its rights or obligations under this Agreement by written notice to the Customer.
19. 19. Entire Agreement
    • This Agreement sets out the entire agreement and understanding between the parties, it supersedes any previous agreement between them in relation to the subject matter of this Agreement and no representations, statements or inducements, oral or written, not contained herein shall bind either party.
20. 20. Third Party Rights
    • No person or undertaking that is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.
21. 21. Variation
    • 21.1 The Customer may not vary this Agreement without the written consent of Powa.
22. 22. Severance
    • 22.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    • 22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. 31. No Partnership
    • Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting enter party as agent of the other for any purpose whatsoever. No party shall have the authority to bind the other party or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
24. 24. Governing Law and Jurisdiction
    • 24.1 This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
    • 24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement