These Terms and Conditions also apply to any Orders.
Where access to use the Services has been sold to the Customer by a
Distributor in a manner according to a current distribution agreement
between Forbidden and the Distributor, the Customer agrees to be bound
by this Agreement in return for Forbidden permitting the Customer
to use the Services sold to it by the Distributor.
Forbidden may change these Terms and Conditions
from time to time. In such an event at least 30 days' notice will be
given by Forbidden by the posting of any amended Terms and Conditions on
the Forbidden Website. It is the responsibility of the Customer to
regularly check for any such notification. Following such notification,
if the Customer does not wish to accept such change, the Customer may
cease to use the Services in which case the Customer may not receive any
refund of any kind for outstanding FORscene Services.
Use of the Services after the amendments to these Terms and Conditions
have been made will be deemed to constitute acceptance of the amendments.
| 1 |
Definitions |
| 1.1 |
In these Conditions, the following expressions have the following
meanings:
- 'Acceptable Use Policy'
- means the Customer's obligations in relation to Content set out in clause 3
- 'Agreement'
- means the agreement between Forbidden and the Customer for the provision of the
Services of which these Terms and Conditions form part
- 'Content'
- means any video, visual image data, audio data or any other content that is
either uploaded and/or edited on, and/or encoded on, and/or published on, and/or
hosted by the Customer’s FORscene Account, excluding any video playback software
or any other software provided by or on behalf of Forbidden
- 'Customer'
- means the person(s), organisation, firm or company by whom, or on whose behalf,
this Agreement is entered into, and to whom the Services are being provided
- 'Distributor'
- Means to the extent applicable an authorised distributor of Forbidden who has
sold access to the Services to the Customer
- 'Forbidden'
- Forbidden Technologies plc (registered in England with
no. 3507286) of Tuition House, 27-37 St. George's Road, London SW19 4EU, UK
- 'Forbidden Website'
- means the website of Forbidden which is currently available at www.forbidden.co.uk
or any successor website or website nominated by Forbidden
- 'FORscene'
- means the web based video editing and publishing tool developed by Forbidden
- 'FORscene Account'
- means the account registered in the Customer’s name through which Services
can be accessed by an agreed maximum number of concurrent users
- 'Input Material'
- any video, visual image data, audio data or any other content that is uploaded to the
Customer’s FORscene Account
- 'Live Event'
- means an event which is to be distributed or broadcast whilst it is taking place
- 'Order'
- means any instruction by the Customer to Forbidden to provide the Services (including
opening a FORscene Account and adding concurrent users to an existing
FORscene Account)
- 'Output Material'
- means any data or other information provided by Forbidden to the Customer in connection
with the Services and representing encoded Input Material edited by the Customer, excluding
any video playback software or any other software provided by or on behalf of Forbidden
- 'Services'
- means any and all services provided by Forbidden (or Forbidden’s suppliers) to the Customer
in relation to FORscene including through the use by the Customer of the FORscene Account
- 'Simulated Live Event'
- means an event which is to be distributed or broadcast in such a way that it appears to
be taking place at the time that it is viewed by a viewer
|
| 2 |
Forbidden's obligations: the provision of the Services |
| 2.1 |
The Services will be provided on a reasonable efforts basis in
accordance with Forbidden's technical specifications as from time
to time published by it and as may be otherwise agreed by the
customer and Forbidden in writing. Forbidden is entitled to
suspend the provision of the Services at any time and without
liability to the Customer for operational reasons and to update or
maintain the Services |
| 2.2 |
Forbidden reserves the right to refuse to accept an Order for the Services for
any reason and without explanation |
| 2.3 |
Forbidden reserves the right to cease to provide the Services for any reason and
without any liability to the Customer. In which case Forbidden may close the Customer’s FORscene Account,
and delete all Content relating to the Customer without refund |
| 3 |
Customer's obligations: Use of the Services and Acceptable Use Policy |
| 3.1 |
The Customer represents, warrants and undertakes that it has the power
and authority to enter into this Agreement and that in using the Services
it will comply with this Agreement and any applicable law |
| 3.2 |
The Customer acknowledges and agrees that it is solely responsible in
all respects for the Content that is either uploaded to, and/or edited on,
and/or published on, and/or hosted by the Customer’s FORscene Account, or
is in any way associated with any other Services provided by Forbidden (or
Forbidden’s suppliers) to the Customer. The Customer hereby undertakes
that the Content will not violate any applicable law and that it shall
at all times comply with the Acceptable Use Policy |
| 3.3 |
The Customer shall at its own expense retain duplicate copies of all
Input Material and insure against its accidental loss or damage. Forbidden
shall have no liability for any such loss or damage, however caused |
| 3.4 |
The Customer shall not in any way utilise their FORscene Account
(or allow anybody else to utilise their FORscene Account): to store,
display, transmit (including any re-transmission), communicate to the
public, sell, promote, advertise or distribute any material or information
which is unacceptable as set out in 3.6. Without prejudice to any other
rights and remedies of Forbidden and without any liability to the Customer,
Forbidden may remove any of the Customer’s material from FORscene that
in Forbidden’s sole opinion is unacceptable as set out in 3.6.
In which case Forbidden may also close the Customer’s FORscene Account
without any liability and without refund |
| 3.5 |
The Customer undertakes not to show or make available or permit to be
shown or made available any video, or other material, that has been, or is
being, uploaded to, edited on, encoded by, published on or hosted by FORscene
on a website (or on a website that links to a website) that
is used: to store, display, transmit (including any re-transmission),
communicate to the public, sell, promote, advertise or distribute any
material or information which is unacceptable as set out in 3.6 |
| 3.6 |
Unacceptable material or information includes (but is not limited by) that which:
| 3.6.1 |
is (or is likely to) infringe (or could encourage, assist or enable the infringement of)
any third party's intellectual property rights; or |
| 3.6.2 |
is (or is likely to be), in Forbidden's sole opinion: false, misleading, fraudulent, obscene,
indecent, defamatory, offensive, discriminatory, abusive, blasphemous, inciting religious hatred,
malicious, depicts or describes nudity or any sexual activities or practices, or is in any other
way in bad taste or in bad faith; or |
| 3.6.3 |
is (or is likely to be) in breach of any local, national or international criminal
or civil laws or otherwise in violation of any law in any relevant jurisdiction |
|
| 3.7 |
The Customer shall not re-sell the FORscene service without
prior express written permission from Forbidden |
| 3.8 |
The Customer shall not conduct (or allow anybody else to conduct) a Live Event or a
Simulated Live Event through their use of the Services without the prior written approval
from Forbidden |
| 3.9 |
The Customer will not use FORscene for "Spamming", or the sending of unsolicited e-mail,
or mobile text messages, or the use of an email address or domain that is maintained by
Forbidden (or Forbidden’s suppliers) as a reference: in such circumstances and without
prejudice to its other rights and remedies Forbidden is entitled to immediately terminate
the Services. The same applies to inappropriate or bulk Newsgroup postings. If the Customer’s
use of the Services results in any of Forbidden’s IP addresses (or those of Forbidden’s
suppliers) being reported to any organisation that attempts to police and/or monitor abuse
of the Internet, such as an organisation that maintains a list used by third parties for
blocking spam, then without prejudice to Forbidden's other rights and remedies this will
also be grounds for termination of Services. Forbidden’s Services may not be used as the
source, intermediary or destination for spam, flames or mail bombs of any kind. Forbidden
reserve the right to charge a £20 penalty per unsolicited e-mail sent or inappropriate
Newsgroup posting made. In addition, all costs associated with investigating "Spam"
complaints will be charged to the violating Customer. These remedies are without prejudice
to Forbidden's other rights and remedies |
| 4 |
Rights in Input Material and Output Material: Indemnity |
| 4.1 |
The copyright or other intellectual property rights in any Input Material belong to the
Customer, unless otherwise agreed in writing by Forbidden and the Customer. The copyright
or other intellectual property rights in the Output Material belong to the Customer, subject
to the provisions of paragraphs 4.3 and 4.5 below |
| 4.2 |
The Customer represents, warrants and undertakes that:
| 4.2.1 |
all Input Material uploaded to the Customer’s FORscene Account, any Output Materials and any
other Content will not infringe or breach the copyright or other rights of any third party or
any legal or regulatory requirement or law relating to the Content and |
| 4.2.2 |
It will not abuse or misuse Forbidden's systems and Services (including without limitation by attempting
to hack into Forbidden's systems or by including or introducing viruses or other harmful code) and it will
comply with Forbidden's instructions, requirements and policies from time to time relating to the use of
the Services and/or security matters |
and the Customer shall indemnify Forbidden its directors officers agents affiliates and suppliers against
any loss, damages, costs, expenses or claims arising from any such infringement, any breach of this
clause 4.2 or any breach of the Acceptable Use Policy |
| 4.3 |
The Services are provided using Forbidden's know-how, and technology and other intellectual property
rights used under licence to Forbidden. Accordingly, the Customer shall not:
| 4.3.1 |
reverse compile or disassemble the object code version of any software (including without limitation
java code or script) supplied by Forbidden in connection with the Services ("Software") nor attempt to do
any of the foregoing nor adapt or modify the whole or any part of the Software (save only that the aforegoing
cannot be precluded by section 296A Copyright, Designs and Patents Act 1988); and |
| 4.3.2 |
remove or alter any acknowledgement of Forbidden's video compression intellectual property rights in
any of the Output Materials, including any acknowledgement of intellectual property rights used under
licence to Forbidden |
|
| 4.4 |
The Customer shall not remove or alter any acknowledgement of Forbidden's Services unless otherwise
agreed by the Customer and Forbidden in writing |
| 4.5 |
Where Forbidden provides any Software to the Customer, this Software remains the intellectual
property of Forbidden or its suppliers, and the Customer will only be entitled to use the Software to the
extent permitted in any software licence the Customer may separately enter into with Forbidden |
| 5 |
Charges & Refund Policy |
| 5.1 |
The Customer shall pay the charges agreed with Forbidden [or the Distributor] for the
provision of Services referred to on the Forbidden Website [or the Distributor's website] at
the time the relevant Services are provided, at Forbidden's then current charges (if different
or if the charges are not listed on the Forbidden Website [or the Distributor's website]),
as otherwise provided in this clause 5 or as otherwise agreed with the Customer in writing.
Where the Customer has paid a Distributor in order to acquire access to the Services
it will be entitled to use FORscene as laid out in Forbidden's distributor
agreement with the Distributor |
| 5.2 |
The Customer shall have a FORscene Account opened for the purpose
of being provided with the Services |
| 5.3 |
Unless otherwise expressly agreed in writing between Forbidden and the Customer, Forbidden
may refuse to provide the Services or discontinue them if the Customer is overdue
in paying any sums due to Forbidden |
| 5.4 |
Forbidden shall not be obliged to give a refund to the Customer unless
otherwise agreed by both parties in writing |
| 5.5 |
All charges are exclusive of VAT, which the Customer agrees to pay in addition |
| 6 |
Confidentiality; Data Protection |
| 6.1 |
By submitting an Order for Services the Customer provides Forbidden with certain personal
information or data. It is the responsibility of the Customer to ensure that the personal data
provided to Forbidden is correct and up to date |
| 6.2 |
The Customer consents to Forbidden collecting, transmitting and storing such information
about the Customer as is required for the purpose of administering their account. The Customer’s
personal information will not ordinarily be made available to any third parties. However, Forbidden
may provide the Customer’s personal data to governmental or law enforcement agencies and other third
parties which in Forbidden's opinion have a legitimate reason for requesting the information |
| 6.3 |
If the Customer breaches this Agreement, uploads or creates unacceptable material (as referred to in 3.6)
in connection with the Services, or jeopardises or compromises the integrity of the Services, Forbidden
may take whatever steps it considers appropriate, to investigate and resolve any such matter. Without
limitation, the Customer authorises Forbidden to use the Customer's personal data and other information
relating to the use of the Services in connection with any such investigation, including by disclosing
it to any third party which in Forbidden's opinion has a legitimate interest in any such investigation
or outcome |
| 6.4 |
The Customer may be subject to a standard credit check. The information that the Customer provides
may be disclosed to a licensed credit reference agency which will retain a record of the search, and the
Customer authorises Forbidden to make such disclosures |
| 7 |
Term & Termination |
| 7.1 |
If the Customer’s last access date as reported by the FORscene account management software
does not report any use of the Customer’s FORscene account for a continuous period of 3 months then
Forbidden may deem that the Customer’s FORscene Account is dormant. In such an event Forbidden may close
the Customer’s FORscene Account and delete its contents without refund |
| 7.2 |
The Customer may close their FORscene Account by making a request to Forbidden in writing.
Forbidden will ensure that the Customer’s FORscene Account is closed within a reasonable period of time
after receiving the written request |
| 7.3 |
Notwithstanding the provisions of clauses 7.1 and 7.2 either party shall be entitled forthwith to
terminate this Agreement by written notice to the other if :-
| 7.3.1 |
that other party commits any breach of any of the provisions of the Agreement and, in the case of
a breach capable of remedy, fails to remedy the same within thirty days after receipt of a written
notice giving particulars of the breach requiring to be remedied; or |
| 7.3.2 |
an encumbrancer takes possession or a receiver or administrator is appointed over any of the property
or assets of that other party; that other party makes any voluntary arrangement with its creditors or
becomes subject to an administration order; that other party goes into liquidation or becomes bankrupt;
the other party ceases or threatens to cease to carry on business or anything analogous to the foregoing
under the law of any applicable jurisdiction occurs in relation to that other party |
| 7.3.3 |
Upon termination of this Agreement for whatever reason, Forbidden may delete all Content relating
to the Customer without any liability whatsoever |
| 7.3.4 |
Termination of this Agreement shall be without prejudice to any other rights or remedies a party
may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of
either party nor the coming into or continuance in force of any provision on or after such termination |
| 7.3.5 |
Upon termination of this Agreement for whatever reason all due or outstanding charges, fees and
expenses owed by the Customer to Forbidden shall forthwith become due and payable |
|
| 7.4 |
Subject to the other provisions of this Agreement, Forbidden will host the Output Material for an initial
period of twelve months. Any additional period of hosting will be by mutual written agreement and will
require the payment of additional charges |
| 8 |
Warranties & Liability |
| 8.1 |
Forbidden warrants to the Customer that the Services will be provided using reasonable care and skill
on a reasonable efforts basis and, as far as reasonably possible, in accordance with the technical
specifications as from time to time published by it. Any implied warranties, terms and conditions are hereby
excluded to the fullest extent permitted by law |
| 8.2 |
Forbidden gives no warranty that the Services shall be uninterrupted or error-free. For the avoidance
of doubt, any standards relating to the reliability of the Services that are agreed between the Customer
and Forbidden are targets. While Forbidden shall use reasonable endeavours to achieve the targets, any
failure by Forbidden to achieve the targets shall not constitute a breach of contract. Forbidden shall
have no liability for any loss whatsoever, suffered by the Customer, in the event that the Services are
interrupted, are not error free or if Forbidden fails to achieve any specified targets |
| 8.3 |
EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY FORBIDDEN'S NEGLIGENCE: FORBIDDEN SHALL
NOT BE LIABLE TO THE CUSTOMER BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY,
CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW, OR UNDER THE EXPRESS TERMS OF THIS AGREEMENT, FOR ANY
LOSS OF PROFIT, REVENUE, GOODWILL OR BUSINESS, OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE,
COSTS, EXPENSES OR OTHER CLAIMS (WHETHER CAUSED BY THE NEGLIGENCE OF FORBIDDEN, ITS SERVANTS OR AGENTS OR
OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE PROVISION OF THE SERVICES OR THEIR USE BY THE CUSTOMER,
AND THE ENTIRE LIABILITY OF FORBIDDEN UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL IN ANY EVENT NOT EXCEED
IN AGGREGATE THE AMOUNT OF FORBIDDEN'S CHARGES TO THE CUSTOMER FOR THE PROVISION OF THE SERVICES |
| 8.4 |
Forbidden shall not be liable to the Customer by reason of any delay in performing, or any failure
to perform, the Services, if the delay or failure was due to any cause beyond Forbidden's reasonable control |
| 9 |
General |
| 9.1 |
These Conditions constitute the entire agreement between the parties, supersede any previous
agreement or understanding and may not be varied except in writing between the parties. All other
terms and conditions, express or implied by statute or otherwise, are excluded to the fullest
extent permitted by law. Each party acknowledges and agrees that in entering into this Agreement
and/or deciding to access the Services it has not relied on any undertaking, promise, assurance,
statement, representation, warranty or understanding (whether or not in writing) other than
those expressly set out in this Agreement. This does not affect either party's liability for
fraud |
| 9.2 |
In the event of there being a conflict between the terms of these Conditions and the terms of the Order,
the Order shall take precedence |
| 9.3 |
Any notice required or permitted to be given by either party to the other under these Conditions
shall be in writing addressed to the other party at its registered office or principal place of business
or such other address as may at the relevant time have been notified pursuant to this provision to the
party giving the notice |
| 9.4 |
If any provision of this Agreement shall be found by any court or administrative body of competent
jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall
not affect the other provisions of this Agreement and all provisions not affected by such invalidity
or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to
substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves
to the greatest extent possible the economic, legal and commercial objectives of the invalid or
unenforceable provision |
| 9.5 |
The Customer shall not be entitled to sell, lease, sub-licence, assign or transfer this Agreement
nor all or any of its rights and obligations hereunder without the prior written consent of Forbidden |
| 9.6 |
Forbidden reserves the right to assign or sub-contract any or all of its rights and obligations
under this Agreement without the Customer's consent |
| 9.7 |
The provision of the Services by Forbidden does not express any implied approval by Forbidden of any
video material uploaded, edited and published using FORscene by the Customer |
| 9.8 |
The Agreement does not and is not intended to create any right or benefit enforceable by any
person not a party to it (within the meaning of the Contracts (Rights of Third Parties) Act 1999)
except that a person who, under Clauses 9.4 and 9.5 above, is a permitted successor or assignee of
the rights or benefits of a party, may enforce such rights or benefits |
| 10 |
Governing Law & Jurisdiction |
| 10.1 |
English law shall apply to this Agreement for the provision of the Services, and the parties
agree to submit to the non-exclusive jurisdiction of the English courts |
