Terms & Conditions for the use of Clesh
The Clesh terms and conditions ("Clesh Terms", also referred to as "these Terms and Conditions") are below. Also below is a short summary of the key provisions of our terms and your responsibilities as a Clesh user (also referred to as "you" or "the Customer"). As the Services (as defined below) are made available to you online from the moment you register and agree to the Clesh Terms you are reminded that you have no right of cancellation under the Distance Selling Directive (Directive 97/7/EC) and any related UK or other laws. If you do not agree to the Clesh Terms please do not register and/or use Clesh.
If you wish to contact us for any reason including in respect of complaints our contact details are:
Forbidden Technologies plc
27-37 St. George’s Road
London SW19 4EU
+44 20 8879 7245
Our company number is 3507286.
Our VAT number is GB744351440.
Summary of our terms
They are binding on all users of Clesh: By using Clesh you are deemed to agree to and be bound by these Terms and Conditions which shall also apply to any Orders. Where you have been sold the Services by a Distributor then you agree to be bound by these Terms and Conditions in return for Forbidden permitting you access to the Services.
How we Forbidden can change the Clesh Terms: 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 Web Site. 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 Services purchased prior to the amendments to these Terms and Conditions. Use of the Services after the amendments to these Terms and Conditions have been made will be deemed to constitute acceptance of the amendments.
What we, Forbidden, will do: We commit to use reasonable endeavours to make Clesh available to you in accordance with the Clesh Terms. Clesh is a web based video-editing and publishing tool. The current pricing including VAT where applicable for Clesh is available from Forbidden or from your Distributor.
What you agree to do:
- Pay our fees and charges (or those of our Distributor) including VAT where applicable from time to time as they may be applicable to your use of Clesh
- Use Clesh in accordance with the Clesh Terms including our Acceptable Use Policy. In particular you acknowledge and agree that you are responsible for all Content provided to Forbidden and/or Clesh and you agree to indemnify Forbidden for any liability we suffer as a result of any Content you provide as described in the Clesh Terms. We are entitled to remove Content at any time without notice to you where we reasonably deem this necessary.
- Agree that our liability is limited to the fees and charges paid by you to us or as otherwise described in the Clesh Terms and that in any event you will not make a claim against us except where you have exhausted your rights and remedies against any Distributor and then subject always to clause 8 below.
|Acceptable Use Policy
||means the Customer’s obligations in relation to Content set out in clause 3
||means the agreement between Forbidden and the Customer for the provision of the Services of which these Terms and Conditions form part
||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 Clesh Account, excluding any video playback software or any other software provided by or on behalf of Forbidden
||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. Also referred to as "you". Where you are using Clesh on behalf of a third party you warrant that you are entitled to do so and bind the third party and both you and that third party shall be deemed to be the Customer and you both agree to comply with the Clesh Terms
||Means to the extent applicable an authorised distributor of Forbidden who has sold access to, and/or the provision of the Services to, the Customer
||Forbidden Technologies plc (registered in England with no. 3507286) of Tuition House, 27-37 St George’s Road, London SW19 4EU, UK. Also referred to as "we"
|Forbidden Web Site
||means the web site of Forbidden which is currently available at www.forbidden.co.uk or any successor website or website nominated by Forbidden
||means the web based video editing and publishing tool developed by Forbidden
||means the account registered in the Customer’s name through which Services can be accessed by an agreed maximum number of concurrent users
||any video, visual image data, audio data or any other content that is uploaded to the Customer’s Clesh Account
||means an event which is to be distributed or broadcast whilst it is taking place
||means any instruction by the Customer to Forbidden to provide the Services (including opening a Clesh Account and/or adding concurrent users to an existing Clesh Account or using or registering for the Services)
||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
||means any and all services provided by Forbidden (or Forbidden’s suppliers) to the Customer in relation to Clesh including through the use by the Customer of the Clesh 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
1. The Services will be provided on a reasonable efforts basis in accordance with Forbidden’s technical specifications from time to time (which are subject change) 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. Forbidden reserves the right to refuse to accept an Order for the Services for any reason and without explanation.
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 Clesh Account, and delete all Content relating to the Customer without refund. Provided that where the cessation is not due to the Customer’s acts, defaults or omissions or to the expiry of the Services then Forbidden will endeavour to refund any unused and valid Clesh charges or have the Distributor do so.
3. Customer’s obligations: Use of the Services and Acceptable Use Policy
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.
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 Clesh 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. 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.
4. The Customer shall not in any way utilise their Clesh Account (or allow anybody else to utilise their Clesh 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 Clesh that in Forbidden’s sole opinion (acting reasonably and Forbidden shall be deemed to be acting reasonably when it has concerns about Forbidden’s liability for any such Content) is unacceptable as set out in 3.6. In which case Forbidden may also close the Customer’s Clesh Account without any liability and without refund.
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, shared on or hosted by Clesh on a web site (or on a web site that links to a web site) 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.
6. Unacceptable material or information includes (but is not limited by) that which:
1. is (or is likely to) infringe (or could encourage, assist or enable the infringement of) any third party’s intellectual property rights; or
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. 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.
7. The Customer shall not re-sell Clesh and/or any Services nor use Clesh for more than its authorised number of concurrent users without the prior express written permission from Forbidden.
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.
9. The Customer will not use Clesh for "Spamming", or the sending of unsolicited e-mail, 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
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.
2. The Customer represents, warrants and undertakes that:
1. all Input Material uploaded to the Customer’s Clesh 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
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 and/or any breach of the Acceptable Use Policy.
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:
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
2. remove or alter any acknowledgement of Forbidden’s video compression or other intellectual property rights in any of the Output Materials, including any acknowledgement of intellectual property rights used under licence to Forbidden.
4. The Customer shall not remove or alter any acknowledgement of Forbidden’s Services unless otherwise agreed by the Customer and Forbidden in writing.
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
1. The Customer shall (unless otherwise agreed with the Distributor) pay the charges agreed with Forbidden for the provision of Services referred to on the Forbidden 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), as otherwise provided in this clause 5 or as otherwise agreed with the Customer in writing.
2. The Customer shall have a Clesh Account for the purposes of being provided with and (where applicable) paying for the Services.
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.
4. Forbidden shall not be obliged to refund any fees or charges to the Customer unless otherwise agreed by both parties in writing or unless otherwise provided in the Clesh Terms.
5. All charges are exclusive of VAT, which the Customer agrees to pay in addition, together with any other applicable withholdings or taxes, at the then applicable rate(s).
6. Confidentiality; Data Protection
1. By submitting an Order for Services or registering or otherwise using the 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 and can lawfully be supplied to Forbidden.
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, providing support, receiving payment, contacting you regarding upgrades or other Forbidden products we believe are of interest to you (and by telling us you may opt out of receiving these) and/or providing the Services. The Customer’s personal information will not ordinarily be made available to any third parties or transferred outside the EEA save where this is required in order for Forbidden to provide the Services. 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.
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.
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
1. If the Customer’s last access data as reported by the Clesh account management software does not report any use any of the Customer’s Clesh Account for a continuous period of 3 months then Forbidden may deem that the Customer’s Clesh Account is dormant. In such an event Forbidden may close the Customer’s Clesh Account and delete its contents without refund or any other liability to the Customer.
2. The Customer may close their Clesh Account by making a request to Forbidden in writing. Forbidden will ensure that the Customer’s Clesh Account is closed within a reasonable period of time after receiving the written request.
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 :-
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
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.
3. Upon termination or expiry of this Agreement for whatever reason, Forbidden may delete all Content relating to the Customer without any liability whatsoever.
4. Termination or expiry 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.
5. Upon termination or expiry 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.
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 and Liability
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 applicable (which Forbidden are entitled to change). Any implied warranties, terms and conditions are hereby excluded to the fullest extent permitted by law.
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 any 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.
3. EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED BY FORBIDDEN’S NEGLIGENCE OR FOR FRAUD OR FORBIDDEN’S WILFUL DEFAULT: 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 (INCLUDING WITHOUT LIMITATION NERGLIGENCE) , 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 IN ANY CALENDAR YEAR SHALL IN ANY EVENT NOT EXCEED IN AGGREGATE THE GREATER OF THE AMOUNT OF FORBIDDEN’S CHARGES TO THE CUSTOMER FOR THE PROVISION OF THE SERVICES IN THAT CALENDAR YEAR OR THE AMOUNT OF DISTRIBUTOR’S PAYMENTS IN RESPECT OF THAT CUSTOMER TO FORBIDDEN FOR THE PROVISION OF THE SERVICES TO THAT CUSTOMER IN THAT CALENDAR YEAR PROVIDED ALWAYS THAT THE CUSTOMER SHALL NOT BE ENTITLED TO RECOVER TWICE FOR THE SAME LOSS WHETHER FROM FORBIDDEN, DISTRIBUTOR OR OTHERWISE.
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.
5. To the fullest extent permitted by law the Customer undertakes not to make a claim against Forbidden except to the extent the Customer has exhausted its rights and remedies against its Distributor (where applicable).
1. These Terms and 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.
2. In the event of there being a conflict between these Terms and Conditions and the terms of the Order, the Order shall take precedence.
3. Any notice required or permitted to be given by either party to the other under these Terms and 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.
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.
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.
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.
7. The provision of the Services by Forbidden does not express any implied approval by Forbidden of any video material uploaded, edited and shared using Clesh by the Customer.
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 9.5 and 9.6 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
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.