Binding Contract
These Terms and Conditions are a contract between you and us and govern your Shardex Service use. Agreeing to these Terms and Conditions is a condition of any Shardex Service use. You signify your agreement to these Terms and Conditions and are legally bound by them from the date on which you:
- Click to accept or agree to these Terms and Conditions where Shardex presents an option to do so, either on the Website or otherwise; or
- Use the Services in any way, in which case you understand and agree that your Shardex Service use will signify your acceptance of these Terms and Conditions from the moment you first begin to use the Shardex Service.
This is version 3.0 of these Terms and Conditions and their effective date is 02 February 2019.
Amendments
You agree that we may, in our sole discretion, amend these Terms and Conditions at any time, in any way and from time to time. We will publish details of our proposed amendments to these Terms and Conditions in a notice to this effect on our Website. This notice will identify the specific amendments we propose making to these Terms and Conditions and the date on which these proposed amendments will become effective.
You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into effect on the date specified in this notice. You further agree that it is your responsibility to review these Terms and Conditions regularly in the event that we do publish a notice of proposed changes. Your continued use of the Shardex Service (except where your continued use of Shardex Service is permissible in terms of, for example, specific licenses) will be subject to you agreeing to the amended Terms and Conditions.
Interpreting these Terms and Conditions
These Terms and Conditions contains a number of words and phrases which have specific meanings and most of which are capitalised. The Terms Glossary, below, contains many of these words and phrases (others are set out in these Terms and Conditions’ body and are designated by terms in quotation marks).
Duration
These Terms and Conditions shall continue to bind you for so long as you make use of Shardex Service.
Effects of Termination
In the event these Terms and Conditions are terminated for any reason whatsoever, the following clauses shall survive termination and continue to bind you:
The Shardex Service
Our Website details the Shardex Service which, broadly, comprises the following components:
- Subscriptions;
- Support Service;
- Content;
We grant you a limited and non-exclusive right to use the Shardex Service (subject to any other applicable licenses such as the GPL) solely for the purposes which the Shardex Service is intended for and as permitted by the licenses applicable to the Shardex Service components. This right is not transferable to any other person unless we agree.
You agree that, except where the nature of the Shardex Service requires otherwise, each component of the Shardex Service constitutes a separate and distinct service, and we are not necessarily obliged to render two or more components of the Shardex Service as a single, indivisible service.
Subscriptions and Support Service
When you purchase paid Subscriptions, you will receive access to a Support Service developed to support the specific paid Subscriptions you have purchased. The Website contains more information about the specific Support Service you receive with each paid Subscription. The corresponding Support Service is for 30 days from the date of each subscription renewal date.
Subscriptions are only available to you and you may not transfer them to any other person or company without our express, written consent. We may refuse to give consent for this at our discretion.
We charge for Subscriptions using automatic renewal, and it is enabled by default for all purchases. Unless you notify Shardex before the end of the applicable Subscription period that you want to cancel, your Subscription will automatically renew, and you authorise us to collect the then-applicable monthly or annual fee (which may change) for such Subscription (as well as any taxes that Shardex has the legal obligation to collect or pay) using any credit card or other payment mechanism we have on record for you. To cancel, you can remove your credit card from the My Account page.
Content use
Shardex grants users a Content License in respect of Shardex’ Intellectual Property which forms part of the Services.
To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) users may do so, provided that all trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices included on or in relation to the Content are retained and displayed without alteration or modification and not in any manner obscured or removed.
Users are further required, as a condition of this Content License, to clearly and expressly attribute Shardex as the Content’s source.
Users acknowledge that they do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event Shardex revokes the Content License, users may no longer use the Content.
Changes to the Services
We may change any aspect of the Shardex Service on written notice to you. These changes may include discontinuing aspects of the Shardex Service or the Shardex Service in its entirety. In the event we do make any changes to any aspect of the Shardex Service, we will publish updated Shardex Service information which shall detail the –
- proposed changes to the Shardex Service; and
- the date on which these proposed changes shall be implemented.
Changes to the Shardex Service may, at our sole discretion, require consequential changes to fees payable for and delivery timeframes applicable to the aspects of the Shardex Service affected by the changes. We will similarly notify you of any such changes to fees payable or delivery timeframes.
Fees
Subscription fees are payable in advance. By purchasing a Subscription, you authorise us to charge your payment method immediately and on a pre-pay basis for the Subscription period indicated. We may, in our sole discretion, suspend any aspect of the Shardex Service which you have not paid for.
Without detracting from any of our rights, you agree that we are entitled to discontinue any aspect of the Subscription you may be using if you fail to pay any amount when it falls due or if you breach these Terms and Conditions. In the event we incur expenses to recover amounts you owe us, you further agree that we may recover our legal costs and own client scale, collection charges and tracing fees, and any applicable VAT.
Registration
You may be required to register on the Website in order to make use of the Shardex Service. Once registered, you will be able to log into your account using your chosen usernames and passwords.
You may not impersonate another person and you are required to associate your real identity with your account.
We collect your personal information through the Website’s registration form in order to successfully complete the registration process. We process personal information in terms of the Data Protection Policy.
You warrant that your personal information which you submit to us is accurate, current and complete. You also confirm that you have read and understand the Data Protection Policy.
You agree that we may deny you use of the Shardex Service should you breach your warranty or subsequently be found to have breached this warranty. We may take steps to verify your personal information once you have completed the requisite registration process for the Shardex Service and these steps may include, and are not limited to, email verification. You agree to submit to this verification process and irrevocably consent to us gaining access to relevant information held by 3rd Parties which may be reasonably required to complete the verification process. You acknowledge and agree that your access to the Shardex Service may be limited until this verification process has been successfully completed.
Should you not agree to our verification process or withhold your consent to us processing your personal information, your Shardex Service use may be suspended or terminated.
Without limiting our liability limitation provisions below, you waive any claims you may have against us or our Associates in the event we deny you use of the Shardex Service where you have breached these Terms and Conditions or otherwise failed to fulfil your obligations to Shardex.
Passwords and Account Security
You agree that the security of their Shardex Service user account is solely your responsibility. You further agree that –
- you are responsible for maintaining and promptly updating personal information and any other information you submit to us, keeping it accurate, current and complete;
- if you believe your Shardex Service user account’s security or integrity has been compromised in any way, you agree to notify us immediately and that you will be liable for any Losses you suffer should you fail to notify us timeously;
- we reserve the right to suspend your Shardex Service pending an investigation and resolution if any security violations are believed to have occurred in association with your Shardex Services user account.
Your Privacy
For information about our data protection practices, please read the Data Protection Policy. This policy explains how and under what conditions we will process your personal information, and protect your privacy, when you use the Shardex Service.
You agree that we may process your personal information in accordance with the Data Protection Policy.
Warranties
Save as expressly set out in these Terms and Conditions, we do not make any representation or give any warranties whatsoever in respect of the Shardex Service.
If you are not, factually or legally, authorised to bind another person as our Customer to these Terms and Conditions, you agree that you will be personally liable to Shardex for any amounts due to us in terms of these Terms and Conditions or otherwise as a consequence of using the Shardex Service in the event the legal entity concerned refuses or fails to pay any amounts which are due to us and as if you contracted with us for your personal Shardex Service use.
Liability
Disclaimers and Limitation of Liability
To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied in respect of the Shardex Service and you use the Shardex Service at your own risk.
You agree that neither we or our Associates shall be liable for any Losses which you may sustain however arising and whatever the cause, in particular pursuant to your or any 3rd Party’s use of, access to and/or interference with the Shardex Service.
You also agree that our liability to you pursuant to these Terms and Conditions shall furthermore be limited to the total amount of the fees you paid for your Shardex Service use.
Indemnity
You and any 3rd Parties using the Shardex Service or Website indemnify us and our Associates from any Losses, which may arise as a result of your or the 3rd Party’s unlawful conduct, wilful misconduct and/or gross negligence.
Maintenance and Repair
You acknowledge that from time to time the Shardex Service may be suspended, either in part or as a whole, for maintenance, repair and improvements. We agree, wherever reasonably possible, to give twenty-four (24) hours notice of suspension of the Shardex Service affected by the proposed suspension. We deal with this in more detail in our Support Policy.
Save as set out elsewhere in these Terms and Conditions or the Support Policy, we shall not be liable for any Losses which may be sustained as a result of the suspension of the Shardex Service save as provided for in the Support Policy, where applicable.
Rights Infringements
If any person is of the view that his, her or its rights have been infringed through unlawful Shardex Service use by any person, that person may address a complaint to Shardex which satisfies the following requirements and/or sets out the following information:
- the full names and address of the complainant;
- the written or electronic signature of the complainant;
- identification of the right that has allegedly been infringed;
- identification of the material or activity that is claimed to be the subject of unlawful activity;
- the remedial action required to be taken by Shardex in respect of the complaint;
- telephonic and electronic contact details, if any, of the complainant;
- a statement that the complainant is acting in good faith;
- a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.
Notifications must be addressed to:
Shardex Abuse
Email: support@shardex.co.uk
We will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action, where necessary. Such action may include, but is not limited to, removing offending Content and/or taking appropriate steps against offending users or Customers, where appropriate. We may not be able to, or it may not be appropriate for us to, respond to or act on every complaint.
Breach
Subject to any other provision of these Terms and Conditions providing for the remedy of any breach of any provision of these Terms and Conditions, should either Party (“the Offending Party”) commit a breach of any provision of these Terms and Conditions and fail to remedy such breach within 10 days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to:
- Cancel these Terms and Conditions, provided the breach in question is a material breach going to the root of these Terms and Conditions; or
- Claim specific performance of all of the Offending Party’s obligations whether or not due for performance
in either event without prejudice to the Aggrieved Party’s right to claim damages.
Either Party shall be entitled to summarily terminate these Terms and Conditions in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Terms and Conditions shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Governing Law and Jurisdiction
These Terms and Conditions shall be governed in all respects by and shall be interpreted in accordance with UK Law and you consent and submit to the jurisdiction of the Western Cape High Court, Cape Town.
You consent to the jurisdiction of the Regional Court and the Magistrates Court in respect of any claim arising out of or pertaining to these Terms and Conditions or the Shardex Service even though any claim you may have against us exceeds the monetary jurisdiction of the Regional Court or the Magistrates Court, as the case may be.
Interruption Event
You acknowledge that, from time to time, the Shardex Service may be suspended due to causes beyond our control which we refer to as Interruption Events.
You agree that we will be relieved of our obligations in terms of these Terms and Conditions during the period that the Interruption Event and its consequences continue, only to the extent we are reasonably prevented from fulfilling our obligations, and we shall not be liable for any Losses which you may suffer as a result.
We will make reasonable efforts to notify you of an Interruption Event in writing as soon as we become reasonably aware of the Interruption Event.
In the event that an Interruption Event exceeds 2 calendar months and in the event that neither we or our nominee are able to provide alternative services and/or facilities, either you or we may terminate these Terms and Conditions and shall only remain liable for performance under these Terms and Conditions which fell due immediately prior to the Interruption Event.
Assignment
By users or you
Users or, where appropriate, you shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Terms and Conditions except with our prior written consent. We will not unreasonably withhold our consent.
By Shardex
We are entitled to cede, delegate, assign or otherwise transfer all or any of our rights, interests or obligations under and/or in terms of these Terms and Conditions subject to us giving you reasonable written notice to that effect.
Severability
If any court which has jurisdiction finds any clause or term of these Terms and Conditions to be unenforceable, then the Parties agree that the remaining terms and provisions of these Terms and Conditions shall be deemed to be severable from the unenforceable provisions and shall continue in full force and effect unless such unenforceability goes to the root of these Terms and Conditions, in which case these Terms and Conditions shall terminate.
Domicilium and Notices
Any Party shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a post box number in the United Kingdom, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
A notice sent by one Party to another Party shall be deemed to be received:
- On the same day, if delivered by hand;
- On the same day, if transmitted electronically with receipt received confirming completion of transmission;
- On the same day of transmission if sent by telefax with receipt received confirming completion of transmission, provided that the original of the notice shall, after such transmission, be sent by prepaid courier services to the Party to whom such notice shall have been given;
on the third day after despatch, if sent by prepaid courier.
Notwithstanding anything to the contrary contained in this Domicilium and Notices clause a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
The Customer
You choose your physical address; billing address; facsimile number and email address which you supply to us when registering to use the Shardex Service as its domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Terms and Conditions.
Shardex
Shardex chooses the addresses and other contact details specified in our ECTA Disclosures section, below, for all communication purposes under these Terms, whether in respect of court process, notices or other documents or communications of whatsoever nature.
ECTA Disclosures
Access to the Content on or through the Services and the Website itself are classified as “electronic transactions” in terms of the ECTA and therefore you have the rights detailed in Chapter VII of the ECTA and we have the duty to disclose the following information:
Our full name and legal status: Shardex Limited trading as Shardex
Postal address: Apartment 5, Milliners Wharf, Manchester, M4 7BB, UK.
Main business: The sale of digital products and services
Website address: http://www.shardex.co.uk
Official email address: support@shardex.co.uk
Membership of self-regulatory or accreditation bodies: None
Codes of conduct to which we subscribe: Not applicable
Governing terms of use: These Terms and Conditions
Management: Scott Harasyn
Costs associated with the access to and use of the Website: Costs are detailed on the Website.
Cooling off period: Not applicable
Complaints process: Not applicable
Copyrights
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the website are either owned by you, or that you have permission to use them.
When we receive your final payment, copyright is automatically assigned as follows:
You own the graphics and other visual elements that we create for you for this project.
We’ll give you a copy of all files and you should store them really safely as we are not required to keep them or provide any native source files we used to make them.
You also own text content, photographs and other data you provided, unless someone else owns them. We own the markup, CSS and other code and we license it to you for use on only this project. We love to show off our work and share what we have learned with other people, so we reserve the right to display and link to your completed project as part of our portfolio and to write about the project on websites, in magazine articles and in books about web design.
General
These Terms and Conditions, as read with the documents referenced in these Terms and Conditions, constitute the sole record of the agreement between the Parties in regard to its subject matter.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in these Terms and Conditions.
No addition to, variation or consensual cancellation of these Terms and Conditions, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
No data message (as defined in ECTA), including an e-mail, SMS and recorded voice message, which you send to us shall amend these Terms and Conditions or the rights and duties of the Parties in any manner unless the Parties expressly state, and specify the extent to which, the data message amends these Terms and Conditions or the Parties’ rights and duties in any material respect.
No indulgence which any of the Parties (“the Grantor”) may grant to any other (“the Grantee(s)”) shall constitute a waiver of any of the Grantor’s rights, who shall not be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to take all reasonable steps to implement and comply with these Terms and Conditions.
Interpretation Guide
In these Terms and Conditions, headings are for convenience and are not intended to be used to interpret the Terms and Conditions.
If the Terms and Conditions refers to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Terms and Conditions will also be applicable to and binding on that Party’s liquidator or trustee, as the case may be.
Unless these Terms and Conditions indicates to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Terms and Conditions, shall not apply.
Where in these Terms and Conditions provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Terms and Conditions or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
Where these Terms and Conditions specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the United Kingdom, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the United Kingdom. Generally speaking, references to a “day” are references to typical business days.
Any reference to “business hours” shall be construed as being the hours between 09h00 (eight hours and thirty minutes) and 17h30 (seventeen hours) on any day. Any reference to time shall be based upon GMT;
All annexures, addenda and amendments to these Terms and Conditions form an integral part of these Terms and Conditions and, therefore, our contract with you.
The words and phrases in the Terms Glossary and, where appropriate, elsewhere in these Terms and Conditions bear the meanings assigned to them and related expressions bear corresponding meanings.
Terms Glossary
“3rd Party” means a person other than Shardex and a Customer;
“Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) including, but not limited to, what a Customer may have access to as part of, or through the Customer’s Service use;
“Content License” means a personal, revocable, worldwide, royalty-free, non-commercial, non-transferrable and non-exclusive licence to use our Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by these Terms and Conditions and does not extend to scraping, spidering, crawling or other technology or software used to access data without our express written consent;
“Customer” means the person contracting with us to use the Shardex Service subject to these Terms and Conditions and is either –
- you, personally, if you are contracting with us in your personal capacity; or
- a legal entity such as a company or close corporation you represent, in which case you –
- represent to us that you are authorised by that legal entity to enter into this contract on that legal entity’s behalf; and
- agree that when we refer to “you” in these Terms and Conditions, we are referring to the legal entity you represent with you as its authorised representative;
“CPA” means the Consumer Protection Act No. 68 of 2008, as amended from time to time;
“Data Protection Policy” means our data protection policy framework
“ECTA” means the Electronic Communications and Transactions Act No. 25 of 2002, as amended from time to time;
“Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or material capable of copyright protection and in which copyright subsists (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;
“Intellectual Property Rights” means legal or moral rights in Intellectual Property;
“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Terms and Conditions by reason of an Interruption Event;
“Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
“Parties” means Shardex and the Customer;
“personal information” means the personal information as defined in the Promotion of Access to Information Act, 2 of 2000;
“Products” means the Shardex plugins, themes and extensions which are made available through the Website and which are described in the Website;
“Subscription” means any Shardex Service that is offered on a recurring basis for a designated period, whether free or paid.
“Support Service” means our Subscription support and update service described on the Website;
“use” bears its ordinary meaning and when used in the context of –
- the Website, means to visit or load the Website in a web browser, mobile phone or similar software application or device or otherwise engage with the Website;
- Products or Content, means to copy, download, distribute, display, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or manipulate the Products;
“user” means a person who is not a Customer and who uses the Shardex Service or the Website;
“Terms and Conditions” means these terms and conditions, as amended from time to time;
“VAT” means Value-Added Tax
“Website” means the Shardex website located at http://shardex.co.uk or such other websites as may be associated with and controlled by Shardex from time to time;
“Shardex”, “us”, “we” and “our” means or are references to Shardex Limited trading as Shardex, a company duly registered and incorporated in accordance with the laws of the United Kingdom and with registration number 07546613.
“Shardex Service” means the Content, Subscriptions, Products and Support Service, either collectively or in any combination.
