Terms of service

TERMS OF SERVICE
Please read these terms of service carefully. They govern your access to and use of our ‘Emagine’ web-based pre-press production system (the “System”). They apply whether you are accessing and using our “lite” or “full” version of the System and limit our liability to you. By clicking “I accept” at the end of this screen and accessing and using the System you are forming a contract and agreeing to the terms that appear below on behalf of the business or organisation you represent (the “Agreement”).

If you have any questions please email us at info@emagine.uk.net or contact us on-line at http://www.nowemagine.co.uk/contact/.

1.    Background

2.   

'Wyndeham', ‘Emagine Lite’ and ‘Emagine’ are brands owned by Wyndeham Pre-Press Limited (Company No: 01280705; Registered Office: The Bentall Complex, Colchester Road, Heybridge, Maldon, Essex CM9 4NW) (the "Company”). The Services (as defined below) offered through the System are operated and powered by software belonging to the Company.

3.    The Services and Your Subscription

1.    The Services: The “Services” consist of the Company providing you and the business or organisation you represent with access to and the use of a web-based, pre-press production system which enables you to manage the production of your magazine content on-line.

2.    Your Subscription Information: You warrant that you have provided the Company with accurate and complete subscription information. It is your responsibility to up-date the Company of any changes to that information (including your email address) by emailing info@emagine.uk.net. You warrant to the Company that you have the authority to enter into this Agreement on behalf of the business or organisation that you represent. The Company deems this Agreement to be with both you and the business or organisation that you represent (who we refer to together as “You”).

3.    Commencement of your Subscription, Administrative IDs and Additional IDs: Following your acceptance of this Agreement and, in the case of a Full Subscription, when we have received your first monthly subscription fees in advance in cleared funds, we will make the Services available to You by allocating You with an administrative user name and password (an “Administrative ID”). Only You may use the Administrator ID to use the Services. The Administrator ID will allow You to create login details for other employees of your business or organisation (“Additional IDs”). You shall not create Additional IDs for persons who are not your employees. Responsibility lies with You as holder of the Administrator ID to ensure that holders of Additional IDs are made aware of and comply with this Agreement. All references to IDs in this Agreement shall mean both Administrator IDs and Additional IDs. You are responsible for all use of the Services using IDs and for preventing unauthorised use of IDs by any third party.

 

4.    Subscription Fees:

1.    The ‘Lite’ and ‘free trial’ versions of the System are offered free of charge (a “Lite Subscription”). However, the Company may make additional services available to You as a Lite Subscription subscriber in return for payment.
2.    The full version of the System is offered to You subject to your payment of the applicable subscription fees (a “Full Subscription”).
4.    The Company’s current subscription fee rates and payment terms can be found here [Add hyperlink to pricing page].

5.    All the Company’s fees are exclusive of VAT.

    1.    Ending your Subscription: Your Subscription may be brought to an end by You or the Company in accordance with Clause 3.
    2.    Breaches of Security: If You believe there has been any breach of security such as the disclosure, theft or unauthorised use of an ID, You must notify the Company immediately by emailing info@emagine.uk.net. If the Company reasonably believes that an ID is being used in any way which is not permitted by this Agreement, the Company reserves the right to suspend access rights immediately on giving notice to You and to block access from that and any other IDs until the issue has been resolved.
    3.    Security Standards: The Company uses a secure server that implements Secure Socket Layer technology to prevent any person from gaining access to the System when they are not legally entitled to do so. 1
    4.    Changing the Services: The Company is continually seeking to improve the Services. The Company reserves the right, at its discretion, to make changes to any part of the Services that relate to:
         1.    your Lite Subscription at any time and shall have no liability to You for making such changes.
         2.    your Full Subscription at any time and shall have no liability to You for making such changes provided that such changes do not materially reduce the System’s content or functionality when compared to the content or functionality for which You had originally paid. In any event, our liability to You for any changes to the Services which affect your Full Subscription shall be limited to the amount of the fees You have paid to the Company and to your right to end your Full Subscription under Clause 3.3(b)(ii).
         5.    Contact the Company: If You have any concerns or feedback about the Services please notify the Company using the contact details or feedback facilities available via the System or via the following email address: info@emagine.uk.net. Feedback from You is important to the Company and the Company shall use its reasonable endeavours to acknowledge and reply to your e-mail as soon as it can but can give no guarantee that it shall be able to respond to your concerns or feedback within set timescale.

 

 6.    Ending your Subscription

1.    Lite Subscriptions: The Company may end your Lite Subscription at any time for any reason. You may also end your Lite Subscription at any time for any reason by simply ceasing to use the System and removing your Creative therefrom.
2.    Full Subscriptions: The Company’s Rights to End Your Full Subscription
    1.    Subject to the Company’s right to end a Full Subscription as further set out in Clauses 3.2(b) and 3.2(c) below, your Full Subscription shall continue for as long as your subscription fees are fully paid up-to-date.
    2.    The Company may, at its election, end a Full Subscription at any time by giving you 30 (thirty) days’ written notice and providing you with a pro-rata refund to the extent that you have paid the Company subscription fees for your Full Subscription in advance.
    3.    The Company may, at its election, end or suspend a Full Subscription:
         1.    in accordance with its rights under Clause 4.4;
         2.    if you are in material breach of this Agreement and the breach is not remedied within the period of 7 days after written notice of the breach has been given to You.
         3.    Full Subscriptions: Your Rights to End Your Full Subscription
              1.    You may end your Full Subscription at the end of your applicable subscription period.
              2.    You may end your Full Subscription and receive a pro-rata refund:
                   1.    if the Services are discontinued;
                   2.    if the Services are changed by the Company and such changes materially reduce the System’s content or functionality compared to the content or functionality for which You had originally paid;
                   3.    if the Company is in material breach of this Agreement and the breach is not remedied within the period of 14 days after written notice of the breach has been given to the Company.
                   4.    Non-Use of the System: The Company may end this Agreement at any time on written notice to You if You have failed to use the System for a consecutive period of more than 6 (six) months.
                   5.    What Happens when this Agreement Ends? When this Agreement ends:
                          1.    all rights of access and licences granted hereunder shall end;
                          2.    the Company shall provide You with a copy of Creative from the latest back-up maintained by the Company and then take such action as it deems appropriate to remove Creative or reference to You from the System;
                          3.    this shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement 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 of this Agreement which is expressly or by implication intended to come into or continue in force on or after such ending.

 

7.    Your Use of the System and Creative

1.    Definitions: For the purposes of this Agreement:
    1.    “Applicable Law” means “all laws, regulatory requirements and codes of practice applicable to your use of the System including, but not limited to all data protection legislation (including, but not limited to, the Data Protection Act 1998, the Electronic Communications and Privacy (EC Directive) Regulations 2003), all applicable present and future advertising, marketing and consumer laws, regulatory requirements and all applicable present and future codes of practice, adjudifications, decisions, guidelines, directions and rulings of the Committee of Advertising Practice (‘CAP’), the Advertising Standards Authority (‘ASA’), the Internet Advertising Bureau (‘IAB’), the Direct Marketing Association (‘DMA’) and the Press Complaints Commission's Editors' Code of Practice ”;
    2.    “Creative” means “all artwork, copy, data, text, models, graphics, messages, tags, designs, photographs, images, logos and other audio and/or visual content and material published on or used in connection with the System”;
    3.    “System” includes all URLs from which the System can be accessed and used; (b) the content offered from the System (including all text, information, data, software, executable code, images, audio or video material in whatever medium or form); (iii) the System’s look and feel, graphic user interface and functionality; and (iv) the software (in object code and source code format) that powers the System and that is used to provide the functionality and content on it (including any error corrections, updates, upgrades, modifications and enhancements to it made by the Company).
2.    Your Use of the System
       1.    All right, title and ownership to all intellectual property rights in the System remains with the Company (or its licensor(s)). Except as expressly provided in this Agreement, nothing shall be construed to grant You any right, title or interest in or to the System.
       2.    Your use of the System is subject to a non-exclusive and non-transferable licence permitting You alone to use the System for your business purposes and on the further terms set out below. You acknowledge and agree that You are solely responsible for the use of the System using the IDs (whether by You or any third parties to whom you allocate Additional IDs).
       3.    You shall not:-
            1.    attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the System, except as may be allowed by Applicable Law;
            2.    access all or any part of the System in order to build a product or service which competes with the System; or
            3.    write or develop any derivative software program based in whole or in part upon the System or any confidential information belonging to the Company.
    3.    Use of Creative:
           1.    You acknowledge and agree that the Company has no responsibility for Creative that is uploaded onto the System using IDs.
           2.    The Company acknowledges that all intellectual property rights subsisting in Creative are and shall remain your (and/or your licensors) property. You hereby grant to the Company a non-exclusive licence to make the Creative available on the System and to use, reproduce, distribute, transmit and display such Creative for the purposes of the Services.
           3.    You acknowledge that you are responsible for keeping copies of the Creative uploaded to the System.
           4.    You undertake to ensure that all Creative complies with this Agreement and Applicable Law. Furthermore, you agree that when using the System you will only publish, transmit, upload and/or distribute information, data, content and material about You and about your Creative that:
                 1.    is legal, proper, decent, honest and accurate.
                 2.    does not contain any files known to be corrupt, software viruses or any other computer code, file or program designed to interrupt, damage, destroy or limit the functionality of the System.
                 3.    does not infringe any third party proprietary rights including intellectual property rights.
                 4.    Failure to Comply: Failure to comply with your obligations under this Clause 4 constitutes a breach of this Agreement. The Company deems any breach of this Agreement as incapable of remedy. As a result of any such breach the Company may take any or all of the following actions:
                        1.    temporarily or permanently withdraw your right to use the System.
                        2.    temporarily or permanently remove any Creative from the System.
                        3.    issue a warning to You.
                        4.    issue legal proceedings against You for reimbursement of all costs on an indemnity basis (including reasonable administrative and legal costs) resulting from the breach.
                        5.    take further legal action against You.
                        6.    disclosure of such information to law enforcement authorities as it reasonably feel is necessary.

8. 

The Company exclude all liability for actions taken in response to any breach by You of this Agreement. The responses described above are not limited, and the Company may take any other action it reasonably deems appropriate.

1.    Your Indemnity: You shall also indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any breach by You of this Clause 4.
2.    Disclosure of Your Information: The Company shall have the right to disclose your information (excluding financial information) to any third party who is claiming that any Creative constitutes a violation of their intellectual property rights, their right to privacy or any of their other rights under Applicable Law.

 

9.    Warranties and Limitation of Liability

1.    Your Warranties: You warrant to the Company that You:
        1.    have the full power and authority to carry out the actions contemplated under this Agreement, and that your entry into and performance of your obligations under the terms of this Agreement will not infringe the rights of any third party or cause You to be in breach of any obligations to a third party;
        2.    shall at all times in using the System comply fully with any and all Applicable Laws;
        3.    shall not do anything to bring the Company or the System into disrepute.
2.    Company Warranties: Subject to the remainder of this Clause 5, the Company warrants to You that:
       1.    it will use reasonable skill and care in making the Services available to You; and
       2.    it has the right to grant You access to the System under this Agreement.
3.    Exclusions: The express terms of this Agreement are in place of all warranties, representations, conditions, terms, undertakings and obligations which but for this Clause 5 would be implied or incorporated into this Agreement, or any collateral agreement, by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
4.    System Modifications and Maintenance: The Company may need to modify and/or perform maintenance of the System at any time. If this need arises, the Company may suspend access to the System, or close it indefinitely. The Company shall at all times endeavour to keep any System modification and maintenance interruptions to a minimum. However, it shall have no liability to You should it fail to do so.
5.    System Defects: The Company gives no warranty that the System is free from infection by viruses or anything else that has contaminating or destructive properties. Whilst the Company will use its reasonable endeavours to remedy faults in the Services during your Subscription, if the Company in breach of this Agreement, You agree that, subject to Clause 5.9, your only recovery for damages that You incur, and your exclusive remedy, shall be limited to an amount equivalent to the subscription fees paid or payable in relation to your use for the relevant year of the Services. Where you are still in a free trial period or using the ‘Lite’ version of the System and, subject to Clause 5.9, your only remedy will be to terminate your use of the Services.
6.    Limitation of Liability: Subject to Clause 5.9, the Company shall not be liable to You for any loss, damage or costs howsoever arising in respect of the following in relation to your use of the System:

1.
       1.    loss of profit, anticipated profits, revenues, anticipated savings;
       2.    reputation, goodwill or business opportunity;
       3.    missed publication or other deadlines;
       4.    the quality of Creative or the quality of publication of your Creative using the System meeting any particular quality or standard;
       5.    loss of customers or contracts or potential customers or contracts;
       6.    managers’ and consultants’ time in monitoring and managing the Services;
       7.    loss of Creative, programs or data and/or undertaking the restoration of Creative, programs or data;
       8.    any special, indirect or consequential loss damages or costs;
whether foreseeable, known, foreseen or otherwise. For the avoidance of doubt, clauses (a) to (g) above apply whether such loss, damage or cost is special, indirect, consequential or otherwise.


    1.    
    1.    Loss of Creative: In the event of any loss or damage to Creative, your sole remedy shall be for the Company to use its reasonable endeavours to restore the lost or damaged Creative from the latest back-up maintained by the Company.
    2.    For numbering purposes this number has been typed manually Nothing in this Agreement shall operate to exclude or limit liability for death or personal injury or any other matter for which liability cannot be excluded or limited under law.
    2.    Privacy Policy
    3.    The information that you provide about yourself to the Company will only be used by the Company in accordance with the Privacy Policy. Please read the Privacy policy carefully and if You have any questions please email info@emagine.uk.net.
    4.    Events Beyond the Company’s Control
    5.    The Company shall not be liable to You for any breach of this Agreement or any failure to provide or delay in providing the Services resulting from any event or circumstance beyond the Company’s reasonable control including strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Internet access, fire, explosion or accident.
    6.    General
    1.    Notices: All notices given under or in connection with this Agreement shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally by hand (including by commercial courier) or by first class pre-paid letter (or by air-mail if overseas), by facsimile transmission or by email, and shall be deemed to have been served, if by hand, when delivered; if by first class post, 48 hours after posting; (if by air-mail, five days from the date of posting) and if by facsimile transmission or e-mail, when successfully despatched in full.
    2.    Dealings in Rights and Obligations: The Company may transfer and/or assign its rights and/or our obligations under this Agreement to any third party. This will not affect your rights under this Agreement. You may not transfer and/or assign any of your rights and/or obligations under this Agreement to any third party. Nothing in this Agreement shall confer your rights on any other person.
    3.    Waiver of Remedies: If You breach this Agreement and the Company ignores this, the Company will still be entitled to use its rights and remedies at a later date or in any other situation where you breach this Agreement.
    4.    Entire Agreement: This Agreement, together with the Privacy Policy and any additional terms in relation to the Services, represents the entire terms agreed between the parties in relation to its subject matter and may be amended only by the Company’s agreement in writing.
    5.    Relationship of the Parties: Our relationship with You is that of independent sub-contractors and this Agreement does not constitute either of us the agent of the other, or create a partnership, joint venture or similar relationship between us. Neither of us shall have the power to bind the other or to create a liability against the other in any way.
    6.    Disputes: This Agreement shall be governed by English law. The Company will try to solve any disagreements quickly and efficiently. If You want to take court proceedings in relation to this Agreement You must do so in the courts of England and Wales.

Wyndeham Pre-Press Limited: March 2010

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