Terms and Conditions

AIRSHIP SERVICES LTD STANDARD TERMS AND CONDITIONS

Airship provides services consisting of internet access to application software at its remote computer location for the purpose of marketing and promoting the Customer's business. Airship has agreed to provide and the Customer has agreed to take and pay for Airship's service subject to the terms and conditions of this agreement.

AGREED TERMS

1. Definitions

1.1 In this Agreement:
Agreement: this document and any schedules and ancillary documentation referred to herein, as amended from time to time in accordance with this Agreement.
Authorised Users: those employees, independent contractors and End-Users of the Customer who are entitled to use the Software through the Services under this agreement.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
Codes of Practice: any Legislation and the guidelines and regulations of any Regulatory Body, and also guidelines and regulations from network operators as are issued from time to time and those which may be published in any Legislation or at www.Airship.co.uk.
Commencement Date: the earlier of the signature of the Order Form by the Customer or the date Airship notifies the Customer that the Services are enabled.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5
Customer: the individual, firm or company identified in the Order Form.
Customer Account Team: the individuals appointed by the Customer from time to time who shall serve as Airship's primary contacts for Airship's activities under this agreement. Airship's Account Team contacts are listed in the Order Form.
Customer Data: the data collected from the End-User or through web applications or by inbound SMS and input into the information fields of the Software by the Customer, by Authorised Users, or by Airship on the Customer's behalf.
Customer's Project Manager: the member of the Customer Account Team appointed. The Customer's Project Manager at the Commencement Date is named in the Order Form.
End-User(s): a customer or customer(s) of the Customer who have completed the Airship End-User Form.
End-User Form: the form used by the Customer or Airship to capture the End-User’s data.
Errors: a failure in a material respect to conform to the Specification.
Fees: the fees payable to Airship, as described in the Order Form.
Hosting Services: the services that Airship provides to allow Authorised Users to access and use the Software, including hosting set-up and ongoing services, as described in the Order Form.
Initial Period: the initial period from the Commencement Date as set out in the Order Form.
Legislation: any act of UK parliament or subordinate legislation and any enforceable laws which are applicable to the Service.
Maintenance and Support: any error corrections, updates and upgrades that Airship may provide or perform with respect to the Software and Hosting Services, as well as any other support or training services provided to the Customer under this agreement, all as described in the Order Form.
Normal Business Hours: 9.00 am to 5.30pm on a Business Day local UK time, Monday to Friday, excluding public holidays.
Order Form: the form set out in Schedule 1 used to detail the Services requested by the Customer and the fees due for such Services. It forms part of the agreement with the Customer and is governed by these Airship terms and conditions.
Permitted Purpose: Use of the Software and Services in accordance with the Order Form. Airship: Airship Services Limited (registered no 4225467) and whose registered office is at The Innovation Centre, 217 Portobello, Sheffield, S1 4DP
Airship Network: Airship's host computers, network hubs and points of presence, from the moment messages arrive at Airship to the point at which Airship has managed transfer of the Message to the Customer.
Airship Privacy Policy: Airship’s privacy Policy set out in Schedule 2 as revised from time to time.
Airship's Project Manager: the member of the Airship's Account Team appointed in accordance with clause 2.1 Airship's Project Manager at the Commencement Date is named in the Order Form.
Airship Proprietary Software: any software and computer programs developed and/or owned by Airship.
Regulatory Body: ICSTIS and Oftel in the UK (www.icstis.org.uk) or any other industry –recognised, or, equivalent bodies in other regions that govern the use of mobile telecommunications.
Service Level Arrangements: the service level arrangements set out in the Order Form.
Services: any services provided by Airship to the Customer in accordance with this Agreement (if any) including Hosting Services and/or Maintenance and Support as applicable as set out in the Order Form, given the context in which the term Services is used.
  Software: Airship's Proprietary software and any Third Party Software including any error corrections, updates, upgrades, modifications and enhancements licensed to the Customer under this agreement.
Specification: the functionality and performance specifications for the Software, as set out in the Order Form.
Third Party Software: any software or applications owned or Licensed by a third party and used by Airship to deliver the Services but which excludes Airship’s Proprietary Software.
Third Party Terms: the terms and conditions which govern the use of third party services (including but not limited to social media providers such as but not limited to “Facebook” or “Linked In”), products and/or Third Party Software used by the Customer and/or the End User as part of the Services including but not limited to the applicable social media provider’s terms.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes faxes but not e-mail.
1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraph of the relevant schedule.

2. Airship AUTHORITY

2.1 Only Airship's Project Manager shall have the authority to contractually bind Airship on all matters relating to this Agreement. Airship shall use reasonable endeavours to ensure continuity of the Airship's Project Manager, but has the right to replace him or her from time to time where reasonably necessary in the interests of Airship’s business;

3. HOSTING SERVICES, MAINTENANCE AND SUPPORT

3.1 In relation to Authorised Users: 3.1.1 the Customer's access to the Services shall be limited to the Authorised Users;
3.1.2 the Customer shall maintain a written list of current Authorised Users of the Software, and the Customer shall provide such list to Airship as may be reasonably requested by Airship from time to time;
3.1.3 the Customer shall ensure that each Authorised User keeps a secure password for his use of the software, that such password is changed no less frequently than MONTHLY and that each Authorised User keeps his password confidential;
3.1.4 Airship may audit the Software regarding the name and password for each Authorised User; and
3.1.5 if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to Airship's other rights, Airship may promptly disable such passwords and shall not issue any new passwords to such individuals.
3.2 In relation to Software:
3.2.1 Airship hereby grants to the Customer on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow Authorised Users to access the Software through the Hosting Services and to use the Software solely for the Customer's Permitted Purpose;
3.2.2 the Customer shall not store, distribute or transmit any material through the Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
3.2.3 the rights provided under this clause 3.2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer; and
3.2.4 the Customer shall not:
3.2.4.1 attempt to duplicate, modify or distribute any portion of the Software; or
3.2.4.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
3.2.4.3 use the Software or Hosting Services to provide services to third parties; or
3.2.4.4 transfer, temporarily or permanently, any of its rights under this agreement, or
3.2.4.5 attempt to obtain, or assist others in obtaining, access to the Software, other than as provided under this clause 3.2.4.
3.3 The Customer and its Authorised Users shall comply with all relevant Third Party Terms.
3.4 The Customer shall keep Airship indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Airship as a result of or in connection with:-
3.4.1 The loss or misuse of passwords by Customers or its Authorised Users; and/or
3.4.2 Any claim or demand made by a third party that the Customer and/or its Authorised Users are using data which is proprietary to a third party or the Customer and/or Authorised User does not have permission to use such data; and/or
3.4.3 Any breach by the Customer or its Authorised User of the Airship Privacy Policy
3.4.4 Any breach by the Customer or its Authorised User of any Third Party Terms.

4. CUSTOMER DATA

4.1 In the event of any loss or damage to Customer Data (including End-User data), the Customer's sole and exclusive remedy shall be for Airship to use reasonable endeavours to restore the lost or damaged customer data from the latest back-up of such Customer Data maintained (if any) by Airship in accordance with its archiving procedure. Airship shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by the Customer or its Authorised Users or any third party (except, subject to clause 4.2, those third parties sub-contracted by Airship to perform services related to Customer Data maintenance, processing and back-up).
4.2 In the event a third party processor engaged by Airship causes a breach of any relevant data protection Legislation Airship shall use reasonable endeavours to assist the Customer and/or End-User to enforce any applicable remedies by applicable laws against such third party processor. Subject to clause 12 the Customer accepts that this clause sets out Airship’s entire liability to the Customer in connection with loss, mis-use or destruction of the End-User’s data by any third party processor and the Customer accepts that the change is reasonable and is advised to seek appropriate insurance as the data controller in such circumstances.

5. Airship'S OBLIGATIONS

5.1 Airship undertakes that the Services will be performed with all reasonable skill and care. Any dates for performance are estimates only and time shall not be of the essence in relation to such dates. 5.2 Subject to clause 5.5 Airship undertakes that the Software will perform substantially in accordance with the Software Specification. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to Airship's instructions or modification or alteration of the Software by any party other than Airship or Airship’s agents. If the Software does not conform with the foregoing warranty, Airship will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in this clause 5.2. Notwithstanding the foregoing, Airship does not warrant that the Customer's or its Authorised User's use of the Software and the Services will be uninterrupted or error-free.
5.3 With respect to any Errors contained in any Services delivered to the Customer, Airship shall use reasonable efforts to correct any such Error within a reasonable time and, on completion, submit the corrected part of the Service to the Customer. The provisions of this clause 5.3 shall then apply again up to five additional times. If Airship is unable to correct such Error after five attempts, either party may terminate this agreement subject to the provisions of clause 13.3.4 (accrued rights and liabilities);
5.4 This agreement shall not prevent Airship from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.
5.5 Airship does not warrant the performance of any Third Party Software and such use is subject to any applicable Third Party Terms.
5.6 Airship may offer Services which operate utilising third party applications (such as but not limited to Facebook). The Customer acknowledges and accepts that Airship has no control over such Third Party Terms of Use or how the Third Party service operates. For instance, Facebook may change the way it permits account users such as Airship to configure or adapt the Facebook applications and Airship excludes any warranty in connection with the performance of the such services or the availability of the Customer’s information, data or pages on such third party sites or applications.
5.7 Such third parties (Facebook) permit Airship to utilise and reconfigure such third party applications using Airship’s Proprietary Software. Such permissions may be withdrawn or amended at any time and are outside the control of Airship. Therefore Airship excludes all liability for loss, costs and damages suffered by the Customer if changes by such third parties cause the Customer’s site or service (for instance but not limited to Facebook) through Airship to be affected.

6. CUSTOMER'S OBLIGATIONS

6.1 The Customer shall: provide Airship with:
6.1.1 all necessary co-operation in relation to this Agreement; and
6.1.2 all necessary access to such information as may be required by Airship;
in order to render the Services, including but not limited to Customer Data, security access information and Software interfaces to the Customer's other business applications;
6.2 provide such assistance and other Customer personnel, as may be reasonably requested by Airship from time to time. ;
6.3 appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to this agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer's Project Manager;
6.4 comply with these Airship Terms and Conditions including the Airship Privacy Policy and with all legislation and applicable laws and regulations with respect to its activities under this Agreement; and
6.5 carry out all other Customer responsibilities set out in this agreement or in any of the Schedules in a timely and efficient manner. In the event of any delays in Customer's provision of such assistance as agreed by the parties, Airship may charge any fees, or adjust timetable or delivery schedule set out in this agreement as reasonably necessary.

7. CHARGES AND PAYMENT

7.1 The Customer shall pay the amounts set out in the Order Form for the Services as and when such amounts are due.
7.2 Where applicable, the Customer shall be liable and pay the initial set-up services fee, as set out in the Order Form. Such initial set-up services fee specified in the Order Form shall be paid at the Commencement Date.
7.3 Where account management is required outside of that specified in the order the Customer shall reimburse Airship for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by Airship in performance of the Services.
7.4 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to Airship's invoice(s) at the appropriate rate.
7.5 Subject to clause 7.6 Airship shall invoice the Customer monthly as of the last day of each month for all Services performed by Airship during that month. Each invoice is due and payable as set-up in the order form. If Airship has not received payment within five days after the due date, and without prejudice to any other rights of Airship, interest shall accrue on such due amounts at the higher of either the statutory rate on late payments or the rate of 2% over the base lending rate of Airship's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after the judgment.
7.6 Where each contract is to be fulfilled in separate instalments, deliveries or parts, each instalment, delivery or part shall be made as if the same constituted a separate contract and shall be invoiced by Airship at each instalment or delivery stage at Airship’s discretion.
7.7 Airship reserve the right to levy all costs, expenses and charges if data is uploaded which is not set-up opted-in or otherwise configured to receive the Customer’s broadcasts and such broadcasts result in the suspension of Airship's connections with Internet Service Providers (ISP's). In this case your contract may be cancelled without refund.
7.8 The accuracy of user entered information such as Purchase Orders Numbers or references is the user’s responsibility and as such will not be accepted by Airship as a reason for non payment.
7.9 Subscriptions are billed 30 days prior to the subscription period commencing. Where for any reason the subscription invoice is raised where there is less than 30 days to the start of the subscription period then the invoice must be paid prior to the commencement of services.

8. CHANGE CONTROL

8.1 The Customer's Project Manager and Airship's Account Manager shall meet as set out in the order form to discuss matters relating to this agreement. If either party wishes to change the scope of the Services (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.
8.2 If either party requests a change to the scope or execution of the Services, Airship shall, within a reasonable time, provide a written estimate to the Customer of:
8.2.1 the likely time required to implement the change;
8.2.2 any variations to the Fees arising from the change;
8.2.3 the likely effect of the change on the Services; and
8.2.4 any other impact of the change on the terms of this agreement.
8.3 If Airship requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it. For the avoidance of doubt all charges required by Airship due to legislation changes or increased costs due to circumstances beyond the control of Airship may not be withheld or delayed by the Customer and shall be incorporated as variations to this Agreement.
8.4 If the Customer wishes Airship to proceed with a change, Airship has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its fees, the Services and any other relevant terms of this agreement to take account of the change.

9. PROPRIETARY RIGHTS

9.1 The Customer acknowledges and agrees that Airship and/or its licensors own all intellectual property rights in the Software and Services. Except as expressly stated herein, this Agreement does not grant the Customer or its Authorised Users any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
9.2 Airship confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

10. CONFIDENTIALITY

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party; or
10.1.2 was in the other party's lawful possession before the disclosure; or
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute Airship's Confidential Information.
10.6 Airship acknowledges that the Customer Data is Confidential Information of the Customer and warrants to the Customer that it shall comply at all times with any applicable legislation in connection with the collection and transfer of such data for use by Airship in accordance with this agreement.
10.7 This clause shall survive termination of this agreement, however arising.

11. INDEMNITY

11.1 In addition to the indemnity set out in clause 3.4 the Customer shall defend, indemnify and hold harmless Airship against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's (and/or its Authorised Users') use of the Software or Services including but not limited to those incurred in clause 7.7.  11.2 Airship shall have the exclusive option to exercise sole authority to defend or settle any claim that the Software infringes any third party’s rights.
11.3 In the defence or settlement of any claim under clause 11.2, Airship may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement without liability to the Customer.  11.4 Airship shall have no liability under either clause 11.1 or 11.3 if the alleged infringement is based on:
11.4.1 a modification of the Software by anyone other than Airship; or
11.4.2 the Customer's or its Authorised Users’ use of the Software in a manner contrary to the Permitted Purpose or instructions given to the Customer by Airship; or
11.4.3 the Customer's use of the Software after notice of the alleged or actual infringement from Airship or any appropriate authority; or
11.4.4 breach, error or omission by the Customers or its Authorised Users in connection with Legislation or otherwise the terms of this Agreement.
11.5 The foregoing states the Customer's sole and exclusive rights and remedies, and Airship's entire obligations and liability, for patent, copyright, database or right of confidentiality or any other third party rights infringement.

12. LIMITATION OF LIABILITY

12.1 This clause sets out the entire financial liability of either party (the “Defaulting Party”) (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party (“Innocent Party”) in respect of:
12.1.1 any breach of this agreement;
12.1.2 any use made by the Customer of the Services, the Software, any deliverables from the Services or any part of them; and
12.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
12.2.1 the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. Airship shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Airship by the Customer in connection with the Services, or any actions taken by Airship at the Customer's direction;  12.2.2 Airship excludes all liability for the loss of any profiles (including Group, Private and Public) created on the Customer’s Facebook site where such loss was directly or indirectly attributable to changes or amendments to the Facebook codes and applications (in accordance with Facebook Terms of Use) which are used by Airship to provide the Services or as otherwise directed by Facebook (the same exclusions shall apply to all other social media networking sites used by the Customer as part of the Service);
12.2.3 Airship excludes all liability for loss, damage and costs due to any errors or mismanagement of accounts or security breaches caused by the Customer its Authorised Users or other personnel connected with the Customer; and
12.2.4 all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
12.3 Nothing in this agreement excludes the liability of the Defaulting Party:
12.3.1 for death or personal injury caused by the Defaulting Party’s negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 Subject to clauses 3.5 and 11.1 ,
12.4.1 The Defaulting Party shall not be liable for any loss of profits, loss of business, loss of revenue (except for charges due to Airship), depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and
12.4.2 Either party's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement (or to the extent of each instalment as per clause 17.3) shall be limited to:
12.4.3 In the case of Airship the price paid for the Services in connection with such contract during the 6 months preceding the date on which the claim arose PROVIDED THAT the Customer acknowledges that Airship has insurance cover up to a maximum amount which shall not exceed for all claims in aggregate the sum of £250,000. The Customer is advised to request a copy of such insurance for review to ensure its suitability or request a higher amount of cover in which case Airship reserves the right to increase its charges.

13. TERM AND TERMINATION

13.1 This agreement shall commence on the Commencement Date unless stated to the contrary in the Order Form and shall continue for the Initial Period, unless otherwise terminated as provided in this clause 13. Upon expiry of the Initial Period, this agreement shall automatically renew and shall continue until either party serves a 90 notice in writing on the other party. In the absence of an agreed Initial Period this Agreement shall continue from the Commencement Date until the expiry of a 90 day written notice served by either party.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
13.2.1 the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
13.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
13.2.4 a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
13.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
13.2.6 the other party ceases, or threatens to cease, to trade; or
13.2.7 in the case of the Customer only there is a change of control of the Customer; or
13.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.3 On termination of this agreement for any reason:
13.3.1 all licences granted under this agreement shall immediately terminate;
13.3.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
13.3.3 Airship may destroy or otherwise dispose of any of the Customer Data in its possession unless Airship receives, no later than 30 days after the Commencement date of the termination or expiry of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Airship shall use reasonable commercial efforts to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Airship in returning or disposing of Customer Data; and
13.3.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

14. FORCE MAJEURE

Neither party shall be liable to the other under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Airship or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an Event and its expected duration. However, this Force Majuro clause shall not absolve the Customer from its liability to pay all charges due to Power Text for any Services supplied. 

15. WAIVER

15.1 A waiver of any right under this agreement is only Commencement if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

16. SEVERANCE

16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17. ENTIRE AGREEMENT

17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
17.3 Where the requirements set out in each Order Form are to be fulfilled in separate instalments, deliveries or parts, each instalment, delivery or part shall be made as if the same constituted a separate contract which shall be governed by these terms and conditions. 

18. ASSIGNMENT

18.1 The Customer shall not, without the prior written consent of Airship (not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 Airship shall not, without the prior written consent of the Customer (not to be unreasonably withheld or delayed) at any time assign, transfer or charge in any other manner with all or any of its rights or obligations under this agreement. 

19. NO PARTNERSHIP OR AGENCY

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

20. THIRD PARTY RIGHTS

This agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else. 

21. NOTICES

21.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

22. GOVERNING LAW AND JURISDICTION

22.1 This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement.
This agreement runs between the dates as specified on the Order Form in Schedule 1.

COMPETITION TERMS

  1. The winner will be drawn at random on the last week of each month
  2. Once you've entered the competition you will be eligible for the draw each month.
  3. Winners will be contacted within 48 hours of the draw taking place by phone and email
  4. There are no cash alternatives.
  5. We reserve the right to use the winner's name and picture in our marketing and PR and through social media
  6. The promoter of the competition is Airship Services Ltd, The Innovation Centre, 217 Portobello, Sheffield, S1 4DP
  7. We reserve the right to change any of the prizes at any time.
  8. We reserve the right to withdraw the competition at any time.
  9. No employee or agent of Airship will be eligible to enter the competition
  10. We will not pass your information onto any third parties.

AIRSHIP WEB SERVICES LIMITED STANDARD TERMS AND CONDITIONS

Airship provides services consisting of internet access to application software at its remote computer location for the purpose of marketing and promoting the Customer's business. Airship has agreed to provide and the Customer has agreed to take and pay for Airship’s service subject to the terms and conditions of this agreement.

AGREED TERMS

DEFINITIONS

In this Agreement:

Agreement: this document and any schedules and ancillary documentation expressly referred to herein, as amended from time to time in accordance with this Agreement.

Authorised Users: those employees, independent contractors and End-Users of the Customer who are entitled to use the Software through the Services under this agreement.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

Codes of Practice: any Legislation and the guidelines and regulations of any Regulatory Body, and also guidelines and regulations from network operators as are issued from time to time and those which may be published in any Legislation or at www.airship.co.uk.

Commencement Date: the earlier of the signature of the Order Form by the Customer and Airship or the date Airship notifies the Customer that the Services are enabled.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5

Customer: the individual, firm or company identified in the Order Form.

Customer Account Team: the individuals appointed by the Customer from time to time who shall serve as Airship’s primary contacts for Airship’s activities under this agreement. Airship’s Account Team contacts are listed in the Order Form.

Customer Data: the data collected from the End-User or through web applications or by inbound SMS and input into the information fields of the Software by the Customer, by Authorised Users, or by Airship on the Customer's behalf.

Customer's Project Manager: the member of the Customer Account Team appointed. The Customer's Project Manager at the Commencement Date is named in the Order Form.

End-User(s): a customer or customer(s) of the Customer who have completed the Airship End-User Form.

End-User Form: the form used by the Customer or Airship to capture the End-User’s data.

Errors: a failure in a material respect to conform to the Specification.

Fees: the fees payable to Airship, as described in the Order Form.

Gift Cards: the gift cards registered to the End Users as mentioned in the Order Form

Hosting Services: the services that Airship provides to allow Authorised Users to access and use the Software, including hosting set-up and ongoing services, as described in the Order Form.

Initial Period: the initial period from the Commencement Date as set out in the Order Form.

Legislation: any act of UK parliament or subordinate legislation and any enforceable laws which are applicable to the Service.

Maintenance and Support: any error corrections, updates and upgrades that Airship may provide or perform with respect to the Software and Hosting Services, as well as any other support or training services provided to the Customer under this agreement, all as described in the Order Form.

Normal Business Hours: 9.00 am to 5.00pm on a Business Day local UK time, Monday to Friday, excluding public holidays.

Order Form: the form set out in Schedule 1 used to detail the Services requested by the Customer and the fees due for such Services. It forms part of the agreement with the Customer and is governed by these Airship terms and conditions.

Permitted Purpose: Use of the Software and Services in accordance with the Order Form.

Airship: Airship Web Services Ltd (registered no 8288457) and whose registered office is at The Innovation Centre, 217 Portobello, Sheffield, S1 4DP

Airship Network: Airship’s host computers, network hubs and points of presence, from the moment messages arrive at Airship to the point at which Airship has managed transfer of the Message to the Customer.

Airship Privacy Policy: Airship’s privacy Policy, as revised from time to time in accordance with the terms of this agreement.

Airship’s Project Manager: the member of the Airship Account Team appointed in accordance with clause 2.1 Airship’s Project Manager at the Commencement Date is named in the Order Form.

Airship Proprietary Software: any software and computer programs developed and/or owned by Airship.

Service Level Arrangements: the service level arrangements set out in the Order Form.

Services: any services provided by Airship to the Customer in accordance with this Agreement (if any) including Hosting Services and/or Maintenance and Support as applicable as set out in the Order Form, given the context in which the term Services is used.

Software: Airship’s Proprietary software and any Third Party Software including any error corrections, updates, upgrades, modifications and enhancements licensed to the Customer under this agreement.

Specification: the functionality and performance specifications for the Software, as set out in the Order Form.

Third Party Software: any software or applications owned or Licensed by a third party and used by Airship to deliver the Services but which excludes Airship’s Proprietary Software.

Third Party Terms: the terms and conditions which govern the use of third party services (including but not limited to social media providers such as but not limited to “Facebook” or “Linked In”), products and/or Third Party Software used by the Customer and/or the End User as part of the Services including but not limited to the applicable social media provider’s terms.

Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. A person includes a corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Words in the singular shall include the plural and vice versa.

A reference to one gender shall include a reference to the other genders.

A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

A reference to writing or written includes faxes but not e-mail.

References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraph of the relevant schedule.

AIRSHIP AUTHORITY

Only Airship’s Project Manager shall have the authority to contractually bind Airship on all matters relating to this Agreement. Airship shall use reasonable endeavours to ensure continuity of the Airship's Project Manager, but has the right to replace him or her from time to time where reasonably necessary in the interests of Airship's business;

HOSTING SERVICES, MAINTENANCE AND SUPPORT

In relation to Authorised Users:

the Customer's access to the Services shall be limited to the Authorised Users;

the Customer shall maintain a written list of current Authorised Users of the Software, and the Customer shall provide such list to Airship as may be reasonably requested by Airship from time to time;

the Customer shall ensure that each Authorised User keeps a secure password for his use of the Software, that such password is changed no less frequently than MONTHLY and that each Authorised User keeps his password confidential;

Airship may audit the Software regarding the name and password for each Authorised User; and

if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to Airship's other rights, Airship may promptly disable such passwords and shall not issue any new passwords to such individuals.

Airship has the right to disable any access code, username, password or other information Airship provided to the Customer or an Authorised User at any time if, in Airship’s opinion, the Customer or any Authorised User fail to comply with any of the provisions of these terms and conditions.

In relation to Software:

Airship hereby grants to the Customer on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow Authorised Users to access the Software through the Hosting Services and to use the Software solely for the Customer's Permitted Purpose;

the Customer shall not store, distribute or transmit any material through the Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

the rights provided under this clause 3.2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer; and

the Customer shall not:

attempt to duplicate, modify or distribute any portion of the Software; or

attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

use the Software or Hosting Services to provide services to third parties; or

transfer, temporarily or permanently, any of its rights under this agreement, or

attempt to obtain, or assist others in obtaining, access to the Software, other than as provided under this clause 3.2.4.

The Customer and its Authorised Users shall comply with all relevant Third Party Terms.

The Customer shall keep Airship indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Airship as a result of or in connection with:-

The loss or misuse of passwords by Customers or its Authorised Users; and/or

Any claim or demand made by a third party that the Customer and/or its Authorised Users are using data which is proprietary to a third party or the Customer and/or Authorised User does not have permission to use such data; and/or

Any breach by the Customer or its Authorised User of the Airship Privacy Policy

Any breach by the Customer or its Authorised User of any Third Party Terms.

CUSTOMER DATA

In the event of any loss or damage to Customer Data (including End-User data), the Customer's sole and exclusive remedy shall be for Airship to use reasonable endeavours to restore the lost or damaged customer data from the latest back-up of such Customer Data maintained (if any) by Airship in accordance with its archiving procedure. Airship shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by the Customer or its Authorised Users or any third party (except, subject to clause 4.2, those third parties sub-contracted by Airship to perform services related to Customer Data maintenance, processing and back-up).

In the event a third party processor engaged by Airship causes a breach of any relevant data protection Legislation, Airship shall use reasonable endeavours to assist the Customer and/or End-User to enforce any applicable remedies by applicable laws against such third party processor. Subject to clause 12 the Customer accepts that this clause sets out Airship's entire liability to the Customer in connection with loss, misuse or destruction of the End-User’s data by any third party processor and the Customer accepts that the clause is reasonable and is advised to seek appropriate insurance as the data controller in such circumstances.

AIRSHIP’S OBLIGATIONS

Airship undertakes that the Services will be performed with all reasonable skill and care. Any dates for performance are estimates only and time shall not be of the essence in relation to such dates.

Subject to clause 5.5, 5.6 and 5.7 Airship undertakes that the Software will perform substantially in accordance with the Software Specification. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to Airship's instructions or modification or alteration of the Software by any party other than Airship or Airship's agents. If the Software does not conform with the foregoing warranty, Airship will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in this clause 5.2. Notwithstanding the foregoing, Airship does not warrant that the Customer's or its Authorised User's use of the Software and the Services will be uninterrupted or error-free.

With respect to any Errors contained in any Services delivered to the Customer, Airship shall use reasonable efforts to correct any such Error within a reasonable time and, on completion, submit the corrected part of the Service to the Customer. The provisions of this clause 5.3 shall then apply again up to five additional times. If Airship is unable to correct such Error after five attempts, either party may terminate this agreement subject to the provisions of clause 13.3.4 (accrued rights and liabilities);

This agreement shall not prevent Airship from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.

Airship does not warrant the performance of any Third Party Software and such use is subject to any applicable Third Party Terms.

Airship may offer Services which operate utilising third party applications (such as but not limited to Facebook). The Customer acknowledges and accepts that Airship has no control over such Third Party Terms of Use or how the Third Party service operates. For instance, Facebook may change the way it permits account users such as Airship to configure or adapt the Facebook applications and Airship excludes any warranty in connection with the performance of such services or the availability of the Customer’s information, data or pages on such third party sites or applications.

Airship does not guarantee that products or services or any websites accessible via the Service are error or virus free, and dealings that the Customer or any Authorised User may have with promotions, services or merchants via the Service are solely between the Customer and/or the individual Authorised User and the person with whom they are dealing.

Airship does not warrant or guarantee the performance of the internet or that the transmission of information over the internet will be secure or that the internet will be accessible at all times or at the speeds indicated by Airship.

Such third parties (Facebook) permit Airship to utilise and reconfigure such third party applications using Airship's Proprietary Software. Such permissions may be withdrawn or amended at any time and are outside the control of Airship. Therefore Airship excludes all liability for loss, costs and damages suffered by the Customer if changes by such third parties cause the Customer’s site or service (for instance but not limited to Facebook) through Airship to be affected.

CUSTOMER'S OBLIGATIONS

The Customer shall: provide Airship with:

all necessary co-operation in relation to this Agreement; and

all necessary access to such information as may be required by Airship; in order to render the Services, including but not limited to Customer Data, security access information and Software interfaces to the Customer's other business applications;

provide such assistance and other Customer personnel, as may be reasonably requested by Airship from time to time. ;

appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to this agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer's Project Manager;

comply with these Airship Terms and Conditions including the Airship Privacy Policy and with all legislation and applicable laws and regulations with respect to its activities under this Agreement; and

carry out all other Customer responsibilities set out in this agreement or in any of the Schedules in a timely and efficient manner. In the event of any delays in Customer's provision of such assistance as agreed by the parties, Airship may charge any fees, or adjust timetable or delivery schedule set out in this agreement as reasonably necessary.

CHARGES AND PAYMENT

The Customer shall pay the amounts set out in the Order Form for the Services as and when such amounts are due.

Where applicable, the Customer shall be liable and pay the initial set-up services fee, as set out in the Order Form. Such initial set-up services fee specified in the Order Form shall be paid at the Commencement Date.

Where account management is required outside of that specified in the order the Customer shall reimburse Airship for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by Airship in performance of the Services.

All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to Airship's invoice(s) at the appropriate rate.

Subject to clause 7.6 Airship shall invoice the Customer monthly as of the last day of each month for all Services performed by Airship during that month. Each invoice is due and payable as set-up in the order form. If Airship has not received payment within five days after the due date, and without prejudice to any other rights of Airship, interest shall accrue on such due amounts at the higher of either the statutory rate on late payments or the rate of 2% over the base lending rate of Airship's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after the judgment.

Where each contract is to be fulfilled in separate instalments, deliveries or parts, each instalment, delivery or part shall be made as if the same constituted a separate contract and shall be invoiced by Airship at each instalment or delivery stage at Airship's discretion.

Airship reserve the right to levy all costs, expenses and charges if data is uploaded which is not set-up opted-in or otherwise configured to receive the Customer’s broadcasts and such broadcasts result in the suspension of Airship's connections with Internet Service Providers (ISP's). In this case your contract may be cancelled without refund.

The accuracy of user entered information such as Purchase Orders Numbers or references is the user’s responsibility and as such will not be accepted by Airship as a reason for non payment.

Subscriptions are billed 30 days prior to the subscription period commencing. Where for any reason the subscription invoice is raised where there is less than 30 days to the start of the subscription period then the invoice must be paid prior to the commencement of services.

CHANGE CONTROL

The Customer's Project Manager and Airship's Account Manager shall meet as set out in the order form to discuss matters relating to this agreement. If either party wishes to change the scope of the Services (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.

If either party requests a change to the scope or execution of the Services, Airship shall, within a reasonable time, provide a written estimate to the Customer of:

the likely time required to implement the change;

any variations to the Fees arising from the change;

the likely effect of the change on the Services; and

any other impact of the change on the terms of this agreement.

If Airship requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it. For the avoidance of doubt all charges required by Airship due to legislation changes or increased costs due to circumstances beyond the control of Airship may not be withheld or delayed by the Customer and shall be incorporated as variations to this Agreement.

If the Customer wishes Airship to proceed with a change, Airship has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its fees, the Services and any other relevant terms of this agreement to take account of the change.

PROPRIETARY RIGHTS

The Customer acknowledges and agrees that Airship and/or its licensors own all intellectual property rights in the Software and Services. Except as expressly stated herein, this Agreement does not grant the Customer or its Authorised Users any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

Airship confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

CONFIDENTIALITY

Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:

is or becomes publicly known other than through any act or omission of the receiving party; or

was in the other party's lawful possession before the disclosure; or

is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

is independently developed by the receiving party, which independent development can be shown by written evidence; or

is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute Airship's Confidential Information.

Airship acknowledges that the Customer Data is Confidential Information of the Customer and warrants to the Customer that it shall comply at all times with any applicable legislation in connection with the collection and