TERMS AND CONDITIONS
This agreement applies as between you the Lead Proprietor on your own behalf and on behalf of the other Proprietors, the Users of this Application and NOVOVILLE LIMITED a company incorporated in England (Registered Number 10313940) and having its registered office at 46 Aldgate High Street, Suite 20, London, England, EC3N 1AL trading as [Novoville Shared Repairs], the owner(s) of this Application. Your agreement to comply with and be bound by these Terms and Conditions is deemed to occur upon your first use of the Application. If you do not agree to be bound by these Terms and Conditions, you should stop using the Application immediately.
You must be at least 18 years old to use this Application, if you are not 18 years old then you should stop using the Application immediately.
No part of this Application is intended to constitute a contractual offer capable of acceptance. Contracts are created in accordance with Clause 17 below.
1. Definitions and Interpretation
In this Agreement the following terms shall have the following meanings:
“Account” means collectively the personal/business information, Payment Information and credentials (username and password) used by Users to access the Services;
“Act” means the Tenements (Scotland) Act 2004 and any extension, variation, modification or re-enactment thereof;
“Application” means this Shared Repairs app which you are using owned by Novoville;
“Building” means a multi occupancy block or tenement containing Units and Common Parts (please note that the Application does not work with terraced and semi- detached houses);
“Building Profile” means the details of a Building uploaded to the Platform by a Lead Proprietor, which is the subject of a User Site;
“Common Part(s)” means a part or parts of a Building that is used in common by the Proprietors such as (by way of example only (title deeds may specify otherwise) the roof, foundations, external and load bearing walls, stair wells and stairs, cupula, guttering and downpipes, drainage and sewerage systems, mains water and gas supplies, entrance halls and vestibules, garden ground, entry plats and stairs and all other such common items as more particularly defined in the Tenement Management Scheme as defined in the Act;
“Confidential Information” means any information that is proprietary or confidential which either Party directly or indirectly discloses, or makes available, to the other, including but not limited to, the existence and terms of this Agreement, all confidential or proprietary information relating to the business, affairs, operations, processes, product information, know-how, technical information, designs, trade secrets or software and/or Intellectual Property of the Party disclosing such information;
“Content” means any text, graphics, images, audio, video, software, data compilations including, but not limited to, text, graphics, logos, icons, sound clips, video clips, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of the Subscription Services or the Platform; BUT excluding User Content;
“Database” means the database stored on the Platform which contains inter alia User Data;
“Data Controller”, “Data Processor” and “Personal Data” “processing”, and “data subject” shall have the meanings ascribed to them in the GDPR;
“Documentation” means User documentation including (but not restricted to) guidelines, instructions and operating manuals (including instructional videos) provided electronically by Us for use with the Services, as periodically updated;
“End User” any Proprietor (other than the Lead Proprietor) or third party authorised or applying to use a User Site;
“End User Data” means data uploaded to a User Site by an End User;
“End User Terms” means the terms specified in Clause 10;
“GDPR” means Regulation (EU) 2016/679 and as it subsequently forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and known as the UK GDPR;
“Fees” means the charges made for providing the Services as advertised by Us from time to time;
“ICO” means the UK’s supervisory authority, the Information Commissioner’s Office;
“Improvement” means work that goes beyond merely keeping any Common Part in efficient operating repair and condition and instead enhances its value, or introduces an adaptation, enlarges, expands or extends same or introduces an enhancement to the Common Parts or any part thereof;
“Intellectual Property” means patents, trademarks, trade name, service mark, copyright, trade secrets, know-how, process, technology, development tool, ideas, concepts, design right, domain names, moral right, database right, methodology, algorithm and invention, and any other proprietary information (whether registered, unregistered, pending or applied for);
“Lead Proprietor” means you on your own and on behalf of the other Proprietors;
“Modulr” means Modulr Finance Limited, a company registered in England and Wales under company number 09897957, whose registered office is at 1 Hammersmith Broadway, London, W6 9DL;
“Novoville” means the said Novoville Limited;
“Operating Account” means a bank or e money account in which funds for Repairs or Improvements are placed in terms of the Application in the name of the Lead Proprietor or other nominated Proprietor(s) with Modulr (or such other banking or e money provider as Novoville nominates from time to time) or with another bank or e money provider chosen by the Proprietors;
“Party” means either you or Novoville as the case may be and “Parties” shall mean both you and Novoville;
“Payment Information” means any details required for the purchase of Services from this Application. This includes, but is not limited to, credit / debit card numbers, bank account numbers and sort codes;
“Personal Data” has the meaning ascribed to it in the GDPR;
“Platform” means the hardware and software environment in which the Services operate, which comprises one or more server computers (whether virtual or not), mirroring/duplicating/back-up and storage systems and relative hardware operating software, virtual machine software (where relevant), operating system software, database software, anti-virus and security software, switches, power supplies and telecommunications infrastructure;
“Proprietor” means the owner of a Unit;
“Premises” means our place(s) of business located at 46 Aldgate High Street, Suite 20, London, England, EC3N 1AL;
“Privacy Legislation” means the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) the Data Protection Act 2018, any legislation which succeeds that Act, the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (the “UK GDPR”), as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner (as amended, incorporated into United Kingdom Law or replaced from time to time);
“Purchase Information” means collectively any orders, invoices, receipts or similar that may be in hard copy or electronic form;
“Repair” means works to effect redecoration or repair or maintenance to a Common Part including provision of equivalent replacements with incidental improvements only;
“Scheme” means a Tenement Management Scheme as defined in Schedule 1 to the Act, i.e., all parties liable to share the cost of a Repair as specified in the Title Deeds or Tenement Management Scheme, where applicable;
“Service(s)” means collectively any online facilities, tools, services or information including Systems, that Novoville makes available through the Application and the Platform either now or in the future;
“Sub-Processing Agreement” means an agreement between Novoville and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor, as described in Clause 23.23;
“Sub-Processor” means a sub-processor appointed by Novoville to process the Personal Data;
“System” means any online communications infrastructure that Novoville makes available through the Application and/or the Platform either now or in the future and whether administered by Novoville or by a third party. This includes, the Services and also, but is not limited to, web-based email, message boards, live chat facilities and email links;
“Title Deeds” means the title deeds to all of the Units whether these are Land Certificates and/or Sasine writs;
“Trader” means a tradesperson or company such as a firm of plumbers, electricians or builders;
“Trusted Trader” means a Trader that is registered under the Trusted Trader Scheme;
“Trusted Trader Scheme” means the Trader approval scheme owned by Scotland Trusted Trader which is a trading name of Trusted Trader operated by Trusted Directory Services Ltd, incorporated in England, No. 09173565 whose registered office is at Minerva Mill Innovation Centre, Station Road, Alcester, Warwickshire, B49 5ET under license from the City of Edinburgh Council;
“Unit” means a flat or apartment or other part of a Building designed to be under separate ownership from the other parts of the Building;
“User” / “Users” means you the Lead Proprietor and all other Proprietors/End Users and any authorised third party that accesses the Services and is not employed by Novoville and acting in the course of their employment;
“User Content” means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on, is uploaded to or forms part of a User Site or the Services and has been uploaded by a User or an End User;
“User Data” means data created via a User Site and stored in the Database which shall include End User Data;
“User Site” means a Building Profile created by a Lead Proprietor using the Services which shall contain User Content and shall be hosted on the Platform;
“We/Us/Our” means Novoville;
2. Purpose of the Services
2.1 The purpose of using the Services is to provide Proprietors with a convenient framework within which to carry out and pay for Repairs and/or Improvements in accordance the Title Deeds or if relevant terms of the Act;
2.2 Please click here : https://www.legislation.gov.uk/asp/2004/11/contents to read the Act.
2.3 You must first check the Title Deeds to establish whether the Title Deeds contain the necessary detail to create your Scheme for a Repair or carry out an improvement, or whether you need to rely on the terms of the Act as appropriate. It is your responsibility to adhere to the requirements of the relevant Title Deeds or where relevant the Act at all times. Failure to do so may make your Scheme unenforceable and ineffective as regards a Repair and difficult to recover all shares of the cost of an Improvement. Without prejudice to the terms of Clause 24, Novoville shall have no liability whatsoever if your Scheme fails due to your non adherence to the terms of either the Title Deeds or the Act as appropriate.
2.4 The Application can be used for Improvements. The same provisions of these Terms and Conditions apply to Improvements as Repairs; however it should be noted that Improvements cannot constitute a Scheme in terms of the Act and recovery of shares of the cost of Improvements may be more difficult to recover from non-paying/defaulting Proprietors may be more difficult than for a Repair. Please see guidance here: http://www.underoneroof.scot/articles/1056/Whose_agreement_do_we_need_/Maintenance_or_Improvement
2.5 The Services require you to provide information. In order for your Scheme to be successful, you must ensure that all information and User Content provided is accurate, and truthful. Misleading and inaccurate information and answers will increase the chance of your Scheme failing. Please be honest and thorough and do not withhold relevant information.
2.6 For your Scheme to be successful, or to carry out a Repair successfully you will need a sufficient amount of Proprietors or their authorised representatives to vote in favour of Repair or Improvement (as the case may be) as may be determined by the Title Deeds or the Act (see 2.3 and 2.4), once you have created your User Site and your Account in the Application – see the article titled “How does voting work in this app?” in the Help section.
2.7 You must notify owners of the steps you are taking with regard to procuring quotes for Repairs or Improvements from Traders, and give all Proprietors an opportunity to vote on whether to accept a quote. The Application provides you with templates to notify Proprietors of the steps you are taking, and allows you to record the votes of all Proprietors. We accept no responsibility for failure to achieve a successful Scheme or any inability to recover shares of the cost of either a Repair or Improvement should you fail to follow the terms of the Act or the Title Deeds.
3. Business Customers Only
These Terms and Conditions apply to business Users and non-business Users. If you are a non-business User please consult the consumers’ legal rights detailed in Clauses 17.5, 21.6 and 21.8.
4. Intellectual Property
4.1 All Content included on the Application, including any material contained within User Sites that is not User Content, including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software and the Database is the property of Novoville, or Our affiliates. By continuing to use the Application you acknowledge that such material is protected by applicable United Kingdom and international intellectual property and other laws.
4.2 You may print, reproduce, copy, distribute, store or in any other fashion re-use Content from the Application as specified in Clause 6 of these Terms and Conditions and for personal or educational purposes only unless otherwise indicated on the Application or unless given Our express written permission to do so. Specifically, you agree that:
4.2.1 You will not systematically copy Content from the Application with a view to creating or compiling any form of comprehensive collection, compilation, directory or database unless given Our express written permission to do so.
5. User Site Intellectual Property
5.1 The intellectual property rights subsisting in the User Content of User Sites belong to the Users to which that/those User Site(s) belong(s) unless it is expressly stated otherwise.
5.2 Where expressly indicated, certain Content available through User Sites and the intellectual property rights subsisting therein belongs to other parties.
5.3 The Content described in this Clause 5, unless expressly stated to be so, is not covered by any permission granted by Clause 4 to use Content from the Application. The exceptions in Clause 6 continue to apply.
5.4 For the avoidance of doubt, the Database shall not be considered User Content.
5.5 Subject to the terms of this Clause 5 Novoville shall only be entitled to use User Content strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, Novoville:
5.5.1 may observe and report back to Users on the User’s usage of the Application, and make recommendations for improved usage of the Application; and,
5.5.2 may identify trends and publish reports on its findings from data aggregated from User Sites provided such reports do not identify the User and otherwise anonymise the data and comply with the terms of Clause 29 (Confidentiality);
6. Fair Use of Intellectual Property
Material from the Application may be re-used without written permission where any of the exceptions detailed in Chapter III of the Copyright Designs and Patents Act 1988 apply.
7. Third Party Intellectual Property
7.1 Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, Copyright and Trademarks, in Content belong to the manufacturers or distributors of such products as may be applicable.
7.2 Subject to Clauses 4 and 6, you may not reproduce, copy, distribute, store or in any other fashion re-use such Content unless otherwise indicated on the Application or unless given express written permission to do so by the relevant manufacturer or supplier.
8. Links to Other Websites
This Application may contain links to other sites. Unless expressly stated, these sites are not under the control of Novoville or that of our affiliates. We assume no responsibility for the content of such websites and disclaim liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another site on this Application does not imply any endorsement of the sites themselves or of those in control of them.
9. User Sites
9.1 When creating a User Site using the Services, you should do so in accordance with the following rules:
9.1.1 You must not use obscene or vulgar language;
9.1.2 Your User Site may not contain any material that is unlawful or otherwise objectionable (including that which may be in breach of rules, regulations or legislation in force in the United Kingdom or any other jurisdiction in which your User Site can be lawfully accessed. This does not extend to material which may be automatically blocked in certain jurisdictions but that is lawful in your home country);
9.1.3 Your User Site may not contain any material that is intended to promote or incite violence, terrorism or any other unlawful conduct against any group, individual or animal;
9.1.4 Your User Site must be honest and fair, should not make any unsubstantiated or unsupportable claims;
9.1.5 Your User Site must not be used to sell or offer for sale any item, goods or services;
9.1.6 Your User Site may not infringe the intellectual property rights of any third party including, but not limited to, copyright, trademarks, patents and designs;
9.1.7 Your User Site may not contain links to other websites or applications containing any of the above types of material;
9.1.8 Your User Site may not contain any material that may contain viruses or other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
9.1.9 Your User Site may not be used for unauthorised mass-communications such as “spam” or “junk mail”;
9.1.10 Your User Site may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Service (including, but not limited to, your User Site);
9.1.11 You may not use your User Site to impersonate any person or entity including, but not limited to, any employee, agent or sub-contractor of Novoville or any of our affiliates;
9.1.12 You may not use your User Site for phishing purposes;
9.1.13 You may not use your User Site for the purpose of uploading files solely to have them hosted by Novoville; and
9.1.14 Your User Site may not contain any material that is adult in nature including, but not limited to, that which is pornographic or otherwise of a sexual nature.
9.1.15 Your User Site must not be used to intimidate, harass or bully any individual.
9.2 Novoville does not screen or pre-approve any User Site or User Content submitted for publication (although you acknowledge that Novoville may do so if it wishes), however on notification from Users or third parties, We may examine User Sites and such User Sites may be edited and/or taken down.
9.3 Novoville may edit your User Site to comply with the provisions of sub-Clause 9.1 without prior consultation. In cases of severe breaches of the provisions of sub-Clause 9.1 and 9.2, your User Site may be taken down and your Account may be suspended or terminated. You will not be informed in writing of the reasons for such alterations or take downs.
9.4 By creating and/or submitting User Content to a User Site you warrant and represent that you are the author of the User Content on that User Site or that you have acquired all of the appropriate rights and / or permissions to use it. We accept no responsibility or liability for any infringement of third party rights by User Sites.
9.5 If the Services include support, then Novoville will have administration access to the User Site in order to carry out certain elements of support. The terms of Clauses 23 and 29 shall apply to Novoville’s access to the User Site in relation to such administration access.
9.6 Novoville will not be liable in any way or under any circumstances for any loss or damage that you or any other User may incur as a result of such User Sites, or Novoville exercising its rights under these Terms and Conditions, nor for any errors or omissions in User Sites. Use of and reliance upon User Sites is entirely at your own risk.
9.7 You acknowledge that We may retain copies of any and all communications, information, User Content and User Sites sent to Us or submitted for publication.
10. End User Terms and Relationship between Proprietors
10.1 All End Users will be required to agree to the End User Terms when creating an Account before they can use the Services. The End User terms can be found here https://novoville.com/sharedrepairs_eula.
10.2 With regard to the other Proprietors, you undertake as follows:
10.2.1 You acknowledge as Lead Proprietor that you are appointed by the other Proprietors to enter into specific contracts on behalf of the other Proprietors (such as contracts with Traders and Modulr) and to operate bank accounts where appointed to do so all in terms of this Agreement and the terms of the relevant Trader Contracts, banking regulations and Modulr’s terms and conditions (if appropriate). You undertake to act with utmost good faith at all times and in the interests of the Proprietors, having due regard to economy. You have a duty of care to the Proprietors.
10.2.2 to follow the decisions of the majority of Proprietors under the Scheme or the title deeds per the voting process explained in “How does voting work in this app?” in the Help Section of the Application, and other related articles.
10.2.3 to pay your respective share of the cost of the Repairs or Improvements.
10.2.4 to adhere to the Terms and Conditions.
10.2.5 to vote when required and not abstain.
10.2.6 to appoint a proxy or attorney when absent or otherwise unable to vote.
10.2.7 to do all things reasonably necessary to allow a Repair or Improvement to be carried out, including, for example providing necessary access to your Unit or Units.
10.2.8 to comply with the Terms and Conditions of any Trader Contract.
10.2.9 If you cease to be Lead Proprietor but are still a Proprietor, then the terms of the End User Terms will apply to you.
11. Accounts and Fees
11.1 In order to procure some of the Services available via this Application and/or the Platform and to use the Systems, forums/chat or similar facilities you may be required to create an Account which will contain certain personal/business details and in some cases Payment Information which may vary based upon your use of the Application and/or the Platform as we may not require Payment Information until you wish to make a purchase or if you have created an Operating Account. By continuing to use this Application and/or the Platform you represent and warrant that:
11.1.1 all information you submit is accurate and truthful;
11.1.2 you have permission to submit Payment Information where permission may be required; and
11.1.3 you will keep this information accurate and up-to-date.
Your creation of an Account is further affirmation of your representation and warranty.
11.2 It is recommended that you do not share your Account details, particularly your username and password. Novoville accepts no liability for any losses or damages incurred as a result of your Account details being shared by you. If you use a shared computer, it is recommended that you do not save your Account details in your internet browser.
11.3 If you have reason to believe that your Account details have been obtained by another without consent, you should contact Novoville immediately to suspend your Account and cancel any unauthorised orders or payments that may be pending. Please be aware that orders or payments can only be cancelled up until provision of Services has commenced. In the event that an unauthorised provision commences prior to your notifying us of the unauthorised nature of the order or payment, Novoville will suspend provision of Services and the withdrawal of any scheduled payments pending investigation. Following investigation, it shall be determined whether or not to cancel the Services and make a full or partial refund of the payment.
11.4 When choosing your username you are required to adhere to the terms set out above in Clause 9. Any failure to do so could result in the suspension and/or deletion of your Account.
11.5 Some features of the Service require payment of Fees. Fees are detailed in the Application and will be made clear to you as you use the Application. If you don’t accept the Fees, you should stop using the Application.
12. Modulr Account
12.1 When using the Services you will have the option to instruct us to assist you in creating an account with Modulr as an Operating Account. If you set up an account with Modulr, the contract for using the Modulr account will be between you and Modulr. We have certain responsibilities with regard to support, maintenance and reporting in relation to your Modulr Account as set out in Modulr’s terms of business can be found here https://novoville.com/sharedrepairs_icc. Except as stated otherwise in Modulr’s terms of business, We shall have no liability whatsoever to you with regard to any contract between you and Modulr. It is your responsibility to comply with the terms of Modulr’s contract. By using Modulr’s services, this does not mean that we make any recommendation or endorsement of Modulr or its products. It is for you to decide whether Modulr’s terms are acceptable to you and you agree that you enter into a contract with Modulr at your own risk.
12.2 Any dispute you have with Modulr will be between you and Modulr. We shall not be a party to any dispute.
12.3 If you do not wish to enter into a contract with Modulr, you may use your own bank account, please see guidance here regarding using your own bank account. Please see guidance here: http://www.underoneroof.scot/articles/1110
13.1 The Services will direct you the Trusted Trader Scheme website to assist the Proprietors in obtaining quotes from Trusted Traders for their Scheme.
13.2 You are not bound to instruct Trusted Traders. You are free to choose your own Traders.
13.3 If you instruct a Trader, We will be paid a small Fee to cover the provision of the Services. This Fee will be automatically debited from your Modulr Account when paying the Trader, or charged to the Trader when payment of the Trader is made from a non-Modulr Operating Account.
13.4 Any contract you have with a Trader will be between you and that Trader. We shall have no liability whatsoever to you with regard to any contract between you and a Trader. It is your responsibility to comply with the terms of each Trader’s contract. Failure to comply with a Trader’s contract may have financial and other consequences for you and the Proprietors.
13.5 Any dispute between you and a Trusted Trader will be determined in accordance with the Trusted Trader dispute resolution provisions which are available here https://www.trustedtrader.scot/Edinburgh/code-of-practice#8. We shall not be involved in any such dispute. By using Trusted Trader’s services, this does not mean that we make any recommendation or endorsement of Trusted Trader or any particular Trader.
13.6 Any dispute between you and a Trader that is not a Trusted Trader will be determined in accordance with the dispute resolution provisions contained in that contract. We shall not be involved in any such dispute.
13.7 You hereby indemnify us and hold us harmless against any claim, action, loss or demand incurred by us arising from your entering into a contract or contracts with a Trader.
14. Termination and Cancellation
14.1 If Novoville terminates your Account, you will be notified by email and an explanation for the termination may be provided. Notwithstanding the foregoing, we reserve the right to terminate without giving reasons.
14.2 If Novoville terminates your Account, any current or pending orders or payments on your Account may be cancelled and provision of Services will not commence.
14.3 Novoville reserves the right to cancel orders or payments without stating reasons, for any reason prior to processing payment or commencing Services provision.
14.4 If orders or payments are cancelled for any reason other than due to your breach of these Terms and Conditions, prior to commencement of Services provision you will be refunded any monies paid in relation to those purchases.
15.1 Interest will be charged on all outstanding sums on a daily basis, at 5% above the base rate of the Bank of England applying at the time.
16. Services, Pricing and Availability
16.1 Whilst every effort has been made to ensure that all descriptions of Services available from Novoville correspond to the actual Services, Novoville is not responsible for any variations from these descriptions. This does not exclude our liability for mistakes due to negligence on our part and refers only to variations of the correct Services, not different Services altogether.
16.2 Where appropriate, you may be required to select the required package Services.
16.3 Novoville does not represent or warrant that such Services will be available. Availability indications are not provided on the Application.
16.4 All pricing information on the Application is correct at the time of going online. Novoville reserves the right to change prices and alter or remove any special offers from time to time and as necessary.
16.5 In the event that prices are changed during the period between an order being placed for Services and Novoville processing that order and taking payment, provision of Services shall commence as per your order and you will be charged the original price.
16.6 Novoville charges VAT on its Fees and VAT is clearly labelled and itemised on the Novoville app. Novoville’s VAT number is: 283614101.
17. The Contract
17.2 Confirmation emails under sub-Clause 17.1 shall contain the following information:
17.2.1 Confirmation of the Services and features ordered including full details of the main characteristics of those features;
17.2.2 Where appropriate, fully itemised pricing for the Services ordered including, where appropriate, taxes and any other additional charges;
17.2.3 A confirmation of your express request that the Services are made available to you immediately and that this will constitute a waiver of your statutory right to cancel as detailed below in sub-Clause 17.5;
17.3 We reserve the right to change Fees from time to time:
17.3.1 increases in price will be reflected in Fees; and
17.3.2 decreases in price will not be reflected in Fees.
17.4 Services will be made available to you immediately upon Our confirmation of your signing up. When completing the order process you will be required to expressly acknowledge that you wish the Services to be made available immediately. You will also be required to expressly acknowledge that by doing so, you will lose your statutory right (if any) to cancel your contract with Novoville as detailed below in sub-Clause 17.5.
17.5 If you are a consumer based in the European Union, you have a statutory right to a “cooling-off” period with respect to the purchase of certain goods and services. This period, if applicable, begins once the contract between the seller and you, the buyer, is formed and ends at the end of 14 calendar days after that date. Under normal circumstances, some features requiring the payment of Fees on this Application are made available immediately upon Our confirmation of your order for them. As set out in sub-Clause 17.4, by expressly requesting this, you waive your right to the cooling-off period and may not cancel the contract merely because you have changed your mind.
17.6 If you terminate a User Site and/or your Account, your User Site(s) will be taken down immediately and you will be billed for any Fee payable.
17.7 All payments for Fees due under these Terms and Conditions must be made using a valid debit or credit card via Our chosen payment partner. Payments are subject to Our chosen payment partner’s own terms and conditions of service and We make no representations or warranties with respect to their services.
18. Termination and/or Suspension
18.1 In the event that any of the provisions of sub-Clause 9.1, above, are not followed, We reserve the right to suspend or terminate your access to the Service(s). Any Users banned in this way must not attempt to use the Application under any other name or by using the access credentials of another User, with or without the permission of that User.
18.2 If We terminate or suspend your Account as a result of your breach of these Terms and Conditions, you will not be entitled to any refund.
19. Provision of Services
19.1 Provision of Services shall commence when a confirmation email has been sent to you or as otherwise detailed in the Terms & Conditions pertaining directly to those Services.
19.2 Provision of all Services shall be subject to the Terms and Conditions pertaining directly to those Services.
19.3 Novoville reserves the right to exercise discretion with respect to any alterations to Services under the provisions of this Clause 19. Factors which may be taken into account in the exercise of this discretion include, but are not limited to:
19.3.1 Any use or enjoyment that you may have already derived from the Services;
19.3.2 Any characteristics of the Services which may mean that cessation of provision is impossible without significant further work on the part and at the expense of Novoville.
Such discretion to be exercised only within the confines of the law.
20.2 Users must comply with the terms of the Privacy Legislation at all times. Without prejudice to the foregoing, The User hereby warrants, represents, and undertakes that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.
21. Legal Rights and Disclaimers
21.1 We make no warranty or representation that the Application or the Service will be compatible with all systems, or that it will be secure.
21.2 Save for the discretionary screening and approval of User Sites as detailed in Clause 9, We have neither control over, nor involvement in, any User Sites or User Content and accept no responsibility for any actions taken, or any goods or services provided, by any Users.
21.3 Whilst reasonable endeavours have been made to ensure that all information provided on this Application will be accurate and up to date, We make no warranty or representation that this is the case. We make no guarantee of any specific results from the use of our services.
21.4 No part of this Application is intended to constitute advice and the Content of this Application should not be relied upon when making any decisions or taking any action of any kind.
21.5 We make no representation or warranty that any part of this Application is suitable for use in commercial situations or that it constitutes accurate data and / or advice on which business decisions can be based.
21.6 When providing digital content to consumers, We are required to provide digital content that is of satisfactory quality, fit for any purpose made known to us (whether expressly or impliedly), and in accordance with any descriptions (and pre-contract information) given by Us. This includes any digital content we may subsequently modify. If We fail to comply with Our legal obligations, consumers may be entitled to certain legal remedies including repair or replacement or price reductions. For full details of consumers’ legal rights, including those relating to digital content, please contact your local Citizens Advice Bureau or Trading Standards Office.
21.7 Whilst We exercise all reasonable skill and care to ensure that the Application is secure and free of errors, viruses and other malware, you are strongly advised to take responsibility for your own internet security, that of your personal details and your computers.
21.8 If, as a result of Our failure to exercise reasonable care and skill, any digital content from Our Site damages your device or other digital content belonging to you, you may be entitled to certain legal remedies. For more details concerning your rights and remedies as a consumer, please contact your local Citizens Advice Bureau or Trading Standards Office.
21.9 You must read/watch the Documentation carefully and adhere to it. We shall have no liability for any occurrence caused by your failure to adhere to the Documentation.
22. Availability of the Application and Modifications
22.1 We accept no liability for any disruption or non-availability of the Application resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and state-mandated censorship.
22.2 We reserve the right to alter, suspend or discontinue any part (or the whole of) the Application including, but not limited to, the Content available. Where anything you have paid for is made unavailable and you are entitled to a refund as a result, We will inform you of the refund due and it will be paid within 14 days using the same method originally used by you. These Terms and Conditions shall continue to apply to any modified version of the Application unless it is expressly stated otherwise.
23. Data Processing
23.1 The provisions of this Agreement shall apply to the processing of the Personal Data described carried out for you by Novoville, and to all Personal Data held by Novoville in relation to all such processing whether such Personal Data is held at the date of this Agreement or received afterwards.
23.2 This Agreement shall continue in full force and effect for so long as Novoville is processing Personal Data on behalf of you, and thereafter as provided in Clause 23.3.
23.3 Novoville is only to process the Personal Data received from you:
23.3.1 for the purposes of this Agreement and not for any other purpose;
23.3.2 to the extent and in such a manner as is necessary for those purposes; and
23.3.3 strictly in accordance with the Agreement or otherwise with the express written authorisation and instructions of you (which may be specific instructions or instructions of a general nature or as otherwise notified by you to Novoville).
23.4 All instructions given by you to Novoville shall be made in writing and shall at all times be in compliance with the Privacy Legislation. Novoville shall act only on such written instructions from you unless Novoville is required by law to do otherwise.
23.5 Novoville shall promptly comply with any request from you requiring Novoville to amend, transfer, delete, or otherwise dispose of the Personal Data.
23.6 Novoville shall transfer all Personal Data to you on your request in the formats, at the times, and in compliance with your written instructions.
23.7 Both Parties shall comply at all times with the Privacy Legislation and shall not perform their obligations under this Agreement or any other agreement or arrangement between themselves in such way as to cause either Party to breach any of its applicable obligations under the Privacy Legislation.
23.8 You hereby warrant, represent , and undertake that the Personal Data shall comply with the GDPR in all respects including, but not limited to, its collection, holding, and processing.
23.9 Novoville agrees to comply with any reasonable measures required by you to ensure that its obligations under this Agreement are satisfactorily performed in accordance with any and the Privacy Legislation (including, but not limited to, the GDPR) and any best practice guidance issued by the ICO.
23.10 Novoville shall provide all reasonable assistance (at your cost) to you in complying with its obligations under the GDPR with respect to the security of processing, the notification of personal data breaches, the conduct of data protection impact assessments, and in dealings with the ICO.
23.11 When processing the Personal Data on your behalf, Novoville shall:
23.11.1 not transfer any of the Personal Data to any third party without the written consent of you and, in the event of such consent, the Personal Data shall be transferred strictly subject to the terms of a suitable agreement, as set out in sub-Clause 23.24;
23.11.2 process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to you or as may be required by law (in which case, Novoville shall inform you of the legal requirement in question before processing the Personal Data for that purpose unless prohibited from doing so by law);
23.11.3 implement appropriate technical and organisational measures and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure. Novoville shall inform you in advance of any changes to such measures;
23.11.4 shall make available to you any and all such information as is reasonably required and necessary to demonstrate Novoville’s compliance with the GDPR; and
23.11.5 inform you immediately if it is asked to do anything that infringes the GDPR or any other applicable data protection legislation.
23.12 Novoville shall, at your cost, assist you in complying with its obligations under the GDPR. In particular, the following shall apply to data subject access requests, complaints, and data breaches.
23.13 Novoville shall notify you without undue delay if it receives:
23.13.1 a subject access request from a data subject; or
23.13.2 any other complaint or request relating to the processing of the Personal Data.
23.14 Novoville shall, at your cost, cooperate fully with you and assist as required in relation to any subject access request, complaint, or other request, including by:
23.14.1 providing you with full details of the complaint or request;
23.14.2 providing the necessary information and assistance in order to comply with a subject access request;
23.14.3 providing you with any Personal Data it holds in relation to a data subject (within the timescales required by you); and
23.14.4 providing you with any other information requested by you.
23.15 Novoville shall notify you immediately if it becomes aware of any form of Personal Data breach, including any unauthorised or unlawful processing, loss of, damage to, or destruction of any of the Personal Data.
23.16 You shall be liable for, and shall indemnify (and keep indemnified) Novoville in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, Novoville and any Sub-Processor arising directly or in connection with:
23.17 any non-compliance by you with the GDPR or other applicable legislation;
23.18 any Personal Data processing carried out by Novoville or Sub-Processor in accordance with instructions given by you that infringe the GDPR or other applicable legislation; or
23.19 any breach by you of your obligations under this Agreement,
except to the extent that Novoville or Sub-Processor is liable under sub-Clause 23.21.
23.20 Novoville shall be liable for, and shall indemnify (and keep indemnified) you in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, you arising directly or in connection with Novoville’s Personal Data processing activities that are subject to this Agreement:
23.20.1 only to the extent that the same results from Novoville’s or a Sub-Processor’s breach of this Agreement; and
23.20.2 not to the extent that the same is or are contributed to by any breach of this Agreement by you.
23.21 You shall not be entitled to claim back from Novoville or Sub-Processor any sums paid in compensation by you in respect of any damage to the extent that you are liable to indemnify Novoville or Sub-Processor under sub-Clause 23.17.
23.22 Nothing in this Agreement (and in particular, this Clause 23) shall relieve either Party of, or otherwise affect, the liability of either Party to any data subject, or for any other breach of that Party’s direct obligations under the GDPR. Furthermore, Novoville hereby acknowledges that it shall remain subject to the authority of the ICO and shall co-operate fully therewith, as required, and that failure to comply with its obligations as a data processor under the GDPR may render it subject to the fines, penalties, and compensation requirements set out in the GDPR.
23.23 In the event that Novoville appoints a Sub-Processor, Novoville shall:
23.23.1 enter into a Sub-Processing Agreement with the Sub-Processor which shall impose upon the Sub-Processor the same or similar obligations as are imposed upon Novoville by this Agreement; and
23.23.2 ensure that the Sub-Processor complies fully with its obligations under the Sub-Processing Agreement and the GDPR.
24. Limitation of Liability
24.1 To the fullest extent permissible by law, We accept no liability to any user for any loss or damage, whether foreseeable or otherwise, in contract, delict (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) the Application or the use of or reliance upon any content included on the Application including the Service and the Content.
24.2 To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to the Application or any content included on it.
24.3 If you are a commercial user, We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
24.4 We exercise all reasonable skill and care to ensure that the Application is free from viruses and other malware. We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of the Application (including the downloading of any content from it) or any other site referred to on the Application.
24.5 We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of the Application resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, Platform failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
24.6 Nothing in these Terms and Conditions excludes or restricts Our liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law. For full details of consumers’ legal rights, including those relating to digital content, please contact your local Citizens’ Advice Bureau or Trading Standards Office.
24.7 It is your responsibility to ensure that any Users and/or End Users that are under the legal age of majority in the territory in which the Services are being used, have the consent of that User or End User’s parent or guardian to use the Services including, but without prejudice to the foregoing, any payment terms and use of any System. We shall have no liability in this regard and you will indemnify us in respect of any liability incurred through your breach of this condition.
25. No Waiver
In the event that any party to these Terms and Conditions fails to exercise any right or remedy contained herein, this shall not be construed as a waiver of that right or remedy.
26. Previous Terms and Conditions
In the event of any conflict between these Terms and Conditions and any prior versions thereof, the provisions of these Terms and Conditions shall prevail unless it is expressly stated otherwise.
27. Third Party Rights
Nothing in these Terms and Conditions shall confer any rights upon any third party. The agreement created by these Terms and Conditions is between you and Novoville.
28.1 All notices / communications shall be given to Us either by post to Our premises at the address given above or by email to email@example.com. Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday.
28.2 We may from time to time, if you opt to receive it, send you information about Our products and/or services.
29.1 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 (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving Party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
29.2 Subject to clauses 29.4, each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party (other than to a consultant or a Sub-contractor for the purposes of this Agreement and which consultant or Sub-contractor shall have entered into undertakings of confidentiality in relation to the Confidential Information on terms no less onerous than those contained in this Clause 29), or use the other’s Confidential Information for any purpose other than to carry out its obligations under this Agreement.
29.3 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.
29.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of a competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 29.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
29.5 No Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
29.6 This clause 29 shall survive termination of this Agreement howsoever arising.
30. Law and Jurisdiction
30.1 These Terms and Conditions, and the relationship between you and Us (whether contractual or otherwise) shall be governed by and construed in accordance with Scots law.
30.2 If you are a consumer, any disputes concerning these Terms and Conditions, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of England, Wales, Scotland, or Northern Ireland, as determined by your residency.
30.3 If you are a business, any disputes concerning these Terms and Conditions, the relationship between you and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the Scottish courts.