Terms & Conditions
By using the disguise website, you agree to the following terms and conditions. Please read in full.
Last Updated: 17/08/2022
GENERAL TERMS AND CONDITIONS SALES OF GOODS
1. These “General Terms and Conditions of Sale” (“GTCS”) apply to all contracts of sale of goods between (i) Disguise Technologies Limited and, where applicable, any of its subsidiaries (together, “Disguise”) and (ii) the customer (“Customer”) other than in respect of goods and/or services purchased on Disguise’s website where such other terms shall apply as Disguise determines from time to time. No deviation from or amendment to the GTCS shall be binding on Disguise unless agreed in writing between Disguise and the Customer. Disguise and the Customer may also be referred to as a “Party” or collectively as the “Parties”. The term “goods” shall mean any goods ordered by the Customer from Disguise pursuant to the provision of the GTCS.
2. Any terms and conditions contained in or delivered with the Customer’s order or other document or any which are implied by trade, custom, practice or course of dealing shall not be binding, and the Customer waives any right, which it otherwise might have to rely on such terms and conditions.
QUOTATIONS, ORDERS AND ORDER CONFIRMATIONS
3. Disguise may provide a quotation to a Customer upon request and such quotation may be delivered to the Customer by email (“Quotation”). Quotations are only valid for 30 days from the date of the Quotation unless otherwise specified by Disguise from time to time. A Quotation shall not constitute an offer.
4. The Customer may place any order(s) by email to Disguise in respect of such Quotation in accordance with clause 3 and Disguise shall, if accepted by Disguise in accordance with clause 5, provide the goods to the Customer as per the details (including price) contained in such Quotation (save for manifest error) in accordance with the GTCS.
5. An order shall only be deemed accepted if Disguise’s Customer Management department issues written confirmation of the acceptance of such order(s) to the Customer within 15 business days of the date of receipt of such order(s) (“Order Acknowledgement”). The contract for the sale and purchase of the goods pursuant to the Order Acknowledgement shall only come into existence at the point when such Order Acknowledgement is issued by Disguise to the Customer.
6. If the terms and conditions in Disguise’s Order Acknowledgement deviate from the Customer’s order(s) and the Customer wants to reject such deviation(s), the Customer must notify Disguise’s Customer Management department in writing by email to that effect at the earlier of either of the following: (i) within 5 business days of the date of receipt of the Order Acknowledgement, and (ii) prior to the packaging date of the goods, failing which the Customer shall be deemed to have accepted the terms and conditions set out in the Order Acknowledgement.
DELIVERY, TRANSFER OF RISKS
7. The Order Acknowledgment shall state whether the method of delivery is “Collection” or “Delivery to Customer”, and the date or dates for delivery (the “Delivery Date(s)”).
8. Where the method of delivery is Collection:
a) the Customer or their nominated courier or agent shall collect the goods from the location or locations specified in the Order Acknowledgment (“Collection Location”) on the Delivery Date(s), or otherwise within three days of Disguise notifying the Customer that the goods are ready;
b) Delivery is completed on the completion of loading of the goods at the Collection Location, subject to clause 11.
9. Where the method of delivery is Delivery to Customer:
a) Disguise shall arrange for a carrier to deliver the goods to the location set out in the Order Acknowledgment or such other location as the parties may agree (the “Delivery Location”) on the Delivery Date(s);
b) The Customer is responsible for the costs of any carrier procured by Disguise;
c) Delivery is completed on the completion of unloading of the goods at the Delivery Location, subject to clause 11.
10. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Disguise shall not be liable for any delay in delivery of the goods that is caused by a Force Majeure Event (as defined in clause 49) or the Customer's failure to provide Disguise with adequate delivery instructions or any other instructions that are relevant to the supply of the goods.
11. If the Customer fails to take or accept delivery on the Delivery Date (“Customer Acceptance Failure”) then delivery is deemed to have occurred on the Delivery Date. The Customer shall be liable for payment, if applicable, for the cost of storage of these goods at Disguise’s warehouse or courier’s warehouse, and for any other reasonable costs or expenses, incurred by Disguise, due to the Customer Acceptance Failure, and Disguise reserves the right to sell the goods to a third party and to claim damages against the Customer for loss of profit and any costs incurred by the Customer Acceptance Failure.
12. Risk in the goods passes to the Customer as follows:
a) where the method of delivery is “Collection”, on completion of delivery.
b) where the method of delivery is “Delivery to the Customer”, at the point at which the goods are handed to the courier.
13. The Customer is responsible for, and must pay: (i) all costs relating to the goods from the time of deemed delivery in accordance with clause 8 or clause 9, as applicable; (ii) all duties taxes, levies and other customs charges, as well as the costs of carrying out any customs formalities payable upon import and/or export; and (iii) the reimbursement of all costs and charges incurred by Disguise in assisting the Customer to obtain any export licence or other official authorisation for the export of the goods.
14. If the goods are transported from Disguise’s warehouse by any carrier (whether organised by Disguise or the Customer), the Customer must, when the goods arrive at the destination, in order to get the goods released by the carrier sign the accompanying delivery note. If any goods are visibly damaged, the Customer must give details thereof on the delivery note and must file a claim with the carrier and with Disguise in writing via email to Disguise’s Customer Management department within 24 hours, failing which the Customer shall be deemed to have waived any rights which the Customer might have in respect of the damaged goods.
15. The Customer must thoroughly examine all goods immediately upon receipt for the purpose of ascertaining whether the goods are defective or inconsistent with the data in the Order Acknowledgement (the “Examination”). The Customer shall be deemed to have accepted the goods in respect of inconsistency with the specification in the Order Acknowledgement, which the Customer discovered or ought to have discovered during the Examination, if the Customer has not notified Disguise’s Customer Management department to the contrary in writing via email within 5 business days after delivery.
16. Should Disguise not be able to deliver by the Delivery Date, Disguise shall as soon as possible notify the Customer to that effect and at the same time state when delivery is expected to take place. If delivery is expected to take place more than, or has not taken place within, 14 business days after the Delivery Date, and the delay is caused by circumstances for which Disguise is responsible, the Customer shall be entitled to reject the goods by notifying Disguise’s Customer Management department to that effect in writing via email within 3 business days after receipt of Disguise’s notification or the expiration of the 14 business days, whichever comes first, failing which notification by the Customer, the Customer shall be deemed to have waived the right to reject the goods. Except as stated in this clause 16, the Customer is not entitled to raise any other claims in the event of delayed delivery, whether claims for damages based on contract/negligent acts/omissions or otherwise. Any liability for delay or failure to deliver to the Customer shall not exceed the cost of the goods to Disguise.
WARRANTY, PRODUCT LIABILITY
17. Subject to clauses 18-26, Disguise warrants the following:
a) All finished hardware goods manufactured by Disguise will be free from defects in materials and workmanship under normal use of the goods in the industry for a period of 24 months from the Delivery Date, whilst accessories, spare parts, and ‘b stock’ goods will be free from defects in materials and workmanship under normal use of the spare parts in the industry for a period of 12 months from the Delivery Date. Disguise warrants to be able to deliver spare parts only during the warranty terms of the finished goods stated in this clause 17.
b) All certified pre-owned goods will be free from defects in materials and workmanship under normal use of the goods in the industry for a period of 90 days from the Delivery Date.
c) Any software supplied by Disguise in connection with the goods (the “Software”) is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. The Customer agrees that outputs from the Software will not, under any circumstances, be considered legal or professional advice and are not meant to replace the experience and sound professional judgment of professional advisors in full knowledge of the circumstances and details of any matter on which advice is sought.
18. (a) All finished hardware goods classed as “media servers” will be fitted with a tamper proof label. The removal of this label without express permission from the Disguise Technical Support and Service department will render the warranty null and void. (b) Any warranty claim by Customer based on any defect in finished goods or spare parts, which defect the Customer discovered or ought to have discovered during the Examination, shall be notified in writing via email to Disguise within 5 business days after the delivery time as stated in the Order Acknowledgement or, where the defect could not reasonably have been discovered during the Examination within 7 business days after manifestation of the defect, failing which the Customer shall be deemed to have accepted the finished goods or spare parts as non-defective. Warranty claims notified by the Customer to Disguise after the expiration of the warranty terms stated in in the GTCS are not accepted.
19. Where any valid warranty claim is notified to Disguise in accordance with the terms of clause 18 and approved by Disguise in writing (which approval shall not be unreasonably withheld), Disguise shall be entitled to fulfill its warranty obligations as follows: (i) If the Customer can be reasonably expected to be able to repair the defect, if necessary with support from Disguise’s Technical Support and Service department, Disguise may fulfill its warranty obligations by sending the necessary replacement parts to Customer free of charge along with a replacement tamperproof label; (ii) If the Customer cannot reasonably be expected to be able to repair the defect, Disguise shall repair or replace and add a new tamperproof label to the defective finished goods or spare parts, subject to the Customer (a) assigning to Disguise all property rights to such redundant finished goods or spare parts and (b) complying, if applicable, with any reasonable request by Disguise for the Customer to return the goods and/or parts in question to Disguise. Any replacement goods or spare parts will be a) equivalent or substantially similar to the finished goods or spare parts and b) new, equivalent to new or re-conditioned; or (iii) If none of the foregoing remedies are commercially viable in Disguise’s sole judgment, Disguise may opt instead to refund to Customer the net purchase price paid by Customer for the defective finished goods or spare parts less reasonable depreciation of the value due to use or age, subject to the Customer assigning to Disguise all property rights to such finished goods or spare parts. The Customer shall have no right to use, modify or sell any redundant finished goods or spare parts that have been replaced (“Redundant Item”). The Customer shall communicate with Disguise’s Customer Management to seek direction as to how to deal with any such Redundant Item within 10 business days of the Redundant Item being replaced. The Customer shall at the direction of Disguise either (i) return to Disguise any Redundant Item; or (ii) or destroy the same. The Customer shall not return such Redundant Item to Disguise, unless Disguise has authorised the return in writing. The Customer shall assume responsibility (including all costs and expenses) for shipment, freight and adequate freight insurance back to a Disguise certified service centre. Disguise shall only assume responsibility for shipment and expense for freight and freight insurance back to the customers registered address in country of origin of the warranty claim, unless the warranty claim is not valid in Disguise’s reasonable judgment and Customer shall assume all responsibility and expense for dismantling, removal, re-installation and duties in connection with the foregoing. Repair or replacement under the warranties contained herein does not interrupt or extend the warranty terms stated in clause 17.
20. The warranties contained herein shall not extend to any finished goods or spare parts from which any serial number has been removed or which have been damaged or rendered defective (a) as a result of normal wear and tear, willful or accidental damage, negligence, misuse or abuse; (b) due to water or moisture, lightning, windstorm, abnormal voltage, harmonic distortion, dust, dirt, corrosion or other external causes; (c) by operation outside the specifications contained in the user documentation; (d) by the use of spare parts not manufactured or sold by Disguise or by the connection or integration of other equipment or software not approved by Disguise unless the Customer provides acceptable proof to Disguise that the defect or damage was not caused by the above; (e) by modification, repair or service by anyone other than Disguise, who has not applied for and been approved by Disguise to do such modification, repair or service unless the Customer provides acceptable proof to Disguise that the defect or damage was not caused by the above; (f) due to procedures, deviating from procedures specified by Disguise; or (g) due to failure to store, move, transport, install, test, commission, maintain, operate or use finished goods or spare parts in accordance with Disguise’s instructions and training, in a safe and reasonable manner or in a manner that does not provide at least the degree of protection afforded by Disguise branded storage, transportation and installation equipment, including but not limited to transportation cases and folding transportable rigs, in terms of shock absorption and protection from vibration for the product and all its components, impact protection, ingress protection, protection from unfavorable environmental conditions, thermal insulation and strength. All approvals and certifications related to goods are related to a single product and not a group of products used together.
21. None of the warranties contained herein shall apply to finished goods or spare parts which are sold “as is”, as “second-hand”, as “used”, as “demo” or under similar qualifications or to Consumables as defined in clause 22.
22. “Consumables” is defined as any part(s) of goods or part(s) for use with goods, which part(s) of goods or part(s) for use with goods are consumed during the operation of the goods and which part(s) of goods or part(s) for use with goods require replacement from time to time by a user such as, but not limited to, light bulbs and smoke fluid. Disguise will provide information on Consumables when requested to do so by Customer.
23. None of the warranties contained herein shall apply, unless the total purchase price for the defective finished goods or spare parts has been paid by the Customer to Disguise by the due date for payment in accordance with the GTCS.
24. The Customer shall have no other remedies in connection with defective finished goods or spare parts than the rights granted pursuant to clauses 17-23. Except as set forth in the express warranties contained herein, Disguise makes no conditions, warranties, representations, express or implied, in fact or in law, including, but not limited to, any warranties of satisfactory quality, merchantability or fitness for a particular purpose or any warranties arising out of usage or trade, all of which are expressly excluded to the fullest extent permissible by applicable law.
25. The warranties contained herein apply only to the original purchaser and are not assignable or transferable to any subsequent purchaser or end-user.
26. To the extent lawful, Disguise shall only be liable for damage to property and for personal injuries caused as a consequence of defects in the finished goods or spare parts delivered to the extent that it is documented that such defect arose due to Disguise’s negligence that could not have been prevented by the Examination or other examination by the Customer (“Product Liability”).
GLOBAL SUPPORT PACKAGES
27. Any support and maintenance to be provided by Disguise in respect of the Goods shall be as agreed to by the Customer on its order Quotation. In the event that the Customer chooses to ‘opt out’ and/or not ‘opt in’ to any of Disguise’s ‘Premium’ global support packages on its order Quotation, as detailed more fully here, be it for hardware, project support and/or training; Disguise’s ‘Standard’ global support packages shall be offered only, as detailed here.
RETURN OF GOODS, CANCELLATION OF ORDERS
28. Goods may not be returned to Disguise, unless Disguise has authorised the return in writing. Where Disguise has authorised the return of goods, the Customer shall follow the guidelines for returns issued by Disguise from time to time.
29. Any order(s) placed by the Customer which has been accepted by Disguise by the issue of an Order Acknowledgement are binding on the Customer and cannot be cancelled by the Customer unless to the extent that Disguise agrees in writing. Disguise therefore retains the right to charge the Customer in full in respect of any Order Acknowledgement.
30. The purchase price as specified in Disguise’s Order Acknowledgement is payable according to the payment terms specified in the Order Acknowledgement. In the absence of payment terms in the Order Acknowledgement, delivery will, at Disguise´s sole discretion, only take place against prepayment of the purchase price.
PAYMENT, PAYMENT DELAY
31. The purchase price as specified in Disguise’s Order Acknowledgement is payable according to the payment terms specified in the Order Acknowledgement. In the absence of payment terms in the Order Acknowledgement, delivery will, at Disguise´s sole discretion, only take place against prepayment of the purchase price.
32. Disguise does not commit itself to send statements of account, In the event that Disguise does not within 30 calendar days of the date of a statement of account receive an objection in writing against its balance, the statement of account shall be deemed to be conclusive evidence of the Customer’s acceptance of the statement of account.
33. In the event that the Customer should remain in arrears with payments to Disguise for any reason for 10 business days or more, Disguise shall be entitled to: a) Terminate the Order Acknowledgement and/or any other contracts of sale and demand immediate return of all unpaid goods, delivered to the Customer, at the Customer’s expense; b) Suspend delivery of the Order Acknowledgement and/or any other contracts of sale for future delivery; c) Keep any Customer property in Disguise’s possession as a lien against such non-payment; d) Claim interest at the rate of 2% per month or any part thereof, as from the due date and until payment is made; e) Sell the goods to a third party and claim from the Customer damages for any loss suffered; and f) Suspend the Customer’s access to or use of any Software provided with the goods for which there has been no payment, which will result in the relevant goods ceasing to operate correctly or at all. At the reasonable request of the Customer, Disguise shall in writing inform the Customer of its decision to assert any of the above rights, but shall not be required to give any notice.
34. Disguise may use all monies received from the Customer towards payment of any part of any debt owing by the Customer at Disguise’s sole discretion irrespective of any instructions to the contrary by the Customer.
RETENTION OF TITLE
35. Notwithstanding delivery and the passing of risk in the goods, the property rights in the said goods shall pass to the Customer on the later of: (i) completion of delivery in accordance with clause 8 or 9; and (ii) receipt by Disguise in cash or cleared funds payment in full of the purchase price of the said goods and all other goods agreed to be sold by Disguise to the Customer for which payment is then due.
36. Until such time as the property rights in the said goods passes to the Customer, the Customer shall hold the said goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Disguise’s property, but the Customer may sell or use the goods in the ordinary course of its business.
37. Until such time as the property rights in the said goods passes to the Customer (and provided the said goods are still in existence and have not been resold) Disguise may at any time require the Customer to deliver up the said goods to Disguise and if the Customer fails to do so forthwith enter on any premises of the Customer or any third party where the said goods are stored and repossess the said goods
38. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the said goods, which remain the property of Disguise, but if the Customer does so, all monies owing by the Customer to Disguise shall (without limiting any other rights or remedy of Disguise) forthwith become due and payable.
INTELLECTUAL PROPERTY RIGHTS INFRINGEMENTS
39. To the best of Disguise’s knowledge, goods delivered by Disguise to the Customer do not infringe any third party intellectual property rights. However, Disguise does not make any warranty to that effect. Moreover, Disguise shall have no liability for any claim of infringement, which is based on marketing, distribution or use of the goods other than as authorised by Disguise and in a manner for which they were designed. In the event that goods or any part(s) thereof are held by a court of competent jurisdiction, not subject to appeal, to infringe a third party’s intellectual property right, Disguise shall in its sole discretion (a) procure for the Customer and the Customers‘ customers the right to continue to use the goods; (b) replace the goods with non-infringing goods, subject to the Customer assigning all property rights to such goods to Disguise; (c) modify the goods, or, where modification does not require any special knowledge, provide the Customer with parts enabling it to modify the goods at its own expense, to avoid infringement; or (d) recall the goods. If Disguise decides to recall the goods then Disguise shall, if the goods were delivered to the Customer within the immediately preceding two year period, refund the purchase price for the goods to the Customer less a reasonable depreciation due to age, use, and condition, subject to the Customer assigning all property rights to such goods to Disguise. If the goods were delivered to the Customer before the immediately preceding two-year period, Disguise shall not be obligated to make any refund.
40. The provisions in clause 39 constitute Disguise’s maximum liability in respect of clause 38 herein, and the Customer shall limit its liability towards its customers accordingly.
LIMITATION OF LIABILITY
41. Nothing in the GTCS shall limit or exclude liability of Disguise for (i) death or personal injury as a result of Disguise’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) anything else that may not be limited or excluded by law.
42. Subject to clause 41, in no event shall Disguise be liable in tort, contract or otherwise (including negligence) to compensate the Customer for any: (i) business interruption; (ii) loss of profits; (iii) loss of (anticipated) profits; (iv) loss of revenue; (v) loss of business; (vi) loss of contracts; (vii) loss of savings; (viii) loss of (anticipated) savings; (ix) costs of procurement of substitute goods; (x) costs of procurement of substitute services; (xi) special loss; (xii) indirect loss; (xiii) consequential loss; or (xiv) punitive damages.
43. Subject to clause 41, in no event shall Disguise be liable to compensate the Customer for any contractual liability of the Customer to any third parties.
44. Subject to clause 45, Disguise’s total liability to the Customer in respect of all other losses arising under or in connection with the GTCS, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amounts received by Disguise from the Customer pursuant to the Order Acknowledgement giving rise to the liability.
45. Disguise’s total liability specifically in respect of Product Liability only shall in no circumstances exceed £5 million in total.
46. The Customer agrees that, subject to clause 41, Disguise shall have no liability to any third party who uses the goods (or any part thereof or any service related to such goods) pursuant to any Order Acknowledgement. If Disguise suffers a loss or any liability towards such third party, except where such loss or liability is caused by the willful default or negligence of Disguise, then the Customer shall indemnify Disguise against all such related liabilities, costs, expenses, damages and losses suffered or incurred by Disguise accordingly (including but not limited to all costs and expenses incurred by Disguise defending any such claim against such third party).
47. The GTCS and all contracts of sale of goods, including but not limited to, any and all Order Acknowledgements, between Disguise and the Customer shall be exclusively governed by and construed in accordance with the laws of England and Wales without application of that country’s conflict of law principles (no renvoi). The Parties submit to the exclusive jurisdiction of English courts except that Disguise - at its sole discretion - shall be entitled alternatively to institute legal proceedings against the Customer at courts having jurisdiction over the Customer’s domicile. If a third party files a claim against one of the Parties for damages on product liability or intellectual property rights infringements, this Party shall immediately inform the other Party thereof. The Parties are mutually obliged to let themselves be summoned to appear before a court of justice/arbitration that hears such claim for damages. The mutual relationship between Disguise and the Customer shall however be resolved in accordance with the provisions of this clause and the remaining relevant provisions of the GTCS.
48. The invalidity, unenforceability or illegality of any term, condition or stipulation in the GTCS shall not affect the validity, enforceability or legality of the remaining terms, conditions and stipulations of the GTCS.
49. Except as provided herein, any required or permitted notices hereunder must be given in writing at the registered address of each Party, or to such other address as either Party may notify to the other Party by written notice in the manner contemplated herein, by one of the following methods: hand delivery, registered mail, or facsimile.
50. Non-performance of either Party shall be excused to the extent that performance is rendered impossible by: acts of God; severe weather; flood; drought; earthquake; or other natural disaster; epidemic; pandemic; terrorist attack; civil war; civil commotion; riots; war; threat of war; preparation for war; armed conflict; imposition of sanctions; embargo; breaking off of diplomatic relations; nuclear; chemical contamination; biological contamination; sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings; fire; explosion; accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers, carriers or subcontractors; inability to source materials required for the goods; interruption or failure of utility service, for any reason or any other reasons beyond the reasonable control of the non-performing party (“Force Majeure Event”). The non-performing party must notify the other party of the Force Majeure Event and use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligation.
51. The Customer undertakes to Disguise not at any time to disclose to any person any confidential information in respect of Disguise (including but not limited to know-how, trade secrets, and any other commercially sensitive information concerning Disguise) unless (i) required by the law; or (ii) disclosed to the Customer’s employees or consultants subject to the extent that the recipient needs to know such confidential information and that the Customer takes all reasonable steps to make sure that such recipient complies with this confidentiality obligation as though they were a party to the GTCS.
52. Disguise may publicise, advertise and market any work completed under these GTCS on its website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as Disguise may in its sole discretion decide, without the prior written consent of the Customer.
53. The Customer shall:
a) be responsible for financing the collection, treatment, recovery and environmentally sound disposal of (i) all waste electrical and electronic equipment (“WEEE”) as defined in the The Waste Electrical and Electronic Regulations 2013 (“WEEE Regulations”) arising or deriving from the goods supplied pursuant to the GTCS; and (ii) all WEEE arising or deriving from products placed on the market prior to 13 August 2005 where such products are to be replaced by the goods supplied pursuant to the GTCS and the goods are of an equivalent type or are fulfilling the same function as that of such products;
b) comply with all additional obligations placed upon the Customer by the WEEE Regulations by virtue of the Customer accepting the responsibility set out in Clause 51 a); and
c) provide Disguise’s WEEE compliance scheme operator with such data, documents, information and other assistance as such scheme operator may from time to time reasonably require to enable such operator to satisfy the obligations assumed by it as a result of the Disguise’s membership of the operator’s compliance scheme.
54. The Customer shall be responsible for all costs and expenses arising from and relating to its obligations in clause 51.
55. Further information in respect of the arrangements set out in clause 51 can be found at www.electrolink.eu.com by clicking on ‘BUSINESS WEEE COLLECTIONS’, then clicking ‘continue’ under final users, and then entering WEEE registration number WEE/MM4445AA where prompted.
© Disguise Technologies Limited, GTCS version effective August 2022
Last Updated: 10/10/2022
GENERAL TERMS AND CONDITIONS OF SALE OF SERVICE
Please Note: These General Terms and Conditions of Services apply to all services, including creative services, to be provided by Disguise Technologies Limited, whether via Disguise Labs, Polygon Labs, Meptik and/or any Disguise affiliate companies.
1.1 In these Terms, the following terms shall have the following meanings:
“Agreement” means the Quote, these Terms and any Contract for Services.
“Confidential Information” means such information as Disguise may from time to time provide to the Customer (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) relating to this Agreement and the Works, and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by Disguise to the Customer whether in existence prior to the parties entering into this Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever.
“Contract for Services” means any subsequent contract for the provision of Services entered into between Disguise and the Customer pursuant to these Terms.
“Customer” means the person, firm, company or other entity who has instructed Disguise to carry out the Services (as defined below) as set out in this Agreement.
“Customer Materials” means any goods, products and materials in whatever form (including all Intellectual Property Rights in the same) provided or made available by the Customer to Disguise for use in connection with this Agreement, and including any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media.
“Intellectual Property Rights” means copyright (including rights in computer software), database rights, design rights, moral rights, patents, trademarks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, and topography rights, know-how, secret formulae and processes, lists of suppliers and customers and other proprietary knowledge and information, internet domain names, rights protecting goodwill and reputation, and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition.
“Disguise Intellectual Property” means all rights, including Intellectual Property Rights, in and to (i) Disguise’s proprietary underlying mechanical or electronic devices, software (in source code and object code), libraries, engines, subroutines, data, files, development tools and utilities (in source code and object code form), processes, know how, research and development, technologies and generic or stock elements not provided by Customer, including any underlying models, rigging, and animation data and all Intellectual Property Rights in the foregoing, which were in existence prior to the parties entering into this Agreement or developed independently of this Agreement; (ii) any other materials, in whatever form (including documents, information, data and software), which were in existence prior to the parties entering into this Agreement or developed independently of this Agreement; and (iii) any subsequent modification thereto or enhancement thereof.
“Quote” means a quote presented by Disguise in respect of Services to be provided to the Customer.
“Services” means the services, including creative services, to be provided by Disguise (whether via Disguise Labs, Polygon, Meptik and/or any of Disguise’s affiliates) for the Customer pursuant to this Agreement, and includes the Works (as defined below) arising out of the Services.
“Terms” means these terms and conditions of business.
“Disguise” means Disguise Technologies Limited of 88-89 Blackfriars Road, London, SE1 8HA, , plus any of its subsidiary companies and/or affiliates, including Meptik, LLC.
“Value Added Tax” means value added tax as provided for in the Value Added Tax Act 1994 and legislation (or purported legislation and whether delegated or otherwise) supplemental thereto, and in any tax similar or equivalent to value added tax imposed by any country other than the United Kingdom and any similar or turnover tax replacing or introduced in addition to any of the same.
“Works” means the products and materials created, developed and produced by Disguise for the Customer pursuant to this Agreement.
1.2 Headings used in these Terms are purely for ease of reference and do not form any part of or affect the interpretation of these Terms.
1.3 The words “include” and “including” shall not be construed restrictively.
1.4 Any reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2. FORMATION OF CONTRACT
2.1 The Services will be carried out in accordance with these Terms, any Quote, and any subsequent Contract for Services to the exclusion of any other terms and conditions the Customer seeks to impose whether orally or in writing, unless agreed otherwise in writing by the parties.
2.2 All representations, conditions or warranties, or other terms concerning the Services which might otherwise be implied or incorporated in this Agreement, whether by statute, common law or otherwise are, to the maximum extent permitted by law, excluded from this Agreement or any variation thereof, unless expressly accepted by Disguise in writing.
2.3 No employee, consultant, freelancer or agent of Disguise has the power to vary these Terms orally or in writing, or to make any statement or representation about the Services offered, their fitness for any purpose or any other matter.
2.4 Upon requesting Services from Disguise, the Customer shall be deemed to have accepted these Terms and these Terms shall become binding as between the Customer and Disguise, notwithstanding the absence of any formal acknowledgement.
2.5 The Customer and Disguise may enter into a Contract for Services which will constitute a separate binding contract between the parties which shall incorporate (with any necessary changes) these Terms. In the case of any conflict or inconsistency between these Terms and any subsequent Contract for Services, these Terms shall take precedence.
3. PRICES AND TERMS OF PAYMENT
Disguise will invoice the Customer for the prices quoted in respect of Services to be provided at the times set out in the relevant Quote or Contract for Services. Unless otherwise mutually agreed in writing, Disguise’s quoted prices are for services and materials requiring standard procedures based upon the use of Disguise facilities and personnel during normal working hours.
3.2 Disguise shall be entitled to make an adjustment to any quoted prices in the event that additional costs are incurred, or likely to be incurred, by reason of:
3.2.1 the Customer Materials (or any part thereof) being, in the reasonable opinion of Disguise, in any way defective, in an unsuitable format (or a different format to that which Disguise is expecting to receive the same) or of unsuitable quality for normal processing;
3.2.2 any information supplied by the Customer or any third party in connection with this Agreement and the Services being inaccurate or incomplete, or failing to give Disguise a full and accurate indication of the work involved and/or time and resources required;
3.2.3 changes by the Customer or any third party in its requirements for the Services or Works;
3.2.4 exceptional circumstances outside the control of Disguise, including currency fluctuations and changes in third party costs; or
3.2.5 failure to timely provide any final instructions or Customer approvals.
3.3 Subject to clause 3.4 and unless otherwise agreed by Disguise in writing, all invoices rendered by Disguise are payable within 28 days of the date of invoice and any interim invoices are payable within 7 days of the date of invoice.
3.4 Disguise expressly reserves the right, at its sole option, to require payment by instalments during the performance of this Agreement and/or to require payment of all amounts due to Disguise in respect of Works to be provided prior to delivery of such Works.
3.5 The Customer shall pay all amounts owing to Disguise in full and shall not exercise any rights of set off or counterclaim against invoices submitted.
3.6 Payment of all amounts shall only be made in the currency in which they are invoiced and shall not be subject to any deductions or charges whatsoever.
3.7 In the event of default in payment by the Customer under this Agreement, Disguise shall be entitled, without prejudice to any of its other rights or remedies, to suspend any further performance of the Services without notice and to charge interest on any amount outstanding at the rate of 4% above the base rate of Royal Bank of Scotland from time to time (accruing from day to day both before and after judgment), from the due date of payment to the actual date of payment. Customer agrees to pay all reasonable costs and expenses (including attorneys’ fees) incurred by Disguise, in connection with the collection of any monies owed by Customer to Disguise.
3.8 All sums payable under this Agreement are exclusive of (a) any sales, use, Value Added Tax, customs, duties, exhibition and any other duty or taxes, imposed by any foreign, federal, state, provincial, municipal or other governmental authority in respect of any item of Work or the Services to be furnished by Disguise to Customer, which shall (if and to the extent applicable) be payable by the Customer at the rate and in the manner from time to time prescribed by law and (b) any freight and delivery charges and any other services that are not expressly included in the applicable Quote or Contract for Services.
3.9 The Customer shall pay any withholding tax or other similar taxes applicable for the Services or otherwise required by law to be deducted from any payment by the Customer to Disguise pursuant to this Agreement. Should the Customer be required to pay any such withholding or make such deduction on account of tax, the Customer shall pay such additional amount as will ensure that Disguise receives, free and clear of any tax or other deduction or withholding, the full amount which it would have received had no such withholding or deduction been required. The Customer shall indemnify Disguise against all costs, claims, expenses (including reasonable legal expenses) and/or proceedings arising out of or in connection with such payments. The Customer and Disguise shall cooperate in good faith to respond to any query from the applicable tax authorities in connection with withholding tax or other similar taxes and shall each make available to the other any information or documents and all relevant approvals or authorisations which the applicable tax authorities may reasonably require.
3.10 Any Customer requests for revisions, additions or deletions to the Services ordered by Customer or changes in the schedule for the Services (collectively, “Modifications”), shall be negotiated in good faith by the parties, and performed in accordance with the terms of one or more mutually agreed additional or updated estimates, bids, work orders, purchase orders, overages, statements of work, Quotes or Contracts for Services, whether by email or in writing (collectively, “Change Order(s)”), each of which shall set forth the Modifications, the increase or decrease, if any, in the compensation to be paid to Disguise occasioned by such Modifications, any changes to the schedule to complete such Modifications and any other proposed changes or known impacts to any other terms, conditions or assumptions in this Agreement, as mutually agreed in writing by the Customer and Disguise.
4. PERFORMANCE AND DELIVERY
4.1 Unless otherwise agreed in writing between the parties, all times specified in a Quote or Contract for Services for performance of the Services and delivery of the Works are given in good faith but are not guaranteed by Disguise.
4.2 Notwithstanding that Disguise and the Customer may have agreed that time is of the essence in respect of specified Services or Works, the time for performance of the Services or delivery of the Works shall in every case be dependent upon prompt receipt of all necessary information, materials (including Customer Materials), final instructions and/or approvals from the Customer. The Customer acknowledges and agrees that any changes to its requirements and/or the occurrence of any of the circumstances in clause 3.2 or this clause 4.2 may result in delay in performance or delivery, for which Disguise shall not be liable.
4.3 Where the Works are to be delivered electronically, the Customer acknowledges and agrees that:
- 4.3.1 electronic delivery is not a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete the Works to be delivered electronically; and
- 4.3.2 electronic delivery may involve reliance upon third party providers and data carriers, over which Disguise has no control.
4.4 Disguise shall not be responsible for and shall have no liability to the Customer or any third party for:
- 4.4.1 any delay in delivery or any non-receipt of any Works delivered electronically;
- 4.4.2 any loss or damage (including loss of data) that results from any person gaining unauthorised access to any Works delivered electronically;
- 4.4.3 use or disclosure of any data obtained by any third party as a result of that third party gaining unauthorised access to any Works delivered electronically; and
- 4.4.4 any loss or damage resulting from any malfunction of or the introduction of any viruses, worms, logic bombs, time locks, time bombs, trojan horses and/or bugs to any equipment and/or software used to effect and/or receive any Works delivered electronically.
5. INTELLECTUAL PROPERTY
5.1 The Customer acknowledges that Disguise (or its third party licensors) owns, and shall retain ownership of, Disguise Intellectual Property, and Disguise shall not at any time be required to deliver, license or grant any rights to the Customer any of Disguise Intellectual Property whatsoever.
5.2 The Customer acknowledges and agrees that if in the course of performing the Services (including any processing or production of materials on behalf of the Customer) Disguise: (a) discovers or devises any techniques or know-how or (b) creates any mechanical or electronic devices, software (in source code and object code), libraries, engines, subroutines, data, files, development tools and utilities (in source code and object code form), or any underlying models, rigging, and animation data to provide the Services, all rights of every kind in and to the foregoing shall belong to and vest in Disguise and shall be deemed to be Disguise Intellectual Property for the purposes of this Agreement.
5.3 Disguise shall retain ownership and possession of, and all rights (including all Disguise Intellectual Property Rights) in and to, any original character design, ideas or concepts presented or created by Disguise in relation to this Agreement, unless otherwise agreed in writing by the parties. Where the Customer requires a licence to use any such original character design, ideas or concepts, for whatever purpose, the terms of such licence shall be agreed by the parties in writing pursuant to a Quote and/or any subsequent Contract for Services.
5.4 Subject to clauses 5.1 to 5.3 above and any other terms agreed pursuant to a Quote or Contract for Services, all title and Intellectual Property Rights in and to the Works (excluding Disguise Intellectual Property), shall pass to the Customer only upon the Customer paying to Disguise all sums due and payable under this Agreement. To the extent required, the parties may agree on terms for the licence of Disguise’s Intellectual Property (or any part of it) incorporated into the Works, to enable the Customer to receive the benefit of the Works.
5.5 The Customer hereby grants to Disguise a perpetual, non-exclusive, transferable, sub-licensable, royalty-free licence to use the Customer Materials to the extent necessary for Disguise and/or its suppliers to provide the Services and the Works.
5.6 The Customer acknowledges and agrees that Intellectual Property Rights in and to underlying materials processed by Disguise in the performance of the Services and/or embodied in the Works may be owned by third parties and that the use by the Customer of the Works shall be subject always to the Customer obtaining any and all necessary licences and consents from the relevant underlying rights’ owner(s).
6.1 Where Confidential Information has been disclosed to the Customer, the Customer acknowledges that such Confidential Information has been disclosed in confidence, may have considerable value and is of significant importance to Disguise.
6.2 The Customer further acknowledges that Disguise makes no representation with respect to the accuracy or completeness of any Confidential Information, except to the extent agreed by Disguise in writing.
6.3 The Customer agrees to keep the Confidential Information, including any Disguise Intellectual Property provided to the Customer pursuant to clause 5, in complete confidence and not to disclose it to any third party. Save as expressly permitted under this Agreement, the Customer shall not use, copy in whole or in part, modify or adapt the Confidential Information in any way without Disguise’s prior written consent, which may be given or withheld in its absolute discretion.
6.4 The Customer may use the Confidential Information only for the purposes contemplated by this Agreement and for no other purpose. The Customer may disclose the Confidential Information to such of its officers, employees and agents to whom disclosure is necessary for the performance of its obligations under this Agreement provided the Customer shall ensure such officers, employees and agents observe the obligations of confidentiality imposed by this clause 6 and the Customer shall be liable for any failure by them to do so.
6.5 The Customer shall not be in breach of this clause 6 if it discloses Confidential Information where such disclosure is required by law, regulation or order of a competent authority provided that Disguise is given, where possible, reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
6.6 The Customer acknowledges that any breach of its confidentiality obligations under this clause 6 would cause Disguise irreparable and unquatifiable damage and that Disguise shall be entitled to apply for and obtain (without prejudice to any other rights or remedies available to Disguise in contract or at law) interlocutory and/or final injunctive or other equitable relief against or in respect of any actual or threatened breach of this clause 6 by the Customer.
6.7 On receipt of a written demand, the Customer shall return to Disguise, or destroy at Disguise’s option, any and all written documents or materials containing Confidential Information, together with all copies thereof, and if Disguise should so require the Customer shall, when returning documents or materials, provide to Disguise a certification or statutory declaration duly executed by an officer of the Customer confirming that, to the best of the declarant’s knowledge, information and belief, the Customer has complied with all of its obligations under this clause 6.
7. CANCELLATION AND VARIATION
7.1 Except where otherwise stated in a Quote or Contract for Services, this Agreement will expire on completion of the Services to be provided pursuant to it.
7.2 This Agreement (and any Services to be provided under it) may only be cancelled with the written consent of Disguise and in accordance with these Terms (and if applicable, the terms of any subsequent Contract for Services). The giving of consent shall not in any way prejudice Disguise’s right to recover from the Customer full compensation for any loss or expense arising from such cancellation of this Agreement.
7.3 Notwithstanding clause 7.2 and without prejudice to any other rights or remedies available to Disguise, the Customer may give Disguise written notice of cancellation of this Agreement (and any Services to be provided thereunder), provided that where such notice is received by Disguise:
- 7.3.1 less than 24 hours prior to the date for performance or the commencement of performance of the relevant Services (the “Target Date”), Disguise shall be entitled to charge the Customer the full price specified in the Quote or the relevant Contract for Services or, if none is stated, the applicable amount chargeable to the Customer based on Disguise’s rate card current at the Target Date; and
- 7.3.2 less than five working days but more than 24 hours prior to the applicable Target Date, Disguise shall be entitled to charge the Customer one half of the full price specified in the Quote or the relevant Contract for Services or, if none is stated, one half of the applicable amount that chargeable to the Customer based on Disguise’s rate card current at the Target Date, in each case reflecting the fact that Disguise is unlikely to be able to secure an order for the Services and/or to reallocate the resources allocated to the Customer’s order within the specified timeframes.
7.4 Disguise may cancel this Agreement (and any Services to be provided under it) at any time on written notice to the Customer. Cancellation under this clause shall be without prejudice to any other rights or remedies available to Disguise (including the right of Disguise to recover payment from the Customer for any Services provided).
7.5 Any provisions of this Agreement which by their nature are intended to survive cancellation or expiration (including clause 6 (Confidentiality) and clause 8 (Liability and Indemnity)) shall remain in full force and effect notwithstanding any cancellation or expiration of this Agreement.
8. LIABILITY AND INDEMNITY
8.1 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability cannot be excluded or limited as a matter of law.
8.2 Subject to clause 8.1 and without prejudice to any other provision of these Terms, the Customer agrees that:
- 8.2.1 this Agreement states the full extent of Disguise’s obligations and liabilities in respect of the Works and performance of the Services;
- 8.2.2 UNDER NO CIRCUMSTANCES SHALL DISGUISE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE OR BUSINESS PROFITS, BUSINESS INTERRUPTION, DEPLETION OF GOODWILL, LOSS OF USE OR CORRUPTION OF DATA OR SOFTWARE, WHETHER ON A DIRECT OR INDIRECT BASIS;
- 8.2.3 Disguise’s entire liability for any direct loss suffered by the Customer under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall, subject to the limitations expressly set forth herein, not exceed the fees paid by the Customer in accordance with this Agreement; and
- 8.2.4 this clause 8.2 is reasonable and necessary in the circumstances and, having regard to that fact, does not take effect harshly or unreasonably against the Customer.
8.3 The Customer shall indemnify and hold harmless Disguise and its parent companies, affiliates and subsidiaries and their respective officers, directors, employees and agents (collectively, “Disguise Indemnitees”) from and against all claims, judgements or proceedings and all costs, liabilities, losses, expenses and damages of any kind (including reasonable legal and other professional fees and expenses) awarded against, or incurred or paid by, any of Disguise Indemnitees as a result of or in connection with:
- 8.3.1 any defamatory, slanderous or libelous matter or invasion of privacy or any infringement or alleged infringement of a third party’s Intellectual Property Rights or other rights arising out of the supply or use of the Customer Materials in relation to the Works and/or in the course of carrying out the Services;
- 8.3.2 any damage to property caused by Disguise in the course of carrying out the Services as a result of any act or omission of the Customer (including its officers, employees, consultants, freelancers and agents);
- 8.3.3 the publication, processing, use, distribution and/or exhibition of the Customer Materials;
- 8.3.4 Disguise carrying out any of Customer’s written instruction(s) or following the written instructions of Customer (including, but not limited to, any claim that Customer does not have full and lawful authority to place or authorize Disguise to execute an order with Disguise in respect of the Customer Materials); and
- 8.3.5 any breach by the Customer, including its officers, employees, consultants, freelancers and agents, of any of these Terms or the terms of any Contract for Services.
8.4 Clause 8.3 above shall apply whether the Customer, or its officers, employees, consultants, freelancers or agents, have been negligent or otherwise.
8.5 Any recommendations or suggestions by Disguise relating to the use of the Works are given in good faith but it is for the Customer to satisfy itself of the suitability of the Works for its own particular purpose. Accordingly, unless otherwise expressly agreed in writing, Disguise gives no warranty as to the fitness of the Works for any particular purpose, even though that purpose may be specified in the applicable Quote or Contract for Services, and any implied warranty or condition (statutory or otherwise) to that effect is excluded.
8.6 Each party will only look to the other party and not to any director, officer, employee, consultant, freelancer or agent of the other party for satisfaction of any claim, demand or cause of action for damages, injuries or losses incurred as a result of the other party’s action or inaction.
The Customer shall maintain and keep effective at all times insurance policies with reputable insurers as are sufficient to protect the Customer against any loss or liability which it may incur or suffer arising out of this Agreement, including insurance which covers the Customer for any damage or loss for which Disguise is not liable pursuant to the these Terms, and which protects the Customer against any accidental loss, damage or destruction to any Customer Materials or any other materials of any kind supplied by the Customer to Disguise whilst in the possession or control of Disguise. Disguise may at any time request the Customer to provide copies or certificates of insurance or other evidence to prove compliance with this clause.
10. STORAGE OF CUSTOMER MATERIALS
10.1 Disguise shall be under no liability whatsoever in respect of any loss or damage to or destruction of the Customer Materials (whether such Customer Materials are in the possession of Disguise or otherwise) and it is the Customer’s responsibility to ensure that it has appropriate back-up copies of all Customer Materials.
10.2 In accordance with clause 9 above, the Customer shall insure all Customer Materials to their full value against all risks. Customer hereby waives all rights of subrogation with respect to losses covered by its insurance policies dISor coverage.
10.3 The Customer shall provide details to Disguise for the return of the Customer Materials within two (2) months from the date of confirmation of a Quote or Contract for Services, as applicable. If the Customer does not provide Disguise with details for the return of the Customer Materials, Disguise shall send the Customer Materials to its archive upon completion of the Services and Disguise shall be entitled to charge the Customer reasonable storage charges for doing so. If Customer fails to remove the Customer Materials and Works, Disguise may dispose of the same without liability to Customer or any other person.
10.4 Where Customer Materials are supplied or specific instructions are given by the Customer, Disguise accepts no liability for any reduction in the quality of the Services caused by defects or errors in or the unsuitability of such Customer Materials or by Disguise’s use of the Customer Materials or adherence to any of the Customer’s specific instructions.
11. CUSTOMER INPUT AND ACCESS TO/USE OF DISGUISE’S PREMISES, CONTENT AND EQUIPMENT
11.1 The Customer shall be solely responsible for ensuring that all information, advice and recommendations given to Disguise either directly or indirectly by the Customer or by the Customer’s employees, consultants, freelancers or agents are accurate, correct and suitable. Acceptance of or use by Disguise of such information, advice or recommendations shall in no way limit the Customer’s responsibility hereunder, unless Disguise specifically agrees in writing to accept responsibility.
11.2 The Customer hereby undertakes to Disguise to ensure that all of its personnel (including its employees, consultants, freelancers and agents) who at any time have access to any premises occupied by Disguise or at which any of Disguise’s equipment shall be kept, shall at all times:
- 11.2.1 observe all rules, policies and regulations in force at the applicable premises, including all health and safety regulations and any rules governing the use of equipment and/or facilities at the applicable premises; and
- 11.2.2 keep confidential and not divulge or communicate or make any use of any Confidential Information which the applicable person shall become aware of as a result of being present at the applicable premises.
12.1 Disguise may publicise, advertise and market the Works on its website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as Disguise may in its sole discretion decide, without the prior written consent of the Customer.
12.2 The Customer hereby grants to Disguise a perpetual and royalty-free licence to use the Works throughout the world for the purposes of clause 12.1 above and in order for Disguise to promote its business by whatever means it sees fit.
13. DATA PROTECTION
13.1 The Customer acknowledges that in the course of its dealings with Disguise, Disguise may acquire personal data which relates to the Customer and/or any of its employees, consultants, freelancers or agents and the Customer hereby consents to Disguise, in accordance with its authorisation and the Act, collecting, storing, processing and transferring to third parties such personal data. The Customer further consents to the sale or transfer by Disguise of such personal data in connection with an assignment or transfer of any of its assets and its disclosure in compliance with any rule of law or order of competent authority.
13.2 The Customer’s consents pursuant to this clause 13 are given by it for itself and on behalf of its employees, consultants, freelancers and agents (if any) and the Customer hereby warrants to Disguise that it has the authority to give such consent on behalf of those persons.
The Customer shall, and shall ensure its officers, employees, consultants, freelancers and agents, comply with all laws relating to anti-bribery and anti-corruption including the UK Bribery Act 2010 (the “Bribery Act”) in all matters relating to this Agreement, and shall not (i) engage in any activity, practice or conduct which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK; or (ii) do or suffer anything to be done which would cause Disguise to contravene the Bribery Act.
If the Customer shall become bankrupt, or under the provisions of Section 123 of the Insolvency Act 1986, shall be deemed to be unable to pay its debts or compounds with its creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation) or if a Receiver or Manager or Administrative Receiver is appointed of all or any part of its assets or undertaking, Disguise shall be entitled to cancel this Agreement in whole or in part by notice in writing, without prejudice to any right or remedy accrued or accruing to Disguise.
16. FORCE MAJEURE
In the event of the Services being prevented, delayed, or in any way interfered with by any act of government, war, industrial dispute, strike, breakdown of machinery or equipment, accident, fire or by any other cause beyond Disguise’s control, Disguise may, at its option, suspend performance of or cancel this Agreement, without liability to the Customer for any resulting damage or loss, such suspension or cancellation being without prejudice to Disguise’s right to recover all sums owing to it in respect of Services and Works delivered and costs incurred up to the date of suspension or cancellation.
Disguise shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under this Agreement.
18.1 Variation: No variation of this Agreement (including any of the Services or Works to be provided hereunder) shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
18.2 Waiver: A waiver of any right or remedy under this Agreement is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy.
18.3 Severance: If. any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the provisions of this Agreement shall not be affected.
18.4 Relationship: No partnership or joint venture is intended or created by this Agreement and neither party shall have authority to act as agent for, to bind, the other party.
18.5 Rights of Third Parties: A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
18.6 Assignment: The Customer may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Disguise.
18.7 Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.
18.8 Notices: Any notice or other communication required to be given under this Agreement or otherwise in writing may be sent by email or by first class pre-paid post to Disguise Technologies Limited, 88-89 Blackfriars Road, London, SE1 8HA for the attention of the Legal department. Any notice sent by first class post shall be deemed received two working days after the date of posting. Any notice sent by e-mail shall be deemed received on the next business day after the date of delivery.
18.9 Trademarks and Intellectual Property. This Agreement does not grant either party a license to, ownership in or the right to use the other party’s trademarks, trade names, service marks, copyrights, patents or other intellectual property.
19. GOVERNING LAW AND JURISDICTION
This Agreement or any dispute relating to its subject matter shall be governed by and construed exclusively in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Court of England and Wales.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.
© Disguise Technologies Limited, GTCS version effective August 2022
Last Updated: 17/08/2022
DISGUISE ONLINE STORE - TERMS AND CONDITIONS OF SALE
1. THESE TERMS
1.1 What these terms cover. These are the terms and conditions on which we supply from our website goods, services and/or digital content (Products) to you.
1.2 What these terms do NOT cover. These terms and conditions do not cover Products that are provided to you ‘offline’ or via our ‘Disguise Cloud’ platform.
1.3 Why you should read them. Please read these terms carefully before you submit your order to us. These terms tell you who we are, how we will provide Products to you, how you and we may change or end the contract, what to do if there is a problem and other important information.
1.4 Business and Consumer Customers. In some parts of these terms, you will have different rights under these terms depending on whether you are a “business” customer or “consumer” customer.
You are a consumer if you are an individual and you are buying Products from us wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession). In all other cases, you are a business customer.
1.5 Entire agreement with you. If you are a business customer, you acknowledge that you have not relied on any words, statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
1.6 Your legal rights. If you are a consumer customer, these terms do not affect any of your legal rights. Any part of these terms which would otherwise exclude or restrict your rights as a consumer will, to that extent, have no force or effect.
2. INFORMATION ABOUT US AND HOW TO CONTACT US
2.1 Who we are. We are Disguise Systems Limited (company number 09908649) (we and us and
Disguise), is a company registered in England and Wales and our registered office is at Hermes House 88-89 Blackfriars Rd, South Bank, London, United Kingdom, SE1 8HA. Our main trading address is currently at this address. Our VAT number is GB 2827455086. We operate the website in accordance with these terms.
2.2 How to contact us. To contact us telephone our customer service team at +44 20 7234 9841 or email.
2.3 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
2.4 "Writing" includes emails. When we use the words "writing" or "written" in these terms, this
3. OUR CONTRACT WITH YOU
3.1 How we will accept your order. Our acceptance of your order will depend on what Products that you have purchased:
(a) If you purchase Products directly from our website, then the acceptance will take place when we email you or otherwise notify you in writing to accept it, at which point a contract will come into existence between you and us;
(b) If you purchase our Products through a third party provider (for example, through a link on our
website including but not limited to, Shopify and Eventbrite) then the acceptance will take place in
accordance with their confirmation of an order to you, at which point this contract will come into
existence between you and us.
3.2 If we cannot accept your order. If we are unable to accept your order, we will inform you of this and will not charge you for the Product. This might be because the Product is out of stock, because of unexpected limits on our resources which we could not reasonably plan for or because we have reason to believe is for onward sale other than through distribution channels approved by Disguise, or because we have identified an error in the price or description of the Product or because we are unable to meet a delivery deadline you have specified.
3.3 Your order number. We will assign an order number to your order and tell you what it is when we accept your order. It will help us if you can tell us the order number whenever you contact us about your order.
4. OUR PRODUCTS
4.1 Products may vary slightly from the images and descriptions. The images and descriptions of the Products on our website are for illustrative purposes only and may be approximate. Although we have made every effort to display the colours accurately, we cannot guarantee that a device's display of the colours accurately reflects the colour of the Products. Your Product may vary slightly from those images.
4.2 Product packaging may vary. The packaging of the Product may vary from that shown in images on our website.
4.3 Prices. Details of the Disguise Products available for purchase are set out on the Websites. All prices are displayed and charged in US dollars. All applicable sales and other taxes are in addition to the sale price. All online transaction totals reflect the estimated tax amount; the actual tax amount will be calculated based on your shipping location and many vary from the estimated tax. Discounts and sales prices may not be applied to previous orders. We reserve the right to shorten the duration of any special order or sales promotion.
4.4 General. All features, content, specifications, Products and prices of Disguise Products described or depicted on these Websites are subject to change at any time without notice. Disguise makes no representation or guarantee that Products available on the Websites are available for purchase or use in all locations globally.
5. YOUR RIGHTS TO MAKE CHANGES
If you wish to make a change to the Product you have ordered (to the extent it may be changed) please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the Product, service and/or content, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change.
6. OUR RIGHTS TO MAKE CHANGES
6.1 Minor changes to the Products. We may change the Product for example:
(a) to reflect changes in relevant laws and regulatory requirements; and
(b) to implement minor technical adjustments and improvements, for example to address a security threat.
6.2 Updates to digital content. We may update or require you to update digital content, provided that the digital content shall always match the description of it that we provided to you before you bought it.
7. PROVIDING THE PRODUCTS
7.1 Delivery costs. The costs of delivery of Products to you will be as notified to you in writing from time to time.
7.2 When we will provide the Products. During the order process we will let you know when we will provide the Products to you. If the Products are ongoing services or subscriptions/licences, we will also tell you during the order process when and how you can end the contract.
(a) If the Products are goods. If the Products are goods we will contact you with an estimated delivery date, which will usually be within 30 days after the day on which we accept your order.
(b) If the Products are one-off services. We will begin the services on the date agreed with you during the order process.
(c) If the Product is a one-off purchase of digital content. We will make the digital content available for download by you as soon as we accept your order.
(d) If the Products are ongoing services or a subscription to receive goods or digital content. We will supply these to you until either the services are completed or the subscription/licence expires (if applicable) or you end the contract as described in clause 9 or 13 or we end the contract by written notice to you as described in clause 10.
(e) If the Products are provided to you on behalf of us by a third party. That third party shall notify you on the timing of delivery.
7.3 We are not responsible for delays outside our control. If our supply of the Products is delayed by an event outside our control (including but not limited to third party providers you assist with any supply of such Products) then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract and receive a refund for any Products you have paid for but not received.
7.4 If no person is available to collect when the Product is delivered. If no one is available at your address to take delivery and the Products cannot be posted through your letterbox, we will leave you a note informing you of how to rearrange delivery or collect the Products from a local depot.
7.5 If you do not re-arrange delivery. If you do not collect the Products from us as arranged or if, after a failed delivery to you, you do not re-arrange delivery or collect them from a delivery depot we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the contract and clause 10.2 will apply.
7.6 When you become responsible for the goods. A Product which is goods will be your responsibility from the time we deliver the Product to the address you gave us or you or a carrier organised by you collect it from us.
7.7 When you own goods. You own a Product which is goods once we have received payment in full.
7.8 What will happen if you do not give required information to us. We may need certain information from you so that we can supply the Products to you. If so, this may have been stated in the description of the Products on our website or subsequently been communicated by us to you. We will contact you to ask for this information. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may either end the contract (and clause 10.2 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the Products late or not supplying any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it.
7.9 Reasons we may suspend the supply of Products to you. We may have to suspend the supply of a Product to:
(a) deal with technical problems or make minor technical changes;
(b) update the Product to reflect changes in relevant laws and regulatory requirements;
(c) make changes to the Product as requested by you or notified by us to you (see clause 6).
7.10 Your rights if we suspend the supply of Products. We will contact you in advance to tell you we will be suspending supply of the Product, unless the problem is urgent or an emergency. If we have to suspend the Product we will adjust the price so that you do not pay for Products while they are suspended. You may contact us to end the contract for a Product if we suspend it, or tell you we are going to suspend it, in each case for a period of more than necessary and we will refund any sums you have paid in advance for the Product in respect of the period after you end the contract.
7.11 We may also suspend supply of the Products if you do not pay. If you do not pay us for the Products when you are supposed to (see clause 14.4), we may suspend supply of the Products until you have paid us the outstanding amounts. We will contact you to tell you we are suspending supply of the Products. As well as suspending the Products we can also charge you interest on your overdue payments (see clause 14.6).
8. PURCHASES THROUGH OUR E-LEARNING PORTAL
These terms do not apply to purchases of course materials, or bookings for courses, made through our e-learning portal. The terms applying to those transactions can be found here.
9. YOUR RIGHTS TO END THE CONTRACT
9.1 You can always end your contract with us. Your rights when you end the contract will depend on what you have bought, whether there is anything wrong with it, how we are performing, and when you decide to end the contract. If you are a consumer customer, then you may have additional rights to end the contract with us, including if you change your mind (see clause 13)
9.2 If what you have bought is faulty or misdescribed you may have a legal right to end the contract (or to get the Product repaired or replaced or a service re-performed or to get some or all of your money back), see clause 12;
10. OUR RIGHTS TO END THE CONTRACT
10.1 We may end the contract if you break it. We may end the contract for a Product at any time by writing to you if:
(a) you do not make any payment to us when it is due;
(b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Products;
(c) you do not, within a reasonable time, allow us to deliver the Products to you or collect them from us;
(d) you do not, within a reasonable time, allow us access to your premises to supply the services; or
(e) we believe that you are in breach of any of our terms and conditions or licence agreements.
10.2 You must compensate us if you break the contract. If we end the contract in the situations set out in clause 10.1 we will refund any money you have paid in advance for Products we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the contract (if relevant).
10.3 We may withdraw any Product. We may write to you to let you know that we are going to stop providing the Product. We will let you know in advance of our stopping the supply of the Product and will refund any sums you have paid in advance for Products which will not be provided.
11. IF THERE IS A PROBLEM WITH THE PRODUCT
How to tell us about problems. If you have any questions or complaints about the Product, please contact us. You can telephone our customer service team at +44 20 7234 9840 or write to us at email@example.com.
12. YOUR RIGHTS IN RESPECT OF DEFECTIVE PRODUCTS
12.1 We warrant that on delivery, and for a period of 12 months from the date of delivery (warranty period), any Products which are goods shall:
(a) conform in all material respects with their description and any relevant specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by us.
12.2 Subject to clause 12.3, if:
(a) you give us notice in writing during the warranty period within a reasonable time of discovery that a Product does not comply with the warranty set out in clause 12.1;
(b) we are given a reasonable opportunity of examining such Product; and
(c) you return such Product to us at our cost,
we shall, at our option, repair or replace the defective Product, or refund the price of the defective Product in full.
12.3 We will not be liable for a Product's failure to comply with the warranty in clause 12.1 if:
(a) you make any further use of such Product after giving a notice in accordance with clause 12.2(a);
(b) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product or (if there are none) good trade practice;
(c) the defect arises as a result of us following any drawing, design or specification supplied by the Customer;
(d) you alter or repair the Product without our written consent; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
12.4 If you are a business customer: Except as provided in this clause 12, we shall have no liability to you in respect of a Product's failure to comply with the warranty set out in clause 12.1.
12.5 If you are a consumer customer:
(a) we are under a legal duty to supply goods that are in conformity with this contract. Nothing in these terms will limit, exclude or affect your legal rights under the Consumer Rights Act 2015 or otherwise in respect of faulty goods; and
(b) if you wish to exercise your legal rights to reject goods that are faulty or mis-described, you must either return them back to us or (if they are not suitable for you to return to us) allow us to collect them from you. We will pay the costs of return or collection. You must contact our customer services team using the details above to arrange any return before returning any goods.
12.6 These terms shall apply to any repaired or replacement Products supplied by us.
13. RETURNS OR CANCELLATION FOR A PRODUCT THAT IS NOT DEFECTIVE
13.1 If you are a business or consumer customer. You may return or exchange goods purchased from these websites within 30 days. Certain jurisdictions may provide additional statutory rights. Nothing herein is meant to limit your return or cancellation rights under applicable local law.
13.2 If you are a consumer customer. You may have additional legal rights to change your mind within 14 days and receive a refund. These rights may be less favourable than our standard returns policy, which will still apply even if you are a consumer.
These additional rights, under the Consumer Contracts Regulations 2013, are explained in more detail in the following sections. The remaining sections of this clause 13 only apply to consumer customers.
13.3 Exclusions: Your right as a consumer to change your mind does not apply in respect of:
(a) digital Products after you have started to download or stream these;
(b) services, once these have been completed, even if the cancellation period is still running;
(c) sealed audio or sealed video recordings or sealed computer software, once these Products are unsealed after you receive them;
(d) any Products which become mixed inseparably with other items after their delivery;
(e) any Products which are made to your specifications or are clearly personalised.
13.4 The period to change your mind: How long you have to change your mind depends on what you have ordered and how it is delivered.
(a) Services: You have 14 days after the day we email you to confirm we accept your order. However, once we have completed the services you cannot change your mind, even if the period is still running. If you cancel after we have started the services, you must pay us for the services provided up until the time you tell us that you have changed your mind.
(b) Digital content for download or streaming: You have 14 days after the day we email you to confirm we accept your order, or, if earlier, until you start downloading or streaming. Once we have delivered the digital content to you, you will not have a right to change your mind.
(c) Goods: You have 14 days after the day you (or someone you nominate) receives the goods, unless:
- Your goods are split into several deliveries over different days. In this case you have until 14 days after the day you (or someone you nominate) receives the last delivery.
- Your goods are for regular delivery over a set period. In this case you have until 14 days after the day you (or someone you nominate) receives the first delivery of the goods.
13.5 How to cancel the contract: You can change your mind and cancel your contract in one of the following ways:
(a) Contacting our customer services team by email or phone using the details above;
(b) By post, by writing to us at our address given above.
(c) By completing the cancellation form at the end of these terms, and returning it to us by post or email.
13.6 Returning Products after ending the contract. If you end the contract for any reason after Products have been dispatched to you or you have received them, you must return them to us. You must return the goods in person to where you bought them or post them back to us at the address given above or (if they are not suitable for posting) allow us to collect them from you. Please call customer services or email using the details above to arrange a return or collection. You must send off the goods within 14 days of telling us you wish to end the contract.
13.7 Cost of Return or collection.
(a) You must pay the costs of return.
(b) If we agree to collect the Products from you, we will charge you the direct cost to us of collection.
13.8 What and how will we refund you. If you are entitled to a refund under these terms we will refund you the price you paid for the Products including delivery costs, by the method you used for payment. However, we may make deductions from the price, as described below.
13.9 When we may make deduction from refunds.
(a) We may reduce your refund of the price (excluding delivery costs) to reflect any reduction in the value of the goods, if this has been caused by your handling them in a way which would not be permitted in a shop. If we refund you the price paid before we are able to inspect the goods and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.
(b) The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method we offer. For example, if we offer delivery of a Product within 3-5 days at one cost but you choose to have the Product delivered within 24 hours at a higher cost, then we will only refund what you would have paid for the cheaper delivery option.
(c) Where the Product is a service, we may deduct from any refund an amount for the supply of the service for the period for which it was supplied, ending with the time when you told us you had changed your mind. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the contract.
13.10 When your refund will be made.
(a) If the Products are goods and we have not offered to collect them, your refund will be made within 14 days from the day on which we receive the Product back from you or, if earlier, the day on which you provide us with evidence that you have sent the Product back to us.
(b) In all other cases, your refund will be made within 14 days of your telling us you have changed your mind
14. PRICE AND PAYMENT
14.1 Where to find the price for the Product. The price of the Product (which excludes VAT and any other sales taxes) will be the price indicated on the order pages when you placed your order. We take all reasonable care to ensure that the price of the Product advised to you is correct. However please see clause 14.3 for what happens if we discover an error in the price of the Product you order.
14.2 We will pass on changes in the rate of VAT. If the rate of VAT or other sales charges changes between your order date and the date we supply the Product, we will adjust the rate of VAT that you pay, unless you have already paid for the Product in full before the change in the rate of VAT or sales tax takes effect.
14.3 What happens if we got the price wrong. It is always possible that, despite our best efforts, some of the Products we sell may be incorrectly priced. We will normally check prices before accepting your order so that, where the Product's correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the Product's correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order. If we accept and process your order where a pricing error is obvious and unmistakable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any goods provided to you.
14.4 When you must pay and how you must pay. When you must pay depends on what Product you are buying:
(a) For goods, you must pay for the Products before we dispatch them. We will not charge your credit or debit card until we dispatch the Products to you.
(b) For digital content, depending on which content we agree to provide you, you must pay for the Products either:
- Product before you download them (the purchase order shall set out the duration that you may have access to such Product); or
- on a monthly subscription basis in accordance with clause 14.5.
(c) For services, you must pay for these services before they are delivered, unless as part of a monthly subscription service.
14.5 Monthly subscription. If you have selected to purchase digital content on a monthly subscription basis then:
(a) you shall pay the due amount on a monthly basis in accordance with the any agreed terms (Due Amounts) until you or we terminate the subscription and then, subject to clause 14.5 (e)(i), such service shall terminate at the expiry of the calendar month that you have fully paid for (Termination Date);
(b) you shall remain liable for all outstanding Due Amounts up to the Termination Date together with any outstanding interest amounts as per clause 14.5(e)(i) below;
(c) you shall provide at the point of purchase valid, up-to-date and complete credit card details and any other relevant valid, up-to-date and complete contact and billing details;
(d) you shall authorise us to bill such credit card for the Due Amounts;
(e) you agree that if we have not received payment within 3 days of the due date and without prejudice to any other rights and remedies we may have:
(i) we may, without liability to you, disable your password, account and access to all or part of the services and we shall be under no obligation to provide any or all of the services while any Due Amounts or interest remain outstanding;
(ii) interest shall accrue on a daily basis on such due amounts at an annual rate of 3% over the then current base lending rate of our bankers in the UK from time to time commencing on the due date and continuing until fully repaid;
14.6 No right of set-off. You must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
14.7 We can charge interest if you pay late. If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 5% a year above the base lending rate of Barclays Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
14.8 What to do if you think an invoice is wrong. If you think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
14.9 Other fees. For all charges for any Products sold on the websites, Disguise or its vendors or agents will bill your credit/debit card or alternative payment method offered by us. You agree to provide valid and updated payment information and you agree to pay all such charges. When you provide credit or debit card information or other information necessary to facilitate payment to us or our vendors, you warrant and represent that you are the authorised user of the credit or debit card or alternative payment method that is used to pay for the Products. In the event legal action is necessary to collect on balances due, you agree to reimburse us and our vendors or agents for all expenses incurred to recover sums due, including legal fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all internet access services and telecommunications services needed for use of the websites.
14.10 Promotional codes. From time to time, we may issue promotion codes that may be redeemed at the time of check out. These codes are non-transferable and may only be used by the intended recipient; these codes have no cash value and are not redeemable for cash. We reserve the right to cancel any promotion code and reduction redemption when the total value of the promotional code exceeds the price of the item. Multiple promotional codes may not be combined. We are not responsible for any financial loss arising out of our refusal, cancelation, or withdrawal of a promotion or any failure or inability of a customer to use a promotional code for any reason.
15. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU IF YOU ARE A BUSINESS CUSTOMER
15.1 Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
15.2 Except to the extent expressly stated in clause 12.1 all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
15.3 Subject to clause 15.1:
(a) we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and
(b) our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums paid by you for Products under such contract.
16. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU IF YOU ARE A CONSUMER CUSTOMER
16.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
16.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Products; and for defective Products under the Consumer Protection Act 1987.
16.3 When we are liable for damage caused by defective digital content. If defective digital content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
16.4 We are not liable for business losses. If you are a consumer we only supply the Products for to you for domestic and private use. If you use the Products for any commercial, business or re-sale purpose our liability to you will be limited as set out in clause 15.
17. HOW WE MAY USE YOUR INFORMATION
17.2 You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all of data inputted by you or someone on your behalf for the purposing of using any of Disguise’s services and/Products (Customer Data). You will indemnify Disguise for all loss suffered by Disguise (including any of its group companies from time to time) in respect of any breach of legislation/law/regulation and/or third party rights (including but not limited to any intellectual property and confidentiality rights)
17.3 Disguise shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data. In the event of any loss or damage to Customer Data, your sole and exclusive remedy against Disguise shall be for Disguise to use reasonable commercial endeavours to restore (insofar as Disguise is able to) the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Disguise.
17.4 Both parties will comply with all applicable requirements of all applicable data protection and privacy legislation in force from time to time in the UK (UK Data Protection Legislation).
17.5 The parties acknowledge that:
(a) if Disguise processes any personal data on your behalf when performing our obligations under any terms, you are the controller and Disguise is the processor for the purposes of the UK Data Protection Legislation.
(b) the personal data may be transferred or stored outside the EEA or the country where you are located in order to carry out the services and Disguise’s other obligations to you.
17.6 Without prejudice to the generality of clause 17.4, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Disguise for the duration and purposes of the services so that Disguise may lawfully use, process and transfer the personal data in accordance with its obligations on your behalf.
17.7 Without prejudice to the generality of clause 17.4, Disguise shall, in relation to any personal data processed in connection with the performance by Disguise of its obligations as a data processor under these terms:
(a) process that personal data only on the documented written instructions of you unless Disguise is required by the laws of any member of the European Union or by the laws of the European Union applicable to Disguise and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where Disguise is relying on Applicable Laws as the basis for processing personal data, Disguise shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Disguise from so notifying you;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
- you or Disguise has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- Disguise complies with its obligations under the UK Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- Disguise complies with reasonable instructions notified to it in advance by you with respect to the processing of the personal data;
(c) assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the UK Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify you without undue delay on becoming aware of a personal data breach;
(e) at the written direction of you, delete or return personal data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
(f) continue to use sub-processors already engaged by Disguise as at the date of these terms being agreed. Details of such sub-processors are available on request. Disguise may change the identity of any sub-processor from time-to-time;
(g) allow for and contribute to audits, including inspections during normal working hours, by you (or an auditor nominated by you) in relation to the processing of the personal data by the Disguise or its subprocessors, provided Disguise is given reasonable notice of such audits and inspections and the identity of the auditor is agreed by Disguise (such agreement not to be unreasonably withheld or delayed);
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause and immediately inform you if, in the opinion of Disguise, an instruction infringes the UK Data Protection Legislation.
17.8 Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
17.9 Disguise may, at any time on not less than 30 days' notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by updating this webpage).
18. OTHER IMPORTANT TERMS
18.1 We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation.
18.2 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
18.3 Nobody else has any rights under this contract. Subject to clause 17.4, this contract is between you and us. No other person shall have any rights to enforce any of its terms, except as explained in clause 17.2 in respect of our guarantee. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these terms.
18.4 Our group companies have a right to enforce this contract. All members of our group of companies shall have the benefit of (and the right to enforce) all the provisions of this contract (without having any obligation to perform any of the obligations in this contract).
18.5 Force Majeure. We are not responsible to you or any other person in respect of any damages, delays, losses, failures of performance or anything similar in respect of circumstances that arise from acts or events outside the control of Disguise including but not limited to: epidemic, pandemic (including but not limited to coronavirus/Covid-19 and any consequences related to that), fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labour unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
18.6 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
18.7 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the Products, we can still require you to make the payment at a later date.
18.8 Which laws apply to this contract and where you may bring legal proceedings.
(a) If you are a consumer, these terms are governed by English law and you can bring legal proceedings in respect of any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) (a Dispute) in the English courts. If you live in Scotland you can bring legal proceedings in respect of a Dispute in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of a Dispute in either the Northern Irish or the English courts.
(b) If you are a business customer, these terms and any Dispute shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
You may contact us to request a cancellation by post, telephone or email, using the contact details on our website or in our terms and conditions. Alternatively, you may request a cancellation by using this form.
Once you have completed this form, please send it by post to: Hermes House 88-89 Blackfriars Rd, South Bank, London, United Kingdom, SE1 8HA, or by email to firstname.lastname@example.org
Last Updated: 17/08/2022
DISGUISE CLOUD SERVICES
Welcome to the ‘disguise cloud’ platform, made available to you by Disguise Technologies Limited, including any affiliates and subsidiaries (“Disguise”, “us” “we” or “our”).
‘disguise cloud’ is a platform which is a collection of cloud-based applications (the “Platform”). These Terms of Service (the “Terms”) govern your use of the Platform and our website including https://disguise.cloud/ and any other websites that we may later own or operate (each, a “Site,” and collectively, the “Sites”); plus, mobile and desktop applications (“Apps”), any application program interfaces (“APIs”), software development kits (“SDKs”) and collaboration tools and other products and services we may later own or operate (collectively, with the Sites, Apps, APIs, and SDKs, the “Services”).
1. AGREEMENT TO THESE TERMS
By using the Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
2. MODIFICATIONS TO THE TERMS OR SERVICES
We may modify the Terms at any time, at our sole discretion. If we do so, we will let you know by posting the modified Terms on the Site. If you continue to use the Services after such modification, you are indicating that you agree to the modified Terms. We may also change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
3. SERVICE TERMS
3.1. Who may use the Services. You may only use the Services if you are of eligible age to consent (by yourself and not by a parent or guardian) to share your data under applicable law; for example, you must be 13 years or older under United Kingdom and United States law, or 16 years or older under European Union law.
3.2. Use Restrictions. Except as otherwise expressly authorised in these Terms, you will not, and will ensure your employees, contractors, and other persons associated with your Platform account (“Authorised Users”) do not, and will not encourage or assist third parties to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services (except to the extent that such a restriction is impermissible under applicable law); (ii) provide, sell, resell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Services; and (iii) copy, modify, create derivative works of, or remove proprietary notices from the Services.
3.3. Acceptable Use Policy. You will comply with, and will ensure your Authorised Users comply with, our Acceptable Use Policy available here.
3.4. Authorised Users; Accounts. As part of the registration process, you will insert an email address and password for your Platform account or alternatively log in via a social media provider such as Google (“Account”). You represent and warrant that all registration information, including with respect to the list of domains owned or controlled by you for purposes of domain capture, you provide is truthful, accurate, and complete, and that you will maintain the accuracy of such information. You are responsible and liable for maintaining control over your Account, including the confidentiality of your email address and password, and are solely responsible and liable for all activities that occur on or through your Account and all Authorised Users’ accounts, whether authorised by you or not. For the avoidance of doubt, you may not share your Account login details with any other individual within your entity or otherwise, unless permission is expressly granted by us.
3.5 Fair Use Policy.
3.5. Reservation of Rights. As between the parties, Disguise owns all right, title, and interest in the Services, and you own all right, title, and interest in any application(s) and/or material(s) that are developed by you on the Services or uploaded to the Services by you (“User Content”). Except as expressly set forth in these Terms, each party retains all right, title, and interest in and to its intellectual property rights. All rights not expressly granted are reserved, and no license, covenant, immunity, transfer, authorization, or other right will be implied, by reason of statute, estoppel, or otherwise, under these Terms.
3.6. Feedback; Use Rights. We welcome feedback, comments, and suggestions (“Feedback”). As we need to be able to freely work with your Feedback to improve the Services, you hereby irrevocably transfer and assign all right, title, and interest (including all intellectual property rights, such as copyrights or trade secrets) in and to the Feedback, including any and all “moral rights” that you might have in such Feedback, and you hereby forever waive and agree never to assert any and all “moral rights” you may have in the Feedback. Additionally, we will have the right to collect and analyse data and other information relating to the provision, use, and performance of various aspects of the Services, and related systems and technologies, and we will be free to use such data and information to maintain, improve, and enhance our products and services.
3.7. Patent Assertion Entities. A “Patent Assertion Entity,” sometimes referred to as a ‘non-practicing entity’ or a ‘patent troll,’ is (a) any entity that derives or seeks to derive most of its revenue from the offensive assertion of patent rights, or (b) directly or indirectly controls, is controlled by, or is under common control with an entity described in (a). If you are a Patent Assertion Entity or are acting on behalf of, or for the benefit of a Patent Assertion Entity, you will not assert, or authorize, assist, encourage, or enable any third party to assert, any claim, or pursue any actions, suits, proceedings, or demands, against the Platform, Disguise or its affiliates that allege that the Services infringe, misappropriate, or otherwise violate any intellectual property rights (including patents). This section will survive any termination or expiration of these Terms.
Subject to the terms and conditions of these Terms, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable license worldwidew, (with the exception of (i) jurisdictions that are embargoed or designated as supporting terrorist activities by the Government of the United Kingdom and (ii) jurisdictions whose laws do not permit engaging in business with use of the Services) for you to access and use the Services in connection with your internal business operations.
5. CHARGES AND PAYMENT
5.1. Pricing. Certain Services are offered under different pricing plans and tiers, the limits and features of which are available on request. Your rights and obligations with respect to certain Services will be based in part on the pricing plan you choose. For the avoidance of doubt, if you are on a free plan and free tier (a “Starter Plan”), you are subject to our Fair Usage Policy, which entitles you to a maximum limit of 20,000 ‘GET’ requests and 2000 ‘PUT’ requests per month; and we may change such Fair Usage Policy, from time to time, in our sole discretion.
5.2. Payment Terms.
5.2.1. When you purchase Services (each such purchase, a “Subscription”), you expressly authorise us or our third-party payment processor to charge you for such Services. You represent and warrant that you have the legal right to use all payment methods that you provide to us.
5.2.2. All fees are stated and solely payable in U.S. Dollars, non-cancellable, non-refundable, and not subject to setoff, unless expressly set forth otherwise in these Terms.
5.2.3. In the event that you fail to pay the full amount owed to us, we may limit your access to the Services, in addition to any other rights or remedies we may have.
5.3. Authorization for Recurring Payments.
- 5.3.1. All pricing plans involve recurring fees (each, along with any applicable taxes and other charges are a “Subscription Fee”). Depending on which options you choose, those fees may recur each month or year thereafter, at the then-current rate. Please note that our fees are subject to change, although we will notify you before we effect any change.
- 5.3.2. By agreeing to these Terms and purchasing a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Disguise. We (or our third party payment processor) will automatically charge you in accordance with the term of your Subscription (e.g., each month, quarter, or year), on the calendar day corresponding to the commencement of your Subscription using the payment information you have provided.
- 5.3.3. In the event your Subscription begins on a day not contained in a later month, your payment method will be charged on such other day as we deem appropriate. For example, if you started a monthly Subscription on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on a pro-rata basis, on that date. We may also periodically authorize your payment method in anticipation of applicable fees or related charges.
- 5.3.4. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or the Subscription in accordance with these Terms.
5.4. Cancelling Subscriptions
- 5.4.1. You may cancel your Subscription at any time but please note that such cancellation will only be effective at the end of the then-current Subscription period. Unless required by law, you will not receive a refund of any portion of the subscription fee paid for the then-current subscription period at the time of cancellation.
- 5.4.2. You can cancel or downgrade, directly via the Platform and your Account. For the avoidance of doubt, only an Authorised User of your Account may cancel or modify your Subscription.
5.5. Taxes. Subscription Fees do not include taxes, and you agree to: (a) pay all sales/use, gross receipts, value-added, GST, personal property, or other tax (including any interest and penalties) with respect to the transactions and payments under these Terms, other than taxes based on our income, employees, or real property; and (b) be responsible for any filing of any information or tax returns with respect thereto.
5.6. Withholding. All payments made by you to us under these Terms will be made free and clear of any deduction or withholding. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required by law, you will pay such additional amounts as are necessary so that the net amount received by us after such deduction or withholding will be equal to the full amount that we would have received if no deduction or withholding had been required. Each party will use commercially reasonable efforts to work with the other party to help obtain, reduce, or eliminate any necessary withholding, deduction, or royalty tax exemptions where applicable.
6.1. Confidential Information. We (the “Discloser”) have disclosed or may disclose proprietary or non-public business, technical, financial, or other information (“Confidential Information”) to you (the “Recipient”). Our Confidential Information expressly includes non-public information regarding features, functionality, and performance of the Services, including security related information.
6.2. Obligations. The Recipient will use the Discloser’s Confidential Information only for the purpose of evaluating whether or not to use (or continue to use) the Services. The Recipient will not disclose the Discloser’s Confidential Information to parties other than the Recipient’s employees, contractors, affiliates, agents, or professional advisors (“Representatives”) who need to know it and who have a legal obligation to keep it confidential. The Recipient will ensure that its Representatives are subject to no less restrictive confidentiality obligations than those herein. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information: (a) if directed by Discloser; or (b) to the extent required by applicable legal process, provided that the Recipient uses commercially reasonable efforts to (i) promptly notify the Discloser in advance, to the extent permitted by law, and (ii) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. The obligations set forth herein will survive for so long as these Terms are in effect between the parties and for five years thereafter.
7. NO WARRANTY
7.1. In the event of any loss or corruption of any data associated with the Services, we will use commercially reasonable efforts to restore the lost or corrupted data from the latest relevant backup maintained by disguise. EXCEPT FOR THE FOREGOING, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING BUT NOT LIMITED TO SATISFACTORY QUALITY AND FITNESS FOR PURPOSE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. DISGUISE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORISED DISCLOSURE OR CORRUPTION OF ANY DATA.
7.2. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Services, and we make no guarantees around data retention or preservation. EXCEPT AS SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
7.3. NON-DISGUISE RESOURCES. DISGUISE DOES NOT WARRANT OR SUPPORT AND WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY OF ANY KIND FOR, ANY APPLICATION(S) AND/OR MATERIAL(S) THAT ARE DEVELOPED BY A PARTY OUTSIDE OF DISGUISE’S ORGANISATION, INCLUDING DESIGN FILES, PLUGINS, COMPONENT LIBRARIES, AND CODE COMPONENTS (“NON-DISGUISE RESOURCES”). NON-DISGUISE RESOURCES ARE PROVIDED BY THIRD PARTIES, NOT DISGUISE, AND ANY USE OF NON-DISGUISE RESOURCES IS SOLELY BETWEEN YOU AND THE APPLICABLE THIRD-PARTY PROVIDER.
You will indemnify and hold harmless DISGUISE and its officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services; (ii) your User Content; or (iii) your violation of these Terms.
9. LIMITATIONS OF LIABILITY
9.1. NEITHER DISGUISE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES (“SUPPLIERS”) WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DISGUISE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
9.2. IN NO EVENT WILL DISGUISE OR SUPPLIERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO DISGUISE IN THE PRECEDING TWELVE MONTHS FOR THE SERVICES.
9.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY DISGUISE TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
10.1. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice or liability to you, provided that if DISGUISE freezes your account or cancels your subscription and the termination is not due to your breach of these Terms, DISGUISE will provide you a pro rata refund of pre-paid unused fees unless, in our reasonable estimation, we are not legally permitted to do so (in which case any refund rights are null and void).
10.2. You may cease use of the Services at any time. If you are paying for a Subscription, you may terminate your Subscription through the process in Section 5.4.
10.3. Upon any termination, discontinuation, or cancellation of Services or your Account, the following provisions of these Terms will survive: Service Terms, Charges and Payment (to the extent you owe any fees at the time of termination); Confidentiality; provisions related to permissions to access User Content (to the extent applicable); Warranty Disclaimers; Indemnity; Limitations of Liability; Termination; and the Miscellaneous provisions under Section 11. Furthermore, we may remove or delete your User Content within three months after the termination or cancellation of Services or your Account
11.1. Force Majeure. Disguise will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as it uses commercially reasonable efforts to avoid or remove those causes of non-performance. If we believe in good faith that we are legally prohibited from providing you or your Authorised Users with the Services, we may freeze your account and/or cancel your subscription at our sole discretion.
11.2. Groups. Certain features of the Services may allow you to participate in teams, groups or organisations (each a “Group”). In those situations, the administrator, owner, or equivalent of the Group (“Admin”) is responsible for the compliance of these Terms by each other member of the Group, payment of the Subscription Fee (if applicable), and all matters related to the Group. For clarity, each member of the Group is still responsible for their own compliance with these Terms.
3.8 User Content. User content means all data or content uploaded into the Services by you for the purpose of using the Services or facilitating your use of the Services, which shall include but not be limited to images, videos, audio files, zip files, 3D files, 3D models, Disguise ‘designer’ project files, files from third party applications, game engine files and/or other data formats. Permission and access to such User Content is controlled and set by the role that you assign to members of your Group. The roles available to you and your Group may change based on your Subscription. For the avoidance of doubt, any options within the Services to share User Content outside of the Platform, shall include password protected features and/or can be publicly accessible based on your Subscription.
11.3. Beta Features. Product features identified as ‘Alpha’ or ‘Beta’ features (“Beta Features”) made available by us are provided to you for testing purposes only, and we do not make any commitment to provide Beta Features in any future versions of the Services. You are not obligated to use Beta Features. We may immediately and without notice remove such features for any reason without liability to you. All Beta Features are provided “as is” without warranty of any kind and without any performance obligations.
11.4. Notices. Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given by us: (i) via e-mail; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
11.5. Third Party Service Providers. For the avoidance of doubt, Disguise may engage third parties as service providers to the Services (for example, as of the date of these Terms, Disguise hosts the Services on Amazon Web Services).
11.6. No Partnership. No agency, partnership, joint venture, or employment is created as a result of these Terms, and neither party has any authority of any kind to bind the other party in any respect whatsoever.
11.7. Severability. The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision hereof and it is the intent and agreement of the parties that these Terms will be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and that achieves the same objective.
11.8. Assignment. These Terms (and your access to any of the Services) are not assignable or transferable by you without our prior written consent. Any purported assignment in violation of this section is null and void.
11.9. Governing Law. These Terms will be governed by and construed in accordance with the laws of England and Wales without application of that country’s conflict of law principles. The Parties submit to the exclusive jurisdiction of the English courts except that Disguise - at its sole discretion - shall be entitled alternatively to institute legal proceedings against you at courts having jurisdiction over your country of domicile.
11.10. Interpretation. Whenever the words “including,” “include,” or “includes” are used herein, they will be deemed to be followed by the phrase “without limitation.”
11.1. Entire Terms. These Terms supersedes all other agreements between the parties relating to its subject matter. The parties expressly agree that any different or additional terms set forth in any purchase order, code of conduct, or other similar documentation provided by you will not apply between the parties even if signed, acknowledged or accepted by us, unless we specifically references this clause and waives its rights.