These terms and conditions govern the use of our website https://bandtheme.com (our Site), a Band Theme Account and the Band Theme Services (the Terms). Please read them carefully before setting up a Band Theme Account or purchasing any Band Theme Services.
If you do not agree to these Terms, please do not sign up for a Band Theme Account or order Band Theme Services.
tell you who we are;
how we will provide Band Theme Services;
how Contracts can be changed or ended;
what to do if there is a problem; and
other important stuff.
These Terms apply to orders placed by you and our supply of Band Theme Services to you and no other terms shall apply to the Contract.
If you think that there is a mistake in these Terms or they require any changes, please contact us.
Please allow us to introduce ourselves.
We are Band Theme Limited, a company registered in England and Wales (Co.Number – 12796014) (We, Us, Our, Band Theme). Our registered office is at 41 Great Portland Street, London, United Kingdom, W1W 7LA.
writing to us at 41 Great Portland Street, London, United Kingdom, W1W 7LA.
We will contact you using the telephone number, email address and/or postal address you give to us from time to time.
Understanding these Terms
In these Terms, the following words have the following meanings:
Applicable Data Protection Laws
a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and
b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Band Theme is subject, which relates to the protection of personal data;
Band Theme Account
the account created in respect of you once you’ve completed our sign up process;
Band Theme Services
the services to be supplied by Band Theme under a Contract, which may include all or any of the following (as applicable):
a) Website Themes;
b) Installation Services;
c) Support; and
the sums payable for Band Theme Services, which may comprise of all or any of the following (as applicable) depending on the Band Theme Services you have purchased:
a) Website Theme Charges;
b) Installation Charges;
c) Support Charges;
d) Hosting Charges.
a condition of these Terms;
the contract between you and us for the supply of Band Theme Services, which comes into effect in accordance with Condition 5.3;
Customer Personal Data
the personal data comprised in any information which you may supply, or otherwise make available, to Band Theme in connection with these Terms and the performance of the Band Theme Services, a summary of which is set out in the Appendix to these Terms;
the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Band Theme from time to time;
the General Data Protection Regulation ((EU) 2016/679);
Force Majeure Event
any event beyond our reasonable control including, lock-out, strikes or other labour dispute (whether or not relating our workforce), acts of God, war or national emergency, protests, riot, civil commotion, acts of terrorism, malicious damage, compliance with the law or governmental restriction, order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic, pandemic, restraints or delays affecting carriers and difficulty or increased expense in obtaining workers, materials or other circumstances affecting the provision of Band Theme Services;
the charges payable for Hosting;
such third-party hosting providers as are engaged by Band Theme to provide the Hosting from time to time, being at the date of these Terms Krystal Hosting Ltd;
Intellectual Property Rights
any and all copyrights, moral rights, related rights, patents, supplemental protection certificates, petty patents, utility models, trade marks, trade names, service marks, design rights, database rights, website rights, semi-conductor topography rights, domain name rights, rights in undisclosed information rights in get up, goodwill or to sue for passing off, unfair completion rights, and other similar intellectual property rights (whether registered or not) and applications for any such rights as may exist anywhere in the world;
the charges payable for the Installation Services;
installation of the Website Theme within the WordPress Account, the further details of which are set out in Condition 9;
all applicable statutory and other laws, rules, regulations, instruments, orders and/or provisions in force from time to time;
either you or us and Parties means both of us;
a) Your employees, agents, representatives, consultants;
b) Our employees, agents, representatives, consultants and sub-contractors;
the date the Contract starts in accordance with Condition 5.3;
the charges payable for the Support;
support of the Website Theme, the further details of which are set out in Paragraph 2 of Schedule 1;
Third Party Fees
the fees payable (if any) in respect of the Third Party Products as notified by us to you from time to time;
Third Party Products
any software programs, plug-ins and other third party products which form part of the Band Theme Services;
Third Party Terms
the relevant third party provider’s terms and conditions for the supply of their Third Party Products;
has the meaning given to it in the Data Protection Act 2018;
value added tax chargeable under the Value Added Tax Act 1994 or any other equivalent applicable sales tax in force from time to time;
any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
our WordPress website template themes from time to time;
Website Theme Charges
the charges payable for the particular Website Theme;
WordPress, a trading name of Automattic Inc, a US registered company, whose registered office is located at 60 29th Street 343
San Francisco, CA 94110;
your website account with WordPress in respect of which the Website Theme is required;
any day that’s not a Saturday, Sunday or public holiday in England;
9.00am to 5:30pm on a Working Day;
a) in respect of the first year, the period commencing on the on the date these Terms come into effect in accordance with Condition 4.1 and ending on the date that is 12 months from the Start Date; and
b) in respect of any other year, the period of 12 months commencing on an anniversary of the Start Date;
as the case may require;
the person or other entity requiring the Band Theme Services and on whose behalf the Band Theme Account is created;
any data in any form, provided by you to us, including any data you upload to the Band Theme Account.
The headings in these Terms shall not affect their interpretation.
A reference in these Terms to:
a paragraph means the paragraph of the relevant schedule.
a person shall include an individual, company, limited liability partnership, corporate firm, partnership, joint venture, association, trusts or unincorporated bodies and associations (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns;
the singular shall include the plural and vice versa and a reference to one gender shall be a reference to the other gender and matter and vice versa;
a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and such statute or statutory provision shall include any subordinate legalisation made from time to time under that statutory provision;
writing or written excludes fax;
include, including and in particular or anything similar are illustrative only and none of them shall limit the sense of the words preceding or following them and each of them shall be deemed to incorporate the expression without limitation.
Setting up a Band Theme Account
These Terms come into effect when you create a Band Theme Account, and continue until the Band Theme Account is deactivated in accordance with Condition 19 and all Contracts have ended. Once you have submitted the completed registration form, we will send you an email which will confirm activation of the Band Theme Account.
You must provide valid credit or debit card details to us in order to set up and manage the Band Theme Account (Card Details). The Band Theme Account cannot be set up without this as it is the way we collect our Charges and get paid. You can update your Card Details at any time by altering the Card Details stored within the Band Theme Account settings.
Sealing the deal
Simply follow the onscreen prompts to order Band Theme Services. Each order placed by you is an offer to buy the particular Band Theme Services you have selected, in accordance with these Terms (your Order).
Please check your Order carefully and correct any errors before completing the checkout process and placing your Order. You must make sure your Order is complete and accurate.
When you place your Order, we will acknowledge it by email. However, this does not mean that your Order has been accepted by us. We will have accepted your Order when we email you to confirm:
that we accept your Order; and
the Band Theme Services we will provide to you;(our Order Confirmation). This is when the Contract for the Band Theme Services set out in our Order Confirmation, will come into effect and start. If you think any information in our Order Confirmation is wrong, please contact us promptly to let us know.
If we cannot provide the Band Theme Services in your Order for any reason, we will let you know by email and we will not process your Order or the part of your Order that relates to such Band Theme Services. If you have already paid for the Band Theme Services, we will refund you the amount you have paid for the Band Theme Services we are unable to provide as soon as possible.
We may be unable to accept your Order:
because of unexpected limits on our resources which we could not reasonably plan for;
a credit reference we have obtained for you does not meet our minimum requirements;
there is an issue with the Card Details you have provided or we are unable to process payment; or
we have identified an error in the price or description of the Band Theme Services.
Your Order will be given an order number. Please keep this safe as you will need to provide this to us if you have to contact us about your Order.
We reserve the right to only accept Orders from people who are over the age of 18.
The Band Theme Services
Provided you pay our Charges due from time to time, we will as from the Start Date:
provide the relevant Band Theme Services;
meet any performance dates agreed in writing with you from time to time but such dates are estimates only and time for our performance of the Band Theme Services shall not be of the essence of the Contract.
Where the Band Theme Services include:
Support, it will be provided in accordance with the terms set out in Schedule 1 until the subscription expires or the Contract is terminated in accordance with Condition 18; or
Hosting, it will be provided in accordance with Schedule 2 as from the date that we, in our absolute unfettered discretion, deem the Website Theme ready to be used in a live environment.
We can make such changes to the Band Theme Services as are necessary to comply with any Laws or which do not materially affect the nature or quality of the relevant Band Theme Services.
What you need to do
So we can provide the Band Theme Services to you, you must:
cooperate with us in all matters relating to the Band Theme Services and ensure that your Crew do the same;
provide us with such information and materials as we require, and ensure that they are complete and accurate in all material respects and ensure that your Crew do the same;
obtain and maintain all necessary licences, permissions and consents which may be required for the Band Theme Services before we start providing the Band Theme Services;
obtain and maintain all necessary right, title and interest in the Customer Data; and
comply with all Laws and ensure that your Crew do the same.
You agree that you shall no and shall ensure that your Crew shall not:
access, store, distribute or transmit any Viruses, or any material as part of your access to or use of the Band Theme Services that is: unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion Band Theme Services except to the extent as may be allowed by any Law which is incapable of exclusion by agreement between us and you;
allow or require a third party to access all or any part of Band Theme Services in order to build a product or service which competes with all or any of the Band Theme Services;and we can without prejudice to our other rights, and without incurring liability to you, disable your access to Band Theme Services if you breach this Condition 7.2.
Setting your Website Theme in motion
If the Contract is for a Website Theme and you haven’t ordered Installation Services as part of your Order, once you’ve placed your Order with our Site and our Order Confirmation has been sent, the Website Theme you’ve ordered will be made available for you to download and use. Installation instructions will be provided to enable you to install the Website Theme on your WordPress Website.
When the Website Theme has started to download, you will not be able to change your mind and cancel the Contract for the Website Theme.
If the Contract is for a Website Theme and Installation Services we will contact you via to set your Website Theme installation in motion.
Where a contract is for a Website Theme and Installation Services, we will:
contact you to discuss your installation requirements;
install and integrate the Website Theme onto your WordPress Account within 24 to 48 hours of receiving your Order (or longer should you fail to provide us with any information we may request in order to complete the installation);
where the Band Theme Services include Hosting, migrate the Website Theme to the Hosting Provider and you shall provide us with such assistance and information as we may reasonably require in respect of the same;
test the Website Theme to ensure it operates as we would reasonably expect it to and correct any errors or issues with the same, that are not due to any acts or omissions on your part;
notify you of any error or issues caused by your act or omissions and if you would like us to correct the same, we may charge our cost in doing so at our standard rates from time to time;
install and activate the relevant Third Party Products within your Order; and
notify you once the Website Theme has been installed and is ready for your use.
We will have completed the Installation Services when we notify you in accordance with Condition 1.5 and any issues or errors notified by us under Condition 9.1.3 shall not prevent us notifying you that the Website Theme is ready and available.
We can only provide the Installation Services if you provide us with access to your WordPress Account and such other materials and facilities as we require to provide the Installation Services, as and when we require this. If you fail to do so we will not be able to provide the Installation Services and we can treat this failure as a delay on your part.
It’s been a long time coming
If either Party becomes aware of any cause, matter or circumstance that may or is likely to cause a delay or impact on the Band Theme Services, it shall notify the other of this as soon as possible
Each Party shall take reasonable steps to put an end to or reduce any delays.
If we are prevented or delayed from providing the Band Theme Services by any failure by you or your Crew in doing what we need you to including those matters set out in Condition 1 or by any act or omission by you, of your Crew (Your Default):
we can suspend performance of the Band Theme Services until you remedy Your Default, and to rely on Your Default to relieve us from providing the Band Theme Services, in each case to the extent Your Default prevents or delays provision of the Band Theme Services. In certain circumstances Your Default may allow us to terminate the Contract under Condition 17;
we can adjust any timescales as reasonably necessary to take account of Your Default and we will not be in breach of the Contract as a result of a failure to meet a particular date or timescale where such failure is as a result of or arises in connection with a Your Default.
we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Band Theme Services arising directly or indirectly from Your Default; and
it will be your responsibility to pay us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
Intellectual Property Rights
The Intellectual Property Rights in the Band Theme Services are, and shall remain, the property of Band Theme and we reserve the right to grant licences to use the Band Theme Services to any other party or parties.
Subject to you paying the Website Theme Charges, we grant to you a non-exclusive, non-transferable perpetual licence to use the Website Theme you have ordered in accordance with these Terms provided that:
you may only download, install and use the relevant Website Theme for your business purposes only;
the Website Theme is used on only one WordPress Website at a time;
you may receive and use any free and supplementary update to the Website Theme as may be provided by us from time to time; and
any Documents provided by us are only copied as are reasonably necessary for the lawful use of the same by you.
We shall be entitled to take payment of the Charges as follows:
Website Theme Charges and the Installation Charges will be collected using the Card Details when you place your Order for the same; and
Support Charges and Hosting Charges, will be collected using the Card Details. The Charges due for the first Year will be collected when you place your Order for the same and then collections will be made annually thereafter on or around the Start Date.
Without prejudice to any other rights or remedies we may have, if we are unable to take payment for the Charges due using the Card Details, we shall:
have the right to disable your access to all or part of the Band Theme Services and we shall be under no obligation to provide any or all of the Band Theme Services while such sums remain unpaid; and
have the right to charge interest on the Charges due, such interest shall accrue on a daily basis at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
The Charges will be calculated at the prices quoted on our Site at the time you place your Order, however we can increase the Support Charges and Hosting Charges each Year and shall provide you with not less than 1 months’ notice of the increase.
Time for payment of the Charges shall be of the essence of the Contract.
We take all reasonable care to ensure that the Charges stated for the Band Theme Services are correct at the time when the you place your Order. However, please see Condition 8 for what happens if we discover an error in the price of the Band Theme Services you have ordered.
If you wish to change the scope of the Band Theme Services after we accept your Order, and we agree to such change, we will modify the Charges accordingly.
Our Charges are exclusive of VAT. Where VAT is payable in respect of some or all of the Band Theme Services you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Charges.
It is always possible that, despite our reasonable efforts, some of the Band Theme Services on our Site may be incorrectly priced. If the correct price for the Band Theme Services is higher than the price stated on our Site, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Band Theme Services at the correct price or cancelling your Order. We will not process your Order until we have your instructions. If we are unable to contact you using the contact details you provided during the Order process, we will treat the Order as cancelled and notify you in writing. However, if we mistakenly accept and process your Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Band Theme Services and refund you any sums you have paid.
Your Data and Privacy
You shall own all right, title and interest in and to all of the Customer Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Customer Personal Data.
Both Parties shall during the term of the Contract, comply with their respective obligations under the Applicable Data Protection Laws. This Condition 13 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Applicable Data Protection Laws.
The Parties acknowledge that:
if Band Theme processes any Customer Personal Data on the Customer’s behalf when performing its obligations under the Contract (in particular any data migration which may be provided as part of the Band Theme Services), the Customer is the controller and Band Theme is the processor for the purposes of the Applicable Data Protection Laws; and
The Appendix sets out the scope, nature and purpose of processing by Band Theme, the duration of the processing and the types of personal data and categories of data subject.
Without prejudice to the generality of Condition 2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to Band Theme for the duration and purpose of the Contract so that Band Theme may lawfully use, process and transfer the Customer Personal Data in accordance with the Contract on the Customer’s behalf.
Band Theme shall, in relation to any Customer Personal Data processed by Band Theme in connection with the performance of its obligations under the Contract:
process that Customer Personal Data only on the documented written instructions of the Customer unless Band Theme is required by Applicable Laws to otherwise process that Customer Personal Data (Purpose). Where Band Theme is relying on Applicable Laws as the basis for processing Customer Processor Data, Band Theme shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Band Theme from so notifying the Customer on important grounds of public interest. Band Theme shall inform the Customer if, in the opinion of Band Theme, the instructions of the Customer infringe Applicable Data Protection Laws;
ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, 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 Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer 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);
ensure that those employees of Band Theme who have access to, and process Customer Personal Data are obliged to keep it confidential;
assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a personal data breach;
at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination or expiry of the Contract unless required by Applicable Laws to store the Customer Personal Data; and
maintain complete and accurate records and information to demonstrate its compliance with this Condition 13 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of Band Theme, an instruction infringes the Applicable Data Protection Laws.
The Customer hereby provides its prior general authorisation for Band Theme to:
appoint third parties as third-party processors of the Customer Personal Data. Band Theme confirms that it has or will have entered into an agreement with the third parties on the terms, which incorporate substantially the same terms to those set out in this Condition 13. As between Band Theme and the Customer, Band Theme shall remain fully liable for all acts or omissions of any third-party processor appointed by it;
transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Band Theme shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Band Theme, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
Either Party may, at any time on not less than 30 days’ notice, revise this Condition 13 by replacing it with any applicable controller to processor standard agreement or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for us to use our reasonable endeavours to attempt to restore the lost or damaged data from the latest back-up of such data as may be maintained by the Hosting Provider. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by us to perform services related to Your Data maintenance and back-up).
There’s no limits – well just a few
You acknowledge and accept that:
the Band Theme Services are provided on an “AS IS” and “AS AVAILABLE” basis only and therefore we do not warrant that your use of the Band Theme Services will be uninterrupted or error-free or that the Band Theme Services and/or the information obtained by you through the Band Theme Services will meet your requirements;
we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and therefore the Band Theme Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
we do not back up Your Data. Your Data may be backed up by the Hosting Provider, where you receive Hosting, but we shall be under no obligation to require the Hosting Provider to undertake backups of Your Data; and
the Band Theme Services are provided in combination with Third Party Products and plug-ins. We are not responsible for such Third Party Products and plug-ins and we do not warrant that your use of such Third Party Products and plug-ins will be uninterrupted or error free.
You warrant that you have the full power and authority to enter into and perform your rights and obligations under the Contract.
We warrant that we will provide the Band Theme Services with reasonable care and skill.
Except as expressly set out in these Terms, all warranties, conditions terms and undertakings, express or implied, statutory or otherwise are excluded to the fullest extent permitted by Law.
The following provisions set out our entire liability (including any liability for the acts and omissions of our Crew) in respect of:
any breach of our contractual obligations arising under and/or in connection with these Terms or the Contract;
any use made by you of the Band Theme Services, or any part of them; and
any misrepresentation, mis-statement or tortious act or omission (including negligence but excluding any of the same made fraudulently) arising under or in connection with the Contract;
any other provision of these Terms or the Contract(a Liability Event).
Notwithstanding anything to the contrary in these Terms, nothing in these Terms shall limit or exclude our liability:
for death or personal injury resulting from our own negligence or that of our officers, directors, employees, agents or subcontractors;
fraud or fraudulent misrepresentation; or
to the extent that such liability action or exclusion is not permitted by any applicable law.
Subject to Condition 2, our total liability under or in connection with these Terms in respect of:
all Liability Events arising in relation to a Website Theme shall be limited to damages of an amount equal to 125% of the Website Theme Charges;
all Liability Events arising in relation to the Installation Services shall be limited to damages of an amount equal to 125% of the Installation Charges;
all Liability Events arising in relation to the Support in any Year shall be limited to damages of an amount equal to 125% of the Support Charges paid in the immediately preceding Year or in the case of the first year, 100% of the Support Charges paid in that Year;
all Liability Events arising in relation to the Hosting in any Year shall be limited to damages of an amount equal to 125% of the Hosting Charges paid in the immediately preceding Year or in the case of the first year, 100% of the Hosting Charges paid in that Year;
any other Liability Events arising in relation to your Band Theme Account or otherwise under these Terms shall be limited to £50.
Subject to Condition 2, we shall not be liable to you in respect of any Liability Event for any loss or damage which may be suffered by you (or any person claiming through or under you) whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which falls within the following categories:
loss of profits;
loss of turnover;
loss of anticipated savings;
loss of business opportunity;
loss of goodwill;
loss or corruption of data or information;
damage to reputation;
any special, indirect or consequential loss or damage,provided that this Condition 14.4 shall not prevent any claim for direct financial loss that is not excluded by Conditions 14.4.1 to 14.4.8 (inclusive).
We shall not be liable for any damage or losses to the extent they arise as a result of or in connection with:
any failure of you or your Crew to observe and perform your obligations under the Contract or these Terms generally;
any unauthorised or incorrect access or use of the Band Theme Services or use other than in accordance with the terms of the Contract or our instructions;
any modification or alteration of the Band Theme Services including Website Themes by any party other than us;
errors or omissions in any Band Theme Services, to the extent they are based on and/or relate to the information, instructions provided by you, your Crew or Your Data;
your failure to comply with the Third Party Terms (if applicable); or
any actions taken by us at your direction or that of your Crew.
If a number of Liability Events give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under these Terms.
We shall have no liability to you in respect of any Liability Event unless you have served notice of the same on us within 3 months of the date you became aware or ought to have become aware of the consequences of the Liability Event.
Third Party Products
You acknowledge and agree that:
the Third Party Products are provided by the third parties (each a Third Party Provider) and therefore the Third Party Products shall be provided by us to you on the Third Party Terms which shall apply as between us and you mutatis mutandis;
to the extent possible, we will use reasonable endeavours to enforce the Third Party Terms against the Third Party Provider including taking reasonable steps to require the Third Party Provider to restore the Third Party Product in the event of interruption, error or inaccessibility of the Third Party Product and otherwise taking such other steps as you reasonably request;
we will use our reasonable endeavours to utilise such support as is made available to us by the Third Party Provider;
if there is any inconsistency between any of the terms of these Terms and any of the terms set out in the relevant Third Party Terms, the Third Party Terms shall prevail;
you shall only be entitled to recover losses or damages from us for a failure to provide the Third Party Products or a breach of the Third Party Terms (as applicable between us and you from time to time) (other than a breach by you) if and to the extent that we have been able to recover such losses or damages from the relevant Third Party Provider; and
Third Party Products are not under the control of Band Theme and we make no representations or warranties in relation to the Third Party Products or their availability.
You warrant, represent and undertake that you shall:
pay any Third Party Fees as notified by us from time to time as payable; and
at all times comply with the Third Party Terms in force from time to time.
You shall indemnify and keep Band Theme fully indemnified from and against any losses, costs, claims, demands, expenses (including legal expenses), damages, liabilities of whatever nature arising, incurred or suffered by us as a result of any breach by you of any Third Party Terms as between Band Theme and you from time to time.
You acknowledge that details of the Band Theme Services are our confidential information. You shall not at any time disclose to any person any of our confidential information excepts as permitted by Condition 2.
You may disclose our confidential information:
to your Crew who need to know such information for the purposes of the Band Theme Services, provided you ensure such persons comply with this Condition 16; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
You shall not use our confidential information for any purposes other than to receive the Band Theme Services.
I want to break free
Without affecting any of our other rights or remedies, we may terminate the Contract immediately by notice in writing to you if:
you or your Crew commit any material breach of any term of these Terms which is not capable of remedy;
you or your Crew commit a material breach of these Terms which is capable of remedy, and you fail to remedy the same within 30 days of a written notice from us giving particulars of the breach and requiring it to be remedied; and
a Force Majeure Event prevents, hinders or delays our performance of our obligations for a continuous period of more than 2 months.
We may terminate the Contract at any time by giving notice in writing to you if you:
at any time, undergo a change of control or ownership;
stop carrying on all or a significant part of your business, or indicates in any way that you intend to do so;
you are unable to pay your debts either within the meaning of section 123 of the Insolvency Act 1986 or if we reasonably believe that to be the case;
become subject to a moratorium under Part A1 of the Insolvency Act 1986;
become the subject of a company voluntary arrangement under the Insolvency Act 1986;
become subject to a restructuring plan under Part 26A of the Companies Act 2006;
become subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
have a receiver, manager, administrator or administrative receiver appointed over all or any part of your undertaking, assets or income;
have a resolution passed for your winding up;
have a petition presented to any court for your winding up or an application is made for an administration order, or any winding-up or administration order is made against you;
are subject to any procedure for the taking control of your goods that is not withdrawn or discharged within 7 calendar days of that procedure being commenced;
have a freezing order made against you;
are subject to any recovery or attempted recovery of items supplied to you by a supplier retaining title to those items;
are subject to any events or circumstances analogous to those in Conditions 2.2 to 18.2.13 in any jurisdiction; or
take any steps in anticipation of, or have no realistic prospect of avoiding, any of the events or procedures described in Conditions 2.2 to 18.2.14 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
If you become aware that any event has occurred, or circumstances exist, which may entitle us to terminate the Contract under this Condition 18, you shall immediately notify us in writing.
On termination or expiry of the Contract:
you shall at our option return to us or destroy our Confidential Information;
no Charges shall be refundable for any reason; and
all licences and rights granted to you in respect of the Band Theme Services shall automatically terminate.
Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of either you or us that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination or expiry, nor shall it affect the coming into, or continuance in force of any provision of these Terms which expressly or by implication is intended to come into or continue in force on or after termination.
Band Theme Account Deactivation
You can close the Band Theme Account by contacting us and requesting us to do so.
On the deactivation of the Band Theme Account, all licences and rights granted to you under these Terms shall immediately cease and automatically terminate and you will no longer be able to use the Band Theme Services.
Deactivation and closure of the Band Theme Account shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date the Band Theme Account was closed, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination and any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after closure of the Band Theme Account shall remain in full force and effect.
Other legal bits
Events outside our control. We shall not be deemed to be in breach of these Terms or otherwise liable to you in any manner whatsoever for any failure or delay in performing our obligations under these Terms due to any Force Majeure Event.
Assignment. You shall not be entitled to assign, charge or otherwise transfer the Contract or any of your rights or obligations under these Terms, sub-license the right to use the Band Theme Services or hold the benefit of these Terms and/or the Contract in trust for any other person without our prior written consent.
Entire Agreement. These Terms and any documents expressly referred to in them contains the entire understanding between you and us and supersede any subsisting agreements, arrangements, understandings, negotiations, discussions or correspondence (written or oral, express or implied) relating to the subject matter of these Terms. You acknowledge that you have not relied on any warranty, representation or undertaking (whether made innocently or negligently) which is not contained in or specifically incorporated into these Terms and your only remedy in respect of those representations, statements, assurances or warranties set out in these Terms will be for breach of contract, provided always that nothing in this Condition 4 shall exclude or limit our liability for any fraudulent misrepresentation or warranty fraudulently given and upon which you can prove it has placed reliance.
Third Party rights. Nothing in these Terms shall confer any rights on any third parties whether pursuant to the Contract (Rights of Third Parties) Act 1999 or otherwise.
Waiver. A failure, delay or neglect by us to exercise any right or remedy or enforce any of these Terms shall be construed or deemed to be a waiver or continuing waiver of our rights or remedies, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Severance. If any provision of these Terms becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition 7 shall not affect the validity and enforceability of the rest of these Terms.
If we are providing notice to you, we shall send such notice to the email address registered to the Band Theme Account. If you are providing notice to us, in connection with these Terms it shall be sent to us by email to [email protected]
Any notice shall be deemed to have been received the next working day.
This Condition 22 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Governing Law and Jurisdiction
These Terms and any dispute arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English Law.
Both Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).
Schedule 1 – SUPPORT
1.1 .Unless the context requires otherwise, for the purpose of this Schedule 1,:
Defects means an error in a Website Theme that causes it to fail to operate substantially in accordance with Band Theme’s reasonable expectations;
New Releases means a new release of all or any part of a Website Theme in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further function or functions have been added.
2. The Support
2.1.We shall supply you with New Releases in machine-readable form together with related amendments to the Documentation (if any). We may make such New Releases available for downloading over the internet and will promptly notify you when such downloads are available.
2.2. We shall use our reasonable endeavours to provide the Support during Working Hours.
2.3. Support may be provided by telephone and email.
2.4. As part of Support, we will provide reasonable assistance to you and endeavour to:
2.4.1. remedying Defects in a Website Theme; and
2.4.2. provide advice on the use of a Website Theme.
2.5. We shall use reasonable endeavours to correct Defects notified to us by you in a timely manner appropriate to the seriousness of the circumstances in accordance with the following procedure:
2.5.1. you shall promptly notify us of all Defects by making a support request via either your Band Theme Account or the instant chat facility provided via the Site. Where such notification is made orally, you shall provide written confirmation (which may be sent by e-mail) of the notification within two Working Days;
2.5.2. within two Working Hours of such notification, we shall acknowledge receipt of the notification and shall determine, in consultation with you, how seriously the Defect affects your operations;
2.5.3. if a notified Defect halts or substantially impairs your operations which use the relevant Theme, we shall:
a) start work on correcting the Defect within four Working Hours of receipt of such notification;
b) use all reasonable efforts to correct the Defect as soon as possible; and
c) keep you informed of progress towards correction of the Defect.
2.5.4. if a notified Defect, while not halting or substantially impairing your operations, causes those operations to become significantly slowed or causes substantial inconvenience, we shall commence work on correcting the Defect within 48 Working Hours of receipt of such notification and shall use all reasonable efforts to correct the Defect as soon as possible; and
2.5.5. in the case of Defects other than those specified in clause 7.2 and clause 3.5.3(c), we shall start work on correcting the Defect as soon as our workload allows and shall use commercially reasonable efforts to correct the Defect.
2.6. We shall use reasonable efforts to ensure the accurate migration of any data, but we give no warranty as to the completeness or accuracy of such migration. You shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to us of any inaccuracies or omissions in order to permit us to correct them. If such data includes personal data, we shall return all copies of such personal data to you on completion of the data migration process.
Schedule 2 – HOSTING
1.1. Unless the context requires otherwise, for the purpose of this Schedule 2:
Additional Data Storage Fees has the meaning set out in Paragraph 1.2 of Part 2 of this Schedule 2;
Additional Date Storage Requirements has the meaning set out in Paragraph 1.2 of Part 2 of this Schedule 2;
Additional Storage has the meaning set out in Paragraph 1.2 of Part 2 of this Schedule 2;
Data Storage Area means the area within the Hosting where your Website Theme and Your Data will be stored by the Hosting Provider;
Hosting Provider Terms means the Hosting Provider’s standard terms and conditions as notified to the you from time to time;
Krystal Hosting Ltd means Krystal Hosting Ltd, a company registered in England and Wales under company number 07571790 and whose registered office is located at Kemp House 152 – 160 City Road London EC1V 2NX;
Storage Capacity means the storage capacity provided as part of your Order.
2.1. Hosting is provided on the following basis:
2.1.1. Hosting is operated by the Hosting Provider and we shall procure the same and make it available to you in accordance with the Hosting Provider Terms which shall apply mutatis mutandis;
2.1.2 we will use reasonable endeavours to enforce the Hosting Provider Terms against the Hosting Provider including taking reasonable steps to require the Hosting Provider to restore the Hosting in the event of interruption or failure of the Hosting and otherwise taking such other steps as you may reasonably request;
2.1.3. we will notify you as soon as reasonably practicable if we become aware of any facts or circumstances that constitute (or may constitute):
a) a failure on the part of the Hosting Provider to perform the Hosting,
b) a breach of the Hosting Terms,
2.1.4. we agree to use our reasonable endeavours to utilise such support as is made available to us by the Hosting Provider;
2.1.5. if there is any inconsistency between any of these Terms and any of the terms set out in the Hosting Provider Terms, the Hosting Provider Terms shall prevail.
2.2. You shall only be entitled to recover losses or damages from us for a failure to provide the Hosting or a breach of the Hosting Provider Terms if and to the extent that we have been able to recover such losses or damages from the Hosting Provider having used reasonable endeavours to do so in accordance with Paragraph 1.2.
2.3. Where either we or the Hosting Provider terminates (or gives notice to terminate) their arrangement in respect of the Hosting (howsoever arising) then we shall engage another hosting provider to provide substantially the same services as provided by the Hosting Provider as from the date of such termination or permit you to provide such hosting yourself or through your own hosting provider as from the date of such termination.
2.4. You agree and acknowledge that we may from time to time change the Hosting Provider, provided that:
2.4.1. we shall ensure that any such replacement Hosting Provider shall be reputable and maintain high standards of security measures;
2.4.2. subject to us providing to you a copy of any new Hosting Provider Terms, the obligations set out in this Schedule 2 shall apply in respect of any replacement Hosting Provider.
2.5. Where we terminate the Hosting pursuant to Paragraph 1 of this Schedule 2, you and we agree:
2.5.1. that as from the date of termination of the Hosting, Band Theme’s obligations in relation to the provision of the Hosting shall immediately cease without liability to you; and
2.5.2. that termination of the Hosting shall not operate to terminate the Contract and shall be without prejudice either your or our accrued rights or remedies in respect of the Hosting and its termination.
2.6. You acknowledge that the Hosting are provided to you via the Hosting Provider and accordingly:
2.6.1.you hereby warrant and undertake to us that you shall comply with the Hosting Provider Terms and shall indemnify and keep Band Theme fully indemnified and hold Band Theme harmless against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any breach by you of the Hosting Provider Terms; and
2.6.2. you agree to provide to us or the Hosting Provider such information and/or materials as reasonably requested by us or the Hosting Provider to verify your compliance with the Hosting Provider Terms.
3. Hosting and Data Storage Fees & Data Storage Capacity
3.1. Notwithstanding any increase in the Charges, where the Hosting Provider notifies us of any increase to its fees, we may, by serving written notice on you, increase the Hosting Charges by such amount as we deem reasonable in our sole discretion in the circumstances and unless otherwise stated in such notice, the Hosting Charges shall be immediately increased by such amount.
3.2. As at the Start Date, you have requested that we procure the Storage Capacity for the you within the Data Storage Area. If, during the Contract, you wish to increase the Storage Capacity and purchase additional storage, you shall provide us with written confirmation of the request setting out details of the additional storage you require (Additional Data Storage Requirements). We shall evaluate the Additional Data Storage Requirements and notify you of the actual amount (if any) of additional storage we can procure on your behalf (the Additional Storage) and the Charges due in respect of the same (the Additional Data Storage Fees).
3.3. If you confirm that you are happy for us to procure the Additional Storage then, subject to payment of the Additional Data Storage Fees, we shall procure the Additional storage and shall as soon as reasonably practicable following the Hosting Provider making such Additional Storage available to us, make the same available to you and that as from the date we make the Additional Storage so available:
3.3.1. the Storage Capacity shall be increased by the Additional Storage which will then be the Storage Capacity to be provided for the remainder of the Contract (subject to any further increase to the Storage Capacity in accordance with Paragraph 1); and
3.3.2. the Hosting Charges shall be increased by the value of the Additional Data Storage Fees.
4.1. We may terminate the Contract at any time with immediate effect by written notice to you if you commit a breach of the Hosting Provider Terms.
4.2. You agree and acknowledge that we may disclose your Confidential Information to the Hosting Provider.
Appendix- Data Processing
Subject matter and duration of the processing
Band Theme will only process Customer Personal Data on behalf of the Customer for as long as is required to comply with its obligations under the Contract and/or to provide the Band Theme Services, or, where it is required to store the same to comply with Applicable Laws (including Applicable Data Protection Laws), or for business record keeping purposes in accordance with Band Theme’s data retention processes.
Nature and purpose of the processing
Processing of Customer Personal Data to perform Band Theme’s obligations under the Contract.
Type of personal data
The Customer Personal Data may include names, addresses, mobile phone numbers, email addresses, IT system or account log in details, and such other personal identifiers and data relating to data subjects whose details may be provided (or made available) to Band Theme by the Customer in connection with the performance of the Contract.
Categories of data subjects
Individuals whose details may be provided (or made available) to Band Theme in connection with the performance of the Contract.