Terms & Conditions
BACKGROUND: These Terms and Conditions, together with any and all other documents referred to herein, set out the terms of use under which the Customer may use the Basker application. Please read these Terms and Conditions carefully and ensure that you understand them. You will be required to read and accept these Terms and Conditions when signing up for an Account and purchasing a Subscription. If you do not agree to comply with and be bound by these Terms and Conditions, you must stop using the Basker application immediately.
1. Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Acceptable Usage Policy” means Our acceptable usage policy as set out in Clause 18.
"Acceptance Criteria" means:
(a) the Application conforming in all material respects with the Specification; and
(b) the Application being free from Defects.
“Account” means an account required to access and use the Application, as detailed in Clause 4.
"API" means the application programming interface for Basker that is made available by Us.
"Application" means Basker, an application including the API which will be made available by Us to the Customer as a hosted service via the internet in accordance with these Terms and Conditions.
“Authorised Use Limits” means the limitations on usage of the Application as specified in the Plan selected by the Customer or as may be imposed by Us from time to time by giving written notice to the Customer.
"Confidential Information” means all information which is by its nature confidential, or which is marked as such, that is received by a party (“Receiving Party”) from the other party in connection with the Contract, other than (i) information that was rightfully in the possession of the Receiving Party before disclosure by the disclosing party; (ii) information that is in the public domain other than as a result of a breach of the Contract by the Receiving Party; or (iii) information that is independently developed without access to the other party’s Confidential Information.
“Content” means any and all text, images, audio, video, scripts, code, software, databases and any other form of information capable of being stored on a computer that appears on, or forms part of, the Application.
“Control Panel” means the management interface of the Application, accessed by the User at https://app.basker.io and used to create and manage a website.
“Contract” means the contract between Us and the Customer for the purchase and sale of a Subscription to the Application, as explained in Clause 10 and to which these Terms and Conditions shall apply.
“Customer” means a sole trader, partnership, company, charity, non-profit or other legally constituted entity identified by the details used to register the Account.
"Customer Systems" means the hardware and software systems of the Customer that interact with, or may reasonably be expected to interact with, the Application.
"Customer Third Party Services" means any hosted or cloud services that are provided by any third party under a contract or arrangement with the Customer and have the capability to transmit data to and/or from the Application.
“Data Protection Laws” means all applicable data protection and privacy legislation in force from time to time including the UK Data Protection Act 2018, the EU Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications, the UK Privacy and Electronic Communications Regulations 2003, the EU General Data Protection Regulation 2016/679 (the “EU GDPR”), the EU GDPR as it forms part of the law of the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”), the California Consumer Privacy Act, as amended by the California Privacy Rights Act (collectively, the “CCPA”) all national, federal, state, provincial, or local privacy, cybersecurity, and data protection laws, together with any implementing or supplemental rules and regulations, applicable to the processing of personal data under the DPA, as amended or replaced from time to time.
“DPA” means the data processing agreement set out in Schedule 1.
"Defect" means a defect, error or bug in the Application having a material adverse effect on the appearance, operation, functionality or performance of the Application, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Application.
(b) any use of the Application contrary to any documentation for the Application supplied by Us to the Customer, whether by the Customer or by any person authorised by the Customer.
(c) a failure of the Customer to perform or observe any of its obligations in the Contract; and/or
(d) an incompatibility between the Application and any other system, network, application, program, hardware, or software not specified as compatible in the Specification.
“End User” means an anonymous user that visits and/or uses a website created and managed by the Customer using the Application.
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Fair Usage Policy” means, in relation to a Customer that has selected a Plan with unlimited usage or access features, an obligation on the Customer not to exceed and/or abuse usage of such unlimited features to a level which is unreasonable and/or significantly in excess of what We would expect from a Customer on such a Plan.
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
"Initial Term" means the period specified as such in the Order Form or Subscription Confirmation and if applicable, commencing upon the completion of the Set-Up Services in accordance with Clause 5.
"Maintenance Services" means the general maintenance of the Application, and the application of updates and upgrades to the Application.
"Order Form” means, where applicable, an order form in relation to a Subscription that has been signed by Us and the Customer.
“Plan” means a set of features and limitations to the Application available via the Subscription, at an agreed price.
"Receiving Party” has the meaning given to it in the definition of Confidential Information.
“Renewal Term” has the meaning given to it in Clause 12.1.
“Retention Period” means the thirty (30) day period commencing with the end of the Term.
"Services" means any services that We provides to the Customer, or have an obligation to provide to the Customer, including the right to use the Application, under these Terms and Conditions.
“Set-Up Services” means the services for configuration, implementation, and/or integration of the Application to be provided by Us in accordance with an Order Form.
"Specification" has the meaning given to it in Clause 6.5.
“Subscription Confirmation” means, where applicable, an email sent by Us to a Customer confirming Our acceptance and confirmation of the Customer’s online order for a Subscription.
“Subscription” means an automatically-renewing subscription to access the Application, for functionality defined in a Plan purchased in accordance with these Terms and Conditions.
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Application, and which level of support is further described in and determined by the Plan selected by the Customer.
"Term" means the term of the Subscription (inclusive of the Initial Term and any Renewal Term), commencing on the start of the Initial Term and ending in accordance with Clause 12.
“UK GDPR” is defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“User” means a user of the Application, authorised by the Customer with access to the Control Panel.
“User Content” means data, works, materials, titles, messages, configurations, domain names, logos and templates created, generated, uploaded and/or stored by Users in, by or to the Application via the Control Panel, including within the websites created and managed by the Customer utilising the Application.
“We/Us/Our” means BASKER LTD, a limited company registered in England under company number 15505527, whose registered address and main trading address is Windsor House, Bayshill Road, Cheltenham, Gloucestershire, United Kingdom, GL50 3AT.
2. About Us
2.1. The Application is owned and operated by BASKER LTD, a limited company registered in England under company number 15505527, whose registered address and main trading address is Windsor House, Bayshill Road, Cheltenham, Gloucestershire, United Kingdom, GL50 3AT.
3. Access and Changes to the Application
3.1. Access to the Application requires a Subscription. Upon registering and/or purchasing a Subscription, the Application will be available to the Customer for the duration of that Subscription and any and all subsequent renewals.
3.2. We may from time to time make the following changes to the Application:
3.2.1. Minor changes may be required to make underlying technical alterations, for example, to fix an error or to address a security issue. We will inform the Customer by email of any such changes (including, if applicable, anything that the Customer need to do), however they will be unlikely to materially affect the Customer use of the Application;
3.2.2. Minor changes may be made to reflect changes in the law or other regulatory requirements. We will inform the Customer by email of any such changes (including, if applicable, anything that the Customer need to do), however they will be unlikely to materially affect the Customer use of the Application; and
3.2.3. We will continue to develop and improve the Application over time, in some cases making significant changes to it. The Customer will be kept fully informed of any and all such changes.
3.3. We will always aim to ensure that the Application is available at all times. In certain limited cases, however, We may need to temporarily suspend availability to make certain changes outlined under sub-Clause 3.2. Unless We are responding to an emergency or an urgent issue, We will inform the Customer in advance of any interruptions to the availability of the Application. Excluding any interruptions to the availability of the Application as a result of scheduled Maintenance Services in accordance with Clause 7, if we need to suspend the Application for longer than one hour in aggregate within a 28 day period. We will add a credit to the Customer’s account, calculated as the pro-rata rate for their Plan rounded up to a full day in each case. If We need to suspend the Application for longer than one continuous day the Customer may also have a right to cancel. Please refer to sub-Clause 12.4.3 for details.
4. Accounts
4.1. An Account is required to use the Application. By registering an Account you warrant that you are over the age of 18, that you represent a Customer using the Application in a business capacity (not in a personal, family, household or consumer capacity) and that you will not permit Users under the age of 18 to use the Application, or for any user to use the Application in any capacity other than on behalf of the Customer.
4.2. When creating an Account, information about the Customer must be accurate and complete. If any of the Customer information changes at a later date, it is the Customer’s responsibility to ensure that the Account is kept up-to-date via the Control Panel.
4.3. We require that Users choose strong passwords, consisting of a combination of lowercase and uppercase letters, numbers, and symbols. It is the Customer’s responsibility to ensure that Users keep passwords safe.
4.4. Users must not share passwords and the Customer must not permit or assist any unauthorised representatives to access or use the Application. If you believe the Account is being used without the Customer’s permission, please contact Us immediately. We will not be liable for any unauthorised use of the Account.
4.5. Any personal information provided in connection with the Account and its Users will be collected, used, and held in accordance with the Customer rights and Our obligations under data protection laws, as set out in Clause 24.
4.6. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to Us, or procure for Us, such:
4.6.1. co-operation, support, and advice; and
4.6.2. information and documentation,
as are reasonably necessary to enable Us to perform Our obligations under the Contract.
4.7. The Customer must provide to Us, or procure for Us, such access to the Customer's computer hardware, software, networks, and systems as may be reasonably required by Us to enable Us to perform Our obligations under the Contract.
4.8. The Customer shall be responsible for making any changes and updates to the Customer Systems that may be necessary to ensure that the Customer Systems remain compatible with the Application and the Specification.
4.9. If the Customer wishes to close and delete the Account, the Customer may do so at any time by emailing support@basker.io in accordance with Clause 12.5.
5. Set-Up Services
5.1. Where Set-Up Services are to be provided by Us, We shall provide the Set-Up Services to the Customer with reasonable care and skill and, subject to Clause 5.2, We shall use reasonable endeavours to ensure that the Set-Up Services are provided in accordance with any timetable set out in the Order Form.
5.2. The Customer acknowledges that a delay in the Customer performing its obligations in the Contract may result in a delay in the performance of the Set-Up Services; and subject to Clause 21.8, We will not be liable to the Customer in respect of any failure to meet the Set-Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under the Contract.
5.3. Any intellectual property rights that may arise out of the performance of the Set-Up Services by Us shall be Our exclusive property (unless the parties expressly agree otherwise in writing), with the explicit exclusion of any Customer trademarks, or other intellectual property belonging to the Customer and identified as such by mutual agreement of the parties at the commencement of the Set-Up Services.
6. Acceptance procedure
6.1. Where Set-Up Services are to be provided by Us, within 7 days following the completion of the Set-Up Services, the Customer shall test the Application to determine whether they meet the Acceptance Criteria.
6.2. If the Application meets the Acceptance Criteria, then the Customer must notify Us, within the period referred to in Clause 6.1, that the Application is accepted.
6.3. If the Application does not meet the Acceptance Criteria, then the Customer must notify Us of the failure, providing full details, within the period referred to in Clause 6.1, in which case We shall use all reasonable endeavours to remedy the failure within a further period of 14 days following receipt of the Customer's notice.
6.4. If the Customer fails to provide a notice to Us in accordance with Clause 6.2 or 6.3, then the Application shall be deemed to be accepted at the end of the period referred to in Clause 6.1.
6.5. For the purposes of meeting the Acceptance Criteria, the Application shall conform in all material respects with the following specifications (the “Specification”):
6.5.1. the Application is tested and certified using the current major version of the Google Chrome web browser. The Customer is welcome to use other desktop or mobile web browsers to access the Application on the basis that all functionality has not been certified on such browsers and may not work as intended;
6.5.2. We reserve the right to change the web browser used to test and certify the Application and will provide the Customer with 30 days written notice in advance of doing so;
6.5.3. to optimise the performance of the Application, it is the Customer's responsibility to:
(a) keep their devices and hardware in functioning order and up to date with relevant operating system updates and security patches;
(b) manage the storage/memory on their devices and hardware to ensure they have sufficient storage to use the Services; and
(c) ensure they have sufficient network bandwidth to enable uploading large quantities of multi-media data in accordance with the use of the Services; and
6.5.4. the Application is not compatible with any Customer Third Party Services save for those Customer Third Party Services specified in the Subscription Confirmation or Order Form or which are available to be installed within the Application app store.
7. Maintenance Services
7.1. We shall provide the Maintenance Services to the Customer with reasonable skill and care during the Term.
7.2. We shall where practicable give to the Customer prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Application or are likely to have a material negative impact upon the Application, and where practicable, shall schedule such Maintenance Services to minimize inconvenience to the Customer.
7.3. The Customer acknowledges that updates and upgrades to the Application will from time-to-time result in changes to the appearance and functionality of the Application, including the API.
7.4. We may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to Us under the Contract is overdue, and We are not at fault or in breach, in accordance with Clause 12.3.1.
8. Support Services
8.1. We shall provide the Support Services to the Customer during the Term in accordance with customary industry standards and in accordance with the Plan selected by the Customer.
8.2. We may suspend the provision of the Support Services if any amount due to be paid by the Customer to Us under the Contract is overdue, and We are not at fault or in breach, in accordance with Clause 12.3.1.
9. Subscriptions, Pricing and Availability
9.1. We make all reasonable efforts to ensure that all general descriptions of the Services available from Us (specifically, the Application and the Plan) correspond to the actual services that will be provided to the Customer. There may, however, be minor variations due to outdated documentation, screenshots or video screen captures from time to time.
9.2. The Customer will be required to select the Plan required for the Subscription. Different Plans provide access to different features and limitations within the Application. Please ensure that you select the appropriate Plan when prompted.
9.3. All pricing information is correct at the time of going online. We reserve the right to change prices and to add, alter, or remove special offers from time to time and as necessary. Changes will not affect Subscriptions that have already been purchased but may affect renewals of Subscriptions.
9.4. All quoted prices are exclusive of VAT and other sales taxes, except where marked. VAT is charged in the UK, and will be added to your invoice. For Customers in the EU, this is a reverse-chargeable supply for VAT purposes, and you are responsible for keeping records when paying VAT your country. Please be sure to enter the Customer VAT number within the account section of the Control Panel.
9.5. Except where explicitly agreed otherwise, Customers outside the UK, and outside the EU must pay the US Dollar (USD) price. These prices are exclusive of any taxes (including sales, use, value added, goods and services, corporate income, import, export, excise, franchise, stamp, electronic services supply or other tax), custom fees or tolls, levy, impost, withholding taxes, fees, duties or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively, “Taxes”). All Taxes shall be paid by the Customer to relevant authorities in addition to the Price. If any payment by the Customer is subject to withholding tax, the Customer agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount as is necessary to ensure that Supplier receives the same amount it would have received if there had been no withholding. The Customer shall deliver any certifications and other documents required to demonstrate eligibility and to benefit from any exemption or other relief from any Tax.
9.6. The Subscription is subject to the Authorised Use Limits and the Fair Usage Policy. The Customer may increase the Authorised Use Limits at any time, by submitting a request to support@basker.io to upgrade its Plan. In addition to any other rights We may have, if the Customer exceeds any Authorised Use Limits or in Our opinion, acting reasonably, exceeds the Fair Usage Policy, We will provide notice to the Customer of the overage amounts and rates and the Customer shall pay any invoice issued for excess usage within 14 days from the date of such invoice. In addition to any other rights We may have, if in Our opinion, acting reasonably, a Customer exceeds the Fair Usage Policy, We may in our discretion impose new Authorised Use Limits on the Customer.
10. Subscriptions – How Contracts Are Formed
10.1. The Customer will be guided through the online Subscription process when selecting a Plan and purchasing a Subscription. Please check carefully before confirming a purchase. As an alternative, We and the Customer may execute an Order Form in relation to the Subscription.
10.2. No part of the Application, website or any other material constitutes a contractual offer capable of acceptance. By purchasing a Subscription, the Customer is making Us a contractual offer that We may, at Our sole discretion, accept. Our acceptance is indicated by Us sending the Customer a Subscription Confirmation by email. Only once We have emailed the Customer a Subscription Confirmation or, as the case may be, an Order Form is executed by Us and the Customer, will there be a legally binding contract between Us and the Customer as governed by these Terms and Conditions (the “Contract”).
10.3. Subscription Confirmations or, as the case may be, Order Forms contain in particular the following information:
10.3.1. confirmation of the Customer’s chosen Subscription including full details of the main characteristics, features and Authorised Use Limits of the Application available as part of the Plan;
10.3.2. fully itemised pricing, including, where appropriate, taxes and other additional charges;
10.3.3. details of the duration of the Customer Subscription including the start date and the renewal date; and
10.3.4. in the case of Order Forms only, details of any Set-Up Services to be provided by Us.
10.4. If We do not accept or cannot process the Customer Subscription purchase for any reason, no payment will be taken under normal circumstances. If We have taken payment in such circumstances, the payment will be refunded to the Customer as soon as possible and in any event within 14 days.
10.5. Subject to the cancellation provisions in Clause 12, once the Customer has confirmed the Customer Subscription purchase, the Customer Subscription cannot be changed until the end or renewal date of that Subscription. Changes made to an auto-renewing Subscription will take effect when the Subscription is renewed.
10.6. By purchasing a Subscription, the Customer is expressly requesting access to the Application to be made available to the Customer immediately or as soon as the Set-Up Services are completed, unless stated otherwise in an Order Form. For more details of cancellation, please refer to Clause 12.
11. Payment
11.1. Payment for Subscriptions will be due at the time of purchase. the Customer chosen payment method will be billed immediately upon confirmation of the Customer Subscription.
11.2. We accept major credit cards via our payment partner Stripe, with no additional fees. We accept alternative payment methods as may be specified in a Subscription Confirmation or Order Form. We may charge fees for payment processing where alternative payment methods are accepted by prior arrangement.
12. Expiry and Termination
12.1. On expiry of the Initial Term, the Subscription renews automatically for successive periods equal to the Initial Term (each a “Renewal Term”) unless:
12.1.1. either party gives the other party not less than 30 days' notice to terminate prior to the end of the Initial Term or Renewal Term (as applicable), in which case the Subscription ends on the expiry of the Initial Term or the then-current Renewal Term (as applicable); or
12.1.2. unless terminated earlier in accordance with the terms of the Contract.
12.2. Either party may terminate the Subscription immediately by giving notice to the other party if:
12.2.1 the other party materially breaches the Contract unless, in a case where the breach is capable of remedy, the other party remedies the breach within 30 days after receiving notice to do so; or
12.2.2. the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3. We may suspend the provision of the Subscription and Services in whole or in part and/or terminate the Subscription immediately by giving written notice to the Customer if:
12.3.1. the Customer does not pay any amount due to Us under the Contract on the due date for payment and the Customer remains in default 7 days after being notified to make the payment; or
12.3.2. the Customer exceeds any Authorised Use Limits or in Our opinion, acting reasonably, exceeds the Fair Usage Policy.
12.4. The Customer may terminate the Subscription immediately by giving notice to Us if:
12.4.1. we have informed the Customer of an upcoming change to these Terms and Conditions which is to take effect prior to a renewal date that the Customer does not agree to;
12.4.2. a right to terminate the Subscription arises under Clause 26 as a result of a Force Majeure Event; or
12.4.3. we have informed the Customer that We have suspended, or are planning to suspend, availability of the Application for a period greater than one continuous day.
12.5. Subject to Clause 12.1, Subscriptions can be cancelled by the Customer at any time, however, no refunds can be provided and the Customer will continue to have access to the Application for the duration of the remainder of the Initial Period or, as the case may be, the current and/or subsequent Renewal Period. To cancel a Subscription for any reason, please inform us by emailing support@basker.io.
13. Effects of termination
13.1. Except to the extent that these Terms and Conditions expressly provide otherwise, the termination of the Subscription shall not affect the accrued rights of either party.
13.2. Within 14 days following the termination of the Subscription for any reason:
13.2.1. the Customer must pay to Us any outstanding fees and charges in respect of Services provided to the Customer before the termination of the Subscription; and
13.2.2. save where We have terminated the Subscription in accordance with Clause 12.2 or 12.3 or save where the Customer has terminated the Subscription in accordance with Clause 12.5, We must refund to the Customer any fees and charges paid by the Customer to Us in respect of Services that were to be provided to the Customer after the termination of the Subscription,
without prejudice to the parties' other legal rights.
13.2.3. On the condition that the Customer has paid all fees and charges due to Us in full, We shall maintain User Content and Customer access to User Content only within the Application during the Retention Period. The Customer may, during the Retention Period, download any User Content from the Application via a request to the Our support team at support@basker.io. Thereafter, following expiry of the Retention Period, We will delete or destroy all copies of User Content without liability or additional notice, unless legally prohibited from doing so. User Content cannot be recovered once deleted or destroyed. The Customer may by written notice request Us to delete or otherwise dispose of the User Content prior to the expiration of the Retention Period.
14. Our Intellectual Property Rights and Rights of Use
14.1. We grant Users a limited, non-exclusive, revocable, worldwide, non-transferable right to use the Application to create and manage websites for business purposes, subject to these Terms and Conditions.
14.2. Subject to the rights granted to Us under sub-Clause 16.3, Users retain the ownership of copyright and other intellectual property rights in their User Content (subject to any third party rights in that User Content and the terms of any licence under which the Customer uses such Content).
14.3. All other Content included in the Application (including all user-facing material, and all underlying material such as code, software and databases) and the copyright and other intellectual property rights in that Content, unless specifically labelled otherwise, belongs to or has been licensed by Us. All Content is protected by applicable United Kingdom and international intellectual property laws and treaties.
14.4. By accepting these Terms and Conditions, the Customer hereby undertakes:
14.4.1. Not to copy, download or otherwise attempt to acquire or alter any part of the Application;
14.4.2. Not to disassemble, decompile or otherwise reverse engineer the Application;
14.4.3. Not to allow or facilitate any use of the Application that would constitute a breach of these Terms and Conditions;
14.4.5. Not to embed or otherwise distribute the Application on any website, ftp server or similar;
14.4.6. Not to sub-license its right to access and use the Application;
14.4.7. Not to commercially exploit or otherwise use the Application to provide services to third parties; and
14.4.8. Not to republish or redistribute any content or material from the Application, except that the Customer may distribute User Content produced by means of the Application in the ordinary course of the Customer's business.
15. Integrations with Customer Third Party Services
15.1. Where applicable, those Customer Third Party Services identified in the Subscription Confirmation or Order Form will be integrated with the Application by the time of completion of the Set-Up Services. Customers may also during the Term install Customer Third Party Services that are made available for downloading within the Application app store.
15.2. We may remove, suspend, or limit any Customer Third Party Services integration at any time in Our sole discretion.
15.3. The supply of Customer Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. We do not contract to supply the Customer Third Party Services and are not a party to any contract for, or otherwise responsible in respect of, the provision of any Customer Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Customer Third Party Services.
15.4. The Customer acknowledges that:
15.4.1. the integration of Customer Third Party Services may entail the transfer of User Content from the Application to the relevant Customer Third Party Services;
15.4.2. We have no control over, or responsibility in respect of, any disclosure, modification, deletion, or other use of User Content resulting from the integration of any Customer Third Party Services; and
15.4.3. the Customer is also responsible for managing components that are downloaded onto their environment such as web browser-based software plug-ins that extend the Application.
15.5. Without prejudice to its other obligations under this Clause 15, the Customer must ensure that it has in place the necessary contractual safeguards to ensure that both:
15.5.1. the transfer of relevant User Content (including any personal information) to a provider of Customer Third Party Services is lawful; and
15.5.2. the use of relevant User Content (including any personal information) by a provider of Customer Third Party Services is lawful.
15.6. The Customer warrants to Us that the transfer of User Content by Us to a provider of Customer Third Party Services in accordance with this Clause 15 will not infringe any person's legal or contractual rights and will not put Us in breach of any applicable laws.
15.7. Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 21.8:
15.7.1. We give no warranties or representations in respect of any Customer Third Party Services; and
15.7.2. We shall not be liable to the Customer in respect of any loss or damage that may be caused by any Customer Third Party Services or any provider of Customer Third Party Services.
16. User Content
16.1. The Customer agrees that they will be solely responsible for any and all User Content that they create or upload using the Application. Specifically, the Customer agrees, represents and warrants that it has the right to create or upload the User Content and the right to use all materials of which it is comprised and that it will not contravene any aspect of Our Acceptable Usage Policy.
16.2. The Customer agrees it will be liable to Us and will, to the fullest extent permissible by law, indemnify Us for any breach of the warranties given by the Customer under sub-Clause 16.1. The Customer will be responsible for any loss or damage suffered by Us as a result of such breach.
16.3. The Customer (or the Customer licensors, as appropriate) retains ownership of the Customer User Content and all intellectual property rights subsisting therein. By creating or uploading User Content, the Customer grants Us an unconditional, non-exclusive, fully transferable, royalty-free, perpetual, worldwide licence to use, store, archive, syndicate, publish, transmit, adapt, edit, reproduce, distribute, prepare derivative works from, display, perform and sub-licence the Customer User Content for the purposes of operating and promoting the Application.
16.4. If the Customer wishes to remove User Content, the Customer may do so by using the Control Panel. Removing User Content also revokes the licence granted to Us to use that User Content under sub-Clause 16.3. The Customer acknowledges, however, that caching or references to the Customer User Content may not be made immediately unavailable (or may not be made unavailable at all where they are outside of Our reasonable control).
16.5. We may reject, reclassify, or remove any User Content created or uploaded using the Application where that User Content, in Our sole opinion, violates Our Acceptable Usage Policy, or if We receive a complaint from a third party and determine that the User Content in question should be removed as a result.
16.6. We shall create a back-up copy of the User Content on the Application at least once per day, shall ensure that each such copy is sufficient to enable Us to restore the Application to the state it was in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
16.7. Following receipt of a written request from the Customer (such request to be made no more than once every 3 months), We shall use all reasonable endeavours to restore to the Application the User Content stored in any back-up copy created and stored by Us in accordance with Clause 16.6. The Customer acknowledges that this process will overwrite the User Content stored on the Application prior to the restoration.
16.8. We will collect, modify, utilise and analyse meta data and/or operations data which does not contain any identifiable Customer personal information or User Content, such as system log files and transaction counts which relate to system utilisation and performance statistics, all as deemed necessary by Us.
17. Customer Intellectual Property Rights and User Content
17.1. All User Content and the intellectual property rights subsisting therein, unless specifically labelled otherwise, belongs to or has been licenced by the Customer. All User Content is protected by applicable United Kingdom and international intellectual property laws and treaties.
17.2. Customers may not copy, distribute, publicly perform, publicly display, reproduce or create derivative works based upon, another Customer’s User Content without first obtaining the express consent of the Customer to whom the User Content in question belongs.
17.3. We do not make any representation or warranty that the Customer User Content will not be unlawfully copied without the Customer’s permission.
18. Acceptable Usage Policy
18.1. the Customer may only use the Application in a manner that is lawful and that complies with the provisions of this Clause 18.
Specifically the Customer must and procure that its Users must:
18.1.1. comply fully with any and all applicable local, national and international laws and/or regulations;
18.1.2. not use the Application in any way, or for any purpose, that is unlawful or fraudulent or in connection with any unlawful or fraudulent activity;
18.1.3. not use the Application to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software or any data of any kind;
18.1.4. not use the Application in any way, or for any purpose, that is intended to harm any person or persons in any way;
18.1.5. not exceed the limits laid out in the Plan or persistently over-utilise resources in a manner that is not explicitly limited by the Plan but that in Our sole judgement compromises or threatens to compromise the effectiveness of the Application for other Customers; and
18.1.6. not perform load tests or penetration tests or any similar test on the platform except with permission and by prior arrangement. Unauthorised tests will be considered breaches of sub-Clauses 22.4 and/or 22.5.
18.2. The following types of User Content are not permitted on the Application and the Customer must not and procure that its Users must not create, submit, communicate or otherwise do anything that:
18.2.1. is sexually explicit;
18.2.2. is obscene, deliberately offensive, hateful, or otherwise inflammatory;
18.2.3. promotes violence;
18.2.4. promotes or assists in any form of unlawful activity;
18.2.5. discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation, or age;
18.2.6. is intended or otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
18.2.7. is calculated or otherwise likely to deceive;
18.2.8. is intended or otherwise likely to infringe (or threaten to infringe) another person’s right to privacy;
18.2.9. misleadingly impersonates any person or otherwise misrepresents the Customer identity or affiliation in a way that is calculated to deceive (obvious parodies are not included within this definition provided that they do not fall within any of the other provisions of this sub-Clause 18.2);
18.2.10. implies any form of affiliation with Us where none exists, except by use of the ‘powered by Basker` link and logo, which The Customer hereby agrees not to attempt to hide or obfuscate by use of HTML, Javascript or CSS except where allowed by their Plan;
18.2.11. infringes, or assists in the infringement of, the intellectual property rights (including copyright, patents, trade marks and database rights) of any other party; or
18.2.12. is in breach of any legal duty owed to a third party including contractual duties and duties of confidence.
18.3. We reserve the right to suspend or terminate the Account and/or the Customer access to the Application if the Customer materially breach the provisions of this Clause 18 or any of the other provisions of these Terms and Conditions. Specifically, We may take one or more of the following actions:
18.3.1. Suspend, whether temporarily or permanently, the Account and/or the Customer right to access the Application (for more details regarding such cancellation, please refer to sub-Clause 12.2);
18.3.2. Remove any of the Customer User Content which violates this Acceptable Usage Policy;
18.3.3. Issue the Customer with a written warning;
18.3.4. Take legal proceedings against the Customer for reimbursement of any and all relevant costs on an indemnity basis resulting from the Customer breach;
18.3.5. Take further legal action against the Customer as appropriate;
18.3.6. Disclose such information to law enforcement authorities as required or as we deem reasonably necessary; and/or
18.3.7. Any other actions which We deem reasonably appropriate (and lawful).
18.4. We hereby exclude any and all liability arising out of any actions (including those set out above) that We may take in response to breaches of these Terms and Conditions.
19. Third Party Links and Advertising
19.1. We may provide links to other third party content such as websites, web apps and downloadable apps and/or feature advertising within the Application and We reserve the right to display such links and/or advertising on the same page as any User Content where allowed by the Plan.
19.2. The Customer agrees that they will not attempt to remove or hide any links or advertising using HTML/CSS or by any other method.
19.3. We are not responsible for the content of any links to third party content and/or advertising in the Application. Each third party link provider and/or advertiser is responsible for the content of their own link and/or advertising material. We will not be responsible for any link or advertising content in the Application including any errors, inaccuracies, or omissions. The provision of a link to third party content or advertising feature by Us is for reference only and does not imply any endorsement of the linked or advertised content or of those in control of it.
20. Disclaimers
20.1. No part of the Application or any accompanying documentation (whether provided in electronic form or otherwise) constitutes advice on which the Customer should rely and is provided for general information purposes only. Professional or specialist advice should always be sought before taking any action relating to load testing, performance management, website optimisation and web application resilience.
20.2. Insofar as is permitted by law, We make no representation, warranty, or guarantee that the Application will meet the Customer requirements, that it will be fit for a particular purpose, that it will not infringe the rights of third parties, that it will be compatible with all software and hardware, or that it will be secure or free from defects, errors or bugs.
20.3. We are not responsible for any loss, destruction, alteration or disclosure of User Content caused by any third party, except those third parties engaged by Us to maintain and back up User Content.
20.3. We make reasonable efforts to ensure that the content contained within the Application is complete, accurate and up-to-date. We do not, however, make representations, warranties or guarantees (whether express or implied) that the Application (and the content therein) is complete, accurate or up-to-date.
20.4. We are not responsible for the content or accuracy, or for any opinions, views, or values expressed in (a) any User Content created or uploaded using the Application, or (b) any websites created and managed by the Application. Any such opinions, views, or values are those of the relevant Customer or End User, and do not reflect Our opinions, views, or values in any way.
21. Our Liability
21.1. To the fullest extent permissible by law, We accept no liability for any foreseeable loss in contract, tort (including negligence), for breach of statutory duty, or otherwise arising out of or in connection with the use of (or inability to use) the Application or the use of or reliance upon any Content (whether that Content is provided by Us or whether it is User Content) included in the Application.
21.2. To the fullest extent permissible by law, We accept no liability to consumers or businesses for loss or damage that is not foreseeable.
21.3. To the fullest extent permissible by law, We exclude all representations, warranties, and guarantees (whether express or implied) that may apply to the Application or any Content (including User Content) included in the Application.
21.4. We accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
21.5. We exercise all reasonable skill and care to ensure that the Application is free from viruses and other malware. Subject to sub-Clause 20.2, We accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material that may adversely affect the Customer hardware, software, data or other material that occurs as a result of the Customer use of the Application (including the downloading of any Content (including User Content) from it) or any other website or service that We may provide a link to.
21.6. We neither assume nor accept responsibility or liability arising out of any disruption or non-availability of the Application resulting from external causes including ISP equipment failure, host equipment failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
21.7. Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
21.8. NOTHING IN THESE TERMS AND CONDITIONS EXCLUDES OR RESTRICTS OUR LIABILITY IN ANY SITUATION WHERE IT WOULD BE UNLAWFUL FOR US TO DO SO INCLUDING FRAUD OR FRAUDULENT MISREPRESENTATION, FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, OR FOR ANY OTHER FORMS OF LIABILITY WHICH CANNOT BE EXCLUDED OR RESTRICTED BY LAW.
22. Viruses, Malware and Security
22.1. We exercise all reasonable skill and care to ensure that the Application is secure and free from viruses and other malware. We do not, however, guarantee that the Application is secure or free from viruses or other malware and accept no liability in respect of the same.
22.2. The Customer is responsible for protecting the Customer hardware, software, data and other material from viruses, malware and other internet security risks.
22.3. The Customer must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via the Application.
22.4. The Customer must not attempt to gain unauthorised access to any part of the Application, the servers on which the Application is stored, or any other server, computer, or database connected to the Application.
22.5. The Customer must not attack the Application by means of a denial of service attack, a distributed denial of service attack, or by any other means.
22.6. By breaching the provisions of sub-Clauses 22.3 to 22.5 the Customer may be committing a criminal offence under the Computer Misuse Act 1990. Any and all such breaches will be reported to the relevant law enforcement authorities and We will cooperate fully with those authorities by disclosing the Customer identity to them. the Customer right to use the Application will cease immediately in the event of such a breach and, where applicable, the Account will be suspended and/or deleted.
23. Privacy and Cookies
Use of the Application is also governed by Our Privacy Policy and Cookie Policy available from
https://basker.io/privacy-policy
These policies are incorporated into these Terms and Conditions by this reference.
24. Data Protection
The Parties acknowledge that Customer’s Personal Data (as defined in the DPA) may be processed by Us in connection with the Services and in accordance with Data Protection Laws and the parties shall comply with the data processing requirements as set out in the DPA.
25. Confidentiality
25.1. The parties may disclose Confidential Information to each other if it is necessary to do so.
25.2. Subject to Clause 25.3, the Receiving Party must:
25.2.1. treat in confidence all Confidential Information;
25.2.2. not disclose in whole or in part Confidential Information to anyone who is not a party to the Contract;
25.2.3. not to use any Confidential Information for any purpose outside the scope of the Contract; and
25.2.4. apply at least the same measures for the purpose of ensuring the confidentiality of Confidential Information as it applies to its own confidential information, which must be at least a reasonable standard.
25.3. A Receiving Party may disclose Confidential Information:
25.3.1. to its group companies and to its and their employees, officers, representatives, contractors or advisors to the extent required for the proper performance of the Contract (conditional on those recipients being told about the confidential nature of the Confidential Information and the Receiving Party ensuring that they comply with Clause 25.2 as if they were parties to the Contract); and
25.3.2. to the extent required to do so by law, but only if the Receiving Party (if it is lawful to do so) notifies the other party as far as reasonably practicable in advance that the disclosure will be made and provide reasonable assistance, at the other party’s cost, if such other party wishes to contest the disclosure.
26. Force Majeure Event
26.1. Except for payment obligations, if a Force Majeure Event gives rise to a failure or delay in either party (the "affected party”) performing any obligation under the Contract, that obligation will be suspended for the duration of the Force Majeure Event. If such Force Majeure Event occurs and continues for 30 days or longer, then the non-affected party may terminate the Contract immediately by notifying the affected party.
27. Communications from Us
27.1. We may from time to time send the Customer, and its associated Users important notices by email. Such notices may relate to matters including service changes, changes to these Terms and Conditions, changes to the Application, and changes to the Account.
27.2. By registering an Account, or accepting an invitation to become a User on the Account, you consent to receiving marketing emails in relation to the Application from time to time. Users may withdraw consent by opting out at any time. Any and all marketing emails sent by Us include an unsubscribe link. If a User opts out of receiving emails from Us at any time, it may take up to seven days for Us to comply with the Customer request. During that time, the Customer may continue to receive emails from Us. We will never pass User email addresses or associated details to third parties for the purpose of marketing, other than to platforms or agents that We use for Our own marketing and then strictly for that use.
27.3. For questions or complaints about email communications from Us (including marketing emails), please contact Us at support@basker.io.
28. Other Important Terms
28.1. We may transfer (assign) Our obligations and rights under these Terms and Conditions (and under the Contract, as applicable) to a third party (this may happen, for example, if We sell Our business). If this occurs, the Customer will be informed by Us in writing. the Customer rights under these Terms and Conditions will not be affected and Our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them.
28.2. The Customer may not transfer (assign) the Customer obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without Our express written permission.
28.3. The Contract is between the Customer and Us. It is not intended to benefit any other person or third party in any way, including End Users, and no such person or party will be entitled to enforce any provision of these Terms and Conditions.
28.4. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification or deletion under this Clause 28.4 does not affect the validity or enforceability of the rest of the Contract.
28.5. No failure or delay by Us in exercising any of Our rights under these Terms and Conditions means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms and Conditions means that We will waive any subsequent breach of the same or any other provision.
28.6. Any part of these Terms and Conditions which, by its nature, should survive termination will continue in force including clauses pertaining to governing law, confidentiality, disclaimer, limits of liability and termination.
28.7. We may subcontract any of Our obligations under the Contract. We shall remain responsible to the Customer for the performance of any subcontracted obligations.
29. Changes to these Terms and Conditions
29.1. We may alter these Terms and Conditions at any time by giving not less than 30 days’ notice. Any such changes will become binding on the Customer upon the Customer first use of the Application after the changes have been implemented. Changes to the Terms of Service will be communicated by email.
29.2. In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
30. Contacting Us
To contact Us, please email Us at support@basker.io or by using any of the methods provided on our contact page at https://www.basker.io/contact.
31. Law and Jurisdiction
31.1. These Terms and Conditions, the Contract, and the relationship between the Customer and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with the law of England & Wales.
31.2. If the Customer is a business, any disputes concerning these Terms and Conditions, the relationship between the Customer and Us, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the courts of England and Wales.
32. Interpretation
32.1. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
32.1.1 that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
32.1.2. any subordinate legislation made under that statute or statutory provision.
32.2. In the event of a conflict between the Subscription Confirmation or, as the case may be, the Order Form and any other element of these Terms and Conditions, the Subscription Confirmation or, as the case may be, the Order Form shall take precedence.
32.3. In these Terms and Conditions:
32.3.1. the terms “including”, “include”, “in particular”, “for example” and other similar terms are illustrative and do not limit the sense of the words preceding them;
32.3.2. a reference to “written” or “in writing” includes email but not fax, SMS, WhatsApp or any other social media;
32.3.3. headings do not affect the interpretation of these Terms and Conditions;
32.3.4. words in the singular include the plural and vice versa; and
32.3.5. unless otherwise specified, references to Clauses are to Clauses in these Terms and Conditions and to the Schedules are to the Schedules to these Terms and Conditions and to paragraphs are to paragraphs in the Schedules. The Schedules have effect as if set out in full in the body of these Terms and Conditions and any reference to these Terms and Conditions or to the Contract includes the Schedules.