INTRODUCTION

This agreement (the “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“You” or “you”), and iRostrum Ltd, incorporated and registered in England and Wales with the company number 8112845 whose registered office is at Lindenmuth House 37 Greenham Business Park, Greenham, Thatcham, Berkshire, England, RG19 6HW (“iRostrum”, “we”, “us”).

iRostrum is the owner of the iRostrum Products, Software Program and/or Services, including any updates and accompanying written documentation, to enable the hosting of online auctions (the “Services”) and your rights for use of such Services provided to you and accessed at www.irostrum.com  is subject to the Terms and Conditions set out in this Agreement.

Please read the terms and conditions below before proceeding. Proceeding to accessing the iRostrum Services signifies your acceptance of the Terms and Conditions. If you do not agree to be bound by the Terms and Conditions of this Agreement you may not use the Services.

You acknowledge and agree that iRostrum may occasionally contact you via email. Please see the iRostrum Privacy Policy, which is incorporated into this Agreement by reference.

TERMS & CONDITIONS

1.    DEFINITIONS AND INTERPRETATION

IT IS AGREED by the parties as follows:

1.1       In this agreement the following expressions shall have the following meanings:

1.2       Clause headings are inserted for ease of reference only and shall not affect the interpretation or construction of this agreement.

1.3       If there is any conflict or ambiguity between any provision contained in the body of this agreement and any provision contained in the schedules or annexes, the provision in the body of this agreement shall take precedence.

2.    RIGHTS OF USE

2.1       Subject to the terms of this agreement you shall have the right to only use the Software Program in object code form for your normal business purposes. You must ensure that the Software Program is not used by, or for the benefit of, any person other than you or an authorised user working on your behalf.

2.2       The Rights of Use are issued on an individual iRostrum Instance basis. Each iRostrum Instance will be configured as per the Set-up process and hosted by iRostrum on a unique URL. If you require additional iRostrum Instances you need to sign up for separate subscriptions.

3.    TERM

3.1       This Agreement is effective upon any use including during a Free Trial period of iRostrum’s Services and remains in effect until your account is terminated in accordance with this agreement. This licence grants use of the Services for Timed and Live Auctions to be held within the duration of this Agreement.

4.    FREE TRIAL

4.1       iRostrum offers a Free Trial period where the iRostrum Services are made available by us to you on an unpaid trial or free basis. To terminate your Free Trial please email your intention to terminate by the end of the trial period to hello@irostrum.com.

4.2       No auctions may be published for public participation during a Free Trial period. If an auction is published for public participation the Free Trial will end and your paid Subscription will start with immediate effect.

5.    PRICING AND PAYMENT

5.1       This agreement is based on a pricing structure as stated in the individual Solution Proposal that has been shared with you by iRostrum.

5.2      The Subscription charge and any additional costs due will be charged on a monthly basis to the registered card set up for Subscriptions.

5.3       If payment can not be collected via the registered card a payment request will be submitted via invoice and settlement will be payable to a bank account as nominated by iRostrum as indicated on the invoice.

5.4       Any request for Support outside of the standard support hours as stated in clause 7.2.1 will incur an an Out of Hours Auction Support Cost of £400.

5.5       Subscription charges and any additional costs will be charged until the Subscription is terminated in line with this Agreement.      

5.6       iRostrum shall have the right to charge interest on overdue invoices at a rate of 5% per annum above the Bank of England’s base rate from time to time in force from the date when payment becomes due until the date of payment

5.7       iRostrum reserves the right to temporarily suspend the licence and revoke access to the Software Program should non-payment subsist for 7 days. If non-payment subsists beyond 14 days then iRostrum reserves the right to terminate the Agreement in accordance with the provisions of clause 17.

5.8       Any sums charged by iRostrum are subject to applicable VAT (unless otherwise expressly stated) and shall be payable within 7 days of iRostrum issuing an invoice in respect of the same.

5.9       Where the iRostrum Online Payment Facility has been enabled for an instance, all payments collected will be subject to a service charge of 2.0% of the transaction total for UK card payments and 3.75% of the transaction total for Non-UK card payments. 

5.10      Any funds collected via the iRostrum Online Payment Facility, less the 2.0% / 3.75% service charge, will be settled to the the nominated account on the first Friday following the auction and every 7 days following.

6.    SERVICE LEVEL AGREEMENT

6.1       iRostrum maintains a programme of continuous development of the Software Program.

6.2       You acknowledge that:

6.2.1     iRostrum will instantiate your own iRostrum instance of the Software Programme;

6.2.2     other than where special arrangements are made, you will use the same version of the Source Code Materials in your iRostrum instance as all other iRostrum customers;

6.2.3     iRostrum continuously updates the Software Programme with new, improved and revised functionality and bug fixes. Each release is a New Version;

6.2.4     from time to time during the term of this Agreement iRostrum will update your iRostrum Instance with New Versions.

6.3       New Versions shall be suitably tested by iRostrum prior to making a release to your iRostrum Instance.

6.4       iRostrum will, where practicable, give reasonable written notice of the deployment of any New Version where any changes introduced represent significant change to functionality. Such notice shall include details of the specific changes to the functionality in the New Version.

6.5       If you elect the white-label Domain Personalisation and you elect to:

6.5.1   change the hosting domain from the hosting domain from the default *.irostrum.com:

a) you will be responsible for managing DNS related configuration & support issues of the associated domain.

b) iRostrum will be responsible for managing the associated instance domain SSL certificate via our SSL partner 'Let’s Encrypt'.

6.5.2     change your sending email address from the default setting noreply@irostrum.com:

a) you will be responsible for managing and supporting email issues if iRostrum system generated email notifications aren't received by the target inbox. iRostrum will provide logs to support debugging however it will your responsibility to resolve issues. 

b) iRostrum reserves the right to request and change the sending email address if it impacts our email reputation metrics negatively. You will be given 7 working days notice to change the sending address to something appropriate. 

6.6       If you elect to connect to your own Custom Online Payment Facility you will be responsible for managing and supporting payment issues when iRostrum system generated payments are collected and aren't received into your target custom payment gateway account. iRostrum will provide logs to support debugging however it will be your responsibility to resolve issues.

6.7       New Versions shall not disable, remove or impair functionality previously existing in the Instance without your consent having been given in writing.

6.8       You shall not be subject to any additional charges arising out of deployment of New Versions, save where the New Version contains a New Module that you can choose to upgrade to or not.

6.9       If you discover that the Software Program fails to perform in accordance with the key functionality (such non-performance being known as an “Error”) you must notify iRostrum, in writing or by email, within 14 days of becoming aware of the Error.  Upon notification, iRostrum shall review the details surrounding the Error to determine the validity of the claim. Where iRostrum accepts (as determined by it acting reasonably) that an Error is present, the Error shall be remedied by iRostrum at its own cost. Upon such correction being completed (as determined by iRostrum absolutely), iRostrum shall release the corrected version of the Software Program. You undertake to provide iRostrum with all assistance reasonably required to resolve the Error and resume normal service.          

6.10       Notwithstanding the foregoing in the event that iRostrum disputes the validity of your claim or fails to remedy the Error to your reasonable satisfaction resulting in a material error to the Software Program, you shall be entitled to terminate the Agreement immediately on providing written notice to iRostrum.

7.    TRAINING AND SUPPORT

7.1       Training is provided in the form of User Guides providing direction on the operation of the Services and Q&As published on the iRostrum website.

7.2       As part of the Agreement general support in the form of advice by email on the operation of the Services will be available, such time not amounting to more than ½ day per month.

7.2.1     Support Services will be available during normal working hours: Monday to Friday from 09:00 to 17:00 UTC but excluding UK national holidays (Normal Support Hours). During Normal Support Hours, iRostrum shall use its reasonable endeavours to respond to a request for support according to its priority.

7.2.2     By receiving at least 30 days written notice, iRostrum will make Support Services available out-of-hours to support the closing hours of a Timed or Live Auction. If this service is required, an additional Out of Hours Auction Support Fee as outlined in clause 5.4 will be charged to the Licensee.

8.    YOUR UNDERTAKINGS

8.1       Except to the extent permitted by you as a lawful user of the Software Program or to the extent permitted by law, you undertake not to

8.1.1     copy, duplicate or replicate the Software Program or seek to sub-licence or assign the licence or your rights under it;

8.1.2     use, copy or transfer the Software Program or other component parts of the Software Program except as allowed for by this Agreement;

8.1.3     alter, adapt, merge, modify or translate the software or other component elements of the Software Program in any way, or for any purpose, other than with the prior written consent of iRostrum;

8.1.4     reverse engineer, disassemble or de-compile the Software Program otherwise than with the prior written consent of iRostrum;

8.1.5     remove, change or obscure any identification marks or notices of proprietary rights and restrictions on or in the Software Program and any other component elements of the Software Program;

8.1.6     distribute, rent, loan, lease, sub-licence or otherwise deal in the software and or any other component elements of the Software Program;

8.2     You undertake during the continuance of the agreement to:

8.2.1     keep login details providing access to the Software Program under the your effective control and to maintain adequate security measures to protect the Software Program from access or use by any unauthorised person;

8.2.2     ensure that, prior to the use of the Software Program by your employees or agents, that all such parties are notified of the terms of this agreement;

8.2.3     ensure that you comply with your obligations as a data controller (as more accurately defined in the Data Protection Legislation); and

8.2.4     procure that your users and auction parties do not post or upload any incorrect or false information whether in relation to themselves or the auction lots advertised.

9.    DATA PROTECTION WARRANTIES AND INDEMNITIES

9.1       The following definitions apply to this section:

“Data Controller”        has the meaning given to it in the Data Protection Legislation.     

“Data Processor”        has the meaning given to it in the Data Protection Legislation.     

“Personal Data”          has the meaning given to it in the Data Protection Legislation.           

9.2       Where you provide any Personal Data to iRostrum then the parties record their intention that iRostrum shall act as a Data Processor via the Software Program only and not a Data Controller in respect of such Personal Data.

9.3       In respect of any Personal Data provided by you to iRostrum, you:

9.3.1     warrant, represent and undertake that you are entitled to lawfully transfer the relevant Personal Data to iRostrum so that iRostrum may lawfully use and process the relevant Personal Data; and

9.3.2     shall comply with all duties, obligations, and restrictions imposed on you by the Data Protection Legislation in respect of the transfer of such Personal Data to iRostrum.

10.  INTELLECTUAL PROPERTY RIGHTS

The Software Program and all Intellectual Property Rights of whatever nature are and shall remain the property of iRostrum and you agree immediately to notify iRostrum if you become aware of any infringement or any unauthorised use of the Software Program by any person.

11.  INTELLECTUAL PROPERTY INDEMNITY

11.1      iRostrum agrees to indemnify you against all actions, claims, proceedings, damages, costs and expenses arising from any actual or alleged infringement of Intellectual Property Rights in the United Kingdom arising from the your use of the Software Program provided such use is in accordance with the terms of this agreement and that you promptly notify iRostrum in writing of any such allegation.

11.2      At iRostrum's request and expense, you shall permit iRostrum to conduct all negotiations and litigation.  You shall give all reasonable assistance and iRostrum shall pay your reasonable costs and expenses so incurred.

11.3      iRostrum may, at its option and expense, modify or replace the Software Program to avoid any alleged or actual infringement and iRostrum shall not be liable for any loss, claims, damages or expenses arising out of or in connection with such action.

11.4      iRostrum reserves the right to change the name of the Company and/or Software Program and will provide written notice of such a change within 14 days. The terms of this agreement will not be affected by any such change.

11.5      This indemnity shall not apply to allegations or infringements arising directly from the combination of the Software Program with other items not supplied by iRostrum or that are in any way attributable to any action or default of you or to you or anyone acting on your behalf having amended any of the Software Program or used them outside the terms of this Licence.

12   WARRANTIES

12.1      iRostrum warrants that:

12.1.1     it is the owner of the Software Program and all underlying intellectual property embodied in it.

12.1.2     it has the right to enter into this Agreement and to perform all of its obligations hereunder

12.1.3     the Software Program does not infringe upon any third party rights.

12.2      Subject to the limitations and exclusions of liability set out below, iRostrum warrants the Software Program will be of satisfactory quality and materially perform in accordance with the Instance Requirements.

12.3      iRostrum warrants that it shall take all reasonable precautions to ensure that the Software Program is free from all viruses that could have been detected by using the latest (at the date of despatch) commercially available virus detection software.

12.4      If within the Warranty Period iRostrum receives written notice from you of any breach of the warranties given in this clause 12, then iRostrum shall at its own expense and within 12 working days of receiving such notice use all reasonable efforts to remedy the defect in question.

12.5      iRostrum shall not be liable under any of the warranties given in this clause 12 if the Software Program fails to conform to the warranty because of any corruption, abuse or incorrect use of the Software Program (including use of the Software Program with equipment or other software which is incompatible) or because of any unauthorised variation or modification to the Software Program.

12.6      iRostrum provides no warranties in respect of the interoperability of the Software Programs with any other software packages or for any lack of functionality caused by other software. No warranty is offered where your systems are inadequate or where loss arises as a result of their misuse or where you fail to follow the reasonable instructions of iRostrum.

12.7      You acknowledge that the Software Program is operated through the world wide web and, therefore, agrees that operation of the Software Program will be subject to any fluctuations caused by the same and that any associated errors or interruptions shall not constitute a breach of this agreement or breach of any warranty offered by iRostrum.

12.8      All other guarantees, representations and warranties of any kind, whether express or implied, including, without limitation, the implied warranties of satisfactory quality, merchantability and fitness for a particular purpose or ability to achieve a particular result are excluded, so far as such exclusion or disclaimer is permitted under the applicable law.

13.  LIMITATION OF LIABILITY

13.1      This clause 13 sets out the entire financial liability of iRostrum (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to you in respect of:

13.1.1     any breach of this Licence Agreement;

13.1.2     any use made by the you of the Software Program;

13.1.3     any Support provided by iRostrum;

13.1.4     any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this Licence Agreement or the Software Program or Support; or

13.1.5     any loss, damage or expense arising out of or in connection with our provisions of the Software Program or Support.

13.2      Subject to clause 13.4, in no event shall iRostrum be liable (whether in contract or in tort) for any damages, including loss of business, loss of opportunity, loss of data, loss of profits or for any indirect or consequential loss or damage whatsoever that is an indirect or secondary consequence of any act or omission of iRostrum.

13.3      Subject to clause 13.4 and 13.5, the total liability of iRostrum to you under this agreement shall not exceed the total of all sums paid to iRostrum pursuant to clause 4.2 of this Agreement.

13.4      Nothing in this agreement shall exclude or limit the liability of iRostrum for fraudulent misrepresentation or for death or personal injury resulting from the negligence of iRostrum or its employees.

13.5      You agree and acknowledge that your sole remedy for a breach of clause 13.1 shall be to make an application for Support services in accordance with the terms of this agreement.

14.  INSURANCE

During the term of this agreement iRostrum shall at its own expense maintain such insurances as are required by any applicable law and as it considers appropriate in respect of its obligations under this agreement with an insurance company of repute. 

15.  CONFIDENTIALITY

15.1      Either party receiving information (the “Recipient”) from the other marked “confidential” or which may reasonably be supposed to be confidential, including, without limitation, information contained in the Software Program and other information supplied by you or a Supplier, shall not without the other's prior written consent use such information except for the purposes of this agreement or disclose such information to any person other than to  their own employees or agents who have a need to know the information.

15.2      Clause 15.1 shall not apply to information that is lawfully known to the Recipient at the time of disclosure or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is ordered to be disclosed to a regulatory body or a court of competent jurisdiction.

15.3      The Recipient shall ensure that any person referred to in clause 15.1 is bound by similar confidentiality terms to those in this clause 15.

15.4      The confidentiality terms in this clause 15 shall remain in full force and effect during the term of this agreement and following the termination of this agreement.

16.  TERMINATION

16.1      If you commit a material breach or persistent breaches of this agreement, and in the case of a breach which is capable of being remedied, fail to remedy the breach within 14 days of written notice from iRostrum to do so, then iRostrum may terminate this agreement immediately on giving written notice.       

16.2      Subject to clause 16.3, in the event that either party wishes to terminate this agreement, they shall provide written notice to that effect to the other party at their last know business address, such notice to expire at the end of the month following receipt of the notice.

16.3      Where you wish to terminate this agreement, under clause 16.2, you acknowledge that you shall be liable to pay fees up to the expiry of the notice period.

16.4      Upon termination of this agreement, access to the iRostrum Instance will be revoked and the iRostrum Instance will be withdrawn from online public access. You shall delete the log in details and user guides and any copies to iRostrum or, if requested by iRostrum, shall destroy the same, provided that you may extract and store any of your data upon a separate media.

16.5      Any termination of this agreement shall not affect any accrued rights or liabilities of either party.

17.  FORCE MAJEURE

Neither party shall be liable to the other party for any delay or failure to perform any of its obligations under this agreement if the delay or failure results from events or circumstances outside its reasonable control, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party in writing of the nature and extent of such events.  If such circumstances continue for a continuous period of more than 28 days, either party may terminate this agreement by written notice to the other party.

18.  ASSIGNMENT

This agreement may not be assigned by either party without the prior written approval of the other party.

19.  SEVERANCE

If any provision of this agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

20.  NOTICES

Any notice to be given by either party to the other may be sent by either e-mail or recorded delivery to the most recent e-mail address or address notified to the other party.  If sent by e-mail a notice shall be deemed to be served on receipt of an error free transmission report, unless this is outside the normal working hours of the recipient, in which case it shall be treated as served on the next working day. Notice sent by recorded delivery shall be deemed to be served 2 days following the date of posting. 

In the case of email, each party will designate one email address for the sending and receipt of notices under this agreement and each party will retain and produce to the other upon request evidence showing that its service provider has confirmed that each email notice it sends has been received.

21.  ENTIRE AGREEMENT

This agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. This agreement may be varied only by a document signed by both parties.

22.  NO RELIANCE ON WARRANTIES

Each Party acknowledges that it has not relied on and will have no remedy in respect of any statement, representation, warranty, or undertaking of any person (whether a party to this Agreement or not) other than is expressly set out in this Agreement.  However, nothing in this clause shall limit or exclude liability for fraud.

23.  WAIVER

The waiver by either party of a breach by the other in the performance of its obligations under this Agreement shall not constitute a waiver of any default nor shall failure to complain of any default constitute a waiver of that default by the other party.

24.  GOVERNING LAW AND DISPUTES

This agreement shall be governed by and construed in accordance with the law of England and Wales.

The parties will endeavour to settle any dispute that arises by direct negotiation but if direct negotiation does not result in a resolution of the dispute, either Party may require that it be referred to mediation in accordance with the CEDR (Centre for Effective Dispute Resolution) Mediation Rules.

Any dispute that is not settled by mediation within 45 days of a reference to mediation (or any longer period agreed by the parties) it will be finally determined by the courts of England and Wales.