These Conditions may be updated from time to time and the updated version will be effective as soon as it is accessible. You are responsible for regularly reviewing these Conditions so that you are aware of any changes to them.
- Definitions and Interpretation
1.1 In these Conditions, the following words have the following meanings:
Confidential Information: has the meaning given to it in Condition 8;
Client, you: the party wishing to use the System;
Client Content: the materials uploaded to the System by the Client, including all text, photographs, images, graphics, video and recordings;
Client Website: the Client website created through the System to enable the Client to offer and sell online teaching services to Client Website Users;
Client Website Users: third parties accessing the Client Website;
DP Act: the Data Protection Act 1998 as may be amended from time to time;
How Now, us: Wonderush Limited a company registered in England and Wales with company number 09644569 and registered office at PO Box 1373, Barking, IG11 1HN;
Fee: the subscription fee and the commission due to HowNow from you in order that you can access and use the System and Services, see Fee Page
IP Rights: any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design rights, rights in trade, business or domain names, rights in trade dress, rights in inventions, rights in confidential information or know-how or any similar of equivalent rights in any part of the world;
Services: the access to the System and the hosting services provided by How Now in relation to the Client Website;
System: HowNow’s software and system made available to the Client, including all error corrections, patches, new releases and new versions; and
Working Day: a day other than a Saturday, Sunday or public holiday in England.
1.2 Words in the singular include the plural and in the plural include the singular.
1.3 Clause headings shall not affect the interpretation of these Conditions.
1.4 References to Clauses are, unless otherwise provided, references to the clauses of these Conditions.
1.5 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party's other rights and remedies.
1.6 Any phrase introduced by the words including shall be construed as illustrative and shall not limit the generality of the related general words.
2.1 If you wish to register to use the System, you must be at least 18 years old, be legally able to enter into a contract and if you are registering on behalf of a company or other organisation, you must be entitled to represent that company or other organisation. You must provide us with accurate information that relates to you and not to any third party. If there is any change to the information that you provide to us, you must immediately update your HowNow account. At our request, you shall promptly provide written evidence of the validity of information that you provide to us.
2.2 You are responsible for maintaining the confidentiality of your user name and password, and are solely responsible for all activities that occur under your HowNow account. You must not allow or assist any third party to access your account. Please take precautions to protect your password and contact us immediately at email@example.com if you believe there has been any unauthorized use of your account.
3.1 Subject to the these Conditions and receipt of the Fee, HowNow grants to you the non-exclusive, non-transferable right and licence to download, access and use the System to create the Client Website. You have no right to sub-license your rights under this Condition 3.1, provided that you are entitled to create a Client Website for a third party. If you do use the System to create a Client Website for a third party:
(a) you shall notify us of the identity of the third party; and
(b) all obligations, representations, warranties and restrictions in these Conditions that apply to you shall be deemed to include an obligation on you to procure compliance by such third party.
3.2 You shall comply with all reasonable instructions of HowNow relating to the System including the implementation of upgrades to and new releases, which HowNow may provide from time to time.
3.3 If at any time your or the Client Website Users’ access to the System is excessive and as a result impacts on other clients’ ability to use the System, we shall notify you accordingly and you shall promptly take appropriate steps to remedy such use. We reserve the right to increase the Fee due to any such excessive use.
3.4 You shall not, and shall not permit or assist any third party, including a Client Website User to:
(a) translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the System, nor arrange or create derivative works based on the System except to the extent permitted by law not capable of exclusion by agreement;
(b) make for any purpose including error correction, any modifications, adaptions, additions or enhancements to the System;
(c) combine, match or merge the whole or any part of the System with or incorporate the System into any third party code;
(d) sell, purport to assign or license access to the System;
(e) make available online all or part of the System through the Internet, or any intranet; and/or
(f) remove or alter any copyright or other proprietary notice on any of the System.
- Service Availability
4.1 HowNow shall use reasonable endeavours to make the Service available at all times, but the Client acknowledges that there may be occasions when access to the Services may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. HowNow shall use reasonable endeavours to comply with the Service Level Agreement for the System and the Client Website. The current Service Level Agreement is set out in Schedule 2.
4.2. HowNow reserves the right to remove any content or features from the System for any reason, without prior notice, and shall have no liability or responsibility to the Client in any manner whatsoever in such circumstances, save to refund pro-rata any Fees paid in advance in respect of any content or features suspended or stopped.
- Client Content and Client Website
5.1 You warrant and represent that the Client Content and the Client Website shall comply with the Acceptable Use Policy set out in Schedule 1.
5.2 You further warrant and represent that you shall use industry standard virus detection software to try to block the uploading of Client Content that contains viruses or other malicious code.
5.3 HowNow is not responsible and accepts no liability for Client Content. The Client shall indemnify and keep indemnified HowNow, its directors, representatives and agents from and against all direct and indirect costs, claims, losses, expenses, damages and liabilities that may be incurred as a result of any breach of the warranties set out in Condition 5.1 and/or 5.2.
5.4 HowNow does not actively monitor any Client Content, but you agree that at any time HowNow shall be entitled to delete any Client Content that HowNow reasonably believes is in breach of the Acceptable Use Policy.
5.5 You accept and agree that if your subscription is a Starter subscription, the Client Website shall include the attribution ‘Powered by HowNow’. You shall have no other rights to use the HOWNOW name, branding or logo without our prior written permission.
5.6 You grant to us a non-exclusive, worldwide, irrevocable, royalty-free right, together with the right to sublicense, to reproduce all IP Rights in the Client Content for the purposes of these Conditions and in order to provide the Services.
5.9 In providing personal data to us through the Services, you acknowledge and agree that you comply with the provisions of the DP Act, and without limitation to the generality of the foregoing, you acknowledge and agree that:
(b) no personal data is provided to us if a Client Website User has requested that you do not do so;
(c) all personal data is accurate and up-to-date and that inaccuracies will be promptly corrected;
(d) only personal data that is required for the provision of the Services and calculation of the Fee is provided to us; and
(e) if a Client Website User contacts us and asks to view the Client Website User’s personal data that we hold, or asks us to amend and/or delete such personal data, we are required to comply with that request without notice to you.
6.1 The Client shall pay to HowNow the Fees calculated in accordance with the Fee Page; in particular the Client shall pay to HowNow:
(a) the monthly or annual subscription Fee plus applicable value added tax; and
(b) the commission calculated as a percentage of all income received by you from Client Website Users.
6.2 The licence to use the System under these Conditions shall not commence until HowNow receives the first instalment of the subscription Fee in full and cleared funds, and if you fail to pay an instalment of the Fee by the due date, we reserve the right to:
(a) cease to provide the Services;
(b) delete all Client Content;
(c) if we have bought the URL for the Client Website, sell the URL.
6.3 You acknowledge and agree that we shall be entitled to increase the Fees at any time on written notice to you. Your continued access and use of the System shall constitute your acceptance of the increased Fees.
7. IP Rights
7.1 The Client agrees that no IP Rights that subsist in the System and/or the Client Website shall transfer to the Client under these Conditions, provided that we acknowledge that you retain the IP Rights in the Client Content.
7.2 The Client grants to HowNow the right and licence to use the name of the Client in marketing and publicity for the System.
7.3 The Client shall promptly notify HowNow of any claim that the Client receives that use of the System infringes the IP Rights of any third party (a Claim). The Client shall:
(a) not make any admission of liability, agreement, settlement or compromise in relation to a Claim without HowNow's prior written consent;
(b) give to HowNow and its professional advisers all reasonable assistance as may be required in relation to a Claim;
(c) at HowNow’s request, give HowNow the exclusive control and right to defend a Claim and make settlements in relation to a Claim; and
(d) mitigate its losses in relation to a Claim, including where requested to do so by stopping using the System and Services.
7.4 On receipt of a notice under Condition 7.3, HowNow shall at its sole expense either procure for the Client the right to continue accessing and using the System and Services or modify or replace the infringing part of the System without to avoid the infringement.
- Confidential Information
8.1 Confidential Information shall mean all information whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, Clients, employees or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).
8.2 The Receiving Party shall not, and shall ensure that its employees shall not, use copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under the Conditions.
8.3 The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees to the extent that they need to know the same in order to carry out its obligations under the Conditions and where those employees are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.
8.4 The provisions of Conditions 8.1, 8.2 and 8.3 shall not apply to any Confidential Information which:
(a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;
(b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information; or
(c) is required to be disclosed by any court, government or administrative authority competent to require disclosure.
9.1 Each of the parties represents, warrants and undertakes that:
(a) it has the right, power and authority to enter into these Conditions and to perform fully all of its obligations under these Conditions; and
(b) the performance of these Conditions shall not breach any other agreement entered into by it.
9.2 Subject to the Conditions, HowNow warrants that it shall:
(a) provide access to the System and provide the Services with reasonable skill and care; and
(b) use industry standard virus detection software in relation to the System.
9.3 The Client warrants and represents that it is not a consumer and that it is acquiring the right to access and use the System for the purposes of a business. Accordingly, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the licence of the System and/or these Conditions.
9.4 The Client warrants that it has not relied on any oral representation made by HowNow, or on any descriptions, illustrations or specifications contained in any materials, including online materials, produced by HowNow which are only intended to convey a general idea of the Services. The Client confirms that in the Client’s opinion, the System is fit for the Client’s purposes.
- Disclaimer, Limit of Liability
10.1 THE SYSTEM AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS RELATING TO THE SYSTEM AND THE SERVICES (WHETHER IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE), INCLUDING ANY WARRANTY, TERM OR CONDITION AS TO ACCURACY, COMPLETENESS, SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR PURPOSE, AVAILABILITY AND NON-INFRINGEMENT ARE EXCLUDED.
10.2 HOWNOW WILL NOT BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE, AS A RESULT OF OR IN CONNECTION WITH THE SYSTEM OR SERVICES FOR ANY:
(A) ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS);
(B) LOSS OF REPUTATION OR GOODWILL;
(C) LOSS OF DATA OR CONTENT, INCUDING CLIENT CONTENT; AND/OR
(D) SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
10.3 HOWNOW’S AGGREGATE LIABILTY TO THE CLIENT UNDER THESE CONDITIONS OR OTHERWISE IN RESPECT OF THE SYSTEM AND/OR THE SERVICES SHALL BE LIMITED TO THE FEES RECEIVED BY HOWNOW FROM THE CLIENT FOR THE SYSTEM AND SERVICES DURING THE 12 MONTHS BEFORE THE DATE THE CLAIM AROSE.
10.4 Nothing in these Conditions shall limit or exclude a party’s liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or any other loss that cannot lawfully be excluded or limited.
11.1 Without prejudice to any other rights or remedies which may be available to it, HowNow shall be entitled to give notice in writing to the Client terminating these Conditions with immediate effect if the Client is in breach of any of the Conditions and if such breach is capable of remedy fails to remedy that breach within 5 Working Days of being notified of the breach. HowNow shall be entitled to notify the Client at the email address provided by the Client to HowNow.
11.2 The Client shall be entitled to terminate these Conditions at any time on notice to HowNow, provided that no refund of any Fee paid shall be due to the Client following such termination.
11.3 On termination of these Conditions for any reason, HowNow shall:
(a) cease to provide the Services;
(b) delete all Client Content, provided that at the Client’s request, HowNow shall give to the Client 24 hours to download the Client Content; and
(c) if we have bought the URL for the Client Website, sell the URL.
11.4 The following Conditions shall remain in force notwithstanding termination: Conditions 5.1, 5.2 (Client Content and Client Website), 7.1, 7.2 (IP Rights), 8 (Confidential Information), 9 (Warranties), 10 (Disclaimer, Limit of Liability), 11.3, 11.4 (Termination), 13 (General) and 14 (Governing Law & Jurisdiction).
- Force Majeure
12.1 For the purposes of this Condition 12, an event of Force Majeure means any event beyond the reasonable control of either party, including change in laws or regulations, war, invasion, armed conflict, terrorism, strike, lock-out, labour dispute, failure of suppliers or subcontractors, riot, civil commotion, accident, act of God, fire, flood and storm.
12.2 If a party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by an event of Force Majeure, the affected party’s obligations under this Agreement are suspended without liability while the event of Force Majeure continues and to the extent that it is prevented, hindered or delayed.
12.3 If performance of any obligation under this Agreement is prevented, hindered, or delayed due to an event of Force Majeure either party shall be entitled to terminate these Conditions on written notice to the other party.
13.1 These Conditions contain the entire agreement of the parties with respect to the access to the System and provision of the Services and supersedes all prior agreements and representations, standard conditions or other implied conditions, whether written or oral, with respect to the subject matter of these Conditions.
13.2 The Client shall not assign or delegate its rights or obligations under these Conditions, in whole or in part, to any third party by operation of law or otherwise, without the prior written consent of HowNow. Any attempted assignment or delegation that does not comply with this Condition 13.2 shall be of no effect.
13.3 Any failure to enforce any provision of these Conditions shall not constitute a waiver thereof or of any other provision.
13.4 If any provision of these Conditions is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties.
13.5 Nothing in these Conditions shall create or imply an agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party have or represent that it has any authority to make commitments on behalf of the other.
- Governing Law & Jurisdiction
14.1 These Conditions are governed by and will be construed in accordance with the laws of England and Wales.
14.2 The parties submit to the exclusive jurisdiction of the courts of England and Wales in relation to any legal actions or proceedings arising out of or in connection with these Conditions, save that this submission will not preclude any party from applying to any other court having jurisdiction for urgent or interim relief in aid of proposed or pending proceedings in England.
Schedule 1: HowNow: Acceptable Use Policy
Your Client Content
You agree that any content you wish to include within the HowNow system shall not:
- Breach any applicable laws, regulations, ordinances, rules or any requirements;
- Infringe any copyright, trade mark, trade secret, or other intellectual property rights of any third party information;
- Encourage hatred for particular social, ethnical, religious or other group;
- Contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or other device;
- Contain Illegal or Hacking/Phreaking Software;
- Contain any third party software that is not freely available for distribution without cost, such as ROMs, ROM Emulators and Mpeg Layer 3 files (MP3);
- Contain any kind of proxy server or other traffic relaying programs;
- Promote money making schemes, multi-level marketing or similar activities;
- Contain torrent trackers, torrent Portals or similar software;
- Contain adult content or content that is pornographic, obscene or unlawfully harassing, or violence
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age
- Be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
- Be threatening, abusive or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
- Be deliberately false, inaccurate or misleading
- Be likely to harass, upset, embarrass alarm or annoy any other person;
- Be used to impersonate any person, or to misrepresent your identity or affiliation with any person;
- Give the impression that they emanate from us; or
- Advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
Your Client Website
You agree that the Client Website hosted within the HowNow system shall not be used to:
- transmit any unsolicited commercial or bulk email, spamming or mail bombing;
- make any inappropriate communication to any newsgroup, mailing list, chat facility, or another internet forum;
- allow any remote code execution of malicious software through the Client Website;
- cause denial of service attacks, port scans or other endangering and invasive procedures against any servers and facilities including the servers and facilities of other network hosts or Internet users;
- forge the signature or other identifying mark or code of any other person or engage in any activity (including "spoofing") to attempt to deceive other persons regarding the true identity of the user (excluding the use of anonymous remailers or Internet nicknames).
Schedule 2: Service Level Agreement for HowNow System
HowNow is focused on providing high availability and reliability during the Core Time; although the system is generally available 24 hours a day, 7 days a week.
The System and/or Client Website availability may be subject to short periods of disruption during the Maintenance Periods. Occasionally during Maintenance Periods it may be necessary to withdraw System and/or Client Website completely and on these occasions advance notice will be given.
Some momentary disruption may be experienced when firewall maintenance is in progress, but this is also restricted to maintenance periods.
Monday to Friday 08:00-22:00 UK time
Saturday, Sunday and Bank Holiday in England: 09:00 – 19:00 UK time
Monday to Friday 05:00 – 08:00 and 22:00-23:59 UK time
Saturday, Sunday and Bank Holiday in England 05:00 – 08:00 and 19:00 – 22:00 UK time
- Incident Management
HowNow endeavours to monitor the System 24 hours per day. However, the Client should contact HowNow if the System and/or Client Website is not operating as expected.
2 Working Hours
System access is down and unavailable
4 Working Hours
Part of the functionality is not working as expected
1 Working Day
All other incidents
Incident response availability
Monday – Friday
09:00 – 17:00
No service is provided on UK Bank Holidays.
All incidents are to be reported by email during Working Hours to firstname.lastname@example.org
HowNow shall not be obliged to provide any services under this Service Level Agreement if the System and/or Client Website is unavailable or suspended as a result of:
- breach by the Client of the System Licence and/or the Acceptable Use Policy;
- factors outside of our reasonable control, including any force majeure event or Internet access or related problems;
- any actions or inactions of the Client or any agent, representative or sub-contractor of the Client;
- the Client’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within HowNow’s direct control);
- scheduled maintenance and upgrades to the System and/or Client