FANVUE PLATFORM TERMS AND SERVICES AGREEMENT (“AGREEMENT”)
Last updated: 18th January 2023.
THIS DOCUMENT IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND Shift Holdings ltd. THIS AGREEMENT GOVERNS YOUR USE OF THE PLATFORM AND THE SERVICES. IF YOU PROCEED TO USE THE PLATFORM OR THE SERVICES, YOU WILL BE DEEMED TO HAVE READ, UNDERSTOOD AND ACCEPTED THE TERMS OF THIS AGREEMENT, SO PLEASE TAKE TIME TO READ THEM CAREFULLY AND IN FULL.
- Your Account
- Paid for Services
- User Content
- Creative Users
- Linking to the Platform
- Third party links
- Intellectual Property
- Licence restrictions
- Acceptable use restrictions
- Warranties and disclaimers
- Limitations on liability
- Events outside of our control
- Account suspension and termination
- Other important terms
IMPORTANT WORDS AND DEFINITIONS
In this Agreement:
“Account” means a User account which is individual to you, which is created for the purpose of receiving the Services.
“Ancillary Terms” means any other terms or policies that we may provide on the Platform that govern your use of the Services and as may be updated from time to time including, but not limited to, the Fanvue Policies and the Credit Terms.
“Balance” means the balance of Credits on a User’s Account.
“Business Day” means Monday to Friday 9.30 am to 5.30 pm and any day which is not a public or bank holiday in London.
“Community Guidelines” means our community guidelines supplied to Users via the Platform, as may be updated from time to time.
“Content” means any text, software, scripts, graphics, photos, sounds, music, videos, audio-visuals combinations, interactive features, and other materials you may view or access through the Services, including User Content.
“Cookies Policy” means fanvue’s cookies policy supplied to Users via the Platform, as may be updated from time to time.
“Creative User” means a User using the Service for the purpose of its trade, business, craft, profession or otherwise submitting Paid for Services on the Platform.
“Credit Terms” means the terms governing the purchase and use of Credits on the Platform supplied to Users via the Platform, as may be updated from time to time.
“Credits” means digitised tokens which are hosted on the Platform and which may be exchanged for certain specified Services.
“Data Protection Legislation” means for such time as they are in force in England and Wales, all legislation which relates to the protection of individuals’ rights in their Personal Data and the protection of their privacy, including the DPA, GDPR, PECR and all such legislation as may supplement, amend or replace them from time to time.
“Device” means a desktop computer, laptop, tablet, mobile telephone or other computing device with internet functionality
“DPA” means the Data Protection Act 2018 and all subordinate legislation to it.
“GDPR” means the UK GDPR as retained in law, amended and titled by the European Union (Withdrawal) Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019/419.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Paid for Service” has the meaning set out in clause 3.1.
“Payment Partner” means any third party approved by Shift Holdings ltd which enables a User to make payments on the Platform;
“PECR” means the Privacy and Electronic Communications (EC Directive) Regulations 2003.
“Personal Data” has the meaning set out in the Data Protection Legislation.
“Platform” means the fanvue platform as provided on the Website and any updates, or supplements to it including mobile friendly versions of the Platform.
“Services” means your use of the Platform and the services and features we make available as part of the Platform.
“Shift Holdings ltd” means Shift Holdings ltd, a company registered in England with company number 13524158 and its registered office at 2nd Floor College House, 17 King Edwards Road, Ruislip, London, United Kingdom, HA4 7AE, the owners of the Platform.
“User” means a user of the Services; and terms such as “Users” shall be interpreted accordingly.
“User Content” means Content which a User contributes, submits, uploads, publishes, or otherwise makes available via the Service.
“Website” means the fanvue website, which is hosted at fanvue.com, or any sub-domains of the same.
Where this Agreement refers to “you” or “your” it means the person using the Platform; where it refers to “us”, “our” or “we” it means Shift Holdings ltd.
Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
- We may change these terms at any time without notice. Any such changes shall take effect on the next occasion that you make use of the Platform. Any such new terms may be displayed on-screen when you next use the Platform, and you may be required to read and accept them in order to continue your use of the Platform. However, it is your responsibility to check this Agreement before each use of the Platform and to make yourself aware of any changes. For ease of reference the top of this Agreement indicates the date on which it was last updated.
- The terms of this Agreement apply to any Services you may be able to access through the Platform and to any updates or supplements to the Platform, unless such additions are provided pursuant to separate terms, in which case those terms shall apply.
- We do not guarantee that the Platform, or any Content, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of the Platform for business and operational reasons including, for example, to update the Platform and/or change the Services to improve performance, enhance functionality, reflect changes to the operating system or address security issues. You accept that depending on the update, you may not be able to use the Services until you have downloaded, streamed, or accepted the updates and accepted any new applicable terms. We will try to give you reasonable notice of any suspension or withdrawal.
- You are responsible for ensuring that all persons who access the Platform through your internet connection are aware of this Agreement, these terms and that they comply with them.
- You will be assumed to have obtained permission from the owners of any Devices that are controlled, but not owned, by you which you may use to access or use the Platform. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this Agreement for the use of the Platform on any such Device, whether or not it is owned by you.
- This Agreement includes the Ancillary Terms which shall supplement the terms of the main body of this Agreement. Unless expressly stated otherwise, any reference to this Agreement is also a reference to the Ancillary Terms. Where there is any inconsistency between any of the provisions of the main body of this Agreement and the Ancillary Terms, the provisions of the Ancillary Terms shall prevail.
- To use the Platform, receive the Services and become a User you are required to register and create an Account with us. To create an Account, you must follow the steps detailed on the Platform and provide us with all the information requested.
- When you create Account you must not:
- Impersonate another individual;
- Create ‘bot’ Accounts or any Account which is controlled by other automated means;
- Share your password or give access to your Account to others; or
- Transfer or otherwise assign your Account to anyone else.
- You agree to take measures to maintain the security and confidentiality of your Account username, password, and Account information. You must notify Shift Holdings ltdimmediately of any breach of security or unauthorised use of your Account that you become aware of by contacting us at firstname.lastname@example.org.
- You agree that you will be solely responsible for all activity that occurs under your Account. As such you should log off the Platform when you have finished using it to prevent anyone else accessing your Account and using your log-on identity / username. This is particularly important where other people may use the same Device as you, such as in internet cafes. If you do not log off, you may be deemed to be the person viewing or posting material unless you can prove otherwise.
- You confirm that the information you provide when creating your Account, or when otherwise communicating with us, is accurate and complete, and that you will update us via the Platform as and when your information changes.
- By setting up an Account you confirm that you are at least 18 years of age, you are not precluded by domestic laws to use the Services and you have not been previously banned from using the Platform and/or its Services.
PAID FOR SERVICES
- Although many of the Services are free, some of our Services, such as premium Content and certain areas of the Platform (including, but not limited to, subscriptions with / to Creative Users and pay per view Content), will require payment from you (each a “Paid for Service”). We will notify you via the Platform if a Service is a Paid for Service, what the associated cost is, and what methods of payment are accepted, including where we accept Credits as payment. Only Users with a registered Account who provide us with accurate payment information (such as credit card/debit card information) will be able to access Paid for Services on the Platform.
- The price for any Paid for Service will always be shown to you before you submit your order or otherwise make your purchase. The price excludes VAT and/or other applicable taxes which will be added as required before payment is taken.
- By providing us with credit card/debit card information you authorise us to receive payment by charging your credit or debit card using the payment information provided or as otherwise linked to your Account. All credit card/debit card details are entered on a secured page and they are securely processed via our Payment Partner.
- If the option to pay for a Paid for Service with Credits is available and you choose to make payment using Credits you authorise us to receive payment by deducting Credits from your Balance on the basis described in the Credit Terms.
- You agree to provide current, complete, and accurate payment information for all purchases. You agree to promptly update your Account and other information, including your e-mail address and credit card numbers and expiration dates, so that we can complete your transaction and contact you as needed. You expressly agree that we are not responsible for any loss or damage arising from the submission of false or inaccurate information.
- Unless otherwise notified to you in writing, we will charge you in advance of the provision of the applicable Paid for Services.
- If your transaction results in an overdraft or other fee from your bank, you alone are responsible for that fee.
- You will be billed in US Dollars (USD). Any relevant exchange settlements will be determined by agreements between you and your bank and / or credit card/debit card issuer.
- If we do not receive payment due from you, either from your bank or your credit card/debit card issuer, you agree to pay all amounts due on your account upon demand.
- If we or a Creative User offers and you purchase a subscription for any Paid for Services (including subscribing to a Creative User’s Content), we will bill you immediately using the payment information provided, and then again at the beginning of each subscription period. The following terms apply for subscriptions:
- If a free trial period is offered and you do not cancel during the free trial period, you will be billed at the end of the free trial period and at the beginning of each subsequent subscription period;
- The subscription fee is determined by the Creative User responsible for the User Content you are subscribing to and can be subject to change at any time at their sole discretion. Should they change their subscription fees you will be notified of such a change via a notification on the Platform. Any increase or decrease of a subscription fee will apply to the next subscription billing period as applicable, unless or until you terminate your subscription.
- Subscription to Paid for Services is personal to you and may not be transferred or assigned;
- You can cancel subscriptions at any time via the Platform or by sending an email email@example.com;
- If you cancel a subscription you will still have access to the Paid for Service through the end of the subscription period.
- Without prejudice to any other right or remedy that we may have, if we do not receive prompt payment for all fees, charges and applicable taxes or you otherwise fail to make payment for the Paid for Service:
- We may without notice suspend part or all of the Services and / or your Account until payment has been made in full; and/or
- We shall charge interest on the overdue sum at the rate of 5% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until payment of the overdue sum, whether before or after judgment.
- You may be presented with additional terms from our Payment Partner or other relevant third parties in relation to a specific payment before you confirm the transaction. Those additional terms will also govern that transaction and may be required to be accepted before a transaction will be confirmed.
- Subject to any discretionary investigations and decisions made by us and any right of withdrawal under applicable law; fees, charges and applicable taxes relating to Paid for Services are non-refundable and chargebacks, or similar demands, for Paid for Services are not permitted.
- We reserve the right to immediately terminate, delete, suspend or restrict your Account, without notice to you, if in our reasonable opinion you have without merit made any attempt to seek a refund or a chargeback for Paid for Services after your purchase.
- Transactions are processed by Axcess. Payments on your statement will be debited by FANVUE-02081147114. If you don't recognise a transaction, then please contact the Fanvue team on: firstname.lastname@example.org
- Any queries regarding to Paid for Service, Credits, purchases or billing on your Account must be raised with us within 30 days.
- We grant you a revocable, non-transferable, non-exclusive licence to use the Platform and to receive the Services, subject to the terms of this Agreement, the Fanvue Policies and any other documents referenced under this Agreement.
- As a User and as an Account holder, you may access Content when using the Services. The majority of the Content made available via the Platform is User Content, which is not published or pre-moderated, verified or approved by Shift Holdings ltd. Any views expressed by Users on the Platform do not represent our views or values.
- Shift Holdings ltd is not responsible for the contents of User Content which is submitted to the Platform. Shift Holdings ltd does not pre-moderate User Content and you access it at your own risk. Shift Holdings ltd’ sole responsibility in respect of User Content is to promptly consider and, where appropriate, action complaints about such content which may be submitted by Users.
- Accordingly, you acknowledge and accept that you may be exposed to Content that is unlawful, factually inaccurate, offensive, indecent, or otherwise objectionable to you. You further understand and accept that Shift Holdings ltd is under no obligation to review and/or verify any Content.
- You irrevocably and unconditionally waive any legal or equitable rights or remedies you have or may have against Shift Holdings ltd with respect to or in connection with any such Content or your exposure to or reliance on the same.
- If you would like to make a complaint about Content available via the Services, then please contact us at email@example.com.
- As an Account holder, you may submit User Content further to the terms of this Agreement. This right may be suspended by Shift Holdings ltd or your Account, and of your User Content, may be deleted if we consider that you are in breach of any part of these terms.
- You acknowledge that (except where explicitly stated) materials shared on the Platform are not private or confidential and have the potential to be viewed by other Users. Other Users may be able to identify (by username) who has posted each piece of User Content and any profile details that a User has provided, either publicly or to select Users (for example, to a Creative User when subscribing to their User Content), will have the potential to be viewed by other Users.
- Users should note that private communications and sharing of User Content between individual Users on the Platform will not be made public and will remain confidential between the interested parties who are communicating with each other, and us as the service provider, but each communicating party will be able to identify (by username) who has posted each piece of material and any additional profile details provided.
- You acknowledge and agree that you are the owner of and are solely responsible for your User Content. You are solely responsible for securing and backing-up your User Content.
- You acknowledge that if you breach any of these terms you may be personally liable to any third party that suffers harm as a result of your User Content.
- You retain all of your ownership rights in your User Content, but you are required to grant us and, where relevant, other Users of the Platform a licence to use, store and copy that content and to distribute and make it available to third parties. As such, and without prejudice to your rights to your Personal Data as set out in the applicable Data Protection Legislation, you grant Shift Holdings ltd a worldwide, perpetual, irrevocable, transferable, royalty-free licence, with the right to sub-licence, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised without further notice to or consent from you, and without the requirement of payment to you or any other person or entity in order to provide the Services to you.
- Please note that the licence you grant us further to clause 6.6 is required so that we may use your User Content to provide and promote both the Platform and the Content therein, including for the avoidance of doubt promotion of your User Content and Creative Users. We will not sell your User Content to other platforms, websites or content providers and we will not steal your User Content or otherwise claim ownership of the same.
- You represent and warrant to us that you have all rights, permissions, and consents to submit any User Content to us which you may upload to the Platform. We have the right to disclose your identity to any third party who may claim that any User Content posted or uploaded by you to our Services constitutes a violation of their Intellectual Property Rights, or of their right to privacy or confidentiality or if we believe that you may have otherwise breached any of these terms.
- Shift Holdings ltd takes the protection of Intellectual Property Rights very seriously and we voluntarily comply with the Digital Millennium Copyright Act (“DMCA”). Further to clause 6.8, where appropriate we will promptly remove from the Platform any User Content alleged to be infringing Intellectual Property Rights belonging to a third party. Please note that any person found to knowingly have made false allegations, material misrepresentations or false claims in relation to a notification of claimed infringement or in a counter-notification may be liable for damages and will, at our discretion and where relevant, have their Account terminated, deleted, suspend or restricted.
- Your User Content must comply with the Community Guidelines and you warrant that any User Content you provide does comply with those standards, and that you will be liable to us and indemnify us for any breach of that warranty.
- Shift Holdings ltd may, but shall not be obligated to, review, monitor, or remove your User Content, at any time and for any reason, without notice to you.
- You agree to defend, hold harmless, indemnify and keep indemnified us, our successors and assigns, our directors, trustees, officers, employees and agents from and against all liabilities, claims, losses, costs, damages and expenses, including legal fees which are reasonably incurred by us, we may or our connected parties may suffer or incur arising out of or in connection with your User Content.
- If you want to submit User Content as a Paid for Service on the Platform you will need to open a Creative User Account. To open a Creative User Account on the Platform you will have to provide all the additional information specified on the Platform as required to open a Creative User Account (including providing details relating to your preferred payment option, such as bank details, for your receipt of any sums due; your tax or VAT status; and uploading a valid form of photo ID) and provide us with any further information or legal documentation we may request further to our own legitimate interests in preventing fraud and / or complying with any legal or regulatory obligations.
- Unless otherwise agreed in writing with Shift Holdings Ltd (Fanuve), for the first 90 day period commencing on the date of completing KYC (Become a creator) you will receive 85% of all monies received by us from Users for the Paid-for Services you provide via your Account on the Platform. Following the initial 90 day period, you will receive $80% of all monies received by us from Users for the Paid-for Services you provide via your Account on the Platform (Creator Earning Rate). The revenue generated above the Creator Earning Rate will be retained by Shift Holdings Ltd (Fanvue) to cover our commission for the services provided and costs incurred in maintaining and operating the Platform (Platform Fees).
- We will use reasonable endeavours to ensure that any sums due to Creative Users further to this clause will either be payable on a monthly basis or, subject to the balance of the sums due that are displayed on the Creative User’s Account at the time such a request is made, they will be available to be withdrawn manually by the Creative User and payable within two (2) Business Days. Any payments further to this clause will be paid by us via the preferred payment option you have detailed in your Account and although we will aim to make any payments in the timeframes detailed, you acknowledge that payments within these periods are not guaranteed and could be disrupted by external factors beyond our control.
- If we refund any monies to a User, or their bank or credit-card provider, after a bona fide dispute or demand in relation to a Paid for Service that you provided, we reserve the right to recover from you any monies already paid to you in relation to the same. You agree such sums will be a liability you have to us and that you will pay all amounts requested further to this clause 7.4 upon demand.
- You agree that Shift Holdings ltd may at any time, without notice to you, set off any liability you have to us against any liability we have to you, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If the liabilities to be set off are expressed in different currencies, we may convert either liability at a market rate of exchange for the purpose of set-off.
- You acknowledge and agree that any exercise by us of our rights under this clause shall not limit or affect any other rights or remedies available to us under this Agreement or otherwise.
- Revenue generated by a referred creator will result in the referring creator receiving 5% commission from Shift Holdings Ltd (Fanvue) of the price paid by a user making a payment to the referred creator. Unless otherwise agreed in writing with Shift Holdings Ltd (Fanuve), the referring creator will receive these benefits for 3 years from the date the referred creator completes registration and passes KYC (Become a creator).
- VAT: If you are a referring creator you should know that all referral payments payable to you by Shift Holdings Ltd (Fanvue) will be exclusive of any VAT.
- Earnings generated on Fanvue via the Fanvue Referral Program are not subject to Platform Fees and will be credited to the referring creator's balance as "REFERRAL".
- The cost of the Fanvue Referral Program is borne by Shift Holdings Ltd (Fanvue) and not the referred creator.
- Any refunds or chargebacks which arise against the initial transaction to the referred creator will result in the referring creator's referral commission being reversed and paid back to Shift Holdings Ltd (Fanvue).
- It is the responsibility of the referring creator to ensure that the referred creator correctly uses the referral program for the referring creator to benefit from the commission.
THIRD PARTY LINKS
- The Services (including the Content) may include hyperlinks to other websites that are not owned or controlled by Shift Holdings ltd. You acknowledge and accept that Shift Holdings ltd has no control nor assumes any responsibility for the content, privacy policies or practices of any third-party websites that you access via the Platform. You click the hyperlinks and enter any third-party websites at your own risk and your use of such third-party websites will also be subject to those websites’ terms and conditions.
- You acknowledge and agree that Shift Holdings ltd is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products, or other materials on or available from such websites or resources.
- You acknowledge and agree that Shift Holdings ltd is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
- All Intellectual Property Rights in the Platform and the Services throughout the world belong to us, or our licensors, and the rights in the Platform and the Services are licensed (not sold) to you. You have no Intellectual Property Rights in, or to, the Platform or the Services other than the right to use them in accordance with these terms.
- Except for User Content, you accept and acknowledge that all Content on the Service is either owned by or licensed to Shift Holdings ltd by third parties and is subject to Intellectual Property Rights of Shift Holdings ltd, or Shift Holdings ltd’ licensors. Any third-party trade or service marks present on such Content are trade or service marks of their respective owners. Such Content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without the prior written consent of Shift Holdings ltd or, where applicable, Shift Holdings ltd’s licensors. Shift Holdings ltd and its licensors reserve all rights not expressly granted in and to their Content.
- Except as expressly set out in this Agreement or as specifically permitted by any local law, you agree:
- not to copy the Platform or the Services except where such copying is incidental to normal use of the same, or where it is necessary for the purpose of back-up or operational security;
- not to rent, lease, sub-license, loan, provide, or otherwise make available, the Platform or the Services in any form, in whole or in part to any person without prior written consent from us;
- not to translate, merge, adapt, vary or modify the whole or any part of the Platform or the Services nor permit the Platform or the Services any part of it to be combined with, or become incorporated in, any other programs, except as necessary to use the Platform and the Services on Devices as permitted in these terms;
- not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Platform or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Platform with another software program, and provided that the information obtained by you during such activities:
- is used only for the purpose of achieving inter-operability of the Platform with another software program;
- is not disclosed or communicated without our prior written consent to any third party;
- is kept secure; and
- is not used to create any software that is substantially similar to the Platform;
- not to provide or otherwise make available the Platform in whole or in part (including object and source code), in any form to any third party without prior written consent from Shift Holdings ltd; and
- to comply with all technology control or export laws and regulations that may apply to the technology used or supported by the Platform or Service. Together the conditions of use set out in this clause 11 are referred to as the“Licence Restrictions”.
ACCEPTABLE USE RESTRICTIONS
- As a condition of being granted access to the Platform and the Services you agree:
- not to (or attempt to) circumvent, disable, or otherwise interfere with any security related features of the Service or features that enforce limitation on use of the Service or the Content;
- not to launch any automated system (including, without limitation, any robot, spider or offline reader) that accesses the Services in a manner that sends more request messages to Shift Holdings ltd in a given period of time than a human can reasonably product in the same period by using a publicly available, standard web browser;
- to comply in all respects with the Community Guidelines;
- not to use the Platform or Service in an unlawful manner, for any unlawful purpose, in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by attempting to gain unauthorised access to the Platform, or the server on which the Platform is stored, by hacking into the Platform or by inserting malicious code, including viruses, or harmful data, into the Platform, any Service or any operating system;
- not to use the Platform or Service to offer, solicit, arrange, or engage in, any kind of activity or arrangement which is, or which would be unlawful;
- not to infringe our rights or those of any third party in relation to your use of the Platform or any Service, including, without a limitation, a person’s Intellectual Property Rights, contractual rights, confidentiality rights, human rights, rights to privacy and other rights under applicable law;
- not to use the Platform or Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other Users; and
- not to collect, extract, or harvest any information or data from the Platform, any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
- Not to abuse the referral system by self-referring or referring an account owned by the same individual.
- Together the conditions of use set out in this clause 12 are referred to as the “Acceptable Use Restrictions”. Together the conditions of use set out in this clause 12 are referred to as the “Acceptable Use Restrictions”.
WARRANTIES AND DISCLAIMERS
- We shall provide the Services with reasonable care and skill.
- The Platform and the Services are provided for general information and entertainment purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the Platform or the Service. Although we make reasonable efforts to update the information provided by us on the Platform, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete, or up to date.
- The Platform and the Services have not been developed to meet your individual requirements. Please check that the facilities and functions of the Platform and the Services (as described on the Platform) meet your requirements.
- You agree that the Services (or any part thereof) will not be available during any maintenance carried out by Shift Holdings ltd or its selected third parties. Shift Holdings ltdshall use reasonable endeavours to notify you of any planned maintenance periods. Accordingly, you agree to back-up any Content used in connection with the Platform, to protect yourself in case of problems with the Platform or the Service.
- We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- We do not guarantee that the Platform will be secure or free from bugs or viruses. You are responsible for configuring your Device(s) in order to access the Platform and you should use your own virus protection software.
- To the extent permitted by law, save for as expressly set out in these terms, no implied terms, warranties, or conditions shall apply to your use of the Platform or Services.
LIMITATIONS ON LIABILITY
- References to liability in this clause 14 includes every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Nothing in this Agreement shall affect your legal rights or limit or exclude our liability for:
- death or personal injury resulting from our negligence;
- fraud or fraudulent misrepresentation; or
- any other liability that cannot be excluded or limited by applicable law.
- To the extent permitted by applicable law, Shift Holdings ltd shall not be liable for:
- any loss or damage caused by other Users including any loss in connection with another Users’ conduct or User Content;
- any loss or damage that was not directly caused by Shift Holdings ltd’ breach of this Agreement;
- any loss or damage caused by you including without limitation your failure to provide Shift Holdings ltd with accurate Account information and your failure to keep your password or Account details secure and confidential; or
- any loss or damage that was not, at the time this Agreement was formed between you and Shift Holdings ltd, a reasonably foreseeable consequence of Shift Holdings ltd breaching this Agreement.
- If you are Creative User, to the extent permitted by applicable law, Shift Holdings ltdshall not be liable for loss of profits; loss of sales, opportunity or business; loss of agreements or contracts; business interruption; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill or reputation; or indirect of consequential losses (in all cases whether such losses were foreseeable or not).
- Subject to clause 14.2, Shift Holdings ltd's aggregate liability under this Agreement shall not exceed the higher of:
- Three (3) times the total amount paid by you for any Paid for Services during the twelve (12) month period immediately prior to the event which gave rise toShift Holdings ltd liability; or
- One thousand GBP (£1,000).
EVENTS OUTSIDE OF OUR CONTROL
- We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, pandemic, epidemic, or other natural disaster, or failure of public or private telecommunications networks (each an “Event Outside Our Control”).
- If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement, our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
- We shall take reasonable steps to prevent or minimise delays caused further to an Event Outside Our Control.
ACCOUNT SUSPENSION AND TERMINATION
- The terms of this Agreement shall commence when you start using the Services and shall continue in force until you stop using the Services or until the Services are no longer available to you.
- You may stop using the Services at any time. You can also delete your Account via the Platform settings.
- We reserve the right to immediately terminate, delete, suspend or restrict your Account without notice to you:
- if you commit a breach of, or if in our reasonable opinion you have failed to comply with, any of the terms of this Agreement (including the Acceptable Use Restrictions, Licence Restrictions, Community Guidelines or any applicable Ancillary Terms);
- if in our reasonable opinion you have without merit made any attempt to seek a refund or a chargeback for Paid for Services after your purchase;
- where we suspend or cease the provision of the Services to Users generally;
- in order to comply with a legal or regulatory obligation; or
- in order to protect our legitimate business interests or those of the public.
- If you want to learn more about the Platform or the Service or have any problems using them, we recommend that in the first instance you take a look at our support resources at https://help.fanvue.com/hc/en-gb.
- If you think the Platform or the Services are faulty or misdescribed or wish to contact us for any other reason, please e-mail our customer service team at firstname.lastname@example.org.
- If we have to contact you, we will do so by e-mail using the contact details you have provided to us.
OTHER IMPORTANT TERMS
- We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens.
- Your Account is personal to you. You may only transfer or otherwise assign your Account or your rights or your obligations under these terms to another person if we agree in writing.
- This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
- Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
- If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
- You agree that this Agreement and any dispute or claim (including non-contractual disputes or claims) that arises between you and us shall be governed by the law of England and Wales and that all disputes related to this Agreement will be brought solely in the Courts of England and Wales.
- Where a User is an Account holder of Shift Holdings ltd and resides within the European Union, the laws of that member state will apply to any claim and, therefore a competent court of that member state shall have jurisdiction over the claim.