Premium Plan Terms and conditions

Premium Plan Terms & Conditions

The Pattern Cloud Group Ltd, a company incorporated under the laws of England and Wales with registered number 10886265 and having its registered address at 20-22 Wenlock Road, London, N1 7GU, UK (“TPCG”).

You wish TPCG to create and host a website for your designs together with the functionality for the sale of those designs on the website, all on the terms and conditions set out in this Agreement. This Agreement comprises:

(1) the Commercial Particulars as set out below; and

(2) the terms and conditions as set out below”

COMMERCIAL PARTICULARS

Fees - Promotional (Black Friday etc) discounts may be applied to the Fees, which are £550 payable in advance per calendar month (excluding VAT) by credit card Auto Pay or Direct Debit (UK only). 3 terabyte of storage is included, above 3 terabyte space will be charged for at a rate set by TPCG from time to time, currently £10 per 0.5TB per month (excluding VAT).

The fees include basic customisations to the Hosted Site in accordance with the guidelines as made available by TPCG from time to time.

TERMS AND CONDITIONS

All capitalised terms used in these Terms and Conditions have the meanings set out in clause 15.

1. HOSTING SERVICES

1.1. TPCG will provide the Hosting Services and otherwise perform its obligations under these Terms and Conditions in accordance with all applicable provisions of these Terms and Conditions and all applicable laws.

1.2. TPCG will use commercially reasonable efforts to make the Hosting Services available 24 hours a day, 7 days a week, except for:

(a) planned downtime which TPCG will schedule to the extent reasonably practicable during weekends;

(b) any unavailability caused by circumstances beyond TPCG's reasonable control, including acts of God, acts of government, lightning, flood, exceptionally severe weather, fire, earthquakes, explosions, war, civil unrest, acts of terror, acts or omissions of local or central government or other competent authorities; and computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within TPCG's possession or reasonable control, and denial of service attacks; or

2. THE HOSTED SITE

2.1. The Hosted Site will display all of your Designs which have been uploaded through your Hosted Site account control panel.

(a) It is your sole responsibility to verify the identity of the Hosted Site Buyers.

(b) TPCG is not a party to, and does not play any role in, any of the Sales Contracts for the Designs on the Hosted Site or to any other dealings between you and the Hosted Site Buyers. For the avoidance of doubt, TPCG does not obtain any commission in respect of the sale of any Designs on the Hosted Site.

(c) A standard set of Hosted Site Ts&Cs is provided for the Hosted Site. However, these are provided for your convenience only. If you wish to modify the Hosted Site Ts&Cs or substitute your own terms and conditions at any time this can be done in your Hosted Site account control panel.

2.2. You acknowledge that although the Hosted Site contains functionality for the sale of the Designs, it does not provide payment services. Please contact the nominated provider of TPCG (currently Braintree as at the date of these Terms and Conditions) to procure the payment services. These customisations are the subject of an agreement between you and the payment services provider; TPCG is not a party to that agreement.

2.3. TPCG may change the Hosted Site (or any part thereof) at any time, including the availability of any feature, database, or content. TPCG may also impose limits on certain features and services of parts or all of the Hosted Site. TPCG will give reasonable notice of such changes or limitations where it is reasonably possible to do so.

3. YOUR RESPONSIBILITIES

3.1. You undertake that you will:

(a) perform your obligations under these Terms and Conditions in accordance with all applicable provisions of these Terms and Conditions and all applicable laws; and

(b) provide TPCG with reasonable notice of any circumstances that you have prior knowledge of that may affect the normal operation of the Hosting Services; and

3.2. You will use reasonable effort to prevent unauthorised access to or use of the Hosted Site or any other security breach, and will contact TPCG immediately of any such unauthorised access to or use. TPCG will not be liable for any Losses that you may incur as a result of any such unauthorised access other than where such use arises due to the breach of contract or negligence of TPCG. However, you may be held liable for any Losses incurred by TPCG as a result of any such unauthorised use.

3.3. You must not request or permit anyone other than TPCG or an authorised nominee of TPCG to provide, diagnose, interpret, troubleshoot or access the Hosted Site in any way, shape or form, without the prior written consent of TPCG, not to be unreasonably withheld or delayed.

4. YOUR INTELLECTUAL PROPERTY RIGHTS

4.1. Subject to the license in clause 4.2, all rights, title and interest in your intellectual property rights will remain vested in you.

4.2. You hereby grant to TPCG a non-exclusive, royalty-free, worldwide licence to your intellectual property rights:

(a) to the extent required by TPCG to fulfil its obligations under these Terms and Conditions;

(b) to use, display or include, as applicable, your Trade Marks that you submit to TPCG for use (i) on The Pattern Cloud; (ii) in online or mobile communications outside The Pattern Cloud (iii) when making announcements of the availability of your website online; (iv) in marketing presentations; (v) in company lists that appear on TPCG’s website or elsewhere online; and

5. FEES

5.1. In consideration of TPCG providing the Hosting Services you will pay to TPCG the fees set out in the Commercial Particulars.

5.2. TPCG will issue invoices to you monthly in advance, or annually in advance where such a payment is specified in the Commercial Particulars. The fees will be payable by you to TPCG on the date of the invoice.

5.3. All sums payable under these Terms and Conditions are payable in pounds sterling and are exclusive of value added tax and any other taxes, charges or duties to which the supply of goods or services may be subject or give rise.

5.4. If any withholding type tax is levied on a payment to TPCG, then you must increase the amount paid to TPCG so that the amount received after the withholding tax is deducted is the full amount TPCG would have received if no withholding deduction had been made.

6. OWNERSHIP RIGHTS IN THE HOSTED SITE

6.1. The software, workflow processes, user interface, designs and other technologies provided by TPCG as part of the Hosted Site are the proprietary property of TPCG and its licensors. All right, title and interest in and to such items, including all associated intellectual property rights, remain with TPCG. You must not remove or modify any proprietary marking or restrictive legends within the Hosted Site. TPCG reserves all rights unless expressly granted under these Terms and Conditions.

6.2. You must not:

(a) sell, resell, rent or lease the Hosted Site or use it in a service provider capacity;

(b) attempt to gain unauthorised access to the Hosted Site or related systems or networks;

(d) access the Hosted Site to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

6.3. By submitting ideas, suggestions or feedback to TPCG regarding the Hosted Site, you agree that such items submitted do not contain confidential or proprietary information; and you hereby grant TPCG an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.

6.4. You are not granted any rights or licence in respect of the TPCG Trade Marks, which are and will remain the sole and exclusive property of TPCG.

7. YOUR USE OF THE HOSTED SITE

7.1. You must not access or use the Hosted Site in any manner or for any purpose other than as expressly permitted by these Terms and Conditions.

7.2. You may only use the Hosted Site for commercial purposes and in accordance with the applicable laws.

7.3. You must not:

(a) use the Hosted Site to store or transmit indecent, obscene, pornographic, blasphemous, infringing, defamatory, libellous or otherwise objectionable, unlawful or tortious material, or material which violates third party rights; or

(b) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, or send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws and regulations.

7.4. You are solely responsible for:

(a) your acts and/or omissions in connection with the Hosted Site (including any resulting loss or damage that TPCG may suffer); and

(b) any breach or failure to comply with your obligations under these Terms and Conditions, and the consequences thereof (including any resulting loss or damage that TPCG or any third party may suffer).

8. INDEMNITY

8.1. You will indemnify and hold harmless TPCG from and against any Losses incurred by TPCG for any third party claims arising from or in connection with:

(a) your use of the Hosted Site in breach of these Terms and Conditions;

(b) any assertion that any of your Designs infringes any copyright and rights in the nature of copyright of a third party or defames any person;

(d) the use by any Hosted Site Buyer of any of your Designs in accordance with the Hosted Site Ts&Cs.

9. NO LIABILITY

9.1. Except as expressly set out in these Terms and Conditions, to the maximum extent permitted by law TPCG hereby excludes all warranties and representations of any kind, express or implied, regarding the Hosted Site, including warranties and representations:

(a) as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of the Hosted Site;

(b) that the Hosted Site will meet your requirements;

(d) that the Hosted Site is secure, free from attack, interference, hacking or other security intrusion, or free of malicious programs or other harmful components.

9.2. To the maximum extent permitted by law TPCG hereby excludes all warranties and representations of any kind, express or implied, regarding the Hosted Site Ts&Cs, including warranties and representations regarding the suitability of such Hosted Site Ts&Cs for the Hosted Site, your Designs and/or your business.

9.3. Nothing in these Terms and Conditions will operate to exclude or limit TPCG's liability for (a) death or personal injury caused by TPCG's negligence, (b) fraud or (c) any other liability which cannot be excluded or limited under applicable law.

9.4. Subject to clause 9.3, TPCG will have no liability to you or any other person for any damage or loss of any kind, whether such damage or loss is direct, indirect, special or consequential and whether it arises in contract, tort (including negligence) or otherwise, even if such loss was reasonably foreseeable or TPCG has been advised of the possibility of such loss. In particular, TPCG will have no liability, obligation or responsibility whatsoever in relation to (a) loss of profits; (b) loss of sales, income, business or opportunity; (c) loss of anticipated savings; (d) loss of, or damage to, reputation or goodwill; or (e) loss of use of, or corruption to, software, data or information.

9.5. Your submission of information in connection with the Hosted Site is at your sole risk, and to the maximum extent permitted by law, TPCG hereby disclaims any and all liability to you for any loss or liability relating to such information in any way. You are responsible for backing up your own systems and data.

10. SECURITY AND DATA PROTECTION

10.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

10.2. The terms controller, processor, process, personal data, data subject and personal data breach in this clause 10 shall have the meanings given to those terms in the applicable Data Protection Legislation.

10.3. The parties acknowledge that for the purposes of the Data Protection Legislation, you are the controller and TPCG is the processor of personal data relating to Visitors. The Appendix sets out the scope, nature and purpose of processing by TPCG, the duration of the processing and the types of personal data and categories of data subject.

10.4. Without prejudice to the generality of clause 10.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Visitors’ personal data to TPCG for the duration and purposes of this Agreement.

10.5. Without prejudice to the generality of clause 10.1, TPCG shall, in relation to any personal data relating to Visitors processed in connection with the performance by TPCG of its obligations under this Agreement:

(a) process that personal data only on your written instructions unless TPCG is required by applicable laws to otherwise process that personal data. Where TPCG is relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, TPCG shall promptly notify you of this before performing the processing required by the applicable laws unless those applicable laws prohibit TPCG from so notifying you;

(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

(d) not transfer any personal data outside of the European Economic Area unless TPCG has your prior written consent and the following conditions are fulfilled:

(i) you or TPCG has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) TPCG complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv) TPCG complies with reasonable instructions notified to it in advance by you with respect to the processing of the personal data;

(e) assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, personal data breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify you without undue delay on becoming aware of a personal data breach;

(g) at your written direction, delete or return to you personal data and copies thereof on termination of this Agreement which cannot be deleted or obtained by you, unless required by applicable law to store the personal data; and

(h) if required by Data Protection Legislation, maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and

(i) allow for audits by you subject to the following conditions: (a) to be conducted at such times as agreed with TPCG to ensure minimal disruption to its business; (b) on reasonable notice; (c) subject to TPCG obligations of confidentiality owed to third parties; (d) by a suitably qualified independent auditor; (e) the scope, methodology and timing of vulnerability scans or penetrations tests to be pre- agreed by TPCG before being undertaken and shall be subject to a separate written agreement; and (f) not more than once per year except where an additional audit is required in the same twelve month period because there has been an actual personal data breach or reasonable suspicion of a personal data breach. TPCG shall provide all information reasonably necessary and cooperate fully with such audit. Any such audit shall be undertaken at your own cost, and you shall reimburse TPCG for its reasonable costs incurred on a time and materials basis in facilitating an audit. You agree to provide a copy of the audit results to TPCG. For the avoidance of doubt, all audit results will be considered TPCG confidential information.

10.6. You consent to TPCG appointing third-party processors of personal data under this Agreement. TPCG confirms that it will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 10. As between you and TPCG, TPCG shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 10.

10.7. Please read the TPCG Privacy Notice which also governs your use of the Hosted Site.

10.8. TPCG may use non-personally identifiable data within the Hosted Site for purposes of enhancing the Hosted Site, aggregated statistical analysis, technical support and other business purposes.

11. TEMPORARY SUSPENSION

11.1. TPCG may at any time immediately suspend your right to access or use any part or all of the Hosted Site, without liability to you and in addition to any other rights and remedies of TPCG, if TPCG determines in its sole discretion that:

(a) the access or use by you of the Hosted Site poses a material security risk to TPCG or any third party, or may subject TPCG or any third party to material liability;

(b) a Hosted Site Buyer makes a material complaint about you;

(c) TPCG has reasonable grounds to suspect that you have engaged in fraudulent activity in connection with the Hosted Site; or

(d) you are in material breach of these Terms and Conditions.

11.2. If TPCG suspends your right to access or use any part or all of the Hosted Site:

(a) TPCG will use reasonable endeavours to notify you of such suspension as soon as reasonably practicable; and

(b) you will remain responsible for all fees that are payable during the period of the suspension.

12. TERM AND TERMINATION OF THE AGREEMENT

12.1. “The Agreement will take effect from the date you click “Submit” on the Premium Plan submission form. The Agreement will continue for a period of 12 months plus any free period given; thereafter either party may terminate the Agreement at any time by sending written notice of at least one 1 month to the other party. This clause 12.1 is subject to the other termination provisions of this Agreement.”

12.2. TPCG may terminate the Agreement at any time with immediate effect by written notice to you if any act or omission by you results in a temporary suspension described in clause 11.

12.3. Upon the expiry or termination of the Agreement for any reason:

(a) neither party will have any further right or obligation with respect to the other party except as set out in this clause 12.3 and those clauses which expressly or by implication are intended to come into or continue in force on or after termination of the Agreement;

(b) all accounts and all details of Hosted Site Buyers will be deleted; and

(c) any and all amounts outstanding and any unpaid amounts due and owed under the Agreement will become immediately due and payable.

12.4. The expiry or termination of the Agreement for any reason will not prejudice or affect the accrued rights, remedies obligation or liabilities of the parties existing at termination.

13. NOTICES AND COMMUNICATIONS

13.1. When you use the Hosted Site or send emails to TPCG, you are communicating with TPCG electronically. TPCG will communicate with you by e-mail. You consent to receive communications from TPCG electronically and you agree that all notices and communications that TPCG provides you electronically satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws specifically require a different form of communication.

13.2. All notices that you are required or desire to give to TPCG must be in writing and sent:

(a) by registered post or courier to THE PATTERN CLOUD GROUP LTD at 20-22 Wenlock Road, London, N1 7GU, UK and marked for the attention of the The Director; and such notices will be deemed to be received by TPCG three (3) Business Days after the date on which they are sent by registered post or courier; or

(b) by email provided that the email is sent from the email address as detailed in your account on the Hosted Site; and such notices will be deemed to be received by TPCG immediately. If for any reason you send an email from a different email address TPCG will not take any responsibility if it does not receive the email for any reason, including if it is categorised as spam.

14. GENERAL

14.1. No variation or amendment will be made to the Agreement unless it is made by a written instrument which expressly purports to amend the Agreement and is executed by or on behalf of each party.

14.2. You may not assign or transfer the Agreement without TPCG’s prior written consent, such consent not to be unreasonably withheld or delayed.

14.3. TPCG will be entitled without consent to sub-contract or delegate all or any of its obligations under the Agreement but TPCG will remain primarily responsible for all acts and omissions of its sub-contractors as though they were its own.

14.4. Each of you and TPCG are independent contractors with respect to each other. Nothing contained in the Agreement is intended to, will be deemed to, or will create any partnership or joint venture between the parties.

14.5. A failure or delay by a party at any time or for any period to enforce any of its rights under the Agreement will not constitute a waiver of such rights or the right at any time subsequently to enforce any provisions of the Agreement.

14.6. Each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach by the other party of these Terms and Conditions. Accordingly, without prejudice to any other rights or remedies that a party may have, a party may be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms and Conditions.

14.7. If any of these Terms and Conditions is found to be invalid, unenforceable or illegal, then such provision will be severed and will not affect the validity and enforceability of any remaining Terms and Conditions.

14.8. No third party will have any rights under, or be able to enforce, the Agreement.

14.9. The Agreement constitutes the entire agreement between the parties and supersedes all previous arrangements between the parties relating to its subject matter. Each party acknowledges that that it has not relied on any oral or written representation (whether made negligently or innocently) other than as expressly set out in the Agreement. Nothing in this clause 14.9 will limit or exclude any liability for fraud.

14.10. The Agreement is governed by and construed in accordance with English law. Any dispute or claim arising in connection with the Agreement or any non-contractual dispute will be subject to the exclusive jurisdiction of the English courts.

15. DEFINITIONS

15.1. In these Terms and Conditions the following terms will have the following meanings:

“Business Day” means any calendar day other than a Saturday, Sunday or a public bank holiday in England;

“Data Protection Legislation” (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”); (ii) the Data Protection Act 2018; and (iii) any other applicable laws and regulations relating to the processing of personal data and privacy.

“Design” means prints, patterns graphics and any other form of your design;
“Hosted Site” means the website which displays your Designs which have been uploaded via your Hosted Site account control panel.

“Hosted Site Buyer” means a buyer which is registered by you to use the Hosted Site;

“Hosted Site Ts&Cs” means the terms and conditions applicable to the Hosted Site, including the terms of sale for the purchase of Designs via the Hosted Site, and as may be modified by you from time to time;

“Hosting Services” means the services provided by TPCG to host the Hosted Site;

“Losses” means any and all losses, costs, damages, expenses and other charges (including reasonable fees and expenses of legal and other advisers, court costs and other dispute resolution costs);

“Sale Contract” means the contract created between you and a Hosted Site Buyer for any of your Designs on the Hosted Site;

“Trade Marks” means trade marks, trade names, service marks, logos, domain names, and other distinctive brand features;

“Visitors” means visitors to the Hosted Site.

15.2. In interpreting these Terms and Conditions (unless the context otherwise requires) any phrase introduced by the terms "including", "includes", “in particular”, “for example” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.

APPENDIX

Subject matter of processing

TPCG providing you with website hosting services.

Duration of processing

The duration of the Agreement plus the period required for both parties to exercise their rights and perform their obligations after termination of the Agreement.

Nature and purpose of processing

TPCG performs the following processing activities:
Account management.
Credit management.

Complying with legal obligations Dispute management.
Maintaining and enhancing products and services.

Market research
Providing products and services Supporting network and system security.
Website analytics.

Types of personal data

IP address; cookies, login data, browser type and version, time zone setting and location, browser plug-in types and versions, operating system and platform and other technology on the devices Visitors use to access the Hosted Website; bank details; contractual details including services provided; location details; name and contact information; role; areas of design interest; job title; VAT number; purchase history.

Categories of data subjects

Visitors

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