ListSmart Terms and Conditions of use
Updated 7th July 2016 (Coolgarif Technologies Ltd. trading as AltViz)
These terms and conditions apply between you, the visitor or User of the ListSmart marketplace listing recommendations website (Website) (including any sub-domains, unless expressly excluded by their own terms and conditions), and Coolgarif Limited (ListSmart, we, us or our), the owner and operator of this Website. Please read these terms and conditions carefully, as they affect your legal rights. Your agreement to comply with and be bound by these terms and conditions is deemed to occur upon your first use of the Website. If you do not agree to be bound by these terms and conditions, you should stop using the Website immediately.
In these terms and conditions, User or Users (you or your) means a registered user with an account with the Website. These terms and conditions apply to both visitors to the Website, and to Users.
You must be at least 18 years of age to use this Website. By using the Website and agreeing to these terms and conditions, you represent and warrant that you are at least 18 years of age.
- When you register as a User, you must ensure that the details provided by you on registration or at any time are correct and complete.
- You must inform us immediately of any changes to the information that you provide when registering by updating your personal details to ensure we can communicate with you effectively.
- We may suspend or cancel User accounts with immediate effect for any reasonable purposes or if the User breaches these terms and conditions.
- When registered as a User, you may cancel your account at any time by informing us in writing to the address at the end of these terms and conditions. If you do so, you must immediately stop using the Website. Cancellation or suspension of your account does not affect any statutory rights.
- The online facilities, tools, services or information that we make available through the Website is the Service. This principal service provided by the Website is to provide suggestions or recommendations for modifications to your listings for retail products on third party marketplaces (Recommendations) intended to cause an increase in sales revenue. The Service will be limited in accordance with the Plan, which you have selected (see section 10). Recommendations are based on an automated review of your listings in comparison with other listings from third parties and are provided on an as is and as available basis.
- We make no warranty or representation as to whether the Recommendations will in fact cause an increase in sales revenue. To the fullest extent permitted by law, we disclaim all liability in relation to the recommendations contained in this document, including but not limited to liability in relation to any sale or transaction, which results from listings amended based on Recommendations.
- You should make your own independent assessment of any Recommendation provided, and no reliance should be placed on our Recommendations without your own assessment of such Recommendations and the impact on the listing of implementing the Recommendation. In particular, where we provide a specific suggestion of what as to what change to make to a listing, you should consider carefully the accuracy of the description of the relevant product in the resultant listing.
- In particular, you should ensure that any changes you make to your listings comply with applicable law and all relevant market places terms and conditions. It is your responsibility to ensure your listings (whether or not our Recommendations are included) fairly and accurately describe and represents your products.
4. User Types
- Some Users will be provided with access to the Service in connection with a separate arrangement between us and a third party marketplace on which the User places listings. We refer to these Users as having an Alternative Fee Arrangement.
- We may offer the Services to new Users for no fee for an initial trial period (a Trial). Our Website and communications will indicate the duration of any Trial. After the expiry of a Trial, Users may continue to access the Services, however the charges as set out in these terms shall begin to apply.
- These terms refer to Users, which are not under an Alternative Fee Arrangement, or on a Trial, as Paying Users.
5. Your Data
- Customer Data shall mean (i) data inputted or uploaded by you to the Website; and (ii) data, which relates to you and which you permit us to access from third party websites on your behalf by providing us with the relevant authorisation or credentials. For the avoidance of doubt, where you provide such permission, we will continue to retrieve such data on an on-going basis as we provide the Service. We may change the types and volume of data, which we from such third party websites retrieve (using the authorisation or credentials you have provided), as we develop and improve our Service.
- As between ListSmart and you, you shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, timeliness and quality of the Customer Data. You grant us, our affiliates and sub-contractors a non-exclusive royalty-free licence to use, store and modify the Customer Data to the extent necessary to run the Website and to provide Recommendations.
- Although the Customer Data shall be regarded as confidential information of the Customer, we shall be permitted to combine the Customer Data with other data to form other aggregated data, provided that such aggregated data cannot reasonably be reverse engineered to identify the Customer Data (Aggregated Data). We shall own the Intellectual Property Rights in such Aggregated Data and shall be free to use such Aggregated Data as it wishes.
- In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us. However, we shall not be obliged to keep such back-ups, and shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party, including our hosting provider. You must maintain full and regular back-ups of all Customer Data.
6. Intellectual property
- All Content included on the Website, is the property of ListSmart, our affiliates or other relevant third parties. In these terms and conditions, Content means any text, graphics, images, audio, video, software, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on or forms part of this Website. By continuing to use the Website you acknowledge that such Content is protected by copyright, trademarks, database rights and other intellectual property rights. Nothing on this site shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the site without the owner's prior written permission.
- You must not otherwise reproduce, modify, copy, distribute or use for commercial purposes any Content without our written permission.
7. Service Usage Data and Our Materials
- We shall have the right to collect and retain information about your usage of the functionality within the Service (Service Usage Data). Such Service Usage Data may be used by us for statistical analysis, for product improvement, for billing and for monitoring of your compliance with this Agreement. We may also collect and store such information about visitors and Users as is necessary for the administration of the Services (including contact details) and such information shall be treated in accordance with section 5e).
- You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Services, and anything developed or delivered by or on behalf of us to you in relation to the Website or the Services, including any modifications and/or derivative works of the aforementioned (together the ListSmart Materials). Except as expressly stated herein, these terms do not grant you any Intellectual Property Rights in respect of the ListSmart Materials. For the avoidance of doubt, the structures of databases, calculation methodologies and algorithms used in the Services, as well as the Service Usage Data, shall constitute ListSmart Materials.
- Confidential Information means information (in any form) belonging or relating to you or us, your or our associated companies, affiliated organisations, your or our business, clients, employees, customers, plans, affairs or activities, including any information which the receiving party might reasonably expect would be confidential.
- Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the performance of these terms.
- You acknowledge that where a User is under an Alternative Fee Arrangement we are permitted to share Confidential Information (including, but not limited to, Customer Materials) with the third party marketplace involved in such arrangement.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. A party's Confidential Information shall be deemed not to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- You acknowledge that the ListSmart Materials (other than Recommendations) and details of the Services constitute our Confidential Information.
- You may not use the Website for any of the following purposes:
- in any way which causes, or may cause, damage, interference or disruption to the Website, any equipment or network on which the Website is stored, or any software used in the provision of the Website; or interferes with any other person's use or enjoyment of the Website, equipment, network or software;
- to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware, or cause any of this to happen;
- in any way which is harmful, unlawful, illegal, abusive, harassing, threatening or otherwise objectionable or in breach of any applicable law, regulation, or governmental order;
- making, transmitting or storing electronic copies of material protected by copyright or trademark without the permission of the owner;
- to upload to, distribute or otherwise publish through the Website any Content that (i) is confidential, proprietary, false, fraudulent, libellous, defamatory, obscene, threatening, invasive of privacy or publicity rights, infringing on intellectual property rights, abusive, illegal or otherwise objectionable; (ii) may constitute or encourage a criminal offence, violate the rights of any party or otherwise give rise to liability or violate any law; or (iii) may contain software viruses, political campaigning, chain letters, mass mailings, or any form of "spam.";
- to use a false email address or other identifying information, to impersonate any person or entity or otherwise mislead as to the origin of any content; or
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between us:
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Website;
- access all or any part of the Website in order to build a product or service which competes with the Website; or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Website available to any third party.
10. Charges and Payment
- Unless you have an Alternative Fee Arrangement, after a Trial period, you must pay fees in advance to access and use the Service (Fees).
- Our Service offers different tiers of plans which each permit different volumes of listings or seller accounts (Plans). The details, constraints and Fees, which apply to each Plan are set out on our Website.
- Fees are to be paid monthly in advance, and the payment of the relevant Fees enables access to the Service in accordance with the Plan, which you have selected. Once you select a Plan, we shall continue to make the Service available to you, and to collect the appropriate Fees in relation to your Plan, on a recurring basis, until you change your plan, cancel the Service, or this agreement otherwise terminates.
- All Fees stated or referred to in these terms are exclusive of value added tax, which shall be payable at the appropriate rate.
- Notwithstanding the requirement for Paying Users to pay the Fees in advance of use of the Service, if the payment of the relevant Fees is not made in advance (including, for example, if a payment transaction fails), Paying Users are still required to pay such Fees to us. Paying Users shall be responsible for paying any Fees which apply to their use of the Service whether or not such payment occurs in advance of, or subsequent to, their use of the Service.
- Where we present an invoice to a Paying User for Fees due in relation to past use of the Service, such invoice shall be due and payable 30 days after the invoice date. If we have not received payment within five days after the due date, and without prejudice to any other rights and remedies we have, we may, without liability to you, disable your passwords, account and access to all or part of the Website or Service and we shall be under no obligation to provide access to any part of the Website or Service while the invoice(s) concerned remain overdue and unpaid.
- We shall be entitled to increase the Fees over time as set out in our pricing page. We shall provide thirty days' prior notice of such increase in the Fees.
11. Refunds and Cancellation
- You may cancel your account with us at any time. If you cancel your account before the end of your current paid-up subscription period, your cancellation will take effect upon the expiry of such period. You will not be charged again, however you shall not receive a reimbursement for the portion of your subscription period which occurs after your cancellation.
- If we breach these terms and conditions, you must notify us of the breach and we will remedy the breach within 30 days of such notification. If we do not remedy the breach within 30 days of your notification and you cancel the Service before the end of your current paid-up subscription period, you will be entitled to a refund of the remaining portion.
- If we reasonably believe that you have violated these terms and conditions we reserve the right to (i) modify or discontinue, temporarily or permanently, your access to the Website (or any part thereof) and (ii) refuse any or all current and future use of the Website, suspend or cancel your account or any part thereof (or your use of the Website), and remove and discard any of your Content within the Website. We will use all reasonable efforts to contact you directly via email to warn you prior to suspension or cancellation of your use of the Website, or suspension or cancellation of your account. If your account is cancelled, we reserve the right to remove your account information along with any account settings from our servers with, subject to section 13a), no liability or notice to you. Once your account information and account settings are removed, you will not be able to recover this data and you will lose access to all of your Content.
- Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate cancellation of your use of the Service and cancellation of your account, and such information may be referred to law enforcement authorities. We shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service.
12. Availability of the Website and Disclaimers
- The Service is provided "as is" and on an "as available" basis. We give no warranty that the Service will be free of defects and/or faults. To the maximum extent permitted by the law, we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality. We are under no obligation to update information on the Website and make no representations, warranties or guarantees, whether express of implied that the content on the Website is accurate, complete or up-to-date.
- Whilst we use reasonable endeavours to ensure that the Website is secure and free of errors, viruses and other malware, we will not be liable for any loss or damage that may be caused to the computer by your use of the Website, and we give no warranty or guaranty in that regard and all visitors and Users take responsibility for their own security, that of their personal details and their computers.
- We reserve the right to alter, suspend or discontinue any part (or the whole of) the Website at any time including, but not limited to, any Content, products and/or Services available. These terms and conditions shall continue to apply to any modified version of the Website unless it is expressly stated otherwise.
13. Limitation of liability
- Nothing in these terms and conditions will: (a) limit or exclude our or your liability for death or personal injury resulting from our or your negligence, as applicable; (b) limit or exclude our or your liability for fraud or fraudulent misrepresentation; or (c) limit or exclude any of our or your liabilities in any way that is not permitted under applicable law.
- Subject to section (a) above:
- to the extent that your access to the Website is provided free of charge (be it a Trial, an Alternative Fee Arrangement, or otherwise), we will not be liable to you for any loss or damage of any kind.
- to the extent that the account is for a Paying User (or through some other means the User pays us directly for access to the Service) we will not be liable to you: (i) for an amount greater than the fees paid by you in the previous twelve months; or (ii) in respect of any losses arising out of events beyond our reasonable control.
- Subject to section (a) above, and to the maximum extent permitted by law, ListSmart accepts no liability for any of the following:
- any business losses, such as loss of profits, income, revenue, anticipated savings, business, contracts, goodwill or commercial opportunities;
- loss or corruption of any data, database or software; or
- any special, indirect or consequential loss or damage.
- You Customer shall defend, indemnify and hold harmless us and our affiliates, officers, directors and employees against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) and liabilities arising out of any claim, demand, proceeding or allegation by a third party against us in relation to your use of the Service and/or Website.
- We shall defend you and your officers, directors and employees against any claim from a third party that the Service, when used in accordance with the terms of these terms, infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark or database right, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
- we are given prompt notice of any such claim;
- you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
- we are given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, we may procure the right for you to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on 5 business days' notice to you without any additional liability or obligation to pay damages or other additional costs to you except a pro rata refund of fees paid and not used at the date of termination.
- In no event shall we, our affiliates, officers, employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on (i) a modification of the Service by anyone other than us; or (ii) your use of the Service in a manner contrary to the instructions given to the Customer by ListSmart including that set out in relevant documentation; or (iii) your use of the Service after notice of the alleged or actual infringement from us.
- The foregoing states your sole and exclusive rights and remedies, and our (including our affiliates', employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of any intellectual property rights.
15. Links to other websites
- This Website may contain links to other sites. Unless expressly stated, these sites are not under our control or that of our affiliates.
- We assume no responsibility for the content of such Websites and disclaim liability for any and all forms of loss or damage arising out of the use of them.
- The inclusion of a link to another site on this Website does not imply any endorsement of the sites themselves or of those in control of them.
17. Force majeure
We shall have no liability to you under these terms if we are prevented from or delayed in performing its obligations under these terms, by acts, events, omissions or accidents beyond our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of ListSmart or any other party), failure of a utility service or transport or telecommunications network, war, riot, civil commotion, malicious damage, DDOS or other similar attack, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
- You may not transfer any of your rights under these terms and conditions to any other person. We may transfer our rights under these terms and conditions where we reasonably believe your rights will not be affected.
- These terms and conditions may be varied by us at any time. Such revised terms will apply to the Website from the date of publication. You should check the terms and conditions regularly to ensure familiarity with the then current version.
- These terms do not confer any rights on any person or party (other than the parties to these terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- If any court or competent authority finds that any provision of these terms and conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these terms and conditions will not be affected.
- Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
- These terms and conditions will be governed by and interpreted according to English law. All disputes arising under these terms and conditions will be subject to the exclusive jurisdiction of the English courts.
19. ListSmart details
ListSmart is a trading name of Coolgarif Limited, which is a company incorporated in England and Wales with registered number 08026895 whose registered address is 207-209 Southwark Bridge Road, London, United Kingdom, SE1 0DN and it operates the Website www.listsmart.io. The registered VAT number is 164128714.
You can contact ListSmart by email on firstname.lastname@example.org.