Zimki User Agreement

1. Introduction.

This Agreement is a legal document that sets out your rights and obligations, and those of the Provider ("Provider", "we" or "us"), in relation to this site and the services offered by us through it ("Zimki"). You must take the time to read and understand it before registering for Zimki. By registering, you accept that you are entering into a contract with us on the terms of this Agreement. You should be aware that this Agreement may change from time to time in accordance with Clause 25 below.

2. The Zimki Service, and obtaining an Account.

People who register for Zimki establish an "Account", and become "Users".

Zimki is intended to provide Users with a relatively straightforward means of developing and hosting a dynamic web site with related XML web services and server side JavaScript for use by the public. Zimki comprises various tiers of related services, including web hosting, development platform, common utility services and domain specific services. A site you develop and host through Zimki is called a "User Product" from here on.

Please note that Zimki is only to be used by people who are reasonably skilled in web development in JavaScript. If you are not such a person, then please do not obtain an Account.

Please also note that Zimki is a trial service. This means that there may be aspects of the service that are not completely final, that have bugs or may be difficult to use. Users must take account of this.

You must consult our FAQs and other service documentation available on the Zimki site before becoming a User to make sure that you are happy with the nature of the service and any constraints that apply to it.

You must be legally entitled to contract for and use Zimki. Where the User is a limited company, partnership or other entity (an "entity"), you undertake that:

1. you are entitled to enter into this Agreement on behalf of the entity,
2. the entity will be bound to this Agreement in the same way as you, and
3. this Agreement will accordingly be enforceable both against you and the entity.

3. Charges.

We don't charge you for developing User Product on Zimki. We charge only for the use that is made of User Product.

We calculate chargeable usage of User Product according to the number of JavaScript Operations performed, the amount of storage and bandwidth consumed and the use of any special services on or through the User Product, (collectively, "Chargeable Events"). And we measure Chargeable Events by means of a unit that we call a "Token". Tokens are used each time a Chargeable Event occurs.

The number of Tokens we currently attribute to different kinds of Chargeable Event are specified here. These Token values, and Chargeable Events, may change - see Clause 5 below.

If the number of Tokens used for Chargeable Events exceeds a certain number (the "Free Event Limit"), then we will be entitled to charge you for the excess Chargeable Events according to the number of Tokens those Chargeable Events equate to ("Chargeable Tokens"). The Free Event Limit at the date of this Agreement is 1,000 Tokens in a day. For completeness, the Free Event Limit does not carry-over from day-to-day: if the number of Tokens used for Chargeable Events on any one day is less than the Free Event Limit, the unused portion of the Free Event Limit cannot be used on a subsequent day when the Free Event Limit is exceeded.

If you decide to become a User, you are agreeing to pay for Chargeable Tokens, and will do so either (at your option) by making an advance payment to cover future Chargeable Tokens (a "Credit"), or in arrears. Details of how you can pay for Chargeable Tokens are notified to you when you register for Zimki and subsequently, in accordance with this Agreement.

Chargeable Tokens will normally be debited from you as they are consumed. However, we reserve the right to aggregate the cost of Chargeable Tokens over a longer period (such as a day, week or a month), and to debit them then.

In relation to Credit, please note the following:

1. you should only purchase Credit that you are planning to use shortly after you purchase them. This is because Credit will usually expire if it is not used - see Clause 6 below. Also, you only have a limited right to repayment of Credit if you cancel your Account - see Clause 7; and
2. if the cost of Chargeable Tokens exceeds the Credit we hold for you, then we will charge you for those Chargeable Tokens in arrears, provided we hold the necessary payment details for you.

All amounts payable under this Agreement are exclusive of any Value Added Tax (or similar tax) that may be payable. You will pay all such tax at the rate and in the manner required by law.

In the event that any payment due under this Agreement is not paid at the time we seek payment, then:

1. we will be entitled to charge interest on the outstanding amount at the rate of three percent per annum over the then-current base rate of National Westminster Bank Plc from the date payment becomes due until payment in full. This interest will accrue daily; and
2. we will be entitled to cease to make User Product accessible on our servers, so that it is inaccessible to you or anyone else, pending receipt of all outstanding payments. Upon reinstatement of User Product, we will be entitled to charge you a reinstatement fee that will be notified on the Zimki site from time to time.

4. Withdrawal of Zimki.

Zimki is a trial service. Therefore, please note that the Provider reserves the right, on no less than 90 days' notice to the User, to withdraw Zimki completely. In that event, you will cease to be able to develop, or obtain or provide access to, User Product from the date when the notice expires. If User Product has been developed and you wish to continue using it, you will need to make arrangements to do so during the notice period. Details on this will be available in the Zimki FAQs.

If we notify you that we are withdrawing Zimki fully, then you will be entitled to, and will be provided with, a rebate of any amount of Credit outstanding in your Account at the time of the withdrawal.

5. Changes to the unit price of Tokens.

Please note that we reserve the right to increase the number of Tokens attributed to any (or all) of the Chargeable Events, and to introduce new Chargeable Events (and the associated Token values), by 30 days' notice to Users (a "Charging Change"). If you have pre-paid for Chargeable Tokens and do not wish to be bound by a Charging Change, then you must notify us of this fact in writing, and request a refund within ten days after our notice to you. If you do not send such a notice, you will be deemed to accept the relevant Charging Change.

6. Expiry of Credit.

Please note that Credit will expire 180 days after you pay for it if it has not been used by you. In this event, any affected Credit will not be usable, and you will not be entitled to a refund of the price you paid for it. Therefore, when you purchase Credit, please make sure that you will be in a position to use it within 180 days of purchase, because if you do not do so, you will lose the value of that Credit.

7. Cancelling Your Account.

If the User is a "consumer" (that is, a natural person acting outside of his/her business in dealing with Zimki), the you have the right to cancel your Account during the seven working day cooling-off period which is provided for certain purchases under the Consumer Protection (Distance Selling) Regulations 2000 from the time when you register for your Account (the "Statutory Cooling-Off Period"). If you have purchased Credit during the Statutory Cooling-Off Period, and exercise your right to cancel your Account during that period, then we will refund to you the amount you paid for that Credit. However, please note that you will not be entitled to any refund of Credit you have used during the Statutory Cooling-Off Period.

After the Statutory Cooling-Off Period, or where the User is not a consumer, if you cancel your Account within seven days of purchasing Credit in it, we will repay to you (by means of a recharge to your relevant credit card account or a credit to your relevant bank or other account) the amount of the Credit, provided the amount exceeds £10, after the deduction of our fee for the refund (which is 10% of the relevant amount). If the net amount is £10 or less, then you will not be entitled to repayment of it, but will (subject to your other obligations under this Agreement) continue to be entitled to use the Credit for Chargeable Tokens.

If you cancel your Account, or we cancel it for any reason, you remain responsible for paying sums incurred, and for otherwise performing your obligations, under this Agreement.

8. Registration.

You undertake to register for Zimki using accurate and current information about yourself - including your correct name, address and any other requested details. If you are asked for, and provide, details of a credit, debit or charge card, you must ensure that (a) you are fully entitled to use that card, and (b) it has available funds sufficient to cover the charges which are deducted from it. As part of the registration process for Zimki, you will receive a verification email, the purpose of which is to take reasonable steps to ensure that the email address you have nominated during registration is controlled by you. That email contains simple instructions which you must follow.

9. Privacy policy.

Our privacy policy forms part of this Agreement, and by agreeing to this Agreement, you also give your consent to the way we may handle your personal data in that policy. The privacy policy can be found here.

10. Our Role.

You, whether you are a User or just a non-User who visits Zimki or a User Product, acknowledge that we are not and cannot be responsible for the behaviour of Users - whether on Zimki or outside of it. We only provide a venue where the Zimki and User Product may be accessed. In particular, you should be aware that Zimki does not pre-screen or monitor User Product.

See further Clause 14 below.

11. Unavailability.

From time to time, Zimki or User Product(s) may be unavailable. We cannot guarantee continuous access to Zimki and or User Product. However, we will strive to ensure that the periods of planned unavailability, which you will be informed of when you access Zimki at the relevant time, are kept to a minimum.

12. Changes by third parties.

Zimki, and the terms and conditions which govern it, is subject to changes resulting from changes made by suppliers and other third parties (such as licensors of Licensed Material - see Clause 13 below). In the event that any such change is made which has any effect upon the rights and obligations of the parties under this Agreement, then:

1. the change in question will automatically bind you; and
2. we will use our reasonable endeavours to notify the relevant changes to you as soon as is reasonably practicable.

13. Software.

During the term of this Agreement, we will make available to Users the ability to use certain Zimki and third party software (collectively, the "Licensed Material"). It is to be used in accordance with our FAQs and other service documentation available on the Zimki site. The Licensed Material may not be copied or distributed, or used for any purpose other than using Zimki in accordance with this Agreement. You may not reverse engineer, decompile or disassemble any of the Licensed Material, save to the extent expressly permitted by applicable law. Third party software and associated documentation comprised in the Licensed Material is subject to the licensing conditions imposed by the proprietors of that software.

Through using the Licensed Material, Users may create one or more User Products. Subject to our and third parties' rights in the Licensed Material, we do not have any claim over the intellectual property subsisting in User Product.

14. Misuse.

We reserve the right (a) to suspend or terminate any User's access to the Zimki Service, or parts of it, and/or (b) to remove from access via Zimki any User Product (and any other User Product apparently controlled by the same User), if the relevant User or User Product appears to us to be in breach of any provision of this Agreement.

It is each User's obligation to ensure that User Product and content, activity or communication undertaken or appearing on, through or in connection with it:

1. does not infringe the rights of any third parties or any laws or regulations, including (in the European Union) the Data Protection Directive (95/46/EC), the Directive on Privacy and Electronic Communications (2002/58/EC), the Electronic Commerce Directive (00/31/EC) and the Distance Selling Directive (97/7/EC), and any national implementations thereof, in any country where any message is originated or delivered;
2. accords with such reasonable instructions as we may from time to time notify to you;
3. is not defamatory, offensive, or abusive or of an obscene, indecent or menacing nature;
4. is not intended or likely to cause needless annoyance, inconvenience or distress to any person;
5. does not contain any computer virus, macro virus, Trojan horse, worm, or anything else designed to interfere with, interrupt, or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority, or expropriate any system, data or personal information;
6. does not contravene any applicable law or regulation (including, but not limited to, laws governing consumer protection, unfair competition, anti-discrimination, false advertising and privacy); and
7. does not exceed any quotas or limits imposed by the Zimki Service or interfere with the fair usage of the Zimki Service by any other User;
8. does not interfere with the operation of the Zimki Service;
9. accords with the intention of the Zimki Service;
10. does not breach the rights of any person or entity.

If you - whether you are a User or a non-User who visits Zimki or a User Product - see or experience anything in a User Product, or any content, activity or communication undertaken or appearing on, through or in connection with a User Product, that appears to infringe the above, you must inform the relevant User of it, not us.

Without limiting the User's above obligations, each User must ensure that: (i) the User Product includes a simple, readily-accessible means by which visitors to the User Product can notify the User of such infringements, and (ii) any infringing content, activity or communication is removed or desisted from immediately upon receipt of any such notice.

15. Contact from third parties.

If anyone contacts us in relation to your User Product or content, activity or communication undertaken or appearing on, through or in connection with it, then you agree:

1. to provide all reasonable information and assistance we may require in connection with responding to that contact; and
2. to respond promptly and accurately to it, should we pass the message to you for a response.

16. Additional services.

We or our affiliates may offer new or additional services through Zimki from time to time. Your use of those services may be subject to additional terms and conditions, which you must comply with. Provided that those terms or codes are notified to you on Zimki in an appropriate manner (as determined by us in our reasonable discretion) when you agree to take those services, any failure by you to comply with a material provision of the terms governing those services will amount to a breach of this Agreement.

17. Operation of Zimki services.

We reserve the right to withdraw or modify one or more aspects of Zimki, or the entirety of it, where we have legal or commercial reasons to do so. There may also be times when Zimki becomes inaccessible as a result of technical difficulties experienced by Provider or on the Internet; we will, however, use reasonable skill and care to overcome these difficulties where they are within our control. Please note that there will be no refund of sums you have paid for Credit except as provided elsewhere in this Agreement. For security or other reasons, we may require you to change password or other information which facilitates access to Zimki; however, we will never ask you for your password.

18. Liability.

1. We warrant that Zimki will be performed with reasonable care and skill with the intention of meeting our specifications for Zimki, but:
   1. as indicated above, note that Zimki is a trial service, and that aspects of the service that are not completely final, may have bugs or be difficult to use; and
   2. we cannot and do not guarantee that Zimki will meet your requirements, including (without limitation) as to the speed of delivery of any message.
2. Provider shall be liable as expressly provided in this Agreement, but shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence, breach of statutory duty and any other tort) or otherwise.
3. Nothing in this Agreement shall exclude or restrict our liability for death or personal injury resulting from our negligence.
4. Subject always to sub-Clause f. below, Provider shall be liable for direct loss or damage only, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise, and whether caused by its act or omission or that of its employees, agents or subcontractors. Provider's aggregate liability during any successive period of twelve months, the first of which shall be deemed to begin on the date when you obtain your Account (each a "Year"), shall be limited to whichever is the greater of:
   1. £100 (one hundred pounds); or
   2. the aggregate of the amount you have paid us for Chargeable Tokens during that Year.
5. It is your responsibility to take out insurance against risks which exceed the amounts specified in sub-Clause d. above or are otherwise excluded from this Agreement.
6. We will not be liable to you or anyone else, whether in contract, tort (including negligence, breach of statutory duty or other tort) or otherwise:
   1. for any loss of revenue, business, anticipated savings or profits, or
   2. for any indirect, special or consequential loss damage, costs or other claims, howsoever caused or arising, whether through non-supply or late supply of the Zimki service or other non-performance of this Agreement or otherwise.
7. Except as expressly stated elsewhere in this Agreement, all representations, warranties, conditions and other terms, whether express or implied (by common law, statute, collaterally or otherwise) are hereby excluded, except in the case of fraud, or where such exclusion is not permitted by law.
8. For the avoidance of doubt, Provider will not have liability to you or any other person in respect of User Product or content, or any activity or communication undertaken or appearing on, through or in connection with User Product.
9. The provisions of this Clause 18 shall survive the termination or expiry of this Agreement.

19. Indemnity.

1. Each party ("indemnifier") shall respectively, as provided in i. and ii. below, indemnify the other party ("indemnified") against all costs, claims, expenses and liabilities arising out of any action, demand, allegation or proceeding by any person or entity (including, without limitation, any regulator) based on:
   1. indemnification by Provider: an allegation that the use or possession by you of the Licensed Material in accordance with Clause 13 above infringes the copyright or other intellectual property rights of any third party; or
   2. indemnification by User: an allegation which, if proved, would show that a breach of Clause 14 above had occurred.
2. Indemnification under sub-Clause a. above is conditional upon the indemnified:
   1. notifying the indemnifier promptly upon being notified or becoming aware of any matter which may be indemnifiable by the indemnifier under that sub-Clause;
   2. giving to the indemnifier the entire control of the defence and settlement of such matter; provided the indemnifier gives to the indemnified upon request reasonable security for the conduct of the matter, in the absence of which the indemnified shall conduct the defence and settlement of the matter in accordance with reasonable instructions given by the indemnifier, subject to the instructions being given as promptly as the indemnified reasonably requires; and
   3. providing to the indemnifier (at the indemnifier's expense) all reasonable assistance requested by indemnifier in connection with such defence and settlement, including (without limitation) by executing documents.

20. Suspension.

In addition to the other rights of suspension specified in this Agreement, Provider is entitled to suspend provision of Zimki or a User Product (as the case may be) at any time if:

1. Provider is entitled to terminate this Agreement;
2. Provider is obliged or advised to comply with an order, instruction or request of the government, regulator, court or other competent authority;
3. Provider has cause to believe in its reasonable opinion that you are in breach of any of its obligations under this Agreement; or
4. any payment due to Provider hereunder is outstanding after the due date for payment.

21. Termination.

This Agreement may be terminated by notice as follows:

1. by either party in the event the other has failed to perform any material obligation required to be performed under this Agreement and such failure is not corrected within seven (7) days from receipt of written notice advising of such failure from the other party, which notice shall make reference to this Clause;
2. by either party in the event that the other party (being a company) presents a petition or has a petition presented by a creditor for its winding up, convenes a meeting to pass a resolution for voluntary winding up or enters into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), enters into a voluntary arrangement with its creditors, has a receiver, administrative receiver or administrator of all or any of its undertakings or assets appointed, or is deemed by the relevant statutory provisions under the applicable law to be unable to pay its debts or (if an individual) presents or has presented against him a bankruptcy petition or (if a non UK national or corporation) shall suffer anything analogous to these matters to occur to him or it;
3. by either party in the event that any payment due hereunder is not paid by the other party within 30 days following the date when it is required to be paid in accordance with this Agreement; or
4. by Provider on 90 days' notice to the User in the event that we withdraw the Zimki service.

22. Matters Beyond Reasonable Control.

Either party's performance of any obligation under this Agreement, other than payment obligations, shall be excused to the extent that it is hindered, delayed or otherwise made impractical by:

1. the acts or omissions of the other party;
2. flood, fire, earthquake, strike or riot; or
3. any other cause (whether similar or dissimilar to those listed) beyond the reasonable control of that party.

23. Assignment.

We reserve the right to assign this Agreement, and to assign or subcontract any or all of our rights and obligations under this Agreement, but will not do so in such a way as to reduce any guarantees you are given under this Agreement. You may not without the written consent of Provider assign or dispose of this Agreement, nor subcontract any of your rights and obligations under it.

24. Entire Agreement.

This Agreement is intended to contain your entire agreement with us relating to Zimki; we believe it to be fair and reasonable. It replaces all earlier agreements and understandings with you relating to Zimki, except for any fraud or fraudulent representation by either of us. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.

25. Changes to this Agreement.

Provider reserves the right to change this Agreement from time to time, and post the new version on Zimki. When we do so, we will notify you of the fact that there are changed terms on the main screen (https://www.zimki.com), and the new version of these terms and conditions will take effect, and will govern all Zimki services and your relationship with us:

1. commencing thirty days after the date of posting (or such later date as we indicate in the relevant posting), if any of the changes is to an operative provision of this Agreement which is capable of adversely affecting you; if you do not wish to be governed by the new version of the Agreement, you may notify us on or before the date when the new version of the Agreement is to take effect, and (1) from that date you must cease to use Zimki, and (2) if the User is a consumer, you will be entitled to a rebate of the amount you paid for any Credit outstanding in your Account at the time when you permanently cease use of Zimki; or
2. immediately upon the date of posting (or such later date as we indicate in the relevant posting), if the changes are not to operative provisions, or not capable of adversely affecting you - examples of which would include, without limitation, changes to contact details referred to, or the refinement of provisions that are already included, in this Agreement.

26. General.

In the event that any term of this Agreement is held to be invalid or unenforceable by judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable. You and Provider are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

27. Law.

This Agreement shall be governed by and construed in accordance with the laws of England and Wales and subject to the non-exclusive jurisdiction of the English courts.

28. Keeping this Agreement.

We don't separately file the individual Agreements entered into by members when they register for Zimki. You can access it here. Please make a durable copy of this Agreement by printing and/or saving a downloaded copy on your own computer. It is offered in English only.

29. Contact.

The Provider is Fotango Limited, and our address is 64 Ironmonger Row, London EC1V 3QR. We are a company registered in England and Wales under registration no. 03945045. Our VAT registration number is VAT 756 3060 34 . Please note that all notices under this Agreement are to be sent and received by email. For this purpose, your notices should be sent to [email protected] and we will send our notices to you at the email address you notify to use when you register as a User as changed subsequently in your Account details.