Membership Agreement
Introduction
Karmafan Limited (“Karmafan.com”) is in the business of making information available to customers via its electronic content and information publishing website service and enabling Members (as defined herein) to requisition patronage payments to Artists (as defined herein) (the “Service(s)” and as defined in the Terms & Conditions).
Access to and use of the Karmafan.com Website, Software and Services are subject to the Terms and Conditions, Privacy Statement and Membership Agreement which may be changed, amended, updated and or replaced (in whole or in part) from time to time. Such changes, amendments, updates and or replacements shall be notified on the Website. Creating an account with Karmafan.com or otherwise using or accessing the Services, Software and or Website will signify your acceptance of all of these terms and policies and constitute a binding agreement between you and Karmafan.com (“Membership Agreement”). If you do not agree to these terms, do not use the Services or Software and stop accessing the Website immediately.
The Services are operated by Karmafan.com.. The Services include the Karmafan.com Website and Software that provides you the capability to order, access, subscribe and requisition patronage payments to various Artists, publications and other content. Use of any payment requisition, account or reader software may be further subject to separate Karmafan.com and or third party license agreements and terms and conditions.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Karmafan.com Services (or any part thereof) with or without notice. You agree that Karmafan.com shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services (or any party thereof).
1 Definitions
1.1 In the Membership Agreement and the Terms & Conditions (including the Recitals and Schedule(s)) the following words shall have the following meanings:
“Artist Account” means any creative artist who has validly and legitimately registered with Karmafan.com and has agreed to the Artist Membership Agreement;
“Affiliate” means in relation to any company any subsidiary or holding company of Karmafan.com or any subsidiary of the holding company, or any other entity controlling or controlled by such company;
“Business Day” means a day on which the banks are open for normal business in Dublin, Ireland;
“Confidential Information ” means any of the following whether (a) disclosed by or on behalf of Karmafan.com orally or in writing or (b) learned through observation or examination of any documents, books, records, projections, business plans, data, software (whether in executable code, object code or source code), hardware, peripherals, brochures, documents literature or products of Karmafan.com and in particular but without prejudice to the generality of the foregoing, disclosed through a presentation of the Website, Services, Software, agreements and business plans;
- any information or content in which Karmafan.com claims a proprietary, interest, licence and/or confidential interest;
- all confidential matters of Karmafan.com (whether marked as confidential or not) including, without limitation, all publications and content (whether in draft or finalised form), records, plans, models, text, accounts, software (whether in executable code, object code or source code), templates, agreements, arrangement, practices, banking arrangements, trade secrets, proposals, business plans, Know-how, inventions, techniques, processes, customer lists, content and information, financial information, forecasts, analyses, compilations, sales and marketing plans, reports, market research, interpretations, manuals, handbooks, pamphlets, booklets, books, studies, designs, drawings and any other material bearing or incorporating any information or content in relation to the Website and or Services;
- any information or content of a confidential nature concerning the Website or Services or Karmafan.com’s actual or potential members, customers or suppliers; and
- any information or content Karmafan.com has received from others which Karmafan.com is obliged to treat as proprietary and/or confidential;
- any and all business, technical, financial, operational and technical details or other information content created, learned, disclosed (intentionally or otherwise) or exchanged between the parties;
“HTML” means Hypertext Mark-up Language, being a set of codes that can be inserted into text files to indicate special type-faces, inserted images and links to other hypertext documents;
“Hypertext Link” means a link embedded within a page using HTML permitting a user to access another point in the same or another page or webpage, which link triggers other pages to be displayed;
“Intellectual Property Rights” means Know-how, patents, rights in design, trade marks, trading, business or domain names and email addresses, copyrights (including any such rights in typographical arrangements, websites or software) whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, rights in inventions, know-how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world;
“Know-how” shall mean all knowledge, experience, drawings, data, designs and information, whether technical, operational or otherwise, in the possession of Karmafan.com in relation to the Services, Website, Software, processes, technology and business of Karmafan.com whether developed before or after the date hereof;
“Link” means a Hypertext Link from the Website to the Karmafan.com website(s) and or a Hypertext Link from the Karmafan.com website(s) to the Website;
“Member” means a current registered user;
“Member Account ” means an account with Karmafan for any person who validly and legitimately registers with Karmafan.com and has agreed to the Membership Agreement;
“Patronage Payments” means a transfer of funds from a Member Account to an Artist Account and or Nominee account;
“Nominee” A beneficiary of the money in an Artist Account. The Artist can nominate any person or organization to be the beneficiary using the means provided on the Karmafan.com website;
“Artist Public Page” means the HTML document that shows an Artist’s publicly available information, this includes the Artist websites registered with Karmafan.com, his list of works, and the details of Patronage Payments made to the Artist;
“Member Public Page” means the HTML document that shows a Member’s information such as the Patronage Payments made by the Member;
“Karmafan Charts and Rankings” means all information generated by Karmafan.com by comparing the Patronage Payments made to all the Artist Accounts and or other statistical or preference information;
“Information Content” includes all information available from the Karmafan.com website, including all information on Artist Public Pages and Karmafan Charts and Rankings generated by or available to or provided to Karmafan.com.;
“Service(s)” means the service of making information and or patronage services available to Members and or Users via the service on or via the Website and or Software;
“Top-up” means a cleared funds payment into a Member Account with Karmafan.com;
“Trade Marks” means trade marks, names, domains and logos of Karmafan.com;
“User” means a person who accesses the Website and or Services or any part of same;
“URL/Uniform Resource
Locator” means the address of a file accessible on the Internet;
“Visitor Information” means the names, email addresses, contact details and other information collected from visitors or users of the Karmafan.com website whom may be directed through or via the Website or Services or may relate to the Services or use of the Services (including for the avoidance of doubt any interactive services);
“a website” means pages or a related group of pages linked together using the hypertext transfer protocol (“http”);
“Website(s)” means Karmafan.com and or Affiliate website(s) located at URL Karmafan.com or such other country or generic or other URLs and domain names as may be operated by Karmafan.com and or Affiliates from time to time.
2 Interpretation
2.1 In this Agreement, the General Terms & Conditions and such other policies as may be issued from time to time the following terms shall apply unless otherwise specified:
2.1.1 reference to a subsidiary or holding company is to be construed in accordance with the Companies Acts;
2.1.2 reference to a party is reference to a party to this Agreement and includes his permitted assignees and/or the respective successors in title to substantially the whole of his undertaking;
2.1.3 reference to a person includes any person, individual, company, firm, corporation, government, state or agency of a state, or any undertaking whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists;
2.1.4 reference to a statute or statutory instrument or any of its provisions is to be construed as a reference to that statute or statutory instrument or such provision as from time to time amended or re-enacted;
2.1.5 words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
2.1.6 reference to clauses, paragraphs or schedules is to clauses or paragraphs of or schedules to this Agreement; and
2.1.7 “includes” and “including” shall mean including without limitation.
3 Passwords
3.1 Membership is conditional on the Member keeping secret the Member’s password and not revealing it to anyone else. If the Member is in breach of the terms of this agreement then Member's unique password to the Member page should be blocked and the Member barred from the Website. Also all rights and privileges under this agreement will cease and this agreement will immediately terminate. The Finance paid by the Member will be non-refundable in these circumstances.
4 Payment and Security
4.1 Money in a Member’s Account is used to exercise the Karmafan.com Services. Karmafan.com reserves the right to refuse or limit any transaction on the Karmafan.com Services. Members are not allowed to offer donate or make a payment of an amount greater than the amount deposited in their Account. Any deposits are placed into their Account. Deposits and withdrawals are made through the means made available on Karmafan.com. Karmafan can add and or remove such means from time to time.
4.2 The Member accepts and authorises Karmafan.com to instruct its payment management company to handle Account deposits and withdrawals. Thereby the Member allows Karmafan.com to give such instructions on their behalf. Karmafan.com reserves the right to withhold payment of any funds if suspicion or evidence of manipulation of the Karmafan.com Services arises. Karmafan.com may take action against the Member or any other who manipulates, or tries to manipulate, the Karmafan.com Services or any part of it.
4.3 Any applicable taxes and fees in connection with any awarded prize are the Member sole responsibility. Prizes cannot be transferred, substituted, or redeemed for any other prize.
4.4 The funds on Member account are available for the Member during the opening hours of the Website. These funds can be used to make Patronage Payments, but can not be withdrawn by the Member.
4.5 Funds deposited by Member are separately Accounted for Karmafan.com separates deposits from other funds and keep Member deposits on a separate bank Account. The Member accepts that Karmafan.com physically store the deposited funds together with other Member’s funds and that separation is only provided by electronic Accounting methods.
5 Registration and Account use
5.1 To access the Karmafan.com Services, the Member must register with the Website. Registration is only available to individuals who have registered with and obtained a password from Karmafan.com. By registering with Karmafan.com, you certify that you are at least 16 years of age. You may not provide or use a password, email address, or any other information of anyone else without the owner’s authorisation. You agree to provide true, accurate, current and complete information about yourself when you register with Karmafan.com, and to maintain and promptly update that information to keep it true, accurate, current and complete when changes occur and wherever so requested. You are responsible for maintaining the confidentiality of your account, password and ticket and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account, including the selection and use of all content and services. Registration is subject always to the previous and on-going compliance with these terms and conditions. Registered Members may use only the cleared limit available in their Account.
5.2 The Member agrees to provide complete, true and accurate information to Karmafan.com on registration and it is the Member’s responsibility to ensure the same. The Member authorises Karmafan.com to use any lawful means that it considers necessary to verify the information provided by the Member on registration. The Member fully indemnifies Karmafan.com in relation to such information, acting on such information and all account activity based on such information.
5.3 The Member Account will be used by the Member only. Karmafan.com reserves the right to decline opening an Account for any reason. The Account is intended to be used for administering the Member’s funds, play and fees, as well as trades, refunds, payments and any applicable service fees (all in relation to the Karmafan.com Services) for the duration of this Agreement.
5.4 The Member will choose or be given a username and password on registration. It is the Member’s responsibility to ensure that they keep such details confidential and the Member shall be fully responsible for any misuse of their password. In the event that an ' is concerned that their password has been disclosed to a third party, they should notify Karmafan.com immediately whereupon a new password may be given. Karmafan.com reserves the right to temporarily lock the Member Account in such circumstances. Any unauthorised use of the login and password shall be the Member’s sole responsibility and be deemed as their use. The Member will therefore be liable for any such unauthorised use and the Member will not be refunded any resulting losses incurred, regardless of whether or not the third party who participated had their consent.
5.5 Karmafan.com may require the Member to change their password or Karmafan.com may suspend the Member’s Account if Karmafan.com has reason to believe that there is likely to be a breach of its security policies or misuse of the Services, Software or Website.
5.6 To maintain security, Karmafan.com may perform random security checks. The Member hereby accepts that Karmafan.com retains the right to demand additional documentation from them in order to verify the Member as the Account holder or cardholder in the event of such a security check or for identify purposes.
5.7 The Member should check their Member Account balance each time they access the Karmafan.com Services. In the event of any errors, it is the Member’s responsibility to notify Karmafan.com the earliest opportunity together with the Member’s record of transactions since the balance was last verified in order for Karmafan.com to deal with such an error.
5.8 The Member will inform Karmafan.com as soon as reasonably possible if they believe that their Account information is being misused in any way by third party so that Karmafan.com may suspend their Member Account. Karmafan.com will not be held responsible for any unreasonable delay in such suspension. The Member will not allow any other person or third party (including, without limitation, any minor) to use their account.
5.9 If an account is inactive for 12 months or longer, Karmafan.com reserves the right to cancel the account and refund the balance to the Member. Karmafan does so solely at its discretion. Karmafan.com may transfer dormant account minor balances or amounts below a certain threshold into another account or dispose of same in any manner it may reasonably decide.
5.10 Karmafan.com may suspend or cancel the Member Account immediately if the Member breaches any of their respective obligations under these terms and conditions. Return of any outstanding balance to the Member will be subject to the provisions of these terms and conditions.
5.11 You may only use the Services for lawful purposes and in accordance with these terms, any operating rules established by Karmafan.com and any reader or Software license agreement (if any). Karmafan.com reserves the right to refuse service, suspend services, terminate accounts or cancel orders at its sole discretion, including, without limitation, based on any activity by a subscriber in violation of these terms or other Karmafan.com policies whether now in existence or later published on the Website.
5.12 Services are (currently) controlled, operated and administered by Karmafan.com from Ireland. If you access the Services from a location outside Ireland, you are responsible for compliance with all local laws. You agree that you will not use Karmafan.com Services, Software, requisitions for payment or any publications or other content accessed through the Services in any country or in any manner prohibited any applicable laws, customs restrictions or regulations.
6 Licences
6.1 Members grant Karmafan.com and Affiliates a non-exclusive, worldwide right and licence:-
- to copy, cache, store, use, distribute, display, communicate, transmit, make available, licence, sub-licence, commercialise and promote the Information Content on or through the Website and or the Services;
- to use the Member's Trade Marks for the purposes of advertising, operating and promoting the Website and Services provided that Karmafan.com ensures they are displayed in accordance with any reasonable guidelines issued by the Member.
6.2 For the avoidance of doubt, Karmafan.com reserves all rights to publish the Information Content and to license third parties to publish the Information Content, Website or Services in the target markets and jurisdictions of Karmafan.com.
6.3 Karmafan.com grants the Member a world-wide, non-exclusive, royalty-free right and licence to use the Karmafan.com Trade Marks on the Website and Services and to promote it and including use as a Link.
6.4 Karmafan.com shall publish the Information Content on or via the Website as soon as reasonably possible after it has been supplied to Karmafan.com and uploaded by the Karmafan.com pursuant to the Specifications and in the form in which it is required.
6.5 Karmafan.com shall use all reasonable endeavours to ensure that the Information Content is available and made live to Members and or Users as soon as reasonably possible after being uploaded, subject to the Information Content being uploaded and submitted on time, it being appropriate, suitable and lawful, and subject to telecommunications, server, hosting, maintenance and website capacity and availability.
6.6 Members shall display such copyright and trade mark notices as Karmafan.com reasonably directs.
6.7 Karmafan will update the Member’s Account for received topup as soon as the payment gateways confirm the transaction to Karmafan. The turn around time depends on the payment gateway used.
7 Warranties
7.1 The Member warrants and represents that:
7.1.1 the Information Content and its use as part of the Website and Services complies with all applicable statutory and regulatory requirements and is not obscene, blasphemous or defamatory or an infringement of any Intellectual Property rights of any third party;
7.1.2 it either owns or is licensed to grant to Karmafan.com the license(s) of the Information Content and the Karmafan.com Trade Marks as provided in the Agreement;
7.1.3 its entry into the Agreement does not breach any other agreement to which it is a party;
7.1.4 the Karmafan.com Site complies with all applicable laws, government rules and regulations and industry codes including (without limitation) those with respect to data protection and advertising and any applicable industry specific regulations;
7.1.5 it owns or has a right to use and licence all Intellectual Property rights in, and relating to, the Information Content including (but not limited to) the Karmafan.com Trade Marks; and
7.1.6 the Karmafan.com Site complies with normal service levels and all applicable local laws.
7.2 In accepting these terms and conditions, the Member either represents and warrants in accordance with the remaining subclauses in this clause agrees to be bound by obligations set out therein (as the case may be).
7.3 The Member is over the age of 16 and has the mental capacity to take responsibility for their own actions. Karmafan.com reserves the right to void any transactions involving minors.
7.4 The Members agrees that their use of the Website is at their sole risk.
7.5 The Member warrants that they will not attempt to hack, make unauthorised alterations to or introduce any kind of malicious code to the Karmafan website or Karmafan widget. As such, the Member will not, without limitation, (a) reverse engineer or decompile (in whole or in part) any software available through the Website; or (b) make copies, modify, reproduce, transmit, alter or distribute all or any part of the Website or any material or information contained on it.
7.6 The Member agrees that Karmafan.com may (with immediate effect) lock or close an Member’'s Account if:
- Member breaches these terms and conditions or in any other way acts irresponsibly in the Member’s use of the Karmafan.com Service (at Karmafan.com's sole discretion) or;
- Karmafan.com has reason to believe that the Member’s dealings with Karmafan.com constitutes an illegal or fraudulent activity, Karmafan.com shall not (to the extent permitted by law) be liable to that Member for any such deposits, nor shall it incur any liability to any Member where it is required to give information or documentation relating to that Member to any relevant regulatory authority;
- Karmafan.com suspects that access to the Account may not be by an authorised person;
- legal or regulatory requirements require such locking or
- termination; or
- a security, disrepute or other issue deemed reasonably significant by Karmafan.com arises.
7.7 These terms and conditions contain the entire agreement between the Member and Karmafan.com relating to the Karmafan.com Services. The Member confirms that, in agreeing to accept these terms and conditions, they have not relied on any representation save insofar as same has expressly been made a representation in these terms and conditions. [ToDo – Does this apply to a member?]The Artist agrees that they shall have no remedy in respect of any misrepresentation which has not become a term of these terms and conditions save that their agreement shall not apply in respect of any fraudulent or negligent misrepresentation whether or not such term has become a term of these terms and conditions.
7.8 The Karmafan.com shall use all reasonable endeavours to ensure the accuracy of the Information Content and the lawfulness of its use by the Karmafan.com, Karmafan.com Affiliates and Members.
7.9 Karrmafan.com warrants that:
- its entry into this Agreement does not breach any other agreement to which it is a party;
- the Website and the marketing, promotion and advertising of it conforms to all applicable laws, government rules and regulations and industry codes in Ireland and will not and does not infringe the Intellectual Property rights of any third party in Ireland.
8 Payment
8.1 All sums payable under this Agreement shall be calculated and payable in US dollars.
8.2 Top-ups may only be used when funds have cleared.
9 Statements and Records
Karmafan.com shall keep reasonable books of accounts and records recording and evidencing transactions.
10 Intellectual Property
10.1 Members acknowledge and agree that all Intellectual Property rights in the Information Content, website, Services and the Karmafan.com Trade Marks vest and shall always remain vested in the Karmafan.com or its respective licensors and that Members have no right, title or interest in or to such Intellectual Property rights other than as expressly set out in this Agreement.
10.2 Members acknowledge and agree that all Intellectual Property rights in the Websites, Services and the Trade Marks vest and shall always remain vested in Karmafan.com and that they have no right, title or interest in or to such Intellectual Property rights other than as expressly set out in this Agreement.
10.3 All content included as part of the Services and Software, such as text, graphics, logos, button icons, images, as well as the compilation thereof, and all software used on this website, is the property of Karmafan.com or its suppliers and protected by Irish and international copyright laws. You agree to abide by all copyright notices, legends or other restrictions contained in any such content and will not make any changes thereto.
10.4 Each third-party content provider owns the copyright on content original to it including, without limitation, on the website(s) and other publications delivered or otherwise made available to you by Karmafan.com Services. Except as permitted by the publications lawful owner, you acknowledge that you do not acquire any ownership rights by accessing or downloading copyrighted material.
10.5 Except as explicitly permitted under copyright law and by the features of the Services and Karmafan.com reader software (if any), you may not modify, reverse engineer, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way commercially exploit or provide to a third party the content of Karmafan.com website, the publications, or any portion of them without the express permission of Karmafan.com and the copyright owner.
10.6 We
do not grant you any licenses, express or implied, to the
intellectual property of Karmafan.com or our licensors except as
expressly authorised by these terms and any Karmafan.com reader
license agreement.
11 Use of the Information Content
11.1 Members undertake:
11.1.1 that it will not do anything in relation to the Information Content or Karmafan.com Trade Mark including using it with any other material or advertisement other than the Website, Services and the advertisement and promotion thereof, that might diminish the value of the Information Content or the Karmafan.com Trade Marks or the reputation of the Karmafan.com, and will not do anything that may breach any law or regulation including anything that is libellous, obscene or defamatory or that infringes the rights of any third party;
11.1.2 that it will notify the Karmafan.com as soon as is reasonably practicable if it believes or has reason to believe that the Information Content contains any errors or is incomplete and will provide the Karmafan.com with all reasonable information to assist the Karmafan.com to rectify the Information Content as soon as is reasonably practicable; and
11.1.3 that it will only alter or modify the Information Content as may be necessary or required for the Website and Services.
11.2 If Karmafan.com, following supply of the Information Content, deems the Information Content unsuitable for publication, Karmafan.com reserves the right not to use all or part of the Information Content and to remove all or part of the Information Content.
11.3 If Karmafan.com receives a complaint from a third party it reserves the right to take down or delete such Information Content at its discretion and timing.
11.4 Karmafan.com is a
distributor (not a publisher) of the works, publications or other
content supplied by third parties. Accordingly, we have no editorial
control over such content. Any opinions, advice, statements,
services, offers or other information or content expressed or made
available by third parties, including those made in publications
offered by the Services, are those of the respective author(s) or
Karmafan.com(s) and not of Karmafan.com. Karmafan.com does not
guarantee the accuracy, completeness or usefulness of any content,
nor will we be liable for any loss or damage caused by your reliance
on information obtained through the Karmafan.com Service.
11.5 The Services may contain links to other Internet sites and third-party resources. Karmafan.com does not assume any responsibility or liability for communications or materials available at such linked sites. These links are provided for your convenience only. You are solely responsible for understanding any terms and conditions that may apply when you visit or place an order with a third-party site.
12 Liability
12.1 Notwithstanding any other provision in this Agreement, Karmafan.com liability for death or injury resulting from its own negligence shall not be limited.
12.2 Karmafan.com’s entire liability in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to a total aggregate liability $10.00 or the fees paid to the Karmafan.com in the immediately preceding twelve (12) month period (whichever is higher)
12.3 Karmafan.com shall not be liable for any indirect or consequential loss the Karmafan.com may suffer even if the loss is reasonably foreseeable or Karmafan.com has been advised of the possibility of incurring it.
12.4 Neither party shall be liable to the other for any indirect or consequential loss the other may suffer even if the loss is reasonably foreseeable or the possibility of such loss occurring has been advised.
12.5 Notwithstanding any other provision in this Agreement, Karmafan.com does not purport to exclude any statutory rights that may not be excluded under applicable local law.
12.6 Karmafan.com shall have no liability in the event of delays, failures or events caused by telecommunications, equipment, computer, server, hosting, third party failures, delays, outages, downtime, maintenance (scheduled or otherwise), capacity, bandwidth, Acts of God, events of force majeure, acts of war, hacking, security breach, terrorism and events of a similar or like nature.
13 Indemnity
13.1 The Members shall indemnify and hold the Karmafan.com harmless from and against any and all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against the Karmafan.com (including, any claim in contract, tort or for defamation, obscenity or breach of privacy) based on or resulting from any breach by Karmafan.com of the terms of this Agreement.
13.2 The Members shall indemnify and hold the Karmafan.com harmless from and against any and all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against Karmafan.com (including, any claim in contract, tort or for defamation, obscenity or breach of privacy) based on or resulting from any breach by the Karmafan.com of the terms of this Agreement or as a result of the use and or content of the Information Content.
13.3 The Members shall fully indemnify and hold Karmafan.com and his officers and employees harmless from and against all liabilities, losses, damages, costs and expenses in relation to any claims or actions brought against Karmafan.com (including, without limitation, any claim in contract or tort or for defamation, obscenity or breach of privacy) relating to or arising out of the Information Content, including but not limited to the licensed uses permitted in this Agreement, or any breach by the Karmafan.com of the warranties contained of this Agreement.
14 Confidentiality
14.1 During the term of this Agreement and after termination or expiration of this Agreement for any reason for a period of twelve (12) months starting on the date of such termination or expiration the following obligations shall apply to the party disclosing Confidential Information Content (the “Disclosing Party”) to the other party (the “Receiving Party”).
14.2 The Receiving Party:
14.2.1 may not use any Confidential Information or Know-how for any purpose other than the performance of its obligations under this Agreement;
14.2.2 may not disclose any Confidential Information or Know-how to any person except with the prior written consent of the Disclosing Party; and
14.2.3 shall make every effort to prevent the use or disclosure of the Confidential Information or Know-how.
14.3 The obligations of confidence referred to above shall not apply to any Confidential Information or Know-how that:
14.3.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to the receipt of it by the Receiving Party;
14.3.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
14.3.3 is required to be disclosed by any applicable law or regulation; or
14.3.4 is received in good faith by the recipient party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to this Agreement in respect of it and who imposes no obligations of confidence upon the Receiving Party.
14.3.5 Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
14.4 The obligations of the parties under all provisions of this clause shall survive the expiry or the termination of this Agreement for whatever reason.
15 Term
15.1 This Agreement shall continue for the term and duration of as specified in the Terms and Conditions or as set out therein and in the absence of same shall be on a month to month basis.
16 Termination
16.1 Karmafan.com may terminate this Agreement with immediate effect by written notice to the Member on or at any time after the occurrence of a breach event or at Karmafan.com’s complete discretion.
15.2 The events are:
16.2.1 the Member committing a material breach of the Agreement and failing to remedy the breach within four (4) weeks starting on the day after receipt of notice from Karmafan.com giving details of the breach and requiring the Member to remedy the breach;
16.2.2 the Member passing a resolution for winding up, a court of competent jurisdiction making an order for the Member winding up or the presentation of a petition for the Members winding up that is not dismissed within seven days (other than, in each case, for the purposes of solvent amalgamation or reconstruction where the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the Members obligations under this Agreement);
16.2.3 the making of an administration order in relation to the Members or the appointment of a receiver over or an encumbrancer taking possession of or selling an asset of the Members; and
16.2.4 the Members making an arrangement or composition with his creditors generally or making an application to a court of competent jurisdiction for protection from his creditors generally.
16.3 An act or omission by a person who controls, is under common control with or is controlled by a party that would be a breach of this Agreement on his part if it were an act or omission of the party shall be deemed to be a branch of this Agreement by the party.
16.4 Termination of this Agreement for whatever reason shall not affect either:
16.4.1 the accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination and in particular but without limitation the right to recover damages against the other; or
16.4.2 provisions that are expressed to survive this Agreement, which shall remain in full force and effect.
16.5 On termination the Member shall immediately remove any reference to Karmafan.com (including, without limitation, removal of all links) and as soon as reasonably possible remove any reference to Karmafan.com from any promotional or other published material or destroy all such materials containing any reference to the other party (including any trade marks of the other party), and shall furnish the other party with a certificate executed by a duly authorised employee certifying the same has been done.
16.6 In addition Karmafan.com may terminate in the event of repeated breaches by the Member of its obligations and duties, in the event of repeated late delivery and uploading of Information Content, in the event of repeated failures to deliver and upload Information Content, the delivery or uploading of Information Content which is not suitable, lawful or which is defamatory or likely to be the subject of litigation and or complaints (at the discretion of Karmafan.com) or which is not of a sufficient quality .
17 Effect of Termination
17.1 On termination of this Agreement for any reason, all rights and licences granted under it shall automatically terminate and the Member shall immediately cease all use of the Information Content and the Karmafan.com Trade Marks, the Karmafan widget remove any reference to them..
17.2 Termination of this Agreement shall not prejudice or affect any right of action or remedy that has accrued or will thereafter accrue to either party.
18 Linking
18.1 The number, content, size, appearance and positioning of the Karmafan.com widget and or links shall be determined initially, and may from time to time be varied, as agreed by Karmafan.com.
18.2 The parties shall ensure that, upon using or accessing the Karmafan.com widget links, every visitor is made aware that he is leaving the respective website and entering the others website.
19 Visitor Data
19.1 Subject to any restrictions in law in any part of the world and, without limiting the foregoing, and the Data Protection Acts, the Member will provide Karmafan with visitor information relating to:
19.1.1 visitors accessing the Karmafan.com Site, the Website, and the Karmafan.com widget;
19.1.2 any disputes arising regarding accessing or using the Karmafan.com Site and Services from the Website,
for use in relation to the Website and Services and the promotion thereof and shall at all times ensure that it has secured for these purposes and disclosures the specific, express, informed and written consent of the visitors to whom the visitor information relates.
20 Exclusion of Third Party Rights
20.1 The Contracts (Rights of Third Parties) Act or equivalent (if any) shall not apply to this Agreement and no person other than the parties to this Agreement shall have any rights under it, nor shall it be enforceable under that law (if any) by any person other than the parties to it.
21 General Disclaimer of Liability for Information Content
21.1 The Website and Services are providing on an “as is” and “as available” basis and Karmafan.com makes no representations or warranties of any kind with respect to the Information Content, Website and or Service and disclaims all such representations and warranties. In addition, Karmafan.com makes no representations or warranties about the accuracy, completeness, or suitability for any purpose of the Information Content and related graphics published in the Website. The Website may contain technical inaccuracies or typographical errors. All liability of Karmafan.com howsoever arising for any such inaccuracies or errors is expressly excluded to the fullest extent permitted by law.
21.2 Neither Karmafan.com nor any of its directors, employees or other representatives will be liable for loss or damage arising out of or in connection with the use of this site. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties.
21.3 Notwithstanding the foregoing, none of the exclusions and limitations in the clause are intended to limit any rights you may have as a consumer under local law or other statutory rights which may not be excluded nor in any way to exclude or limit Karmafan.com liability to you for death or personal injury resulting from our negligence or that of our employees or agents.
22 Waiver
22.1 A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which it is given.
22.2 No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise of any a right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege.
22.3 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties.
23 Invalidity
23.1 If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction, whether pursuant to any jurisdiction, whether pursuant to any judgment or otherwise:
23.1.1 the validity, legality and enforceability under the law of that jurisdiction of any other provision; and
23.1.2 the validity, legality and enforceability under the law of any other jurisdiction of that or any other provision,
23.1.3 shall not be affected or impaired in any way.
23.2 If any provision of this Agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, that provision shall be divisible from this Agreement and shall be deemed to be deleted from this Agreement and the validity of the remaining provisions shall not be affected. If any such deletion materially affects the interpretation of this Agreement, the parties shall use their best endeavours to negotiate in good faith with a view to agreeing a substitute provision that as closely as possible reflects the commercial intention of the parties.
24 Remedies
24.1 The rights and remedies provided for by this Agreement are cumulative with and not exclusive of any rights or remedies provided by law.
24.2 Without prejudice to any other rights or remedies of the parties, each party acknowledges for the benefit of the other that damages might not be an adequate remedy for any breach of the provisions of this Agreement and that, accordingly, either party shall be entitled without proof of special damage to the remedies of injunction and specific performance and other equitable remedies for any threatened or actual breach of the provisions of this Agreement by the other.
25 Entire Agreement
25.1 This Agreement embodies and sets forth the entire Agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangement that is not expressly set forth in this Agreement save for any representation made fraudulently.
25.2 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the parties.
26 Announcements
26.1 Both parties agree not to disclose to any third party, other than their respective bankers or other professional advisers on appropriate conditions of confidentiality, the fact of or details of this Agreement or any other agreement referred to in this Agreement. The text of any press release or other communication to be published by or in the media concerning the subject matter of this Agreement shall require the approval of each party.
27 Assignment
27.1 Subject to the provisions of Clause 26.2 neither party shall assign, transfer, subcontract, declare a trust of or in any other manner make over to any third party the benefit or burden of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
27.2 Karmafan.com and Affiliates shall be entitled without the prior written consent of the other party to assign, transfer, sub-contract or in any manner make over the benefit or burden of this Agreement to an affiliate or to any company with which the party may merge or to any company to which it may transfer its assets and undertakings, provided that the affiliate or other company undertakes and agrees in writing to assume, observe and perform the rights and powers and or duties and obligations of the former party under the provisions of this Agreement being assigned, transferred or otherwise made over.
28 Force Majeure
28.1 Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event or circumstance beyond the reasonable control of that party (other than in the event of non payment or payment obligation)(“an event of force majeure”).
28.2 The party relying on this clause shall promptly notify the other party of the nature and extent of the circumstances giving rise to the event of force majeure.
28.3 If the event of force majeure in question prevails for a continuous period in excess of four (4) weeks after the date on which it began, the other party may give notice to the affected party terminating this Agreement. The notice to terminate must specify the termination date, which must be not less than fourteen (14) days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, this Agreement will terminate on the termination date set out in the notice. Neither party shall have any liability to the other in respect of termination of this Agreement due to an event of force majeure, but rights and liabilities that have accrued prior to termination shall not be affected.
29 Costs
29.1 Save as expressly otherwise provided in this Agreement each of the parties shall bear its own legal, accountancy and other costs, charges and expenses connected with the negotiation, preparation and implementation of this Agreement and any other agreement incidental to or referred to in this Agreement.
30 Relationship of the parties
30.1 Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, the parties a partnership, association, joint venture, the agents of each other or any other co-operative entity.
31 Non-exclusivity
31.1 Nothing in this Agreement grants either party exclusive rights in relation to the other party. Either party is entitled to enter into similar arrangements with third parties during the term.
32 Survival of Obligations
The representations undertakings and warranties contained in this Agreement shall remain in full force and effect notwithstanding completion, expiration or termination.
33 Binding on Successors
33.1 This Agreement shall ensure to the benefit of and be binding upon the respective parties hereto and their respective successors personal representatives and assigns.
34 Counterparts
34.1 This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which when executed and delivered shall constitute an original all such counterparts together constituting but one and the same instrument.
35 Business Days
35.1 If any action or duty to be taken or performed under any of the provisions hereof would, apart from the provisions of this Clause, fall to be taken or performed on a day which is not a business day such action or duty shall be taken or performed on the business day next following such date.
36 Severability
36.1 If any provision or part thereof of this Agreement is held to be invalid, void or unenforceable, the other provisions or parts thereof will not be affected to the greatest extent possible consistent with the parties intent, and the invalid, void or unenforceable provision or parts thereof shall be modified as may be necessary to make it valid, effective and enforceable to the greatest extent possible consistent with the parties’ intent. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
37 Notices
37.1 Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by first registered post or by facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile transmission) upon the expiration of 12 hours after dispatch.
38 Successors
38.1 This Agreement shall be binding upon and ensure for the benefit of the successors in title of the parties hereto.
39 Governing Law
39.1 This Agreement shall be construed according to the laws of Ireland and the parties agree to submit any dispute regarding this Agreement to the jurisdiction of the Irish Courts.