Terms of Service and License Agreement
Last updated on 4th November 2023
Stuart Kelly owns and operates the web pages available at www.stuart-kelly.co.uk and all sub-domains thereof (the “Site”). Access to and use of the services (“Services”) available on or through the Site are governed by these Terms of Service and License Agreement (this “Agreement”).
THIS IS A LEGALLY BINDING AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT, YOU MUST IMMEDIATELY LEAVE THE SITE AND YOU ARE NOT AUTHORISED TO ACCESS OR USE ANY OF THE SERVICES. BY ACCESSING OR USING THE SITE, SERVICES, YOU CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD, THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT, AND THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is between you and Stuart Kelly. Stuart Kelly may seek recourse against you for any violation of the terms of this Agreement.
License
Stuart Kelly grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Site and the Services subject to the terms and conditions set forth in this Agreement.
In addition, you may not:
(a) copy, modify or create derivative works based on the Site, Services or Documentation, or any portion(s) of any of the foregoing (individually and collectively, “Stuart Kelly's Intellectual Property ”);
(b) distribute, transmit, publish or otherwise disseminate any of Stuart Kelly's Intellectual Property;
(d) transfer to any third party any of your rights under this Agreement;
(e) access or USE the Services, or Stuart Kelly's Intellectual Property for the benefit of any third party;
(f) access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security feature of the Site or Services;
(g) attempt to access or derive the source code or architecture of the site or any Software;
(h) attempt to probe, scan, or test the vulnerability of the Site, Services and/or Software, or any associated system or network, or to breach security or authentication measures;
(i) interfere or attempt to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Services, load testing, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,”;
(j) automate access to the Site or the Services, including, without limitation, through the use of bots, scrapers or other similar devices;
(k) export or re-export any of Stuart Kelly's Intellectual Property;
(l) use or access any Services, Software or Stuart Kelly's Intellectual Property in order to build a competitive solution; or
(m) permit any third party to do any of the foregoing.
Registration and Security
By completing the registration process for any given Service(s), you are agreeing to subscribe to the selected Service(s), subject to the terms and conditions of this Agreement. You agree to provide Stuart Kelly with accurate and complete registration information, and to promptly notify Stuart Kelly in the event of any changes to any such information.
You shall be solely responsible for the security and proper use of all user IDs, passwords, or other security devices used in connection with the Site and/or the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other persons. You shall immediately inform Stuart Kelly if there is any reason to believe that a user ID, password, or any other security device issued by Stuart Kelly has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Stuart Kelly reserves the right (at his sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.
You are solely responsible for all activity in connection with access to the Site and/or Services and for the security of your computer systems.
Termination Policy
Stuart Kelly may deny you access to all or any part of the Services with or without prior notice if you engage in any conduct or activities that Stuart Kelly determines, in his sole discretion, violate this Agreement or the rights of Stuart Kelly or any third party, or is otherwise inappropriate. Without limitation, Stuart Kelly may deny you access to the Services, if your use of the Services exceeds limitations set forth under “License.”
Access to Services
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Services and Software.
User Content
You are solely responsible for all text or other content uploaded or entered by you in connection with your use of the Services and/or Software (“User Content”). Stuart Kelly has no obligation to monitor any User Content and shall have no liability to you or any other person with respect thereto. You warrant, represent and covenant that you own or have a valid and enforceable license to use all User Content, and that no User Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. Stuart Kelly is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store certain User Content is offered for your convenience only and does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Service and/or Software.
Changes to Services or Terms
Stuart Kelly reserves the right at any time to (I) change any information, specifications, features and/or functions of the Site, Services and/or Software,
(II) suspend or discontinue any or all of the Services, including the availability of any feature, database, or content, and/or
(III) impose limits on certain features and Services or restrict access to parts or all of the Services, in each case with or without prior notice and without any liability. Stuart Kelly will use his commercially reasonable efforts to notify you of changes to the Services and/or Software that, in Stuart Kelly’s reasonable opinion, have the effect of materially and adversely diminishing the functionality of the Services to which you have subscribed.
Stuart Kelly may from time to time update or revise this Agreement. If Stuart Kelly updates or revises this Agreement, Stuart Kelly will notify you either by email to your most recently provided email address, or by posting the updated or revised Terms of Service and End User License Agreement on the Site. Your use of the Site, Services and/or Software following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. You can view the most current Terms of Service at http://www.stuart-kelly.co.uk/terms. It is your responsibility to review the Terms of Service periodically.
Links to Other Sites
Any links on the Site to third party websites are provided for your convenience only. If you choose to access third party websites or obtain products or services from third parties, you do so entirely at your own risk. Stuart Kelly does not warrant or make any representation regarding the legality, accuracy, or authenticity of content presented by such websites or any products or services offered by third parties.
Consent to Receive Email
Your use of the Site and/or Services constitutes your consent to receive email communications from Stuart Kelly, including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Site and Services, at any time by following the link included in the email messages.( Please also read Stuart Kelly's Privacy Policy)
Data Collection and Privacy
Stuart Kelly does not collect personally identifying information from you except to the extent you have explicitly given such information to Stuart Kelly. ( Please also read Stuart Kelly's Privacy Policy)
Ownership
All intellectual property rights in and to the User Content are and shall remain your property, and Stuart Kelly shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.
All intellectual property rights in and to the Software, Site and Services and other Stuart Kelly's Intellectual Property are and shall remain the sole property of Stuart Kelly and you shall acquire no right of ownership or use with respect to any Software or other Stuart Kelly's Intellectual Property except as specified in this Agreement. You may from time to time provide Stuart Kelly with suggestions, comments, recommendations and/or feedback regarding the Service, the Software and/or Stuart Kelly’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between you and Stuart Kelly, all Feedback shall be exclusively owned by Stuart Kelly and Stuart Kelly shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback as he deems appropriate, at his sole discretion, without obligation or liability of any kind to you or any other person or entity.
Indemnity
You shall indemnify and hold harmless Stuart Kelly and affiliates, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services or Software, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity.
Warranty Disclaimers
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STUART KELLY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES AND SOFTWARE,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU AGREE THAT YOUR USE OF THE SITE, SERVICES AND SOFTWARE ARE AT YOUR OWN SOLE RISK AND THAT THE SITE, SERVICES AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, STUART KELLY DOES NOT WARRANT THAT THE OPERATION OF THE SITE, SERVICES AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability
IN NO EVENT SHALL STUART KELLY BE LIABLE WITH RESPECT TO THE SITE, SERVICES AND/ OR SOFTWARE FOR
(I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES YOU HAVE ACTUALLY PAID TO STUART KELLY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY;
(II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR
(III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN STUART KELLY AND YOU. YOU UNDERSTAND
THAT THE SITE, SERVICES AND SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
General Provisions
This Agreement shall be governed by, and construed in accordance with, the laws of The United Kingdom. You and Stuart Kelly agree to submit to the jurisdiction of the courts in any such legal action or proceeding.
This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Stuart Kelly. Stuart Kelly may freely assign this Agreement.
If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
If Stuart Kelly is unable to perform any obligation under this Agreement because of any matter beyond his reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Stuart Kelly), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Stuart Kelly’s reasonable control, Stuart Kelly will have no liability to you for such failure to perform; provided, however, that Stuart Kelly shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event. If any
Force Majeure Event continues for more than sixty (60) days, either Stuart Kelly or you may terminate this Agreement by delivery of written notice to the other party.
This Agreement constitutes the entire agreement between Stuart Kelly and you with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Stuart Kelly and you. No waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party.