You, the subscriber, agree to be bound by these terms, to comply with them, and to ensure that all your users (as defined below) comply with them. They continue to apply after your subscription has ended. Please note that they include terms which exclude and restrict our liability even if we have been negligent.
Note: An individual who accepts these terms on behalf of another person (whether a company, a firm or another individual) will be personally liable to Sparkol if he or she does not have the authority to bind that other person to these terms as the subscriber.
The app is made available by us, Sparkol Ltd, a company incorporated in England and Wales (number 06762963). Our registered office and main trading address is 5th Floor, 1 Temple Way, Bristol, BS2 0BY, UK).
In these terms:
app: means the code that provides the app’s functionality and the Sparkol content;
premium content: means any Sparkol content that we have identified as premium content on our website or in an app;
product description: means the description of the app, the Sparkol content, and the services we provide in connection with the app which appears on our websites (including www.sparkol.com, www.videoscribe.co, www.tawe.co, www.storypix.co.uk);
project: means a collection and sequence of images (still or moving) of any kind, text, data, music, speech and other sounds created or used with the app by one or more of your users under your app account which has been produced by, or is intended to be used with, the app as a single entity; projects may be known by another name, such as “scribes” or “tawes”;
Sparkol content: means any images (still or moving) of any kind, text, music, speech and other sounds made available by us for use with the app code, including premium content;
you: means the person who has subscribed to the app, which may be a company, a firm or an individual;
your users: means you and anyone else who uses the app through your app account and either does so with your permission or works for you;
your content: means any images (still or moving) of any kind, text, music, speech and other sounds, and data used with the app by your users, except those which are Sparkol content;
Any use of the app or your projects by your users is deemed to be use by you; any act or omission by your users in relation to the app is deemed to be your act or omission; any project created or used by your users is deemed to be your project; premium content acquired by your users is deemed to have been acquired by you; your users’ authorisation of a premium content download is deemed to be your authorisation; references to “your use” and “your project” in these terms and our acceptable use policy include any use by your users and any project created or used by your users;
“we” and “us” refer to Sparkol and “our” means “Sparkol’s”;
“person” includes an individual, a partnership and a corporation of any kind, no matter where in the world he or it is resident, domiciled, incorporated or established;
A reference to your subscription ending includes its termination;
Examples introduced by the words “including”, “include” or any similar expression only emphasise that those examples are included and do not limit the sense of any preceding words;
A reference to the singular or the plural includes both, and a reference to any gender includes all genders;
A reference to a statute or a statutory provision is to that statute or provision as it is in force from time to time.
2 The app and our services
2.1 Sparkol content is as described in the product description, but the app may not work as described in the product description: it is not a finished product and it is still undergoing development and testing. It is being made available to you free of charge so that you may have early access to it and so that your users may contribute to its testing and submit their feedback on it with a view to influencing and speeding up its development. It is made available to you “as is”. In particular: its functionality may not be as described in the product description; it may not be of satisfactory quality; it may contain defects; it may not be fit for any particular purpose; it may not meet your requirements; it may not be compatible with your hardware or software; it may not be secure. Although we do not believe that it contains any serious defects, it may do and by downloading it you accept the risk that it may damage, destroy, corrupt or delete your hardware, software or data. You should not use the app with any personal data or confidential information if its loss, corruption or unauthorised disclosure might result in any loss, damage or distress to any person.
2.2 We do not provide any support service in connection with the app, but we may take account of any feedback your users may provide - this should be done by submitting a support ticket in the normal manner.
2.3 We do not undertake to correct any defects in the app or to develop it further and we may remove any functionality from the app without providing any reason or warning.
2.4 If we issue any updated versions of the app, this will be as part of our development and testing process and not as part of our service to you.
2.5 Except to the extent that any such term is to be treated as being included by virtue of the Consumer Rights Act 2015 and cannot be excluded, it is not a term of your agreement with us that the app is of satisfactory quality or has any functionality that is not described in the product description, or that we will correct any defects in the app or develop it further.
2.6 Subject to the Consumer Rights Act 2015, we may remove any functionality from the app without providing any reason or warning.
2.7 We have exercised reasonable care and reasonable skill in creating the app, and we have the right to allow you to use it in accordance with these terms. We will provide our services with reasonable care and reasonable skill, but it is not a term of your agreement with us that those services will achieve any particular outcome.
2.8 You authorise the installation of software and software updates on your users’ devices, and the exchange of information between your users’ devices and our systems, for the purposes of enabling the app to function and improving it.
3 Use of the app
3.1 You must use the app only as permitted by these terms and within the scope of your subscription.
3.2 You must ensure that the number of your users does not exceed the number permitted by your subscription and that each of your users: works for you; has read and accepted these terms; uses the app only on your behalf; complies with our acceptable use policy; has agreed that we may use information about him in accordance with our privacy statement.
3.3 You must ensure that only one individual knows the primary username and associated password for your app account, and that each of your users keeps his own password secret.
3.4 Unless and until you tell us that you believe someone is using the app through your app account without your permission, anyone using it through your app account is deemed to be one of your users and you will be liable for that use. This does not apply if that person does not work for you and did not acquire a username or password through you, your authorised users or anyone who works for you, but it is for you to prove that this is the case.
3.5 While your subscription is current:
(a) You may use the app to create, edit and use your projects;
(b) You may store your projects on our system or your system;
(c) You may charge anyone for using your projects (but not the app).
3.6 Once your subscription has ended:
(a) You will still be able to use projects which you have exported - such as rendered video files - and stored on your system, but you will not be able to access or use any other projects or create new ones;
(b) You must not sell your projects or charge or receive payments from anyone for using your projects;
(c) We may retain any of your projects which are on our system for as long as we wish but we may permanently delete any of your projects from our system without warning.
3.7 You must not charge anyone for using the app or allow anyone to use the app except for the purposes of viewing or using your projects.
3.8 Sparkol content may only be used for creating and using projects with the app. In particular, it may not be used directly with any other software or in any marketing materials.
3.9 You must not use the app, or create or use a project, in any way that infringes any rights of any third party or in connection with any offence, libel or slander, or in any way that is unlawful, unreasonably causes any person distress or offence, or brings our name into disrepute.
3.10 You must not modify the app in any way, combine it with any other software, or give any indication that it is anything other than an app that has been created and distributed by Sparkol.
4 Premium content
4.1 Premium content can be used in your projects for an additional charge. The charge will be shown when the premium content is selected and if you authorise that charge with your password we will collect it using the payment method you have registered for your app account. If you set an authorisation period for your password, we will collect the charges for all premium content downloaded during that period (or until you log out of your account if that happens first). It may take up to five (5) working days for each order and payment to be processed, but the premium content can be used straight away.
4.2 Premium content may have been provided by a third party, but where that is the case we have the right to allow you to use it in accordance with these terms.
4.3 We reserve the right to reject any order for premium content any reason. If you have already paid, we will refund the full amount as soon as possible.
4.4 You acknowledge that as you will obtain the premium content straight away, you will lose your statutory right to cancel the transaction within 14 days. However, we will refund your payment for any premium content that is defective provided you notify us of the defect within fourteen (14) days of it being downloaded. This does not affect your statutory rights in respect of defective premium content.
5 App-specific terms
The terms in this clause 5 only apply to the apps and/or premium content mentioned:
5.1 You will be charged each time you download any premium content, even if you have already paid for the same item, but if you store it on your system you may use it within any number of VideoScribe projects without having to pay a further charge.
6 Intellectual property rights
6.1 We will not acquire any rights to your projects or your content except that you authorise us to use your projects, both while your subscription is current and after it has ended, in the course of making the app’s functionality available to you and providing our support services to you.
6.2 You will not acquire any title, right, or interest to or in the app, all of which are retained by us or the persons who have licensed any parts of the app to us.
7 Technical protection measures
The app is protected by technical measures to prevent unauthorised use and you must not remove or circumvent any of them.
8 Exclusions and restrictions of our liability
8.1 Because the app is an unfinished test version that is made available to you free of charge for testing, we will not have any liability to you for any loss, damage, costs or expenses you might suffer or incur as a consequence of any defect in, or unavailability of, the app.
8.2 We will not be liable for any of the following:
(a) Loss or damage resulting from the deletion of your projects from our system after your subscription has ended, or any costs and expenses associated with their reconstruction;
(b) Indirect or consequential loss or damage;
(c) Loss or damage of or to reputation, goodwill, business, revenue, profit or expected savings;
(d) Loss or damage of or to any software or data (including your content and your projects) which you could reasonably have avoided by making a backup copy of it;
(e) Any unauthorised access to, or use or disclosure of, your content or projects by any person who is not associated with us except to the extent that the resulting loss and damage is recoverable under the Data Protection Act;
(f) Any fine, penalty, tax or other levy imposed on you or another user by any court, tribunal or regulator (including the UK Information Commissioner) in connection with your projects or your use of the app;
(g) Any costs or expenses incurred by you or your users in avoiding or dealing with any investigation, action or proceedings brought by or before any regulator (including the UK Information Commissioner) in connection with your projects or your use of the app.
8.3 We will not be in breach of contract, or liable in any way whatsoever, for failing to discharge our obligations, or for doing so late, to the extent that our failure or delay is a consequence of any failure on your part to discharge your obligations, or any delay on your part in doing so, or any cause that is beyond our reasonable control.
8.4 Our total liability for all loss, damage, costs and expenses resulting from, arising out of, or relating to your use of the app or your agreement with us will be limited to £100. When applying this limit, any liability that is unrestricted by virtue of clause 8.6 is to be taken into account first, so that our liability for any other loss, damage, costs and expenses may be reduced or even extinguished.
8.5 The exclusions and restrictions of our liability in this clause 8 cover all loss, damage, costs and expenses of the kind described no matter what the basis for our liability, and even if they result from our negligence or from other negligence for which we would otherwise be liable.
8.6 These terms do not affect or restrict any right or remedy which you might have, or any liability which we might have, for any of the following: personal injury resulting from negligence, whether or not it results in death; a breach of any term implied by section 2 of the Supply of Goods and Services Act 1982; a breach of any term which has to be treated as being included in your agreement with us by virtue of sections 49, 50 or 52 of the Consumer Rights Act 2015; fraud, fraudulent statements and fraudulent misrepresentations.
You agree to reimburse us in respect of all loss, damage, reasonable costs and reasonable expenses which we suffer or incur as a consequence of your breach of these terms. Your liability for our costs and expenses under this clause 9 is to be assessed on the court’s “indemnity basis” rather than the “standard basis”, and you agree to pay them even if you would not otherwise be liable for them.
10 Personal data
10.1 We will comply with our privacy statement and the Data Protection Act 1998. We are registered as a data controller with the UK Information Commissioner: our registration number is ZA131361. Our privacy statement and the official register at www.ico.org.uk contain more information about the personal data we collect and hold as a data controller and how we use it in that capacity.
10.2 You are the data controller with regard to any personal data recorded in your content and projects and we are acting as your data processor with regard to such data. Except as required or permitted by law, we will only process that personal data as part of providing the app’s functionality and support services to your users. You agree that we may transfer your content and projects to other companies and to countries outside the EEA (which may not have adequate laws for protecting that personal data) for storage and processing on our behalf in those countries provided we have appropriate contractual arrangements with those companies which restrict their use of your content and projects to the provision of their services to us.
11 When we may terminate your subscription or close your app account
11.1 We may terminate your subscription, close your app account and/or prevent your access to and use of the app or your projects without any liability to you in any of the following circumstances:
(a) If you fail to pay any monies due to us in connection with the app by the due date;
(b) If you breach any of these terms in any way;
(c) If you use the app or your projects in any way which, in our reasonable opinion, is in breach of these terms;
(d) If a third party threatens to start legal proceedings against us based on any of your projects or your use of the app;
(e) If you challenge or dispute any of our rights in or to the app or any Sparkol content, or the rights of any persons who have licensed any parts of the app or Sparkol content to us.
11.2 We may, at our absolute discretion, terminate your subscription, close your app account and prevent your use of the app or your projects without giving any reason or warning.
12 General terms
12.1 We may analyse your use of the app for our own business purposes.
12.2 We may use your name and trademarks in our marketing materials to identify you as a user of the app.
12.3 We may freely assign the benefit of your agreement with us.
12.4 If these terms require you not to do something, you must not attempt to do it or allow, assist or encourage any other person to do it.
12.5 These written terms, and any which have to be treated as being included by virtue of the Consumer Rights Act 2015 and/or the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, form the whole agreement you have with us. You confirm and promise that you have not relied on anything else (apart from any trial of the app you may have had) when deciding to enter into that agreement, and that you will not claim otherwise.
12.6 Our permitting your users to use the app will not prevent us from exercising any right or remedy we may have in respect of your breach of these terms even if we are aware of the breach at the time, and you agree not to claim that it does.
12.7 Only you and we (and our successors in title) may enforce these terms, and we do not need any third party’s consent before changing them or terminating the agreement you have with us.
12.8 We may change these terms at any time in order to comply with any law, regulation or court order, and both you and we will be legally bound by those changes when we have told you about them.
12.9 We may change these terms at any time, without giving any reason, and both you and we will be legally bound by those changes when we have told you about them unless you end your subscription within 7 days.
12.10 Every aspect of your agreement with us (including its formation and effect) is governed by English law and the English courts are to have exclusive jurisdiction over any dispute (contractual or otherwise) relating to, or arising out of, the agreement, the app, or your use of it. As an exception, you or we may apply to any court which would otherwise have jurisdiction for an injunction (or an equivalent or similar order) to restrain the other one from infringing its rights or breaching the agreement.