Terms of Service

Last update: 10/11/2019

 

Pocketfolio is an online platform enabling photographers to create and maintain beautiful websites. These Terms of Services protect the legal interests of Pocketfolio, as well as the legal interests of Pocketfolio users. Please read these Terms of Service carefully.

All contracts that Pocketfolio may enter into from time to time for the provision of the Cloud Services and related services shall be governed by these Terms of Service, and Pocketfolio will ask for the Customer’s express written acceptance of these Terms of Service before providing these services to the Customer.

If the Customer is an individual, the Customer must be at least 18 years of age. By entering into the Agreement, each individual Customer warrants and represents that he or she meets this requirement.

In addition to these Terms of Services, you should also read our Privacy and Cookies Policy, which contains information about how we handle your personal data.

‌In these Terms of Services, words and phrases with special meanings have initial capital letters. See Clause 22 for the definitions of these words and phrases.

  1. 1. Terms

    1. The Agreement shall come into force upon the date upon which Pocketfolio sends to the Customer an order confirmation, following the Customer completing and submitting the online Order Form published on the Pocketfolio Website (the “Effective Date“).
    2. The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 17 or any other provision of these Terms of Service.
    3. Unless the parties expressly agree otherwise in writing, each Order Form shall create a distinct contract under these Terms of Service.
  2. 2. Cloud Services

    1. Pocketfolio hereby grants to the Customer a non-exclusive licence to use the Cloud Services available under the Customer’s Subscription Plan via the Account by means of a web browser from the Effective Date until the end of the Term. The Customer’s use of the Cloud Services shall be subject to the resources limitations specified in the Customer’s Subscription Plan.
    2. The Customer may only use the Cloud Services for the purpose of creating and maintaining:
      1. its own website; or
      2. a website of a customer of the Customer, providing that the Customer must not hide or seek to hide from such a customer that the website is powered by Pocketfolio.
    3. The Account may only be used by the Customer and the employees, agents and subcontractors of the Customer.
    4. Except to the extent expressly permitted in these Terms of Service or required by law on a non-excludable basis, the licence granted by Pocketfolio to the Customer under Clause 2.1 is subject to the following prohibitions:
      1. the Customer must not license or sub-license its right to access and use the Cloud Services, or sell, resell, distribute, rent, lease or lend the Cloud Services (providing that the Customer may use the Cloud Services to create and maintain a Customer Website for one of its own customers in accordance with Clause 2.2, and may sell its services in relation to that Customer Website to that customer);
      2. the Customer must not permit any unauthorized person to access or use the Cloud Services;
      3. the Customer must not republish or redistribute any content or material from the Cloud Services;
      4. the Customer must not make any alteration to the Platform (except as facilitated by the Cloud Services);
      5. the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Cloud Services;
      6. the Customer must not use the Platform or Cloud Services to store or transmit any malicious code, malware, attack, bugs, viruses, Trojans or similar;
      7. the Customer must not use the Cloud Services in any way that causes, or may cause, damage to the Cloud Services or Platform or impairment of the availability, integrity, performance or accessibility of the Cloud Services (including making an unreasonable number of requests to the Cloud Services or otherwise placing an unreasonable load upon the Cloud Services);
      8. the Customer must not attempt to gain unauthorized access to the Cloud Services, the Platform or its related systems or networks;
      9. the Customer must not copy the Cloud Services or any part, feature, function or user interface thereof;
      10. the Customer must not access or use the Cloud Services to provide a product or service that is in any way competitive with the Cloud Services;
      11. the Customer must not reverse engineer, decompile, manipulate or access any source code or object code related to the Cloud Services;
      12. the Customer must not use the Cloud Services in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
      13. the Customer must not act in any way to bring Pocketfolio into disrepute;
      14. the Customer must not use the Platform or Cloud Services to host any content for display, download or streaming through any website other than the Customer Website, or for display, download or streaming via any other media (providing that the Customer may share the Customer Data using the sharing functionality built into the Cloud Services); and
      15. the Customer must comply with any additional or special licensing conditions identified by Pocketfolio on the Pocketfolio Website in relation to the use of photographs and other graphic works included in Customer Websites when first generated by the Cloud Services or otherwise made available to the Customer via the Cloud Services.
    5. If the Customer’s Subscription Plan so permits, the Customer may use a custom domain name with respect to a Customer Website. The Customer shall be responsible for amending the DNS records to connect the custom domain to the Cloud Services; and Pocketfolio shall have no responsibility for or (subject to Clause 15.1) liability in relation to the amendment of those DNS records. To connect a custom domain, the Customer must also request that Pocketfolio configures the Customer Website as required. Custom domains must comply with out Acceptable Use Policy; in any case, Pocketfolio may in its sole discretion refuse any request connect custom domain with respect to a Customer Website. The Customer acknowledges that Customer Websites that do not use a custom domain will be covered by Pocketfolio’s own SSL/TLS certificate; and that Customer Websites that do use a custom domain may be covered by and SSL/TLS certificate, but Pocketfolio gives no undertakings, guarantees, warranties or representations in relation to SSL/TLS certificates for custom domains.
    6. If the Customer’s Subscription Plan so permits, the Customer may offer for sale and sell Products through the Customer Website, in which case this Clause 2.6 shall apply.
    7. The Customer acknowledges that the Cloud Services are in ongoing development and, while the features of the Cloud Services shall be as specified on the Pocketfolio Website as at the Effective Date, Pocketfolio may at any time:
    8. The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Cloud Services using an Account. Use of the Cloud Services via the Account by any person will be deemed to be use by the Customer, and the Customer shall be legally responsible for such use.
    9. If there is a dispute regarding ownership or control of the Account, Pocketfolio reserves the right to determine, acting reasonably, the appropriate person to own and control the Account. If Pocketfolio is unable to do so, Pocketfolio may suspend the Account and Cloud Services and/or terminate the Agreement in its sole discretion. The Customer must co-operate with any Pocketfolio investigation into the ownership or control of the Account.
    10. Pocketfolio shall use reasonable endeavours to maintain the availability of the Cloud Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Cloud Services but does not guarantee 100% availability.
    11. The Customer acknowledges that from time to time Pocketfolio may perform scheduled maintenance, which may affect the availability and/or performance of the Cloud Services.
    12. If, for any reason, including a denial of service attack, the Customer Website’s use of system resources exceeds a reasonable level of usage (as determined by Pocketfolio in its sole discretion) Pocketfolio may limit the Customer Website’s access to system resources and/or suspend the publication of the Customer Website, until such time as system resource demand has returned to a reasonable level.
    13. Without prejudice to Clause 2.10, downtime caused directly or indirectly by any of the following shall not constitute a breach of the Agreement:
      1. a Force Majeure Event;
      2. a fault or failure of the internet or any public telecommunications network;
      3. a fault or failure of Pocketfolio’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between Pocketfolio and that company;
      4. a fault or failure of the Customer’s computer systems or networks or internet connection;
      5. any breach by the Customer of the Agreement; or
      6. scheduled maintenance.
    14. The Customer must comply with our Acceptable Use Policy and must ensure that all persons using the Cloud Services with the authority of the Customer or by means of an Account comply with Schedule 1.
  3. 3. Templates

    1. ‌Pocketfolio shall make the Templates available to the Customer through the Cloud Services.
    2. The Customer may during the Term copy and edit the Templates and incorporate the Templates into the Customer Website, in each case using the functionality made available through the Cloud Services.
    3. The Customer must not use any Template, or any part of a Template, except through the Cloud Services as part of the Customer Website.
    4. T‌he Customer must not use any Template, or any part of a Template, after the end of the Term.
    5. For the avoidance of doubt, Clauses 3.3 and 3.4 shall not prevent the Customer using, after the end of the Term, any works and materials created by the Customer and incorporated into a Template during the editing process by the Customer.
  4. 4. Customer Data, Customer Websites and Intellectual Property Rights

    1. ‌Pocketfolio shall make the Templates available to the Customer through the Cloud Services.
    2. The Customer may during the Term copy and edit the Templates and incorporate the Templates into the Customer Website, in each case using the functionality made available through the Cloud Services.
    3. The Customer must not use any Template, or any part of a Template, except through the Cloud Services as part of the Customer Website.
    4. T‌he Customer must not use any Template, or any part of a Template, after the end of the Term.
    5. For the avoidance of doubt, Clauses 3.3 and 3.4 shall not prevent the Customer using, after the end of the Term, any works and materials created by the Customer and incorporated into a Template during the editing process by the Customer.
  5. 5. Support Services

    1. Pocketfolio may provide the Support Services to the Customer during the Term but shall have no obligation to do so; any such Support Services shall be subject to this Clause 5.
    2. Support Services may be provided in relation to issues with the Cloud Services; but Pocketfolio will not assist the Customer in relation to other issues, for example compatibility issues relating to particular web browsers.
    3. Any Support Services shall be provided remotely by email (or such other means as Pocketfolio may designate from time to time).
    4. Issues and bugs raised by the Customer through the Support Services may be resolved by hotfixes, workarounds and periodic software updates and upgrades; but Pocketfolio does not warrant or represent that any issues or bugs raised by the Customer will be resolved in any particular time period or at all
  6. 6. Integrations with Third Party Services

    1. The Cloud Services are integrated with those Third Party Services identified on the Pocketfolio Website as at the Effective Date. Pocketfolio may integrate additional Third Party Services with the Cloud Services at any time; in order to use the Third Party Services, the Customer may need to provide a relevant API key or other access credentials.
    2. Pocketfolio may remove, suspend or limit any Third Party Services integration at any time in its sole discretion.
    3. The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. Pocketfolio does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.
    4. The Customer acknowledges that:
      1. the activation of Third Party Services may entail the transfer of Customer Data from the Cloud Services to the relevant Third Party Services; and
      2. Pocketfolio has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Customer Data resulting from any integration with any Third Party Services.
    5. Without prejudice to its other obligations under this Clause 6, the Customer must ensure that it has in place the necessary contractual safeguards to ensure that both:
      1. the transfer of relevant Customer Personal Data to a provider of Third Party Services is lawful; and
      2. the use of relevant Customer Personal Data by a provider of Third Party Services is lawful.
    6. The use of some features of the Cloud Services may depend upon the Customer activating the Third Party Services.
    7. The Customer warrants to Pocketfolio that the transfer of Customer Data by Pocketfolio to a provider of Third Party Services in accordance with this Clause 6 will not infringe any person’s legal or contractual rights and will not put Pocketfolio in breach of any applicable laws.
    8. Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 13.1:
      1. Pocketfolio gives no warranties or representations in respect of any Third Party Services; and
      2. Pocketfolio shall not be liable to the Customer in respect of any loss or damage that may be caused by any Third Party Services or any provider of Third Party Services.
  7. 7. Upgrades and downgrades

    1. The Customer may upgrade the Customer’s Subscription Plan at any time by completing the upgrade procedure on the Pocketfolio Website and paying the applicable Charges, in which case:
      1. from the completion of the upgrade procedure, a new Subscription Period shall commence and the Customer shall have access to the additional functionality specified in relation to the new Subscription Plan; and
      2. if the Customer upgrades during an existing paid Subscription Period, any Charges paid by the Customer with respect to the unexpired Subscription Period shall be deducted from the Charges due with respect to the new Subscription Period (such deduction shall be calculated by the Pocketfolio website, using any reasonable methodology); and
      3. if the Customer upgrades during a Trial Period, the Customer will not be entitled to any discount with respect to any unexpired Trial Period.
    2. The Customer may not downgrade from a paid Subscription Plan to a free or trial subscription. Subject to this and to Clause 7.3, the Customer may downgrade the Customer’s Subscription Plan for the Cloud Services at any time by completing the downgrade procedure on the Pocketfolio Website, in which case:
      1. from the completion of the downgrade procedure, a new Subscription Period shall commence the Customer shall be moved to the lower-tier Subscription Plan and will lose the functionality only available in the higher-tier Subscription Plan;
      2. the first Subscription Period following the downgrade will be extended by Pocketfolio to reflect any Charges paid by the Customer with respect to the previously unexpired Subscription Period (such extension to be calculated by the Pocketfolio website using any reasonably methodology); subsequent Subscription Periods shall be of the length expressly agreed by the parties; and
      3. any Customer Data associated with the higher-tier Subscription Plan functionality shall be stored by Pocketfolio for the remainder of the Term but shall be unavailable to the Customer.
    3. If a downgrade would result in the Customer exceeding the storage capacity limit in the proposed new lower-tier Subscription Plan, then the Customer must delete Customer Data to bring storage within that storage capacity limit before downgrading.
  8. 8. Charges

    1. All amounts stated in or in relation to these Terms of Service are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to Pocketfolio.
    2. Pocketfolio may elect to vary any element of the Charges by giving to the Customer at least 30 days’ prior written notice of the variation, providing that if Pocketfolio increases any element of the Charges by more than 10% during any calendar year, the Customer may at any time during the 30-day notice period terminate the Agreement by giving written notice of termination to Pocketfolio.
  9. 9.Payments

    1. The Customer must pay the Charges to Pocketfolio in advance of the period to which they relate via Pocketfolio’s appointed payment services provider. The processing of payments will be subject to the terms and conditions of the appointed payment services provider, in addition to the Agreement.
    2. If the Customer does not pay any amount properly due to Pocketfolio under these Terms of Service, Pocketfolio may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of Italy (Banca d’Italia) base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
    3. Pocketfolio may suspend the provision of any Services if any amount due to be paid by the Customer to Pocketfolio under the Agreement is overdue, including if any amount is overdue as a result of a charge-back.
    4. In addition, if the Customer makes an unjustified credit card, debit card or other charge-back then the Customer will be liable to pay Pocketfolio, within 7 days following the date of Pocketfolio written request:
      1. an amount equal to the amount of the charge-back;
      2. all third party expenses incurred by Pocketfolio in relation to the charge-back (including charges made by any bank or payment processor or card issuer);
      3. an administration fee of EUR 25.00 plus any applicable VAT; and
      4. all Pocketfolio’s reasonable costs, losses and expenses incurred in recovering the amounts referred to in this Clause 9.4 (including legal fees and debt collection fees),
      5. and for the avoidance of doubt, if the Customer fails to recognize or fails to remember the source of an entry on a card statement or other financial statement, and makes a charge-back as a result, this will constitute an unjustified charge-back for the purposes of this Clause 9.4.
  10. 10. Trial Period

    1. T‌he following provisions apply in relation to the Trial Period:
      1. no Charges shall be payable with respect to Cloud Services provided during the Trial Period;
      2. the Customer Website will not be published or accessible by the public during the Trial Period;
      3. the Customer may request that the Agreement terminate at any time during the Trial Period, and may terminate the Agreement at the end of the Trial Period by failing to pay the Charges due with respect to the following Subscription Period; and
      4. Pocketfolio may at any time during the Trial Period terminate the Agreement by giving written notice of termination to the Customer or suspend the Services in whole or part.
    2. I‌f an individual makes a contract with Pocketfolio under these Terms of Service, and at the end of that individual’s Trial Period opts to upgrade, and during the upgrade process specifies a corporate entity as the contracting party, then that corporate entity shall not benefit from a Trial Period.
  11. 11. Distance contracts

    1. If a consumer enters into a distance contract with a services provider, then the consumer may be entitled to cancel that contract under European Union law within a defined cooling off period – in the case of a contract for services, usually 14 days from the date on which the contract is entered into.
    2. W‌hile the Customer may cancel the Agreement at any time during the 14-day Trial Period in accordance with Clause 10.1, the Customer acknowledges that any right the Customer may have to cancel under the distance contracts rules will cease to be available after the end of the Trial Period.
    3. Accordingly, under no circumstances will the Customer have a right to a refund of the Charges under the distance contracts rules.
  12. 12. Data protection

    1. The Customer shall only supply to Pocketfolio, and Pocketfolio shall only process, in each case under or in relation to the Agreement, the Personal Data of individuals comprised in the Customer Data. This Personal Data may be of any type determined by the Customer.
    2. Pocketfolio shall only process the Customer Personal Data for the purposes of providing the Services and monitoring the provision of the Services.
    3. Pocketfolio shall only process the Customer Personal Data during the Term and for not more than 60 days following the end of the Term, subject to the other provisions of this Clause 12.
    4. Pocketfolio shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area (EEA)), as set out in these Terms of Service or any other document agreed by the parties in writing.
    5. Pocketfolio shall promptly inform the Customer if, in the opinion of Pocketfolio, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
    6. Notwithstanding any other provision of the Agreement, Pocketfolio may process the Customer Personal Data if and to the extent that Pocketfolio is required to do so by applicable law. In such a case, Pocketfolio shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
    7. Pocketfolio shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
    8. Pocketfolio and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
    9. Pocketfolio must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, Pocketfolio shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days’ written notice to Pocketfolio, providing that such notice must be given within the period of 7 days following the date that Pocketfolio informed the Customer of the intended changes. Pocketfolio shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on Pocketfolio by this Clause 12.
    10. As at the Effective Date, Pocketfolio is hereby generally authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, any third party to which any element of the Services are subcontracted. The Customer further authorises the transfer of the Customer Personal Data to and by these sub-processors from within the EEA to locations outside the EEA, providing that such transfers are to jurisdictions benefiting from an adequacy decision from the European Commission, or are protected by appropriate safeguards in accordance with the Data Protection Laws.
    11. Pocketfolio shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
    12. Pocketfolio shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. Pocketfolio may charge the Customer at its standard time-based charging rates for any work performed by Pocketfolio at the request of the Customer pursuant to this Clause 12.12.
    13. Pocketfolio must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 36 hours after Pocketfolio becomes aware of the breach.
    14. Pocketfolio shall make available to the Customer all information necessary to demonstrate the compliance of Pocketfolio with its obligations under this Clause 12 and the Data Protection Laws. Pocketfolio may charge the Customer at its standard time-based charging rates for any work performed by Pocketfolio at the request of the Customer pursuant to this Clause 12.14.
    15. Pocketfolio shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
    16. Pocketfolio shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of Pocketfolio’s processing of Customer Personal Data with the Data Protection Laws and this Clause 12. Pocketfolio may charge the Customer at its standard time-based charging rates for any work performed by Pocketfolio at the request of the Customer pursuant to this Clause 12.16, providing that no such charges shall be levied where the request to perform the work arises out of any breach by Pocketfolio of the Agreement or any security breach affecting the systems of Pocketfolio.
    17. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then Pocketfolio may vary the Agreement by written notice to the Customer as reasonably necessary to ensure compliance with the Data Protection Laws.
  13. 13. Warranties

    1. The Customer warrants to Pocketfolio that:
      1. it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms of Service; and
      2. the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
    2. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms of Service. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
  14. 14. Acknowledgements and warranty limitations

    1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms of Service, Pocketfolio gives no warranty or representation that the Cloud Services will be wholly free from defects, errors and bugs.
    2. Pocketfolio shall make reasonable efforts to protect the Cloud Services and Customer Websites from hacker attacks, denial of services attacks and malicious software attacks and infections. The Customer acknowledges however that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms of Service, Pocketfolio gives no warranty or representation that the Cloud Services will be entirely secure.
    3. The Customer acknowledges that the Cloud Services are designed to be compatible only with that software and those systems specified as compatible in the Documentation; and Pocketfolio does not warrant or represent that the Cloud Services will be compatible with any other software or systems.
    4. The Customer acknowledges that the use of any search engine optimisation tools provided as an element of the Cloud Services may not result in the improved performance in the search engine results pages; search engine rankings may go up as well as down, and Pocketfolio has no responsibility for the search engine performance of the Customer Website.
  15. 15. Limitations and exclusions of liability

    1. Nothing in these Terms of Service will:
      1. limit or exclude any liability for death or personal injury resulting from negligence;
      2. limit or exclude any liability for fraud or fraudulent misrepresentation;
      3. limit any liabilities in any way that is not permitted under applicable law; or
      4. exclude any liabilities that may not be excluded under applicable law,
      5. and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by these Terms of Service, except to the extent permitted by law.
    2. The limitations and exclusions of liability set out in this Clause 15 and elsewhere in these Terms of Service:
      1. are subject to Clause 15.1; and
      2. govern all liabilities arising under these Terms of Service or relating to the subject matter of these Terms of Service, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms of Service.
    3. Pocketfolio will not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
    4. Pocketfolio will not be liable to the Customer in respect of any loss of profits or anticipated savings.
    5. Pocketfolio will not be liable to the Customer in respect of any loss of revenue or income.
    6. Pocketfolio will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
    7. Pocketfolio will not be liable to the Customer in respect of any loss or corruption of any data, database or software; however, this Clause 15.7 shall not apply with respect to any loss or damage arising out of any breach by Pocketfolio of Clause 12 or the Data Protection Laws.
    8. Pocketfolio will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
    9. The liability of Pocketfolio to the Customer under the Agreement in respect of any event or series of related events shall not exceed EUR 250; however, this Clause 15.9 shall not apply with respect to any loss or damage arising out of any breach by Pocketfolio of Clause 12 or the Data Protection Laws.
    10. The aggregate liability of Pocketfolio to the Customer under the Agreement shall not exceed EUR 1000.
  16. 16. Force Majeure Event

    1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
  17. 17. Termination

    1. The Customer may terminate the Agreement at the end of any Subscription Period by:
      1. failing to pay the applicable Charges for the next Subscription Period; or
      2. giving to Pocketfolio prior written notice of termination.
    2. Pocketfolio may terminate the Agreement at the end of any Subscription Period by giving to the Customer prior written notice of termination.
    3. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms of Service or fails to pay, upon time, any amount due to be paid under these Terms of Services.
    4. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
      1. the other party:

        1. is dissolved;
        2. ceases to conduct all (or substantially all) of its business;
        3. is or becomes unable to pay its debts as they fall due;
        4. is or becomes insolvent or is declared insolvent; or
        5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
      2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
      3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or
      4. if that other party is an individual:
        1. that other party dies;
        2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
        3. that other party is the subject of a bankruptcy petition or order.
  18. 18. Effects of termination

    1. Pocketfolio shall retain the Customer Data in the Cloud Services for a period of at least 30 but not more than 60 days following the date of termination of the Agreement. The Customer Data shall be deleted from the Cloud Services by Pocketfolio no later than the end of that period, unless the parties agree otherwise in writing.
    2. Upon the termination of the Agreement, all of the provisions of these Terms of Service shall cease to have effect, save that the following provisions of these Terms of Service shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 6.8, 9, 12, 15, 18, 21, 22 and 23.
    3. Except to the extent that these Terms of Service expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
  19. 19. Notices

    1. Any notice from one party to the other party under these Terms of Service must be sent by email to the relevant email address specified through the Cloud Services.
    2. The notice shall be deemed to be received upon receipt of the email by the recipient’s email server – providing that, if that time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after that time.
  20. 20. Subcontracting

    1. Subject to any express restrictions elsewhere in these Terms of Service, Pocketfolio may subcontract any of its obligations under the Agreement.
  21. 21. General

    1. No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
    2. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
    3. Pocketfolio may vary the Agreement by giving to the Customer at least 30 days’ written notice of the variation. Subject to this, Clause 8.2 and Clause 12.17, the Agreement may only be varied by a written document signed by or on behalf of each of the parties.
    4. The Customer hereby agrees that Pocketfolio may assign Pocketfolio’s contractual rights and obligations under the Agreement to any third party – providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. The Customer must not without the prior written consent of Pocketfolio assign, transfer or otherwise deal with any of the Customer’s contractual rights or obligations under the Agreement.
    5. Subject to Clause 15.1, an Order Form, together with these Terms of Service and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
    6. The Agreement shall be governed by and construed in accordance with Italian law.
    7. The courts of Italy shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
  22. 22. Definitions

    Except to the extent expressly provided otherwise, in these Terms of Service:

    1. Account” means an account enabling a person to access and use the Cloud Services;
    2. Agreement” means a contract made under these Terms of Service between Pocketfolio and the Customer;
    3. Business Day” means any weekday other than a bank or public holiday in Italy;
    4. Business Hours” means the hours of 09:00 to 17:00 CET/CEST on a Business Day;
    5. Buyer” means a person who buys one or more Products via the Customer Website;
    6. Charges” means the amounts specified in on the Pocketfolio Website at the start of the relevant Subscription Period, subject to variation in accordance with these Terms of Service;
    7. Cloud Services” means the Pocketfolio website builder and hosting service, which will be made available by Pocketfolio to each Customer as a service via the internet in accordance with these Terms of Service;
    8. Customer” means the person or entity identified as such in the Order Form;
    9. Customer Data” means all photographs, videos, text, data and other works and materials that are uploaded to or stored on the Platform:
      1. by the Customer; or
      2. by any user of a Customer Website (including text included in Customer Website form submissions);
    10. Customer Personal Data” means any Personal Data that is processed by Pocketfolio on behalf of the Customer in relation to the Agreement, but excluding any personal data with respect to which Pocketfolio is a data controller, as specified in the privacy policy of Pocketfolio;
    11. Customer Website” means a website created by the Customer using the Cloud Services (including a website created for a customer of the Customer);
    12. Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
    13. Documentation” means the documentation for the Cloud Services produced by Pocketfolio and published on the Pocketfolio Website;
    14. Effective Date” means has the meaning given to it in Clause 1.1;
    15. Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
    16. Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
    17. Order Form” means an online order form published by Pocketfolio and completed and submitted by the Customer incorporating these Terms of Service by reference;
    18. Personal Data” has the meaning given to it in the Data Protection Laws;
    19. Platform” means the platform managed by Pocketfolio and used by Pocketfolio to provide the Cloud Services, including the application and database software for the Cloud Services, the system and server software used to provide the Cloud Services, and the computer hardware on which that application, database, system and server software is installed;
    20. Pocketfolio Website” means the website operated by Pocketfolio and accessible via https://pocketfolio.net (or any successor website);
    21. Pocketfolio” means Dr Virgilio Ragazzi trading as Pocketfolio of Via Pietra dell’Ova 416, 95030 Tremestieri Etneo, Catania, Sicily, Italy;
    22. Products” means images, offered for sale or sold as prints or digital downloads, through the Customer Website;
    23. Services” means any services that Pocketfolio provides to the Customer, or has an obligation to provide to the Customer, under these Terms of Service, including the Cloud Services and the Support Services;
    24. Subscription Period” means the period during the Term specified as such in the Order Form, starting:
      1. at the end of a Trial Period; or
      2. at the end of a previous Subscription Period,
        subject to Clause 7;
    25. Subscription Plan” means the package of Services purchased by the Customer for a Subscription Period;
    26. Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Cloud Services, but shall not include the provision of training services;
    27. Template” means a template made available through the Cloud Services to assist in the styling and design of the Customer Website, including the HTML, CSS, JavaScript and images incorporated into each such template;
    28. Term” means the term of the Agreement, commencing in accordance with Clause 1.1 and ending in accordance with Clause 1.2;
    29. Terms of Service” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms of Service and Acceptable Use Policy, including any amendments to that documentation from time to time;
    30. Third Party Services” means any hosted or cloud services provided by any third party under contract to the Customer that may transmit data to and/or from the Cloud Services, including Google Maps, Google Recaptcha, Google Analytics, Dropbox and OneDrive;
    31. Trial Period” means the period of 14 days following the Effective Date, subject to Clause 10.1 and 10.2.
  23. 23. Interpretation

    1. In these Terms of Service, a reference to a statute or statutory provision includes a reference to:
      1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
      2. any subordinate legislation made under that statute or statutory provision.
    2. The Clause headings do not affect the interpretation of these Terms of Service.
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