BEAUTY BY HOLITION - OUR TERMS OF BUSINESS
Beauty by Holition has certain Software which it usually makes available to customers on a subscription basis for a fixed period, during which time these terms may not be terminated. By clicking “Agree” you agree to take and use Beauty by Holition's Software subject to the terms below. Defined terms are capitalised and definitions appear at the end of these terms. Beauty by Holition is entitled to assume the person who accepts these terms is authorised to do so by your business.
Beauty by Holition will enable the following features during the Free Trial:
- Makeup SKUs: 200
- Product Categories: All categories (lipstick, lipliner, eyeliner, eyeshadow, foundation, mascara, blusher, bronzer, concealer & brow pencil)
- Languages: Unlimited
- Try-On Looks: 3 included
- Before & After Slider: Included.
- Usage and Statistical Tracking: Included
- Take a Picture & Share: Included
- Build Your Look: Included
- Neo Shade Finder: Included
- Product Recommendation & Face Analysis: Not included
- AR Tutorials: Not included
- Beauty by Holition has agreed to grant you a non-exclusive, non-transferable licence (without the right to grant sublicences) for the Software and Documentation for Usage for a period of 60-days from the date of first use (“Free Trial”).
- At any time during the Free Trial Beauty by Holition may give you written notice to terminate this licence, on receipt of which, access to the Software for you will cease.
- Beauty by Holition will provide you with Beauty by Holition's standard customer support during Normal Business Hours of the Free Trial.
- If Beauty by Holition has not received all payments due from you within 7 days of the due date, Beauty by Holition may:
- disable access to the Software until all outstanding payments due (and interest where charged) are paid; or
- terminate this Licence and the Free Trial with immediate effect on written notice to you.
- The Free Trial begins on signature of these Terms, or if for any reason you do not sign them, when you starts use of the Software.
- You may terminate the Free Trial at any time by giving Beauty by Holition written notice of termination, upon receipt of which Beauty by Holition will disable access to the Software.
- During the Free Trial You:
- will comply with all applicable laws and regulations regarding your activities under these terms;
- will ensure that your network and systems comply with the relevant specifications provided by Beauty by Holition from time to time;
- will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or the Documentation and, if there is any such unauthorised access or use, promptly notify Beauty by Holition providing it with all assistance it reasonably requires to retrieve the Software and/or rectify the breach.
- will not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- will not access all or any part of the Software and Documentation in order to build a product or service which competes with the Software and/or the Documentation;
- will not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except the Authorised Users, or
- will not attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation;
- will not attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
- will use the Software and/or Documentation to provide Software to third parties for the purpose of any of the above.
- You agree that Beauty by Holition is not responsible for any fault, error or operational deficiency in the Software where that is caused by use of the Software contrary to Beauty by Holition's instructions, or modification or alteration of the Software by any party other than Beauty by Holition.
- At all times, You own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such.
- Beauty by Holition does not control or process Customer Data unless Beauty by Holition and you have agreed to this in writing, signed by a Director of Beauty by Holition and on payment for this specific service. In relation to any personal data (as defined by the Data Protection Legislation) provided to it and/or processed in connection with performance of its obligations, Beauty by Holition shall process that personal data only on your written instructions, unless otherwise required under the Data Protection Legislation in which case it will notify you of this unless legally prohibited from doing so. Beauty by Holition will not transfer any personal data outside of the European Economic Area or the United Kingdom unless it has obtained your prior written consent. Where Beauty by Holition provides you with SaaS services, additional terms may apply.
CONFIDENTIALITY & PUBLICITY:
- During the Free Trial and for 1 year after you and Beauty by Holition will keep all Confidential Information secret and neither shall use it for their own purposes (other than implementation of these terms) without the prior written consent of the other.
- This restriction does not apply to disclosure required by any law or to information that is already in the public domain at the time of disclosure, or which subsequently becomes public knowledge other than by breach of these term. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of Confidential Information.
- Beauty by Holition shall be permitted to make public announcements concerning its work with you.
OUR RESPECTIVE INTELLECTUAL PROPERTY RIGHTS:
- You acknowledge and agree that Beauty by Holition owns all intellectual property rights in the Software and Documentation and these terms do not grant you any Intellectual Property Rights to the Software or the Documentation except as set out in these Terms.
- All Intellectual Property Rights in the names “Beauty by Holition”, "Holition", “Face”, “Face by Holition”, and in the Software, Maintenance Releases and Documentation belong to Holition Ltd. Holition Ltd is the creator of and owns copyright in the Software and the Documentation.
- Beauty by Holition agrees that all Client Material, information and data that you provide to it belongs to you or is licensed to you.
BEAUTY BY HOLITION’S WARRANTIES:
- Beauty by Holition warrants that during the Free Trial the Software will conform in all material respects to the description of it provided to you before you entered into these Terms. No warranty is given by Beauty by Holition in respect of any Open-Source Software used.
- All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these terms or any collateral contract by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
LIMITATIONS ON BEAUTY BY HOLITION’S LIABILITY:
- You agree that Beauty by Holition shall have no liability for any losses or damages which may be suffered by you (or any person claiming under or through you), directly or indirectly, immediate or consequential, whether arising in contract, tort (including negligence) or otherwise howsoever, arising or which fall within any of the following categories; special damage (even if Beauty by Holition was aware of the circumstances in which such special damage could arise); loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; and/or loss or corruption of data.
- The exclusions in clause 20 apply to the fullest extent permitted at law. Beauty by Holition does not exclude liability for death or personal injury caused by the negligence of Beauty by Holition, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation; breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; and/or any other liability which may not be excluded by law.
TERMINATION FOR DEFAULT OR INSOLVENCY:
- Either party may terminate these terms with immediate effect by written notice in the event of the following (or if an event with equivalent effect occurs):
- the other party commits a material breach of any of these terms which cannot be remedied or, if it can be remedied, it is not remedied within 7 days of notice to do so;
- an application or order is made for the appointment of an administrator or receiver or if an administrator or receiver is appointed, over the other party.
- any change of law regulation or governmental instruction which will effect a party’s ability to comply with these terms.
- In addition to termination in clause 33 above, Beauty by Holition may terminate these terms if you fails to pay any amount due under these Terms on the due date and payment and remains in default 7 days after being given written notice to pay.
- Termination or expiry of these terms shall not affect any rights, remedies, obligations or liabilities of you or Beauty by Holition that have accrued up to the date of termination or expiry.
- Any provision of these terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of it shall remain in full force and effect.
- On termination for any reason, all rights granted to you under these terms shall cease and you shall cease all use of the Software immediately.
ENTIRE AGREEMENT, SEVERANCE & THIRD PARTY RIGHTS:
- These terms contain the whole agreement between you and Beauty by Holition relating to provision of the Software to you and supersede all prior agreements and arrangements.
- You acknowledge that when entering into these terms you did not rely on any representation other than as expressly set out in these terms and that your only rights and remedies available in connection with breach of any representation shall be for breach of contract.
- If any provision or part-provision of these terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable and the parties shall negotiate in good faith to ensure the modification achieves the intended commercial result of the original provision. If that is not possible, the relevant provision or part-provision shall be deemed deleted. Such change or deletion will not affect validity and enforceability of the rest of these terms.
- A person who is not a party to these terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
- Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between you and Beauty by Holition or construe any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- No failure or delay or partial exercise of any right or remedy provided under these terms by you or Beauty by Holition shall constitute a waiver or prevent further exercise of that right or remedy.
- Variations to these terms may only be made in writing, signed by both you and Beauty by Holition.
- Neither you nor Beauty by Holition shall be in breach of these terms nor liable for delay in performing, or failure to perform, any of obligations under them if such delay or failure result from events, circumstances or causes beyond yours or Beauty by Holition’s reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 20 weeks, the party not affected may terminate these terms by giving 14 days' written notice.
- Notices required must be given in writing and may be delivered by hand or by pre-paid first-class post or other next working day delivery service to the other parties’ principal place of business or sent by email with sent, received and read tags affixed to the email address of the MD or CEO of you. Notices shall be deemed received if delivered by hand, on signature of a delivery receipt; if sent by pre-paid first-class post or other next working day delivery service, at 10.00 am the day after sending; if sent by email, 2 hours after the time stamp on the read receipt.
GOVERNING LAW AND JURISDICTION:
- These terms and any dispute or claim arising in connection with them shall be governed by and construed in accordance with the law of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).
DEFINITIONS & INTERPRETATION USED IN THESE TERMS
All terms that are shown in bold are defined terms and definitions of these are as follows:
- Confidential Information: information proprietary to Beauty by Holition, which is provided to you and could reasonably be considered confidential to Beauty by Holition whether or not it is marked as such.
- Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
- Customer Data: the data inputted by the Customer, (or by Beauty by Holition on request) for the purpose of using the App or facilitating the Customer’s use of the App and any data generated by, or derived from the Customer’s use of the Software, whether hosted or stored within the App or elsewhere.
- Data Protection Legislation: UK Data Protection Legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
- Documentation: the document made available to the Customer by Beauty by Holition online via firstname.lastname@example.org or such other web address notified by Beauty by Holition to the Customer from time to time which sets out a description of the Software and the user instructions for installation of it.
- Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks, service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
- Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a new version.
- Normal Business Hours: 9.00 am to 6.00 pm local UK time Monday – Friday excluding bank and public holidays in England.
- Software(s): the SDK or Web Application software Beauty by Holition has agreed to will supply to you as a service under these terms of Business.
- Support Software Policy: Beauty by Holition’s policy for providing paid support in relation to the Software which is available at email@example.com
- UK Data Protection Legislation: the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- Usage: the number of page hits per month generated by you for use of the Software according to the subscription level you have selected.
- you, your: means the business who signs these terms only and does not include any associated business, connected company or group company and does not include the individual person who signs to whom no licence is granted or inferred.
- Clause and paragraph headings shall not affect the interpretation of these terms. This Annex forms part of these terms.
- Unless the context otherwise requires, words in the singular shall include the plural and vice versa; references to clauses and the Annex are to the clauses and Annex of these terms; references to a statute or statutory provision is a reference to it as in force as at the date of these terms; a “person” includes a natural person, corporate or unincorporated body and any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.