Terms & conditions
Under this Agreement Mentorjam B.V. (trading as StellarUp) has agreed to provide the Licensee (as identified in the Licence Agreement) with the product(s) and/or services as detailed in the Licence Agreement under the terms and conditions detailed below.
1.1. In these Terms, the following words shall have the following meanings:
Appropriate Safeguards: means such legally enforceable mechanism(s) for transfers of personal data as may be permitted under Data Protection Laws from time to time;
Content: any information, data and/or material uploaded into the Facility by you, your employees and/or representatives, or by us on your behalf, including (without limitation) any text;
Data Protection Laws: means as applicable and binding on you, us and/or the Facility:
- (A) in the United Kingdom:
- (I) the Data Protection Act 1998 and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive); and/or
- (Ii) the GDPR, and/or any corresponding or equivalent national laws or regulations;
- (B) in member states of the European Union: the Data Protection Directive or the GDPR, once applicable, and all relevant member state laws or regulations giving effect to or corresponding with any of them; and
- (C) any applicable laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time;
Data Protection Losses: means all liabilities, including all:
- (A) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and
- (B) to the extent permitted by an applicable law:
- (I) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
- (Ii) compensation which is ordered by a Supervisory Authority to be paid to a data subject; and
- (Iii) the costs of compliance with investigations by a Supervisory Authority;
Data Subject Request: means a request made by a data subject to exercise any rights of data subjects under Data Protection Laws;
Facility: the online facility operating under the name “StellarUp” or such other name as we may determine from time to time;
GDPR: means the General Data Protection Regulation (EU) 2016/679;
GDPR Date: means 25 May 2018;
IPR: all copyright and related rights, rights in computer software, design rights, trade marks, database rights, patents, trade secrets, know-how, rights in confidential information and all other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and renewals and extensions of, 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;
Licence Fee: means the monthly or annual licence fee payable by you for your access to and use of the Facility, as detailed on our website
Personal Data Breach: means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any personal data for which you are the data controller;
Party: you and us;
Supervisory Authority: means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws;
Term: means the period from (and including) the date you accept these Terms until your licence to access and use the Facility is terminated in accordance with these Terms;
Terms: these terms and conditions;
Us, we, our: StellarUp and
Your, you: the organisation or person requiring access to the facility.
1.2 All references in these Terms to the singular shall mean the plural and vice versa, all references to persons shall include companies, partnerships and other organisations (including without limit any government departments or non-departmental government bodies) and all references to the masculine shall include the feminine and neuter and vice versa.
1.3 All references in these Terms to “processing”, “personal data”, “data controller”, data processor”, and “data subject” shall have the meaning given to them in the applicable Data Protection Legislation.
2. OUR OBLIGATIONS
2.1 We agree to provide to you the non-exclusive, non-transferable right for you to access and use (for your own internal business purposes only) the Facility for the Term subject to these Terms.
2.2 We will provide you with login details to enable you to connect to the Facility
2.3 We will use our best endeavours to provide the Facility without major interruption and materially error free and ensure the facility is available with 99% uptime
2.4 Notwithstanding clause 2.3, we reserve the right at anytime to suspend your access and/or use of the Facility for the purpose of enabling us to carry out essential emergency and urgent maintenance. You will be notified of normal maintenance in advance. Normal maintenance is performed outside of core working hours.
2.5 We confirm that the Facility (including any Content) is hosted in the United Kingdom.
3. YOUR OBLIGATIONS
3.1 You agree that you will:
- (A) comply with any reasonable instructions or directions issued by us from time to time in respect of the Facility;
- (B) conform to such protocols and standards as are issued by us from time to time in respect of the access and/or use of the Facility;
- (C) fully indemnify us against any and all claims, costs and expenses which we may incur resulting from your acts or omissions in respect of the Facility and your use of it and/or your breach of any of your obligations under these Terms; and
- (D) when using the Facility comply with all applicable laws and legislation (including but not limited to matters arising under the Data Protection Laws and the Regulation of Investigatory Powers Act 2000).
3.2 In addition you acknowledge and accept that you are solely responsible for the:
- (A) accuracy of all Content uploaded onto the Facility;
- (B) establishment, maintenance and monitoring of adequate internal security measures in connection with the accessing and use of the Facility by you including without limit ensuring the confidentiality and safe storage of all login details, user names and passwords and not using obvious passwords and updating them regularly and you will immediately notify us if you suspect a breach of your internal security measures (e.g. the unauthorised use of any login details, user name and/or password);
- (C) ensuring that all Content (including without limit any description, date or information relating to the Content) uploaded by you or by us on your behalf is accurate and up to date; and
- (D) ensuring that any security level set for any Content (whether by us or you) is correct;
3.3 You agree that you will not (and you will ensure that your employees and representatives do not):
- (A) access and/or use the Facility for any unlawful purpose or in contravention of any English or other law. This includes but is not limited to:
- (I) any act or omission which will or is likely to infringe the IPR of a third party;
- (Ii) attempt to gain unauthorised access to the Facility the use of the Facility in any way that will or is likely to violate or infringe the rights of any person in the United Kingdom or elsewhere;
3.4 You acknowledge and agree that:
- (A) your right for you to use (for your own internal business purposes only) the Facility is personal to you and may not be assigned, sub-licensed, sold, resold, transferred, distributed or otherwise disposed of or commercially exploited in any way, including by way of charge, lien or other encumbrance;
- (B) the IPR comprised in or relating to the Facility belongs to us and these Terms do not give you any rights in or related to the Facility except as expressly provided in these Terms. We will indemnify you against all loss, liability or reasonable expense arising out of any claim brought by a third party that the Facility infringes intellectual property rights owned or controlled by the third party.
- (C) we have the right to connect to your Content for the purposes of providing the Facility to you (including for maintenance and technical purposes) and for checking that you are complying with these Terms;
- (D) we owe no obligation to you or anyone else to monitor, check or review the legality, validity or accuracy of any Content;
- (E) you will pay any License Fee and other such charges for your use of the Facility in accordance with these Terms;
- (F) the use of the Facility is entirely at your own risk
4. WARRANTIES AND LIABILITY
4.1. Subject always to our obligations to meet our Service Level Agreement. we do not warrant the:
- (A) Facility against failure of performance; or
- (B) Validity; legality or accuracy of any Content placed on the Facility by you, your employees and/or representatives, or by us on your behalf
4.2. In no event shall we be liable for operational difficulties caused by or arising from the integration of the Facility with any third party equipment or software not supplied or approved by us or by any modifications, variations or additions made to the Facility not undertaken by us, or caused by any abuse, corruption or incorrect use of the Facility, including, without limitation, use of the Facility with hardware and/or software which is incompatible with the Facility.
4.3. We do not represent nor do we give any warranty, guarantee or undertaking of any kind that the Facility is free from all bugs, errors or mistakes, or that it will meet your requirements and it your responsibility to ensure that the Facility will meet your requirements.
4.4. These Terms are in lieu of all warranties, conditions, terms, undertakings, representations and obligations (including, but no limited to, any implied warranty as to satisfactory quality or fitness for a particular purpose) express or implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
4.5. Notwithstanding any other clause of these Terms, neither Party excludes or reduces its liability under or in connection with these Terms to the extent that it arises in respect of any of the following matters:
- (A) for death or personal injury resulting from negligence proved against either Party;
- (B) for fraud or fraudulent misrepresentation; nor
- (C) for any other matter for which it would be unlawful for either Party to exclude or limit or attempt to exclude or limit its liability.
4.6. Subject to sub-clause 4.5, neither Party shall have any liability to the other Party (howsoever arising, including any liability in tort) under or in connection with these Terms or their subject matter for any:
- (A) loss of profits, the loss of the use of money or anticipated savings;
- (B) loss of revenue;
- (C) business interruption; loss of or damage to reputation or goodwill;
- (D) loss of opportunity or contracts;
- (E) wasted management or other staff time;
- (F) losses or liabilities under or in relation to any other contract; or
- (G) loss of, damage to or corruption of data or information, in each case whether direct, indirect, special and/or consequential loss or damage; or
- (H) for any other indirect, special and/or consequential loss or damage of any kind.
4.7. Subject to sub-clause 4.4, both parties maximum aggregate liability in contract, tort (including for negligence), misrepresentation and/or otherwise howsoever arising under or in connection with these Terms and their subject matter (including all losses, liabilities, claims, actions, demands, proceedings, damages, costs, charges and expenses in respect thereof or in relation thereto) shall be limited to the total funds paid by you to us in the proceeding 12 months in respect of your use of the Facility.
4.8. You agree that you have read and understood this clause 4.
4.9. In case of any conflict between this clause 4 and any other clause of these Terms, the provisions of this clause 4 shall prevail. For the avoidance of any doubt, this clause 4 shall remain in full force and effect notwithstanding the termination, repudiation or expiry of these Terms.
5.1. You may terminate your licence to access and use the Facility at anytime on giving at least one (1) month’s notice in writing or email to us.
5.2. We shall be entitled (at our discretion) to suspend or terminate your access to and your right to use the Facility at anytime if you commit a material breach of these Terms.
5.3. On request we will provide you with a copy of any content provided by you and stored on the Facility. There will be no charge for this. In any event the data will be deleted/destroyed or rendered unreadable 60 days after termination.
5.4. Termination, repudiation or expiry of these Terms will be without prejudice to any accrued rights of either party and will not affect obligations which are expressed not to be affected by repudiation, expiry or termination of these Terms.
5.5. On termination for any reason:
- (A) all rights granted to you under these Terms shall cease;
- (B) you shall cease all activities authorised by these Terms;
- (C) you shall immediately pay to us any sums due to us under these Terms; and
6.1. You accept that we may, in accordance with legal requirements, have to disclose information to third parties, for example governmental organisations (including the police), in respect of and/or in connection with your access and/or use of the Facility. Subject to any legal prohibitions to the contrary we will notify you of such disclosure as soon as reasonably possible.
6.2. Each of us shall, while we are accessing and providing access to the Facility respectively under these Terms and thereafter, keep secret and confidential all business, technical or commercial information disclosed to one of us by the other or otherwise which belongs to the other its sub-contractors, carriers, telecommunication providers or clients (and shall procure that its agents and/or employees are similarly bound) and shall not disclose the same to any person save to the extent necessary to perform its obligations and/or exercise its rights in accordance with these Terms or save as expressly authorised in writing to be disclosed by the other.
6.3. The obligation of confidentiality contained in sub-clause 6.2 shall not apply or (as the case may be) shall cease to apply to business, technical or commercial information which:
- (A) at the time of its disclosure by the disclosing Party is already in the public domain or which subsequently enters the public domain other than by the breach of these Terms;
- (B) is required to be disclosed under applicable law or order of a court of competent jurisdiction or government department or agency or by the London Stock Exchange, provided that prior to such disclosure the receiving Party shall, to the extent that is legally permitted to do so, advise to the disclosing Party of the proposed form of disclosure; or
- (C) at the time of its disclosure by the disclosing Party is already known by the receiving Party and the later is not subject to any existing duty of confidence in respect of the information in question.
7. DATA PROTECTION
7.1. We warrant that we have in place appropriate technical and organisational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure of or access to any Content that contains personal data (as that term is interpreted in accordance with the Data Protection Laws) (“Individual Information”) and adequate security measures to ensure that unauthorised persons will not have access to the Individual Information and that any persons we authorise to have access to (including but not limited to our employees) will respect and maintain the confidentiality and security of the Individual Information and from the GDPR Date shall ensure that such persons authorised by us to process personal data are subject to a binding written contractual obligation with us to keep the personal data confidential (except where disclosure is required in accordance with an applicable law).
7.2. We warrant that all security measures referred to in sub-clause 7.1 above will reflect the level of damage that might be suffered by, and any harm which might result to, the persons who are the subjects of the Individual Information as a result of unauthorised access or disclosure.
7.3. From the GDPR Date, taking into account the nature of the processing, we shall implement and maintain technical and organisational measures to assist you insofar as is possible in the fulfilment of your obligations to respond to Data Subject Requests relating to personal data processed by us for which you are the data controller.
7.4. We shall ensure that all processing of Individual Information that is carried out by us shall at all times be carried out in accordance with the Data Protection Laws and that we will otherwise conduct ourselves in accordance with the Data Protection Laws and for the purposes of this clause “processing” shall be interpreted in accordance with the Data Protection Laws.
7.5. The types of personal data to be processed under this Agreement shall be the types of data provided by you to us.
7.6. The categories of data subject to whom the personal data relates are your employees.
7.7. In respect of any Personal Data Breach involving the personal data which we process as a data processor on your behalf we shall, without undue delay:
- (A) notify you of the Personal Data Breach; and
- (B) provide you with details of the Personal Data Breach.
7.8. We shall assist you in ensuring compliance with your obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to us.
7.9. You shall comply with the Data Protection Laws in connection with:
- (A) the processing of personal data;
- (B) the Facility; and
- (C) the exercise and performance of your rights and obligations under these Terms, including maintaining all relevant regulatory registrations and notifications as required under the Data Protection Laws.
7.10. You warrant, represent and undertake, that:
- (A) all data sourced by you for use in connection with the Facility shall comply in all respects, including in terms of its collection, storage and processing (which shall include you providing all of the required fair processing information to, and obtaining all necessary consents from, data subjects), with Data Protection Laws;
- (B) all instructions given by you to us in respect of personal data shall at all times be in accordance with the Data Protection Laws.
7.11. Insofar as we processes personal data on your behalf we:
- (A) unless required to do otherwise by an applicable law, shall (and shall take steps to ensure each person acting under our authority shall) process the personal data only on and in accordance with your documented instructions as set out in these Terms, as updated in writing from time to time (Processing Instructions);
- (B) if an applicable law requires us to process personal data other than in accordance with the Processing Instructions, we shall notify you of any such requirement before processing the processed data unless an applicable law prohibits such information on important grounds of public interest); and
- (C) shall inform you if we become aware of a Processing Instruction that, in our opinion, infringes Data Protection Laws, provided that: to the maximum extent permitted by mandatory law, we shall have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including any Data Protection Losses) arising from or in connection with any processing in accordance with your Processing Instructions following your receipt of that information; and this clause 7.11 c shall only apply from the GDPR Date.
7.12. We do not transfer data to any third parties, however third parties may process personal data on our behalf when we engage them to provide certain services, as further described in clause
7.13. You consent to us appointing the following sub-processors under this Agreement: Digital Ocean LLC and Amazon Web Services, managed cloud hosting providers (to host our infrastructure and your content) and Sparkpost a cloud based email service (to send emails sent through our Facility). On premise solutions will use your own sub-processors. We shall not appoint any additional sub-processor without first obtaining your prior written consent, such consent not to be unreasonably withheld or delayed. We confirm that we have entered or (as the case may be) will enter with the sub-processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7. We shall remain fully liable to you under this Agreement for all the acts and omissions of each sub-processor as if they are our own.
7.14. We shall not process and/or transfer, or otherwise directly or indirectly disclose, any Individual Information in or to countries outside the European Economic Area (“EEA”) or to any international organisation.
7.15. We shall maintain complete and accurate records and information to demonstrate our compliance with this clause 7 and allow for audits by you or your designated auditors.
7.16. On termination of this Agreement we shall without delay, at your written request, securely delete and/or securely return all the personal data unless required by applicable law to store the Personal Data.
7.17. Each party shall indemnify and keep indemnified the other party in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by, the indemnified party arising from or in connection with any non-compliance by the indemnifying party with:
- (A) the Data Protection Laws; or
- (B) these Terms
8.1. In return for us agreeing to provide to you the non-exclusive, non-transferable right for you to access and use (for your own internal business purposes only) the Facility subject to these Terms, you agree to pay us the License Fee.
8.2. The License Fee as set out in the order schedule must be paid immediately and is due on the date of the invoice.
8.3. Cancellation fees for training days booked will apply as follows; 14 days written notice no charge, less than 14 days written notice a 50% charge of the training day is to be paid and less than 7 days written notice 100% of the cost of the training day is to be paid. Save that where expenses have been incurred which are non-refundable such as but not limited to travel, accommodation and care hire ,the full cost of this will be payable on any cancellation at anytime.
8.4. The termination, repudiation or expiry of these Terms shall not affect your obligation to pay License Fees to us in respect of any right of access to the Facility which was granted to you prior to the date of termination, repudiation or expiry of these Terms. All training days purchased and taken must be paid for on termination. No refunds will be paid on a pro-rata basis for the use of the Facility.
9. FORCE MAJEURE
9.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that are caused by events outside our reasonable control (Force Majeure Event).
9.2. A Force Majeure Event includes in particular (but without limitation) the following:
- (A) Strikes, lock-outs or other industrial action;
- (B) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
- (C) Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster or Act of God;
- (D) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
- (E) Impossibility of the use of public or private telecommunications networks;
- (F) The acts, decrees, legislation, regulations or restrictions of any government; and
- (G) The non-delivery or late delivery of products or services to us by third parties.
9.3. Our performance under these Terms is deemed to be suspended for the period that the Force Majeure Event continues and we will have an extension of time for performance for the duration of that period.
10.1. All notices given by you to us must be given in writing to StellarUp (either at Vijzelgracht 31/1, Amsterdam 1017HN, The Netherlands, or Unit 3 Merchant, Evegate Business Park, Ashford, Kent, England, TN25 6SX) or by email to firstname.lastname@example.org. We may give notice to you at either the e-mail or postal address provided to us when placing an order. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
11.1. We may sub-license, transfer, assign, sub-contract, charge or otherwise dispose of any of our rights or obligations under these Terms, provided we give you written notice of the same.
11.2. You may not sub-license, transfer, assign, sub-contract, charge or otherwise dispose of any of your rights or obligations under these Terms without our prior written consent (which will not be unreasonably withheld).
12.1. If we fail at any time to insist upon strict performance of any of your obligations under any of these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled under them, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any of these Terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with these Terms.
13.1. If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term or condition will to that extent be severed from the remaining Terms which will continue to be valid to the fullest extent permitted by law.
14. ENTIRE AGREEMENT
14.1. These Terms contain and constitute the entire understanding and agreement between us in connection with and about the subject matter of these Terms and supersede all earlier and other agreements and understandings between us and all earlier representations by either of us about such subject matter. Any prior representations, warranties, statements and assurances which are not expressly set out in these Terms will not be of any effect. Each Party warrants that there is no representation, warranty, promise, term, condition, obligation or statement upon which they have relied in entering into these Terms and which is not expressly set out in these Terms and no such representation, warranty, promise, obligation, statement or any other term or condition is to be implied in them whether by virtue of any usage or course of dealing or otherwise (including, subject to clause 4, by statute or common law) except as expressly set out in these Terms. If a Party has given any representation, warranty, promise or statement then (except to the extent that it has been set out in these Terms) the Party to whom it is given waives any rights or remedies which it may have in respect of it. This clause shall not exclude the liability of a Party for fraud or fraudulent misrepresentation or concealment or any resulting right to rescind these Terms.
15.1. These Terms may not be amended, modified, varied or supplemented except in writing signed by or on behalf of both Parties.
16. THIRD PARTY RIGHTS
16.1. Nothing in these Terms is intended to confer a benefit on, or to be enforceable by, any person who is not a Party to these Terms. These Terms do not create any right enforceable by any person who is not a Party to them under the Contracts (Rights of Third Parties) Act 1999.
17. GOVERNING LAW AND JURISDICTION
17.1. These Terms shall be governed in all respects by and be construed in accordance with English law (including all non-contractual disputes or claims arising out of the subject matter of these Terms). Any claim or dispute arising from or related to these Terms (including their enforcement or their termination) shall be subject to the non-exclusive jurisdiction of the courts of England and Wales and the Parties hereby irrevocably submit to the jurisdiction of these courts.