1.1 In these terms and conditions ("these Conditions") the following definitions shall apply:
|Administrator||the representative or representatives authorised by the Client to provide instructions to Enzien on behalf of the Client, as designated in the Subscription Form or as varied from time to time pursuant to clause 3.2|
|Business Day||a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business|
|Client||the person purchasing the Service from Enzien under the Contract|
|Client Account||the online user account by which the Client gains access to the Service|
|Cloud Compiler||the cloud-based hosting service on which Enzien makes the Service available to the Client, through the Website or such other portal as Enzien (at its discretion) makes available from time to time|
|Commencement Date||the date on which the Contract comes into force pursuant to clause 2.2|
|Contract||the contract between Enzien and the Client governing the Client's right to use the Service and the Works, consisting of the terms in the Subscription Form and these Conditions|
|Documentation||any and all documentation or other materials (whether in printed or electronic form) created, issued or published by Enzien in connection with the Service or the Software|
|Enzien||Enzien Audio Ltd (company number 09272584) with registered office at First Floor, Telecom House, 125-135 Preston Road, Brighton, BN1 6AF|
|Generated Assets||the files and source code, being translations of high-level audio source code into low-level C source code and associated frameworks, generated uniquely by the Client's specific input of data into the Service (but excluding any and all Static Assets)|
|Intellectual Property Rights||copyright and related rights, database rights, patents, rights to inventions, trade secrets, trade marks, domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals, extensions or revivals 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||the Client's right to use the Service for the Purpose pursuant to and in accordance with the Contract|
|Licence Fee||the licence fees payable by the Client under the Contract, as specified in the relevant Plan|
|Licensed Period||a period of 1 month commencing on the Commencement Date, and each subsequent 1 month period following a licence renewal pursuant to clause 7|
|Licensed Users||the persons licensed to use the Service in accordance with the Contract, as detailed in the Order Form or as amended from time to time pursuant to clause 7|
|Order Form||the order form provided to the Client by Enzien confirming the Licence Fee, the Licensed Users, and any other provisions forming part of the Contract|
|Patch||a configured sound which is created or uploaded through the Service|
|Plan||the specific Plan to which the Client has subscribed, the specific features of the Service comprised in each respective plan as set out on the Website or such other portal as Enzien (at its discretion) makes available from time to time|
|Purpose||the purpose of creating the Generated Assets for use by the Client in conjunction with any of the Client's products|
|Renewal Date||the date on which a Licensed Period is due to expire|
|Service||the service offered by Enzien through the Cloud Compiler (or by any other means or media offered by Enzien from time to time at its discretion) to achieve the Purpose using the Software subject to the terms of the Contract|
|Software||Enzien's "Heavy Translation Service" software used in the Service, and the Static Assets (but excluding the Generated Assets)|
|Static Assets||the subscription form submitted by the Client to Enzien confirming the Plan, the Users, and any other provisions forming part of the Contract|
|Term||the period commencing on the Commencement Date and ending on the termination of the Contract|
|Users||the individuals who are authorised to use the Service, as specified in the Subscription Form or as varied from time to time pursuant to clause 8|
|Works||the Software and the Documentation (excluding the Generated Assets)|
1.2 References to clauses are to the clauses of these Conditions.
1.3 Where appropriate words denoting a singular number only shall include the plural and vice versa.
1.4 A reference to 'the parties' shall mean Enzien and the Client and a reference to 'party' shall mean either Enzien or the Client, as applicable.
1.5 A reference to a 'person' shall include a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.6 References to 'written' or 'in writing' shall include email.
2.1 These Conditions shall govern the Contract to the exclusion of any other express or implied contractual terms or conditions.
2.2 The submission of the Subscription Form by the Client to Enzien constitutes an offer by the Client to purchase the Service in accordance with the Contract. The Client shall be responsible for ensuring that the information set out in the Subscription Form is complete and accurate. By making the Service available to the Client following the submission of the Subscription Form, Enzien shall be deemed to have accepted the Subscription Form and this is when the Contract shall come into force. Enzien shall not be under any obligation to accept a Subscription Form at any time.
2.3 Each Subscription Form shall form the basis of a separate Contract.
3.1 The Administrator shall be Enzien's sole point of contact for all communications with the Client. Any instructions provided by Administrator shall be binding on the Client.
3.2 The Client may add, remove or change the Administrator through the dedicated channel in the Client Account from time to time provided that there is at least one named Administrator with a valid email address provided at any given time.
4.1 Promptly following the Commencement Date, Enzien:
4.2 After the Initial Invoice has been issued, Enzien shall issue subsequent invoices on a monthly basis thereafter ("Subscription Period") at the rate stated in the Plan until termination of the Contract.
4.3 Enzien reserves the right to vary or increase the Licence Fee from time to time. Enzien will notify the Client of any such changes, including when the changes will take effect. The Client has the right to reject these changes by cancelling the Service (in accordance with Clause 14.1) before the change is due to take effect. By continuing to use the Service after the price change takes effect, the Client will be deemed to have accepted the new price. If the Client accepts the price change but does not pay the additional sums associated with any applicable price increase, the Licence will expire.
4.4 The Client shall pay each invoice in full immediately upon receipt of such invoice or as soon as practicable thereafter. Unless Enzien notifies the Client otherwise, all payments must be made in full and cleared funds through the Billing section of the Client Account (supported by Stripe). The Client will not have full access to the Service until any applicable payments have been made.
4.5 The Client shall pay each invoice in full, without any reduction or set-off.
4.6 The Client is responsible for providing valid means of payment for any paid Plan. The Client does not need to provide payment information where it is subscribed only to a free Plan.
4.7 Where Enzien extends credit to the Client for the Licence, Enzien reserves the right to pass on the Client's personal information to credit reference agencies and they may keep a record of any search that they do.
5.1 The Client may at any time, with immediate effect, change the current Plan to which it is subscribed by giving notice to Enzien via the dedicated channel in the Client Account.
5.2 Following such notification in accordance with clause 5.1, if the Client does not pay the sufficient amount associated with any applicable price increase, the Licence will expire. If such notification results in a reduction in the Licence Fee, Enzien shall, at its option, either (i) reimburse the Client the relevant proportion of the Licence Fee at the end of the then current Licensed Period, calculated on the basis set out in the Plan by reference to the number of days remaining in the Subscription Period; or (ii) apply the relevant reduction to the Licence Fee due in relation to the Client's renewal of any subsequent Licensed Period. Enzien will notify the Client of the applicable method used to reimburse the Client.
6.1 In consideration of the payment of the Licence Fee, the Client may use and access the Service for the Purpose during the Licensed Period in accordance with the terms of the Contract.
6.2 The Client shall not use the Service or the Works (nor permit or authorise others to do so) except to the extent expressly permitted by these Conditions.
7.1 The Licence shall begin on the Commencement Date. The Licence will renew automatically upon the expiry of each Licensed Period.
7.2 If the Client does not wish to renew the Licence by the Renewal Date, the Client must cancel the Contract in accordance with clause 14.1.
7.3 For the avoidance of doubt, Enzien may at its discretion decline to renew the Licence at the end of any Licensed Period. In the event that Enzien exercises its discretion to refuse renewal under this clause 7.3, it will notify the Client as soon as reasonably practicable prior to the Renewal Date in question.
8.1 The Client may at any time, with immediate effect, extend the Licence to new Users in addition to those detailed in the Subscription Form ("New Users"), by notifying Enzien of the number of New Users through the dedicated channel in the Client Account.
8.2 In consideration for the Client's addition of New Users pursuant to clause 8.1, the Client may be liable to pay to Enzien an additional Licence Fee. Any additional Licence Fee will be calculated in accordance with the Plan. Enzien may raise an invoice for such additional Licence Fee at any time following the Client's addition of New Users pursuant to clause 8.1.
8.3 The Client may at any time reduce the number of Users by notifying Enzien via the dedicated channel in the Client Account. Following such notification and reduction Enzien shall, at its option, either (i) reimburse the Client the relevant proportion of the Licence Fee at the end of the then current Licensed Period, calculated on the basis set out in the Plan by reference to the number of days remaining in the Subscription Period; or (ii) apply the relevant reduction to the Licence Fee due in relation to the Client's renewal of any subsequent Licensed Period.
9.1 Subject to clause 9.3 and unless otherwise expressly provided in the Contract, the Client acknowledges that, as between the Client and Enzien, all Intellectual Property Rights in the Service and in the Works throughout the world shall belong to Enzien, and that the Client shall not acquire any rights in, or to, the Service or the Works (or any element thereof) other than the right to use the Service in accordance with the terms of the Contract.
9.2 The Client acknowledges that its use of the Service and redistribution of the Generated Assets is subject always to the Client complying with any instructions issued by Enzien to the Client from time to time, including without limitation relating to the displaying of copyright notices, linking requirements or conditions attached to the redistribution of material to online application platforms or applications.
9.3 To the extent that the Plan provides that any specific Intellectual Property Rights will vest in the Client in relation to the Generated Assets, each party to the Contract shall use all reasonable endeavours to procure that any necessary third party shall execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to such assignment.
9.4 The Client shall promptly give notice in writing to Enzien, if the Client becomes aware of:
and the Client shall, at Enzien's expense, promptly provide to Enzien all assistance reasonably required by Enzien in the conduct of any claims or proceedings relating thereto.
10.1 Other than as expressly permitted under these Conditions, the Client:
11.1 The Client acknowledges and accepts that neither the Service nor the Works have been developed to meet the Client's individual requirements, and it is the Client's responsibility to ensure that the facilities and functions of the Service and the Works meet the Client's own particular requirements.
11.2 Enzien makes no warranty as to the use or performance of the Service, the Generated Assets, or the Works, nor as to their ability to achieve any results desired by the Client. Enzien does not warrant that the use of the Service, the Generated Assets, or the Works will be uninterrupted or error-free.
11.3 Enzien reserves the absolute right to discontinue or restrict the availability of the Service or any part thereof immediately, with or without notice, and with no obligation to provide the Client with its reasons for doing so. If Enzien exercises its right under this clause 11.3, Enzien shall, at its option, either (i) reimburse the Client the relevant proportion of the Licence Fee at the end of the then current Licensed Period, calculated on the basis set out in the Plan by reference to the number of days for which the Service has been unavailable during the Subscription Period; or (ii) apply the relevant reduction to the Licence Fee due in relation to the Client's renewal of any subsequent Licensed Period. This shall be the Client's sole and exclusive remedy and shall not affect any of other of Enzien's rights or remedies under the Contract.
11.4 These Conditions set out the full extent of Enzien's obligations and liabilities in respect of the provision of the Service to the Client, and in respect of the Client's use of the Service. Except as expressly stated in these Conditions or as otherwise required by law, no conditions, warranties, representations or other terms, express or implied, shall be binding on Enzien, and any conditions, warranties, representations or other terms concerning the supply of the Service which might otherwise be implied into, or incorporated in, the Contract whether by statute, common law or otherwise, are excluded to the fullest extent permitted by law.
12.1 Subject to clause 12.3:
12.2 Any right or remedy of the Client as against Enzien is conditional upon such claim being bought within one year of the claim in question arising.
12.3 Nothing in these Conditions shall limit or exclude Enzien's liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or for any other liability which may not be limited or excluded by law.
13.1 The whole of this clause 13 will only apply whereby the Plan specifies that the Service is to include a support package or where the Client and Enzien have otherwise agreed in writing that the Service is to include a support package.
13.2 If, during the Term, the Client notifies Enzien of any defect or bug ("Fault") as a result of which the Service fails to achieve the Purpose in accordance with any specification promised by Enzien from time to time, Enzien will use reasonable endeavours to repair such Fault within a reasonable time, provided that the Client shall make available all information that may be necessary to enable Enzien to remedy the Fault, including sufficient information to enable Enzien to recreate the Fault, if possible. Enzien's obligation under this clause 13.2 shall not apply if or to the extent that the Fault:
13.3 Except where otherwise directed by Enzien, the Client shall communicate all notifications of alleged defects or faults in the Service pursuant to clause 13.2 by emailing Enzien's helpdesk at firstname.lastname@example.org and stating clearly the nature of the alleged defect or fault complained of. Enzien shall respond to confirm receipt of such communications within two Business Days, and will thereafter assess the nature of the alleged fault and consider what action is required.
13.4 If Enzien decides that a problem complained of by the Client is a Fault falling under clause 13.2, it will use reasonable endeavours to correct such Fault within a reasonable time. Enzien neither warrants nor guarantees that any Fault can or will be repaired, and it shall not be liable for any failure to repair a Fault after using reasonable endeavours to do so. Enzien may satisfy its obligations under this clause 13 by providing a 'workaround' solution affording similar or equivalent functionality, provided such 'workaround' does not reduce the functionality of the Service in a way that in its opinion materially adversely affects the Client's business.
13.5 Enzien shall use reasonable endeavours to meet any performance dates communicated to the Client in relation to the repair or replacement of the Software pursuant to clause 13.2 above, but all such dates shall be estimates only and time shall not be of the essence for the performance of such services.
13.6 If Enzien, at its discretion, concludes that a problem complained of by the Client is not a Fault but a request for a new feature or for an improvement, Enzien shall confirm this conclusion to the Client together with such further terms and fees on which Enzien may be willing (at its discretion) to meet such request.
14.1 Each party may terminate the Contract at any time with immediate effect by giving notice in writing to the other party.
14.2 Following termination under clause 14.1, Enzien shall reimburse the Client any proportion of the relevant Licence Fee which has already been paid (after deducting any outstanding sums owed to Enzien) calculated on the basis set out in the Plan by reference to the number of days remaining in the Subscription Period in respect of which the Client will not have access to the Service.
14.3 Upon termination for any reason:
15.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be communicated through the dedicated channel in the Client Account or otherwise delivered by e-mail to email@example.com (as relates to Enzien) or to the Administrator at the email address set forth in the Subscription Form or as amended though the Settings page in the Client Account (as relates to Client).
15.2 A notice or other communication shall be deemed to have been received one Business Day after transmission.
16.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to the subject matter.
16.2 The Client acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any representation or warranty (whether made negligently or innocently) that is not set out in the Contract.
16.3 The terms of this Contract which by their sense should survive expiration or termination of this contract will so survive.
16.4 In the event of any discrepancy or difference between the terms of the Subscription Form and the terms of these Conditions, the terms of the Subscription Form shall prevail.
17.1 Enzien may at any time assign, transfer or deal in any other manner with any or all of its rights and obligations under the Contract. The Client may only transfer its rights or obligations under the Contract with the prior written consent of Enzien.
18.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20.1 Unless otherwise stated in these Conditions, no amendment or variation of the Contract shall be effective unless it is in writing or notice is provided through the Settings or Billing page in the Client Account.
21.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
21.2 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).