Terms & Conditions
PLEASE READ THESE TERMS CAREFULLY AS THEY SET OUT THE CONDITIONS ON WHICH YOU CAN USE, AND THE LIMITATIONS OF, THE COPYRIGHT INFRINGEMENT PORTAL. YOUR ATTENTION IS PARTICULARLY DRAWN TO CLAUSES 10 AND 11 WHICH REQUIRE YOU TO INDEMNIFY THE PUBLISHERS ASSOCIATION IN CERTAIN CIRCUMSTANCES AND WHICH LIMIT THE EXTENT OF THE PUBLISHERS ASSOCIATION'S LIABILITY TO YOU. THESE TERMS ARE THE BASIS OF A BINDING CONTRACT BETWEEN YOU AND THE PUBLISHERS ASSOCIATION.
1. Definitions and interpretation
1.1 The following words have the following meanings:
Application Form the paper or online application form submitted by the User as their request to use the Service
Business Day a day between Monday and Friday, inclusive, on which clearing banks in the City of London are open for business to the public.
Infringement an actual or alleged infringement of the User's or another Service user's intellectual property rights (including any territorial exclusivity rights) by a third party.
ISP internet service provider
ISP Notice a notice generated by User through Portal requiring takedown or removal of website content.
PA The Publishers Association Ltd of 29B Montague Street, London WC1B 5BW
Portal the PA-provided and supported website portal provided as part of the Services
Services provision of the Portal and availability through it of tools and information to allow the User to generate ISP Notices and any associated services offered by The PA through the Portal.
Service Fees The fees payable by the User for the Services set by The PA in accordance with clause 3.2.
Terms these terms, as they may be revised from time to time by The PA in accordance with clause 2.2.
User the person(s) named in the Application as the User
1.2 References to any statute or statutory provision will, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 Use of the singular includes the plural and vice versa.
1.4 Use of any gender includes the other genders.
1.5 The index and headings are included for convenience only and do not affect the construction of these conditions.
1.6 Any reference to persons includes natural persons, partners, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality).
2. Application of terms and conditions
2.1 The PA is under no obligation to provide the Services until the User's Application has been approved by the PA, the User has paid Service Fees due, if applicable, and The PA has supplied login details to the User. The User's submission of an Application form and use of login details to gain access to the Portal constitutes an acceptance of these Terms to the exclusion of all other terms and conditions. These Terms govern the User's use of the Services and apply to the exclusion of any other terms and conditions, whether supplied before or after the User's Application or use of the Service, unless expressly agreed in writing by a director of The PA.
2.2 The PA may amend these Terms by giving the User 28 days' notice on the Portal or by e-mail or letter to the User. If the User does not accept such amendments, it may terminate its use of the Services, and qualify for a pro-rata refund of Service Fees by notifying The PA in writing during such 28 day period. Any use of the Services after notification of the amendments and their coming into force will constitute the User's acceptance of such revised terms.
3. Service Fees and other payments
3.1 The User will pay the Service Fees, if applicable, for access to and use of the Services. Payment of Service Fees must be made in advance by credit/debit card or cheque. The PA will issue a VAT invoice as applicable.
3.2 Service Fee rates will be reviewed annually and the User will be notified of any increase through the Portal.
3.3 The PA may in its absolute discretion make provision of the Services subject to payment of a deposit or the provision of other security satisfactory to The PA in such amount as The PA considers necessary to cover the potential claims against The PA arising out of the User's use of the Services.
3.4 Time for payment is of the essence, and no payment is deemed to have been received until The PA receives cleared funds. The User must make all payments due under these terms without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. If the User does not pay The PA any sum due under these terms the User must pay interest to The PA on that sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of HSBC Bank PLC. Interest accrues on a daily basis until payment is made, whether before or after any judgment.
3.5 All payments payable to The PA under this agreement become due immediately upon its termination despite any other provision.
4. Duration and renewal
4.1 The User's subscription to the Services will be renewable annually. Unless the User notifies The PA at least 20 Business Days prior to the next renewal date, subscription will automatically renew for a further 12 months on the basis of the then applicable Service Fees.
4.2 The PA may decline to renew a Users' subscription at its discretion.
5. Provision of the Service
5.1 The PA will issue login details for the Portal to the User; it is the User's responsibility to ensure that such login details are kept secure, confidential and not disclosed to third parties. The User accepts full responsibility and liability for any use of the System using its login details. The PA has the right to disable any login at any time, if in The PA's opinion the User has failed to comply with any of the provisions of these Terms. The User must notify The PA immediately if it suspects that its login details have been compromised.
5.2 Where a User nominates more than one individual to use the Services:
5.2.1 The PA may issue each nominated individual with login details, subject to clause 5.1;
5.2.2 it is the User's responsibility to ensure compliance with these Terms by each such individual and the User will be liable under these Terms for any use or misuse by such individual(s) whether or not such activities were carried out in the course of their duties for the User or otherwise; and
5.2.3 the User must give The PA at least 10 Business Days' advance written notice of the cessation of employment of any such individual or the withdrawal by the User of that individual's authority to access the Service on the User's behalf so that such login details can be disabled; the User remains responsible under these Terms for any activity using such login details until the expiry of such notice period.
5.3 The User may access the Portal and Use the Service to:
5.3.1 log details of Infringements;
5.3.2 generate ISP Notices;
5.3.3 check details of Infringements reported by other users of the service and ISP Notices generated by such users for the purpose of preventing, prosecuting and resolving Infringements and for no other purpose.
5.4 As part of the Service, The PA may:
5.4.1 provide the Portal as a information depositary and log relating to Infringements reported by users of the Service;
5.4.2 provide research tools relating to identity of ISPs
5.4.3 despatch ISP Notices generated by the User;
5.4.4 forward a copy of any reply received to an ISP Notice which requires User attention to the User.
5.5 The PA may make use of the Service subject to fair use limitations and to suspend the User's access to the Services or charge additional Service Fees if such limits are exceeded.
6. PA warranties and Service limitations
6.1 The PA warrants that:
6.1.1 it will, subject to clause 6.2 below, permit the User access to the Portal and the functions made available on it;
6.1.2 it will use industry-standard technology to restrict access to the Portal and the Service to authorized users of the Service only; and
6.1.3 it will use reasonable endeavours to provide accurate information to the User in the course of the Service and will correct any errors identified within a reasonable time.
and all other warranties, conditions and other terms implied by statute or common law which relate to The PA's obligations under these Terms are, to the fullest extent permitted by law, excluded from these Terms.
6.2 The User acknowledges and accepts that computer and telecommunication systems are not fault free and may from time to time require a period of downtime (being periods during which the Service is not available) for the purposes of repair, maintenance and upgrading or otherwise. The PA does not guarantee uninterrupted availability of the Service and the User will have no claim for breach of contract or otherwise in respect of any such period of unavailability.
6.3 The PA cannot guarantee timely despatch of ISP Notices, responses or updating of information on the Portal. The User acknowledges that the Service may not therefore be an appropriate mechanism for time-critical or business-critical Infringements.
6.4 The User is responsible for making and retaining backup copies of ISP Notices generated by it and other information it requires to deal with Infringements.
6.5 Any information, recommendation or guidance provided by The PA or other users of the Service regarding third parties, third party website content, the form of ISP Notices or ISPs is provided in good faith but no warranty or representation is made by The PA or by other users of the Service in these terms or otherwise as to its suitability, accuracy or completeness and the same is accepted or acted upon by the User at its own risk; the User is responsible for doing its own due diligence into such matters. The PA is not able to provide legal advice as part of the Service and the User is also responsible for taking its own legal advice on Infringements and the steps to be taken to deal with the same.
7. Responsibility for Infringements and ISP Notices
7.1 The User is responsible for determining whether an ISP Notice and use of the Service is the most effective manner to deal with an Infringement.
7.2 Where applicable, the User is responsible for dealing with any response (or failure to respond) to an ISP Notice generated by it.
7.3 The User acknowledges that it is the author of any ISP Notice which it generates using the Service and warrants that:
7.3.1 the information (whether provided by The PA or otherwise) contained in such ISP Notice is complete and accurate;
7.3.2 the third party content identified in such ISP Notice is an actionable infringement of the User's subsisting and valid intellectual property rights; and
7.3.3 such ISP Notice complies with local law and regulation
7.4 The User warrants that information provided generated or transmitted by it in the course of its use of the Service will not:
7.4.1 contain any material which is defamatory of any person;
7.4.2 contain any material which is obscene, offensive, hateful or inflammatory;
7.4.3 promote sexually explicit material;
7.4.4 promote violence;
7.4.5 promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
7.4.6 infringe any copyright, database right or trade mark of any other person;
7.4.7 be likely to deceive any person;
7.4.8 be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
7.4.9 promote any illegal activity;
7.4.10 be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;
7.4.11 be likely to harass, upset, embarrass, alarm or annoy any other person;
7.4.12 be used to impersonate any person, or to misrepresent the User's identity or affiliation with any person; or
7.4.13 advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse.
7.5 The User warrants that it will not use the Service in a manner which (whether alone or taken with other actions of the User or third parties) constitutes a breach of applicable competition or anti-trust laws.
7.6 The User will immediately inform The PA on becoming aware that any information on the Portal (whether provided by it or otherwise) is inaccurate or misleading.
7.7 The PA will not be responsible, or liable to any third party, for the content or accuracy of any materials posted on the Portal by the User or any other user of the Services.
7.8 The PA will be entitled to remove any material or posting the User makes on the Portal if, in its opinion, such material does not comply with these Terms.
8. Confidentiality
8.1 Any material which the User uploads to the Portal will be made available to other users of the Service for their use in dealing with Infringements and The PA will have the right to use, copy, distribute and disclose the same to third parties any such material for such purpose.
8.2 The PA will also have the right to disclose the User's identity to any third party who is claiming that any use of the Service by the User breaches any of these Terms.
8.3 Subject to the provisions of clause 8.4 below, the User will not use, or disclose to any person other than the User's professional representatives or advisers acting under a duty of confidentiality, any information:
8.3.1 concerning the operation of Portal or the Service;
8.3.2 derived from the Portal or use of the Service including details of other Users, the infringement of other Users' rights, action taken in relation to any Infringement, ISPs or other third parties
without obtaining the prior written approval of The PA to the content and the manner of use or disclosure.
8.4 The provisions of clause 8.3 do not apply to:
8.4.1 any announcement or disclosure required to be made by law;
8.4.2 any document, statement or disclosure which has necessarily to be published, issued or made by the User in order to deal with an Infringement;
8.4.3 any information which is or becomes generally available to the public other than as a result of disclosure by the User; or
8.4.4 any information which is, was or becomes available to the User otherwise than pursuant to this agreement and free of any restrictions as to its use or disclosure.
8.5 The provisions of this clause 8 will continue to apply notwithstanding termination of this agreement.
9. Data Protection
9.1 The User warrants that any information which is supplied to The PA in the course of use of the Service which is the subject of any data protection or privacy laws (including without limitation the Data Protection Act 1998) is provided in accordance with such laws.
9.2 The User acknowledges that information supplied under clause 9.1 will include the identity and contact information concerning the User (or its staff) and that such information will be accessible to other users of the Service. The User consents, or will obtain the express written consent of the individual(s) concerned, to such processing of such information by The PA.
9.3 Any information provided to The PA in the course of use of the Service will be held by The PA as the Data Controller in accordance with the Data Protection Act 1998 and processed only for the purpose of provision of the Service to the User and other users of the Service.
10. Indemnity
10.1 The User shall indemnify and hold The PA harmless from and against all liabilities, losses, damages, costs and expenses (including legal fees incurred) in relation to any claims, charges, proceedings or actions made or brought by any person (whether in contract tort or under criminal law) against The PA as a result of the provision of the Services to the User by The PA or their use by the User. Without prejudice to the generality of the foregoing, such indemnity will apply in relation to any claim made against The PA (whether or not the claim is also made against the User):
10.1.1 by any recipient (direct or indirect) of an ISP Notice;
10.1.2 by the owner, carrier, service provider, publisher or subject of any website and/or content identified in an ISP Notice;
10.1.3 by the owner or licensee of any intellectual property right specified in an ISP Notice disputing the Infringement or the content of an ISP Notice generated by the User or alleging that the despatch and/or contents of an ISP Notice constitute an unlawful threat, defamation or other unlawful act by The PA.
10.2 The PA will promptly inform the User of a claim which it considers is covered by the indemnity in clause 10.1 and will consult with the User regarding The PA's response to such claim. The User will at its own expense give The PA such assistance as The PA reasonably requires to deal with such claim. The PA may (but is not obliged to) give the User control over any proceedings or negotiations relating to such claim in which case The PA will (subject to the indemnity in clause 10.1), give the User such assistance as the User reasonably requires to deal with such claim
10.3 In this clause 10, a reference to The PA includes The PA's directors, employees, sub-contractors and/or agents.
11. Limitation of liability
11.1 Subject to condition11.2, the following provisions of this clause 11 set out the entire financial liability of The PA (including any liability for the acts or omissions of its employees, agents and subcontractors) to the User in respect of:
11.1.1 any breach of these Terms; and
11.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Service.
11.2 Nothing in these conditions excludes or limits the liability of The PA for death or personal injury directly caused by The PA's negligence or for fraudulent misrepresentation.
11.3 Subject to clause 11.2:
11.3.1 The PA's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services is limited to £1,000 (one thousand pounds) per annum; and
11.3.2 The PA is not liable to the User for any:
11.3.2.1 pure economic loss,
11.3.2.2 loss of profit,
11.3.2.3 loss of business,
11.3.2.4 depletion of goodwill
(in each case whether direct, indirect or consequential) or any claims for consequential compensation whatsoever and however caused which arise out of or in connection with the Services.
12. Termination
Without prejudice to any other rights that have accrued under this agreement or any of its rights or remedies, The PA may terminate the User's membership of The PA system and cease provision of the Services without incurring liability to the User, immediately (or following such notice period as it sees fit), by giving notice to the User if:
12.1 the User fails to pay any amount due these terms on the due date for payment;
12.2 the User commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
12.3 the User acts in a manner which in the reasonable opinion of The PA is inconsistent with the interests of other Users or is likely to damage the reputation of The PA or the effectiveness of the Service;
12.4 the User ceases or threatens to cease to carry on business or proposes to compound with its creditors, applies for an interim order under section 254 Insolvency Act 1986 or has a bankruptcy petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction.
13. Assignment
13.1 The User may not assign or transfer its rights or obligations under these Terms without the prior written consent of The PA.
13.2 The PA may assign its rights and obligations under these Terms or any part of it to any person by notice to the User posted on the Portal.
14. Notices
14.1 Any notice under these Terms shall be valid if sent by e-mail to:
14.1.1 the User: e-mail address as specified in the User's profile in the Portal
14.1.2 The PA: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
15. General
15.1 Each right or remedy of The PA under these terms is without prejudice to any other right or remedy of The PA whether under these terms or not.
15.2 If any provision of these terms is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it will to the extent of the illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of these terms and the remainder of such provision will continue in full force and effect.
15.3 Failure or delay by The PA in enforcing or partially enforcing any provision of these terms will not be construed as a waiver of any of its rights under these terms.
15.4 Any waiver by The PA of any breach of, or any default under, any provision of these terms by the User will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of these terms.
15.5 The PA and the User do not intend that any term of these terms will be enforceable by virtue of these terms s (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6 The formation, existence, construction, performance, validity and all aspects of these terms will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.