Terms & Conditions
1. About these Terms and Conditions
These are the terms and conditions (the "Terms and Conditions") which apply to our supply to you of an online service to test the compliance of visual or audiovisual material ("Audiovisual Material") for flashing images with the Ofcom Guidance Note for Licensees on Flashing Images and Regular Patterns in Television (the "Online Service") through our website at www.onlineflashtest.com (the "Website").
The Website and the Online Service are provided by Clearcast Limited, a private limited company registered in England and Wales (registered number 06290241) and having its registered office at 4 Roger Street, 2nd Floor, London WC1N 2JX and Whitedot Ltd, a private limited company registered in England and Wales (registered number 6708512) and having its registered office at 80 Riverside Estate, Sir Thomas Longley Road, Rochester, Kent ME2 4BH (referred to here as "we", "us" and "our"). When we refer to "you" and "your", we mean the organisation or individual submitting Audiovisual Material to the Online Service.
By submitting Audiovisual Material to the Online Service, you are agreeing to these Terms and Conditions which will form a binding contract between you and us. You should read these Terms and Conditions carefully before submitting any Audiovisual Material to the Online Service and should not submit any Audiovisual Material to the Online Service or access any other services provided by us in connection with the Website, including our customer helpline, (the "Additional Services") unless you accept these Terms and Conditions. If you use the Online Service or any Additional Services, then your use will be subject to these Terms and Conditions.
The rest of these Terms and Conditions are made up of the following sections:
Part A - Information about the Online Service
Part B - Submitting Audiovisual Material to the Online Service
Part C - Our rights of cancellation
Part D - General terms about our relationship with you
We reserve the right to change the Terms and Conditions at any time. Any changes to the Terms and Conditions will be effective for all services requested after the change is published on the Website. Users will be alerted to any changes to the Terms and Conditions at their first visit after a change has been made.
If you have any questions about the Terms and Conditions or the Online Service, please contact us at firstname.lastname@example.org.
PART A – INFORMATION ABOUT THE ONLINE SERVICE
This Part A sets out some important information about the Online Service.
Information provided on the Website
- We try to make sure that all information on the Website, including descriptions of the Online Service and listed prices, is accurate and correct at all times. If we become aware of any errors in information on the Website, we will try to resolve them as soon as reasonably possible. If we think that such an error has affected you, we will try to let you know by e-mail. Paragraph 4 of Part B sets out what action we will take in the event of any pricing errors.
- We will do our best to check the Website for viruses but we do not warrant that the Website is free of viruses or other malicious content. For your own benefit, you should make sure that you have appropriate software and systems in place to check for viruses and other malicious content.
Availability and discontinuance of the Online Service
We have the right at any time to modify or stop providing the Online Service and any Additional Services, either temporarily or permanently and with or without notice. We shall not be liable to you for any modification, suspension or discontinuance of availability of the Online Service, provided that if we intend to stop providing the Online Service after we have accepted your Audiovisual Material for testing, then, without prejudice to our other rights under these Terms and Conditions, we will refund to you any charges paid by you in advance.
It is your responsibility to ensure that your login details, password and all other details in relation to your account remain confidential at all times. You agree to let us know as soon as possible if you know or reasonably suspect that the security of your account is at risk.
Acceptable use of the Online Service
- You may use the Online Service for lawful purposes only. You may not use the Online Service:
- in any way that breaches any applicable local, national or international law or regulation;
- in any way that is fraudulent, or has any fraudulent purpose or effect;
- to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or
- to knowingly transmit any data or send or upload any Audiovisual Material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
- You also agree:
- not to reproduce, duplicate, copy or re-sell any part of the Online Service, including any software used in the provision of the Online Service;
- not to access without authority, interfere with, damage or disrupt:
- any part of the Online Service;
- any equipment or network on which software used in the provision of the Online Service is stored;
- any software used in the provision of the Online Service; or
- any equipment or network or software owned or used by any third party in connection with the provision of the Online Service and the storage and/or hosting of the software used in the provision of the Online Service.
If you breach any of your obligations under paragraphs 4.1 or 4.2 of this Part A, then we shall be entitled to cancel your contract for the provision of the Online Service and/or suspend the supply to you of the Online Services and/or the Additional Services with immediate effect. We shall notify you of such suspension and (unless prevented by law or the order of a court) shall provide you with the reasons for such suspension.
PART B – MAKING USE OF THE ONLINE SERVICE
This Part B sets out the process which applies to your submitting Audiovisual Material to the Online Service for testing.
Submitting your Audiovisual Material
- The Website tells you about the steps involved in making use of the Online Service and the technical requirements for electronic files submitted. To make use of the Online Service, you will need an active e-mail address at which you can be easily contacted.
- Your submitting Audiovisual Material constitutes an offer to be supplied with the Online Service by us. Where you submit more than one file of Audiovisual Material, each file comprises a separate offer to be supplied with the Online Service.
- We can accept electronic files of Audiovisual Material in certain formats only. It is your responsibility to ensure that your Audiovisual Material is in a suitable format. Please consult our File Format document before submitting your Audiovisual Material to confirm whether or not it is in a suitable format for the Online Service. Our File Format document can be accessed by clicking here. We will not be able to provide you with the Online Service unless you provide the Audiovisual Material in such suitable format.
- Audiovisual Material is submitted by uploading the electronic file containing the Audiovisual Material to the Website. After you submit your Audiovisual Material as an electronic file and pay the corresponding fee, we will send an e-mail to the e-mail address provided to us by you (i) confirming that the file has been accepted for testing (ii) notifying you of the estimated time of arrival of your result (the "Estimate Time Arrival (ETA) e-mail"). Receipt of the ETA e-mail does not mean that your Audiovisual Material has been accepted for testing.
- Please note that the ETA e-mail is simply acknowledgement that the Audiovisual Material has been received by us; the e-mail does not indicate that we have accepted your order and a binding contract is not formed on receipt of the e-mail.
- Acceptance of your order will take place when we send you an e-mail that confirms that we agree to provide the Online Service to you (the "Order Acknowledgement e-mail").
- The Order Acknowledgement e-mail contains details of the Online Service, including the total cost of the order, request for additional payment if the file was longer than indicated by the user when submitted, and if payment is in order, your test certificate. You will be invited to pay the remainder and when complete, receive the final Order Acknowledgement e-mail with the test certificate. The Order Acknowledgement e-mail also constitutes the VAT receipt for the supply of the Online Service. You should print a copy of each of the Order Acknowledgment e-mail and these Terms and Conditions and keep them safe. You will need to refer to these details if you require to contact our customer helpline.
- No contract will have been formed between you and us until your order is accepted as set out in paragraph 2.1 of this Part B.
- We reserve the right, at our discretion and without the need to give reasons, not to accept any order at any time before it has been accepted. Should we refuse your order we will notify you as soon as reasonably possible.
- Except where otherwise set out in these Terms and Conditions, the price payable by you for the Online Service is the relevant price as set out in the rate card on the Website at the time you submit your Audiovisual Material. Our rate card can be accessed by clicking here.
You can pay for the Online Service by any of the following methods:
- using our on-line payment system, by any of the credit cards, debit cards or other payment cards accepted by us, as identified on our on-line payment system; or
- by pre-arranged standing contract. To set up a standing contract, please contact Kristoffer Hammer at Clearcast on 0207 339 4703 or email@example.com.
- If paying by payment card, we will take payment from your card at the time you submit your Audiovisual Material. We will contact you by e-mail if we have any problems taking payment from the card details you provide to us. Taking payment by card does not mean that we have accepted your Audiovisual Material for testing and, in the event of our taking payment but not accepting your Audiovisual Material for testing, a full refund will be given as soon as reasonably possible (and in any event within thirty (30) days of our advising you that your Audiovisual Material has not been accepted).
- By making payment by a payment card you are confirming that you have authority from the cardholder to use such payment card.
- Unless otherwise stated, all prices shown on the Website are exclusive of VAT and other applicable taxes, which (if applicable) will be payable in addition.
- Whilst we try to ensure that all prices on the Website are accurate, errors may occur. If we discover an error in the price of the Online Service following your submitting your Audiovisual Material we will inform you as soon as reasonably possible. You will then be given the option of re-submitting your Audiovisual Material at the correct price or cancelling your order.
- If we are unable to contact you using the contact details you provided during the submission process, we will treat your order as cancelled and notify you by e-mail.
- If you decide to cancel your order after we have informed you of a pricing error and you have already paid for the Online Service, we will give you a full refund as soon as reasonably possible (and in any event within thirty (30) days of cancellation).
- Two timescales are available for the Online Service; short and long form advertising will be tested separately and on a "first come first serve" basis.
- We will provide an estimated time for completion of the Online Service in the Order Acknowledgement e-mail. However, while we will make all reasonable endeavours to meet the timescales specified in the Order Acknowledgement e-mail, we are not liable for any delay save where such delay is caused by our negligence or wilful default. In the event that you have submitted your Audiovisual Material and the Online Service is temporarily unavailable, we will notify you by e-mail.
6.1 Following completion of the testing, we will send an e-mail to the e-mail address you provided to us with:
- a certificate stating whether or not your Audiovisual Material complies with the Ofcom Guidance Note for Licensees on Flashing Images and Regular Patterns in Television (the "Codes and Guidelines"); and
- if relevant, a frame by frame report of where your Audiovisual Material failed to comply with the Codes and Guidelines.
- You shall have the right to access and use the certificate and frame by frame report produced by the Online Service (the "Results") and our Additional Services only in accordance with these Terms and Conditions.
- Your electronic file will saved on our system for a limited period of time after the Results have been sent to your e-mail address in case the testing is required to be re-run for technical reasons. Your electronic file then will be deleted from our system.
PART C – OUR RIGHTS OF CANCELLATION
This Part C sets out details regarding when we may cancel your contract for the provision of the Online Service.
Consumer rights of cancellation
- If you are contracting as a consumer, by submitting Audiovisual Material for testing and accepting these Terms and Conditions, you agree to the Online Service being provided before the expiry of the cooling-off period under the Consumer Protection (Distance Selling) Regulations 2000 (as amended). This means that you may not cancel your order for the Online Service after we have begun to provide the Online Service to you.
- We will begin to provide the Online Service to you once the Order Acknowledgement e-mail has been sent. If you are contracting as a consumer, you may cancel your order for the Online Service at any time before we send the Order Acknowledgement e-mail to you. If you cancel your order before the Order Acknowledgement e-mail is sent, you will receive a full refund within thirty (30) calendar days of the date on which you notify us that you are cancelling your order. You may cancel your order by contacting firstname.lastname@example.org.
Our rights of cancellation
- We may cancel a contract for the provision of the Online Service at any time with immediate effect by sending you an e-mail to the e-mail address you provided to us.
- We will delete from our system any Audiovisual Material which you have submitted to us, which is not already deleted, on notifying you that we have cancelled your contract for the provision of the Online Service.
- If we cancel your contract for the provision of the Online Service, we will refund any payments which you have made in respect of the Online Service. Refunds will be made as soon as reasonably possible and in any event within thirty (30) days of our notifying you that we have cancelled your contract.
- TO THE EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU FOR ANY LOSS THAT YOU SUFFER, INCLUDING LOSS OF DATA AS A RESULT OF OUR CANCELLING YOUR CONTRACT FOR THE PROVISION OF THE ONLINE SERVICE IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
Your statutory rights
The provisions of this Part C do not affect your statutory rights.
PART D – GENERAL TERMS ABOUT OUR RELATIONSHIP WITH YOU
This Part D sets out general terms regarding our relationship with you including important provisions regarding our liability to you.
- You agree that you will not attempt to copy, reverse engineer or decompile the software used in the provision of the Online Service unless you are allowed to do so by law.
- You will keep confidential any information that relates to our Online Service, the software used in the provision of the Online Service and our business that is of a confidential nature and that you have access to as a result of entering into a contract with us for the supply by us to you of Online Service, except if that information is already in the public domain through no fault on your part.
Our liability to you
- Our entire liability to you under these Terms and Conditions in respect of the Online Service shall not exceed an amount equal to twice the price paid by you for that Online Service.
- In no circumstances will we be liable for any indirect, special or consequential loss or damage arising out of or in connection with these Terms and Conditions.
- Neither we, nor any of our employees or representatives, will be liable to you for any loss of revenue, data, profits, anticipated savings, goodwill or business opportunity, for any injury to your reputation or for any losses that are not reasonably foreseeable by both of us at the time your order is accepted.
- We shall not be liable for any loss suffered as a result of your using the Online Service or the Results for purposes or in a context other than the purpose for which they were designed.
- Despite the limitations in paragraphs 2.1, 2.2, 2.3 and 2.4 of this Part D, we do not in any way limit our liability to you for death or personal injury caused by our negligence or breach of duty or for fraud.
- We warrant that the Online Service will conform in all material respects to the written specification for the Online Service as set out on the Website at the time at which we accept your order.
- If you identify a fault or defect with the Online Service which means that the Online Service does not conform in a material respect with the written specification as set out on the Website, then you must notify us by e-mail or in writing as soon as reasonably possible, providing all information that may be necessary to assist us in resolving the defect or fault.
Subject to paragraph 3.2 of this Part D, if a fault or defect has been identified in the Online Service, we shall, at our option, either:
- re-perform the Online Service; or
- refund the charges paid by you for the Online Service (less, if appropriate, a reasonable sum in respect of the benefit of the services received by you up to the date on which you notified us of the fault or defect).
- We do not warrant that your access to the Online Service will be uninterrupted or error-free.
- You accept responsibility for selecting the Online Service to achieve your intended results and acknowledge that we have no responsibility for ensuring that the Online Service meets your individual requirements and that we will not be liable for any such failure of the Online Service.
- ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN YOU AND US OR BE IMPLIED OR INCORPORATED INTO THESE TERMS AND CONDITIONS, WHETHER 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. IN PARTICULAR, WE SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSS ARISING FROM ANY INCOMPLETE, ILLEGIBLE OR INACCURATE STORAGE OF MATERIAL OR DATA OR FOR ANY DELAY, MALFUNCTION, NON-PERFORMANCE OR DEGRADATION OF PERFORMANCE OF THE WEBSITE OR THE ONLINE SERVICE.
Events beyond our reasonable control
We shall not be responsible for any delay or failure to comply with these Terms and Conditions or to provide the Online Service if such delay or failure arises from any event which is beyond our reasonable control. Such events would include (but are not limited to) fires, floods, earthquakes, storms, natural disasters, war, civil unrest, acts of terrorism or malicious damage to or destruction of our premises, equipment or goods or a failure of performance on the part of any third party who hosts any part of the software used in the provision of the Online Service or provides software that is used to operate the Online Service.
If you breach these Terms and Conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach the Terms and Conditions.
In the event that one or more of the terms set out in these Terms of Conditions is held to be invalid by a competent authority, the remaining terms shall continue to have effect and you will still be bound by them.
- To the extent that we get access to any personal data (as defined in the Data Protection Act 1998) from you during the provision of the Online Service or Additional Services, you agree that we act as a data processor (as defined in the Data Protection Act 1998) for such personal data. We will process such personal data in accordance with these Terms and Conditions and your instructions only. You authorise us to appoint sub-contractors as further data processors on your behalf provided that such further data processors are engaged on terms providing equivalent protections in relation to such personal data to those set out in this Agreement.
- We warrant that we have appropriate technical and organisational processes and procedures in place to safeguard against any unauthorised or unlawful processing and against accidental loss or destruction of, or damage to the personal data.
- You warrant that personal data provided by you to us is provided in compliance with your obligations under the Data Protection Act 1998 and any contract.
Third party rights
These Terms and Conditions are not intended to confer a benefit on, or be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999, by any person who is not a party to any contract formed under these Terms and Conditions.
We may assign our rights and delegate our obligations under any contract formed under these Terms and Conditions to a third party without your consent, provided that we notify you of this by e-mail, in writing or by posting an appropriate notice on the website. You may assign your rights and delegate your obligations under any contract formed under these Terms and Conditions to a third party with our prior written consent and we will not unreasonably withhold or delay the giving of such consent.
10.1 In these Terms and Conditions (except where the context otherwise requires):
- the headings shall be deemed not to be part of these Terms and Conditions and shall not be taken into consideration in the interpretation of these Terms and Conditions;
- use of the singular includes the plural (and vice versa) and use of any gender includes the other genders;
- references to any statute or statutory provision are to be construed as references to that statute or statutory provision as from time to time amended and shall include any subordinate legislation made from time to time under that statute or statutory provision;
- references to a public organisation shall be deemed to include a reference to any successor to such public organisation or any organisation or entity which has taken over either or both the functions and responsibilities of such public organisation;
- references to any party shall include that party's personal representatives, successors or permitted assigns;
- any words introduced by the terms "including", "include", "in particular" or any similar expression will be construed as illustrative and the words following any of those terms will not limit the sense of the words preceding those terms; and
- the language of these Terms and Conditions is English and all correspondence, notices, reports, certificates, results, specifications and information shall be in English.
These Terms and Conditions and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales. Each of us agrees to raise claims arising under or in connection with these Terms and Conditions only in an English court.