This Agreement is a legal agreement between GhostVolt Limited, a company incorporated in England (registration number 11207846) and whose registered office is at JFS Studios, Deptford Road, Gateshead, Tyne and Wear NE8 3AZ, (the Supplier) as the provider of the GhostVolt encryption software, as further described at https://ghostvolt.com/, including any updates, modifications and new versions of the same (the Software) and its customers (each a Customer). By agreeing to the terms of this Agreement, starting a trial of the Software, purchasing a subscription for the Software or otherwise downloading, installing or using the Software, the Customer shall be bound by the terms of this Agreement.

If the Customer is dealing with the Supplier as a consumer in the UK or EU, being an individual acting for purposes which are wholly or mainly outside that individual's trade, business or profession, certain terms of this Agreement may apply differently, as is expressly set out in this Agreement.

  1. Trial & Duration
    1. This Agreement shall commence on the date on which the Software is first downloaded by the Customer and shall initially be effective for a period of 30 days from the date on which the Software is first used by the Customer (the Trial Period), during which the Customer may use the Software in accordance with the terms of this Agreement free of charge.

    2. This Agreement shall expire at the end of the Trail Period unless the Customer purchases a subscription for the Software, in which case this Agreement will automatically renew for consecutive periods of 12 months commencing from the date on which the Customer purchases a subscription for the Software or the end of the Trial Period (whichever is later), or an anniversary of that date, (each an Annual Subscription Period).

    3. Either party may cancel this Agreement by giving 30 days written notice to the other during an Annual Subscription Period, but such cancellation will not become effective until the end of that Annual Subscription Period.

  2. Rights of Use

    In consideration of payment of the Fees, the Supplier grants to the Customer a non-exclusive right to use the Software in accordance with this Agreement for the purpose of encrypting data stored in on-premise server(s) and monitoring and controlling the Software user's access to that data, usage rights to that data and activity in relation to the use of that data. The Customer's rights to use the Software shall, subject to the terms of this Agreement, continue for the duration of this Agreement.

  3. Restrictions & Limitations
    1. Use of the Software is limited by the number of servers on which an instance of the Software may be installed and the number of user accounts which may have access to the Software on each server, as determined by the standard restrictions the Supplier imposes in the Trial Period and, following the Trial Period, the subscription type purchased by the Customer. The Customer must not exceed any such limits. For the Software to be transferred between servers it must be deactivated on the current server prior to being reactivated on another server.

    2. The Customer is entitled to download, install and use the Software in object code form only and shall have no right to have access to the Software in source code form.

    3. The Customer's must not (and must not permit any third party to):

      1. use the Software or any documentation provided by the Supplier other than as expressly permitted in this Agreement without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable for this;

      2. use the Software in any way which is in breach of any applicable law or regulation (including relevant export control laws and regulations) or any third party's right, or for any illegal or immoral purpose;

      3. except as expressly permitted in this Agreement or otherwise cannot be excluded by law or regulation, copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part or use the Software so as to subject any part of it to an open source licence;

      4. use the Software, any documentation or information provided by the Supplier or any know how obtained by the Customer from its use of the Software, to create any software or system which is substantially similar to the Software; or

      5. modify, remove, or obfuscate any copyright or other notice placed on or embedded in the Software.

    4. The Customer is not permitted to assign, sub-license, or provide or make the Software available to any person, or use the Software for any person, without the prior written consent of the Supplier.

    5. The Customer shall notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person, including unauthorised use by the Customer.

  4. Warranties & Responsibilities
    1. The Software is made available to the Customer 'as is'. Neither the Supplier nor its Affiliates therefore represent, warrant or undertake that the Software will be error or defect free, available or will meet the Customer's particular requirements. The Customer acknowledges it has the benefit of the Trial Period to ensure the Software is fit for its own requirements. The Supplier may make self-service support available to the Customer to assist with issues that the Customer encounters when using the Software.

    2. The Customer acknowledges that no technology can guarantee the security of any data or that its encryption will never be broken.

    3. The Customer acknowledges that it is responsible for:

      1. backing-up data which is used in conjunction with the Software; and

      2. backing-up the master encryption key which encrypts the Customer's data using the Software (the Master Encryption Key) and all passwords used by the Customer to access the Software or to protect its data (Passwords), and maintaining the security and confidentiality of the same.

      THE CUSTOMER FURTHER ACKNOWLEDGES THAT WITHOUT THE MASTER ENCRYPTION KEY AND PASSWORDS THE CUSTOMER WILL NOT BE ABLE TO DECRYPT, ACCESS OR RECOVER ITS DATA IN ANY WAY AND UNAUTHORISED ACCESS TO THE MASTER ENCRYPTION KEY OR PASSWORDS COULD LEAD TO UNAUTHORISED ACCESS TO THE CUSTOMER'S DATA. NEITHER THE SUPPLIER NOR ITS AFFILIATES HOLD ANY COPY OF THE MASTER ENCRYPTION KEY OR PASSWORDS AND IF THE MASTER ENCRYPTION KEY OR PASSWORDS ARE LOST THE SUPPLIER AND ITS AFFILIATES CANNOT RECOVER THESE OR THE CUSTOMER'S DATA. NEITHER THE SUPPLIER NOR ITS AFFILIATES THEREFORE REPRESENT, WARRANT OR UNDERTAKE THAT USE OF THE SOFTWARE WILL NOT RESULT IN ANY LOSS OR CORRUPTION OF, OR UNAUTHORISED ACCESS TO, DATA.

    4. The Supplier is entitled to make changes to the Software from time to time, for example to make improvements or to address potential security vulnerabilities, and the Supplier may make an updated version available to the Customer. Where the Supplier has made an updated version of the Software available to the Customer, neither the Supplier nor its Affiliates shall have any liability in relation to any defects, errors, infringements, malicious code or security vulnerabilities in connection with a previous version.

    5. To the extent not prohibited by applicable law or regulation, all other conditions, warranties or other terms which might have effect between the Supplier or its Affiliates and the Customer or be implied or incorporated into this Agreement or any collateral contract, 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. If the Customer is dealing with the Supplier as a consumer in the UK or EU this exclusion does not affect the Customer's statutory rights as a consumer.

  5. Purchasing a Subscription & Payment
    1. The fees payable for each Annual Subscription Period (the Fees), will be determined by subscription type.

    2. If the Customer wishes to purchase a subscription for the Software at any time before, during or after the Trial Period, the Customer shall select its required subscription type, make payment of the initial Fees in respect of the initial Annual Subscription Period and provide its payment details through the Supplier's online store. The Customer shall provide the Supplier with notice of any changes to its payment details through the Supplier's online store.

    3. Following the Trial Period, unless payment of the Fees has been made in respect of the initial Annual Subscription Period when purchasing a subscription for the Software, the Software shall be blocked.

    4. Following the initial Annual Subscription Period:

      1. the Fees shall become due and payable on the start date of each Annual Subscription Period. The Supplier shall seek to take payment of the Fees on the same or similar date at the beginning of each Annual Subscription Period using the payment details provided by the Customer; and

      2. if payment of the Fees cannot be taken using the Customer's payment details the Customer shall receive a notification by email and further attempts to take payment may be made. If payment cannot be taken following any such further attempts then the Customer's use of the Software may be blocked until such time as its payment details are updated and payment of the Fees is made.

    5. The Customer shall not be entitled to any refund of the Fees in any circumstances save that, where the Customer is dealing with the Supplier as a consumer in the UK or EU, this does not affect the Customer's statutory rights as a consumer.

    6. The Supplier shall be entitled to charge interest on any overdue amount at the rate of 4% (four per cent) per annum above the base rate of the Bank of England from time to time, such interest to accrue on a daily basis from the due date until actual payment of the overdue amount. Interest must be paid together with the overdue amount.

    7. All sums payable under this Agreement are, unless expressly stated otherwise, quoted or stated exclusive of VAT or any relevant applicable taxes or charges including without limitation federal, state or local sales taxes which shall be charged at the prevailing rate and for which the Customer shall be responsible. The Customer shall make all payments under this Agreement without withholding or deduction of, or in respect of, any tax unless required by applicable law or regulation. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to the Supplier such additional amount as will ensure that the Supplier receives the same total amount that it would have received if no such withholding or deduction had been required.

  6. Verification

    The Customer shall permit the Supplier or its appointee to inspect and have access to any premises and systems at or on which the Software is being kept, installed or used and all records relating to the same on reasonable notice to verify compliance with the terms of this Agreement. The Supplier may inspect and take copies of any applicable records.

  7. Intellectual Property Rights

    The Customer agrees and acknowledges that all rights, including all intellectual property rights in the Software, and including any updates, modifications and new versions of the same, and any documentation or information provided by the Supplier shall be owned and shall remain vested in the Supplier, its Affiliates or their licensors, and the Customer shall have no rights in or to the Software, documentation or information other than the right to use it in accordance with the terms of this Agreement.

  8. Liability
    1. Nothing in this Agreement limits or excludes the Supplier's or its Affiliates' liability for death or personal injury caused by its negligence, any fraud or fraudulent misrepresentation or any other liability which cannot lawfully be so excluded or limited.

    2. Subject to clause 8.1, other than where the Customer is dealing with the Supplier as a consumer in the UK or EU, the Supplier and its Affiliates shall not be liable, whether in contract, tort (including negligence), statute, restitution or otherwise, for any:

      1. loss of profits;

      2. loss of business or revenue;

      3. loss of use or business interruption;

      4. loss of or damage to goodwill or reputation;

      5. loss or corruption of or unauthorised access to data; or

      6. indirect, consequential, special, punitive, exemplary or loss or damages.

    3. Subject to clause 8.1, where the Customer is dealing with the Supplier as a consumer in the UK or EU, the Supplier and its Affiliates shall not be liable, whether in contract, tort (including negligence), statute, strict liability restitution or otherwise, for any:

      1. business losses, including loss of profits, loss of business or revenue, loss of use or business interruption, or loss or corruption of or unauthorised access to business data; or

      2. loss suffered which is not foreseeable.

    4. Subject to clause 8.1, the Supplier's and its Affiliates' total aggregate liability arising in connection with the Software or this Agreement, whether in contract, tort (including negligence), statute, strict liability, restitution or otherwise, shall not exceed:

      1. in the Trial Period, $25 USD; and

      2. in each Annual Subscription Period, the Fees paid or payable in respect of that Annual Subscription Period.

    5. The Customer acknowledges that the Software is priced on the basis of the terms of this Agreement, and in particular the exclusions and limits in clause 4 and this clause 8, and the Customer agrees that these exclusions and limits are reasonable.

  9. Blocking

    Where the Software is blocked by the Supplier in accordance with this Agreement the Customer will only be able to access and decrypt their data and will not have any access to any other functionality of the Software and shall not be entitled to use the Software for any other purpose.

  10. Cancellation
    1. Without prejudice to any right or remedy of the Supplier, the Supplier may cancel this Agreement, in whole or in part, at any time on written notice to the Customer where the Customer commits any breach of this Agreement.

    2. In the event that the Supplier is entitled to cancel this Agreement in accordance with this clause 10, the Supplier may instead, without prejudice to any other right or remedy of the Supplier, elect to block the Software until the Supplier is satisfied that the cause of such issue has been remedied to its satisfaction.

    3. Upon cancellation of this Agreement for any reason:

      1. the Software will be blocked; and

      2. other than the right of the Customer to continue using the Software as blocked to access and decrypt their data, all rights granted to the Customer under this Agreement shall cease.

    4. Cancellation of this Agreement shall not affect any rights, remedies, obligations or liabilities that have accrued up to the date of cancellation.

  11. General
    1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

    2. This Agreement constitutes the entire agreement and understanding between the parties relating to the matters referred to in this Agreement and supersedes any other agreement or understanding between the parties or any of them relating to the same. Each party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any representation made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement in respect of which its sole remedy shall be for breach of contract. Nothing in this Agreement, however, shall operate or be construed to exclude or limit any liability for fraud including fraudulent misrepresentation. This clause does not apply if the Customer is dealing with the Supplier as a consumer in the UK or EU.

    3. The Supplier can make changes to this Agreement from time to time and will notify the Customer of any such changes. Any further use of the Software will be deemed to be acceptance of such changes. No other purported amendment or variation of this Agreement shall be effective unless it is in writing and signed by the parties.

    4. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, including where this is as a result of the Customer dealing with the Supplier as a consumer in the UK or EU, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If these circumstances should arise at any time, but the relevant provision would cease to be illegal, invalid or unenforceable if some part of it were modified, the provision shall apply with whatever modification is necessary to make the provision legal, valid and enforceable and to give effect, to the extent possible, to the commercial intention of the parties.

    5. A person who is not a party to this Agreement has no right under any applicable law or regulation or otherwise to enforce or to enjoy the benefit of any term of this Agreement and the parties shall not require the consent of any third party to vary or rescind this Agreement.

    6. Except for payment of any amounts, neither party will be liable for failure or delay in performing its obligations under this Agreement to the extent outside its reasonable control as long as it notifies the other party promptly of the cause and likely duration.

    7. Any notice to be given under this Agreement must be in writing and may be given by post, personal or email delivery provided that, in the case of email delivery, delivery is also made by post or personal delivery. Notices shall be sent to the party's registered office or its principal place of business or to such other place or email address as the relevant party shall have notified to the other from time to time. Any notice to be given shall be deemed to be effective when actually received (if sent by email), when left at the relevant address (if delivered personally) or 7 business days after posting by first class post addressed as required (if given by post).

  12. Law & Jurisdiction
    1. This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with English law.

    2. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which rules are deemed to be incorporated by reference into this Agreement. The parties agree that:

      1. the number of arbitrators shall be one, and the arbitrator shall be experienced in technology disputes;

      2. each party shall bear its own costs relating to the arbitration;

      3. the seat, or legal place, of arbitration shall be London, England; and

      4. the language to be used in the arbitral proceedings shall be English.

      This shall not prevent the Supplier from seeking any injunctive or equitable relief any court in the Supplier's or the Customer's local jurisdiction.

    3. If the Customer is dealing with the Supplier as a consumer in the UK or EU, either party shall be entitled to bring any proceedings in the Customer's local jurisdiction.

  13. Third Party Suppliers
    1. The Customer acknowledges that the Supplier may use third party suppliers to help deliver and administer the Software and the subscription process. These third party suppliers may have their own terms and conditions and privacy policies that apply when the Customer interacts with these third party suppliers and the Customer should ensure that it reviews and is agreeable to all such terms and conditions and privacy policies.

    2. The third party suppliers used by the Supplier include the following:

      1. wyDay LLC (wyDay), whose services are used to generate a license key for the Software and send it to the Customer. The Customer acknowledges that wyDay may use the Customer's data in accordance with wyDay's privacy policy at https://wyday.com/privacy.php; and

      2. Bright Market LLC trading as FastSpring.com (FastSpring), who operates the Supplier's online store. The Customer acknowledges that its account details, including payment details, will be processed by FastSpring to create and fulfil the order and that FastSpring may share the order parameters (including subscription type) with the Supplier and with wyDay in accordance with FastSpring's privacy policy at https://fastspring.com/privacy/.

    3. Any references to any "Affiliates" of the Supplier means any affiliate, partner, group company or other representative of the Supplier, whether through contractual arrangements, equity or otherwise, including Pulpo Productions LLC trading as GhostVolt USA.