Peach Go

1.Definitions

In these Terms and Conditions, the following terms have the following meanings:  

Acceptable Use Policy: the online terms governing access the use of Our website and the transmission, storage and processing of any content using the services which We provide, which are available at www.peach.me/terms (as they may be updated from time to time).

Applicable Law: all relevant laws, regulations or directives, regulatory policies, guidelines or industry codes which apply to Our provision or Your use of the Services.

Content: the materials uploaded, created, stored, shared or otherwise used by You in receipt of the Services.  

Data Protection Legislation: any law applicable from time to time relating to the processing of personal data and/or privacy, as in force at the date of these Terms and Conditions or as re-enacted, applied, amended, superseded, repealed or consolidated, including without limitation, the Data Protection Act 2018, the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case including any legally binding regulations, directions and orders issued from time to time under or in connection with any such law.

EU GDPR: the EU General Data Protection Regulation 2016/679.

Force Majeure Event: an event, or a series of related events, that is outside the reasonable control of the party affected (including hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics and pandemics, explosions, fires, floods, riots, terrorist attacks and wars).

GDPR: as relevant, the EU GDPR or the UK GDPR.

Intellectual Property Rights: patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including knowhow and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

party: You and Us.

Services: the provision (under the "Peach Go" name or any successor brand) of a facility for the transfer and management of advertising assets and other materials.

UK GDPR: as defined in the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019/419.

We, Us, Our or Peach: IMD Media Ltd (trading as "Peach").

You or Your: the person (who may be an individual, a company, a public authority or any other entity) to whom We are providing the Services, either as the person uploading Content or as the person accessing that Content.

2.0 Supply of Services

2.1 These terms and conditions of service govern the provision of the Services by Us to You (the “Terms and Conditions”). The Services may be provided to You online, in the form of a mobile and/or desktop application(s) and/or may be integrated in a third party service. These terms do not apply to the content delivery and related services which We provide, which are governed by separate terms and conditions (available at Terms & Conditions | Peach).

2.2 Please read these Terms and Conditions carefully before using the Services. By using Our Services You are deemed to have accepted these Terms and Conditions (as may be updated from time to time) in full. 

2.3 We may revise or amend these Terms and Conditions at any time without notice. By continuing to use Our Services after any such revision or amendment, You agree to be bound by the updated Terms and Conditions.

2.4 We may update, terminate or modify the Services from time to time. Any such updates or modifications may alter any features or functionality of the Services.

2.5 The Services may provide integration with third party services. You acknowledge and agree that Your use of those services is at Your own risk and subject to any applicable terms and conditions between You and the providers of such services. 

3.0 Services

3.1 We currently provide the Services free of charge. We reserve the right to introduce charges for use of the Services in the future, in which case your continued right to access and use the Services would be conditional on your payment of the agreed charges.

3.2 The Services allow You to share content with third parties and You are solely responsible for sharing with the correct recipients. To share Content which You have uploaded, You need to either provide Us with the email addresses of recipient(s) (“email transfer”) or choose to distribute a download link Yourself (“link transfer”). 

3.3 You acknowledge and agree that, if you use Our Services to share Content, any third party who subsequently accesses that Content will (and Peach will not) be responsible for its use of that Content, including sharing the Content with third parties. Peach will have no liability in respect of any storage, sharing, exploitation or other use of any Content by any such third party.

3.4 You may be able to password protect Content. You are solely responsible for the confidentiality and/or the distribution of passwords.

3.5 The Services allow You to share Content up to a prescribed capacity. Depending on the transfer type (i.e. email transfer or link transfer), uploaded Content may be stored on Our servers for a limited period of time following which the download functionality expires and we will permanently delete the uploaded files. 

3.6 We may disclose any information received in the provision of the Services or any Content to the extent required to be disclosed by any law or regulation (including the requirements of any recognised stock exchange) or by any judicial or governmental order or request.

4.0 Your Obligations

4.1 You are solely responsible for the Content You upload and share, including any changes which are made to that Content by any person with whom it is shared or by whom it is accessed using the Services.

4.2 You warrant to Us that no Content shall contain any virus, software, code or data that will or may cause corruption or any other form of damage to any element of the Services and that all Content will comply with Applicable Law.

4.3 You shall at all times comply with the Acceptable Use Policy. You acknowledge and agree that we may take any actions we consider necessary if You do not comply with the Acceptable Use Policy.

4.4 Without prejudice to the Acceptable Use Policy, You must not use the Services in any way that causes, or may cause, damage to the Services or the provision of the Services or impairment of the availability or accessibility of the Services.

4.5 You must not use the Services (including, in respect of the creation, use, storage and sharing of any Content):

4.5.1 in any way that is unlawful, illegal, fraudulent or harmful; or

4.5.2 in any way that will or may damage Our business, reputation, image and / or goodwill; or

4.5.3 in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.6 You shall not:

4.6.1 attempt to de-compile, reverse engineer, disassemble, or otherwise reduce to human-readable form all or any part of the Services; 

4.6.2 attempt to obtain access to the Services other than as provided in these Terms and Conditions;

4.6.3 introduce, or permit the introduction of, any virus or vulnerability into the Services; or

4.6.4 abuse, intimidate, threaten or harass any other users of the Services. 

5.0 Ownership of Content and Intellectual Property

5.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from Us to You, or from You to Us. We do not claim any ownership of (and accept no responsibility for) any Content which You create, use, store or share through the Services. We will retain ownership of all Intellectual Property Rights in or relating to the Services and You are only entitled to use such Intellectual Property Rights as are necessary for Your use of the Services in accordance with these Terms and Conditions.

5.2 You warrant that You either own, or have the right to use, the Content and all Intellectual Property Rights associated with such Content. Should You not (or no longer) own the Content or have such a right to use the Content and/or the associated Intellectual Property Rights, You will remove the Content immediately and notify Us. If You fail to do either of these things, You acknowledge and agree that We shall be permitted to withdraw access to the Content. We shall have no liability to You for any losses arising whatsoever in connection with such withdrawal of access to the Content.

5.3 You warrant to Us that the receipt, storage and distribution of Content by Us in connection with the Services will not:

5.3.1 breach the provisions of any Applicable Law;

5.3.2 infringe the Intellectual Property Rights or other legal rights of any person; or

5.3.3 give rise to any cause of action against Us,

in each case in any jurisdiction.

5.4 You grant to Us a non-exclusive, royalty-free licence to receive, store, process and/or make available (in accordance with your instructions) the Content for the purposes of providing the Services, improving the Services and for analytics purposes.

5.5 You shall keep Us indemnified in full against any and all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Us as a result of or in connection with any claim brought against Us alleging that our receipt, distribution or the subsequent use by a third party of any Content:

5.5.1 infringes a third party's Intellectual Property Rights;

5.5.2 is libellous or defamatory; or

5.5.3 is contrary to Data Protection Legislation or any other Applicable Law.

This clause 5.5 shall survive the termination of the Services and/or the end of Your use of the Services.

6.0 Warranties and Warranty Limitations

6.1 Each party warrants to the other that:

6.1.1 it has the legal right and authority to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions; and

6.1.2 it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under these Terms and Conditions.

6.2 We will provide the Services on an as-is basis. Without prejudice to the foregoing, to the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.

6.3 You acknowledge and agree that the Services may not be available on an uninterrupted, secure or error-free basis. We give no warranty or representation that the Services will be wholly free from defects, errors and bugs. Your use of the Services is at Your own risk.

7.0 Liability

7.1 Nothing in these Terms and Conditions shall limit or exclude either Your or Our liability for:

7.1.1 death or personal injury caused by negligence; 

7.1.2 fraud or fraudulent misrepresentation; or

7.1.3 any other liability which cannot be limited or excluded by Applicable Law. 

7.2 Subject to clause 7.1, in no circumstances shall we be liable to You (whether such liability arises in contract, tort (including negligence) or otherwise) for:

7.2.1 any unavailability or removal of Content or of Your account;

7.2.2 any loss of profits, loss of revenue, loss or corruption of any data (including any Content), database or software, loss of business opportunity, or any loss of use or production;

7.2.3 any indirect, special or consequential loss or damage arising under or in connection with these Terms and Conditions;

7.2.4 acts or omissions of any third party service providers which may be integrated with the Services;

7.2.5 loss arising out of or in relation to the Content created, contributed to, amended, used, stored or shared by You using the Services;

7.2.6 any failure of the Services to store, transfer, save or delete any Content or any failure to provide access to that Content for a third party; and 

7.2.7 damage to Your property (including IT systems or hardware) as a result of the use of the Services.

7.3 Subject to clause 7.1, Our aggregate liability for any and all claims arising out of or in connection with Your use of the Services in any rolling twelve-month period will in no event exceed the greater of (i) the amounts paid by You to Us for access to the Services for that period (if any) and (ii) one thousand pounds (£1,000).

8.0 Entire Agreement 

These Terms and Conditions shall constitute the entire agreement between You and Us regarding the subject matter hereof and supersede all prior and contemporaneous agreements, arrangements, undertakings, proposals or representations, written or oral, concerning such subject matter.

9.0 Third Party Rights

A person who is not a party to these Terms and Conditions shall not have any rights to enforce any term of these Terms and Conditions.

10.0 Force Majeure

If a Force Majeure Event gives rise to a failure or delay for Us to perform any obligation under these Terms and Conditions (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

11.0 Data Protection 

11.1 Both parties acknowledge their respective duties under the Data Protection Legislation. To the extent relevant, each party undertakes to comply with their obligations and duties (if any) under such Data Protection Legislation and shall give all reasonable assistance to each other where appropriate or necessary.

11.2 In this clause 11, the terms "data processor", "data controller", "data subject" and "processing" shall be as defined in the Data Protection Legislation.

11.3 You warrant to Us that You have the legal right to disclose all personal data that You do in fact disclose to Us in the course of or in connection with Your use of the Services.

11.4 To the extent that We process any personal data as a data processor on behalf of You as a data controller, We shall: 

11.4.1 process the personal data only on documented instructions from You, unless:

1. We are required by Applicable Law to process such personal data in different or additional ways, in which case We will notify You of this before performing the processing (unless such notification is not permitted under Applicable Law); or
2. in Our opinion, an instruction given by You infringes the Data Protection Legislation, in which instance We will inform You of such opinion as soon as reasonably possible;

11.4.2 ensure that persons who We authorise to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

11.4.3 take all measures required pursuant to Article 32 UK GDPR;

11.4.4 taking into account the nature of the processing, assist You by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Your obligation to respond to requests for exercising the data subject's rights under Chapter III of UK GDPR;

11.4.5 assist You in ensuring compliance with the obligations pursuant to Articles 32 to 36 UK GDPR taking into account the nature of processing and the information available to Us;

11.4.6 at Your choice, delete or return all such personal data to You after the end of the provision of the Services and delete existing copies unless Applicable Law requires Us to retain such personal data; and

11.4.7 make available to You all information necessary to demonstrate compliance with the obligations laid down in this clause 11.4 and allow for and contribute to audits, including inspections, conducted by You or another auditor mandated by You.

11.5 In the event that the processing requires Us to transfer the personal data outside of the EEA or the UK (as relevant), We will ensure appropriate safeguards are put in place to ensure such transfer complies with the requirements of UK GDPR.

11.6 You grant Us a general authorisation to engage sub-processors to provide the Services on Our behalf. When engaging a sub-processor, We will ensure that such sub-processor is engaged by way of a written agreement that imposes on such sub-processor that are substantially equivalent to the obligations imposed on We pursuant to this Clause 11. As between You and Us, We will remain liable for all acts or omissions of any sub-processor appointed by it with respect to the processing of personal data. We will inform You of any intended changes concerning the addition or replacement of any sub-processors that will process the personal data.

12.0 Interpretation

12.1 The following rules of interpretation apply in these Terms and Conditions:

12.1.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

12.1.2 a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

12.1.3 unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

12.1.4 a reference to writing or written includes e-mail (unless otherwise expressly stated);

12.1.5 any obligation on a party not to do something includes an obligation not to allow that thing to be done; and

12.1.6 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

12.2 Clause headings shall not affect the interpretation of these Terms and Conditions:

13.0 No Waiver

13.1 A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

13.2 A failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by Applicable Law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms and Conditions or by Applicable Law shall prevent or restrict the further exercise of that or any other right or remedy.

14.0 Severance

If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms and Conditions.

15.0 Assignment and Other Dealings

You shall not assign, delegate, subcontract, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of Your rights and obligations under these Terms and Conditions without Our prior written consent.

16.0 No Partnership

Nothing in these Terms and Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between You and Us, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. 

17.0 Governing Law

These Terms and Conditions 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 English law.

18.0 Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (of whatever kind and however it arose) arising out of or in connection with these Terms and Conditions or their subject matter or formation (including non-contractual disputes or claims).