1. Your relationship with onekana™
1.1 Your use of the website at www.onekana™.com (the Site) is subject to the terms of a legal agreement between you and Simon Meneely, trading as onekana™, whose principal place of business is at 34 Ballygrainey Road, Craigavad, Co Down, N. Ireland BT180HE
1.2 Unless otherwise agreed in writing with onekana™, your agreement with onekana™ will always comprise, the terms and conditions set out in this document. These are referred to below as the Terms. These Terms form a legally binding agreement between you and onekana™ in relation to your use of the Site. 1.3 onekana™ reserves the right to change and update the Terms from time to time, at its sole discretion. When these changes are made, onekana™ will make a new copy of the Terms available at www.onekana™.com. You understand and agree that if you use (or continue use of) the Site after the date on which the Terms have changed, onekana™ will treat your use as acceptance of the updated Terms. 1.4 References to Clauses are (unless otherwise provided) references to the Clauses of these Terms. Words in the singular include the plural and in the plural include the singular. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.
2. Accepting the Terms
In order to use the Site, you must first agree to the Terms. You may not use the Site if you do not accept the Terms. You can accept the Terms by:
2.1 clicking to accept or agree to the Terms, where this option is made available to you by onekana™ in the user interface for any Site; or 2.2 by actually using the Site. In this case, you understand and agree that onekana™ will treat your use of the Site as acceptance of the Terms from that point onwards.
3. Provision of the Site by onekana™
3.1 onekana™ is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Site which onekana™ provides may change from time to time without prior notice to you.
3.2 As part of this continuing innovation, you acknowledge and agree that onekana™ may stop (permanently or temporarily) providing the Site (or any features within the Site) to you or to users generally, at onekana™'s sole discretion, without prior notice to you. onekana™ will use reasonable endeavours to advise you in advance of any such action, except in cases of emergency. You may stop using the Site at any time. You acknowledge and agree that if onekana™ disables access to your account, you may be prevented from accessing the Site, your account details, or any files or other content which is contained in your account. 3.3 You acknowledge and agree that if your bandwidth usage significantly exceeds the average bandwidth usage (as determined solely by onekana™) of other onekana™ users, onekana™ reserves the right to immediately disable your account or throttle your file hosting until you can reduce your bandwidth consumption.
3.4 Your access to the Site is free of charge, unless otherwise stipulated by onekana™. In the event that, and to the extent that, onekana™ makes no such stipulation, onekana™'s fulfillment of its obligations imposed by these Terms is in consideration of your fulfillment of all obligations imposed by these Terms upon you.
4. Use of the Site by you
4.1 You agree to use the Site only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United Kingdom or other relevant countries). 4.2 You agree not to access (or attempt to access) any of the Site by any means other than through the interface that is provided by onekana™. You specifically agree not to access (or attempt to access) any of the Site through any automated means, including use of scripts or web crawlers.
4.3 You agree that you will not engage in any activity that interferes with or disrupts the Site, or the servers and networks which are connected to the Site. 4.4 Unless you have been specifically permitted to do so in a separate agreement with onekana™, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Site for any purpose.
5. Your passwords and account security
5.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Site. Accordingly, you agree that you will be solely responsible to onekana™ for all activities that occur under your account, as determined, noted, or recorded by onekana™. Such determination, notation, and record shall at onekana™'s sole discretion, and shall serve as conclusive proof of the facts stated therein and to which they attest.
5.2 If you become aware of any unauthorized use of your password or of your account, you agree to notify onekana™ immediately at info@onekana™.com.
6. Data protection
Your use of the Site, including any registration process, may involve your disclosure to onekana™ of personal data (which term shall include sensitive personal data) relating to data subjects (as those terms are defined in the Data Protection Act 1988). In the event that you do so disclose such personal data you:
7. Content in the Site
7.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other /images, and the like) which you may have access to as part of, or through your use of, the Site are the sole responsibility of the person from whom such content originated. All such information is referred to below as the "Content".
7.2 You should be aware that Content presented to you as part of the Site, including but not limited to advertisements in the Site and sponsored Content within the Site, may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to onekana™ (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told and authorized that you may do so by onekana™, or by the owners of that Content, in a separate agreement. 7.3 You agree that you are solely responsible for (and that onekana™ has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Site and for the consequences of your actions (including any loss or damage which onekana™ may suffer) by doing so.
7.4 In these Terms intellectual property rights shall mean all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
8. Proprietary rights
8.1 You acknowledge and agree that onekana™ (or onekana™'s licensors) own all legal right, title and interest in and to the Site, including any intellectual property rights which subsist in the Site (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Site may contain information which is designated confidential by onekana™ and that you shall not disclose such information without onekana™'s prior written consent. 8.2 Unless you have agreed otherwise in writing with onekana™, nothing in the Terms gives you a right to use any of onekana™'s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
8.3 Other than the limited license set forth in Clause 9, onekana™ acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Site, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with onekana™, you agree that you are responsible for protecting and enforcing those rights and that onekana™ has no obligation to do so on your behalf. 8.4 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Site.
9. Content license from you
9.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Site. By submitting, posting or displaying the content you give onekana™ a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Site. This license is for the sole purpose of enabling onekana™ to display, distribute and promote the Site. 9.2 You understand that onekana™, in performing the required technical steps to provide the Site to other users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit onekana™ to take these actions.
9.3 You agree that onekana™ has the exclusive right to un-publish, take offline, delete, archive, prohibit, ban, or otherwise remove Content that, in onekana™'s sole opinion, does not relate or bears no relation, or, in any manner or form, is improper or inappropriate to the Site. 9.4 You confirm and warrant to onekana™ that you have all the rights, power and authority necessary to grant the above license.
10. Ending your relationship with onekana™
10.1 The Terms will continue to apply until terminated by either you or onekana™ as set out below.
10.2 If you want to terminate your legal agreement with onekana™, you may do so by (a) notifying onekana™ at any time and (b) closing your account for the Site, where onekana™ has made this option available to you. Your notice should be sent, in writing, to onekana™'s email address with a hard copy sent to the address which is set out at the beginning of these Terms.
10.3 onekana™ may at any time, terminate its legal agreement with you and the supply to you of the Site if:
10.3.1 you have materially breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms) and, where such breach is capable of remedy, onekana™ determines that you have not so remedies within fourteen days of notification; or
10.3.2 onekana™ is required to do so by law (for example, where the provision of the Site to you is, or becomes, unlawful); or 10.3.3 you cease to trade; or become insolvent or unable to pay your debts within the meaning of the insolvency legislation applicable to you; or a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole part of your business or assets, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or the ability of your creditors to take any action to enforce your debts is suspended, restricted or prevented or some or all of your creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or any process is instituted which could lead to you being dissolved and your assets being distributed to your creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction): or
10.3.4 the provision of the Site to you by onekana™ is, in onekana™'s opinion, no longer commercially viable.
10.4 Nothing in this Clause 10 shall affect onekana™'s rights regarding provision of Site under Clause 4 of the Terms. 10.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and onekana™ have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Clauses 6, 7, 8, 10, 11, 12 and 14.6 shall survive termination of these Terms.
10.6 onekana™ reserves the exclusive right and prerogative to retain, maintain, archive, protect, use, or store any and all data or information, without regard as to time or duration, as it may deem reasonable or necessary in the pursuit of its business or interests, or in protecting such business or interests, notwithstanding the termination or cessation of your relationship with onekana™.
11. Exclusion of Warranties
11.1 Nothing in these terms, including Sections 14 and 15, shall exclude or limit onekana™'s warranty or liability for losses which may not be lawfully excluded or limited by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract, or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you and onekana™'s liability will be limited to the maximum extent permitted by law.
11.2 You expressly understand and so agree that your use of the Site is at your sole risk and that the Site is provided "As Is" and "As Available."
11.3 In particular, onekana™, its subsidiaries and affiliates, and its licensors, do not represent or warrant to you that:
11.3.1 your use of the Site will meet your requirements,
11.3.2 your use of the Site will be uninterrupted, timely, secure, or free from error,
11.3.3 any information obtained by you as a result of your use of the Site will be accurate or reliable, and 11.3.4 that defects in the operation or functionality of any Site provided to you as part of the Site will be corrected, rectified, or remedied.
11.4 Any material downloaded or otherwise obtained or accessed through the use of the Site is done at your own discretion and risk, and that you will be solely responsible for any damage, loss, or prejudice to your computer system or other device or loss of data that results from the download or access of any such material. 11.5 No advice or information, whether oral or written, obtained by you from onekana™ or any of its subsidiaries, affiliates, officials, employees, or personnel, or through or from the Site shall create any warranty not expressly stated in the Terms.
11.6 onekana™ further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
12. Limitation of Liability
12.1 Because onekana™ is allowing you to use the Site free of charge, there are no conditions, warranties, representations or other terms, express or implied, that are binding on onekana™ except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Site which might otherwise be implied into or incorporated in this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law. In particular, but without limitation:
12.1.1 you expressly understand and agree that your use of the Site is at your sole risk and that the Site is provided “as is”;
12.1.2 onekana™ does not represent or warrant to you that your use of the Site (including its use in conjunction with any other software) will meet your requirements, that your use of the Site will be uninterrupted, timely, secure or free from error or that defects in the operation or functionality of any Site provided to you will be corrected; and
12.1.3 onekana™ disclaims all implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
12.2 You expressly understand and agree that onekana™ and its licensors shall not be liable to you for:
12.2.1 any direct, indirect, incidental, special, consequential, or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss;
12.2.2 any loss or damage which may be incurred by you, including but not limited to loss or damage as a result of:
18.104.22.168 the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Site; or 22.214.171.124 any effect which use of the Site may have on any software you use in conjunction with the Site.
126.96.36.199 any reliance placed by you on the completeness, accuracy, or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Site; 188.8.131.52 any changes which onekana™ may make to the Site, or for any permanent or temporary cessation in the provision of the Site (or any features within the Site);
184.108.40.206 the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Site; 220.127.116.11 your failure, whether resulting from neglect or intent, to provide onekana™ with accurate account information, or any information required or requested from you by onekana™; or
18.104.22.168 your failure to keep your password or account details secure and confidential. 12.3 The limitation on onekana™'s liability to you in Clause
12.1 above shall apply whether or not onekana™ has been advised or should have been aware of the possibility of any such losses arising.
12.4 You agree that you are solely responsible for (and that onekana™ has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which onekana™ may suffer) of any such breach. You agree to indemnify and keep indemnified onekana™ against any loss, claim, liability, loss or expense (including reasonable legal expense) howsoever incurred by onekana™ as a result of your breach of any Term, or of any negligent act or omission of you (including as a consequence of any use, abuse, performance, activity, or access of the Site by you).
13. Other content
13.1 The Site may include hyperlinks to other web sites or content or resources. onekana™ may have no control over any web sites or resources which are provided by companies or persons other than onekana™. 13.2 You acknowledge and agree that onekana™ is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
13.3 You acknowledge and agree that onekana™ is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
14. General legal terms
14.1 The Terms constitute the whole legal agreement between you and onekana™ and govern your use of the Site, and completely replace any prior agreements between you and onekana™ in relation to the Site.
14.2 You agree that onekana™ may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Site.
14.3 You agree that if onekana™ does not exercise or enforce any legal right or remedy which is contained in the Terms (or which onekana™ has the benefit of under any applicable law), this will not be taken to be a formal waiver of onekana™'s rights and that those rights or remedies will still be available to onekana™.
14.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
14.5 You acknowledge and agree that each member of the group of companies of which onekana™ is the parent shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
14.6 The Terms, and your relationship with onekana™ under the Terms, shall be governed by the laws of Northern Ireland. You and onekana™ agree to submit to the exclusive jurisdiction of the courts of Northern Ireland, to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that onekana™ shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.