Terms of Service

DEFINITIONS AND INTERPRETATION

In these Terms unless the context otherwise requires the following words shall have the following meanings:

“Product” means the web-based platform, API’s and SDK called “Bubbl” and developed and maintained by the Company;

“Authorised User” means an employee, independent contractor or Sub-Client of the Client who meets the requirements of clause 6 and is registered to receive a User ID to access and use the Product;

“Business Day” means a day other than a Saturday, Sunday or public holiday, when banks in England are open for business;

“Client Data” the data inputted by the Client, Authorised Users, or the Company on the Client’s behalf for the purpose of using the Product;

“Commencement Date” the date on which these Terms comes into effect, which shall be the date on which it is signed or the date on which the Client is granted access to use the Product, whichever is the earlier;

“Company” Bubbl Limited, registered with company number 10103981 whose registered office is at 124 Finchley Road, London, NW3 5JS

“Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5;

“Consumer” A member of the public attending a site controlled, supervised, leased or owned by a Client or Sub-Client for the purpose of purchasing goods and services for personal use;

“Data Protection Legislation” means   all   applicable   data   protection   and   privacy   legislation, regulations and guidance including:

A) prior to 25 May 2018, the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations and any guidance or codes of practice issued by the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time); and

B) from 25 May 2018 onwards, Regulation (EU) 2016/679 (the “General Data Protection Regulation” or “GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations including any law based on or seeking to enact any such provisions in the United Kingdom to the GDPR and any applicable guidance or codes of practice issued by the European Data Protection Board or Information Commissioner from time to time (all as amended, updated or re-enacted from time to time);

“Fees” means any applicable Implementation Fees, Licence Fees and Maintenance Fees as set out on the Order Form;

“Geo Targeted Engagement” Means a single instance of a Consumer receiving an electronic notification, typically on a handheld device, from either a Client or a Sub-Client, where such notification has been generated as a result of the use of the Product;

“Go Live Date” means the date on which the Client and its Authorised Users first gain access to the Product;

“Good Industry Practice” means the use of standards, practices, methods and procedures conforming to Data Protection Legislation and the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the provision of similar services to an entity of a similar size and nature as the Company under the same or similar circumstances;

“Implementation Fees” charges for Implementation Services as set out on the Order Form or otherwise agreed in writing;

“Implementation Services” the customisation, installation, training and initial set-up of the Product as set out on the Order Form, otherwise agreed in writing;

“Initial Term” the initial term of these Terms as set out on the Order Form;

“Intellectual Property Rights” means all trade secrets, patents and patent Products, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such trademarks and service marks), trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software, object code and source code), moral rights, database rights, design rights, rights in know- how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any Product for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.

“Licence” means the permission to access and use the Product granted to the Client and its Authorised Users in accordance with these Terms;

“Licence Fees” means the annual fees for the Licence as set out on the Order Form;

“Maintenance Fees” means the fees for the Maintenance Services as set out on the Order Form;

“Maintenance Services” means the ongoing provision of support to Clients and Authorised Users, including error corrections, updates, upgrades, enhancements, as well as any other support or training services;

“Normal Business Hours” 9.00 am to 5.00 pm local UK time, each Business Day; 

“Order Form” means the form attached to these Terms setting out the Client’s requirements relating to Services and the Fees, together with any details relevant to the Client’s needs;

“Pilot Use” means a limited use of the Product and Services restricted to non-productive evaluation use, for a period of time set out on the Order Form (Pilot Period”);

“Renewal Term” the period described in clause 14.1, and “Renewal Date” shall be construed accordingly;

“Security Breach” means any actual or reasonably suspected: (a) unauthorised use of, or unauthorised access to the Product or the computer systems used by or on behalf of The Company; (b) damage to, or inability to access the Product due to malicious use or an attack; (c) unauthorised access to, theft of or loss of the data of any person; (d) unauthorised use of Client Data or Distributor Data for the  purposes of actual or attempted theft, fraud, identity theft or other misuse; (e) unauthorised disclosure of Confidential Information; or (f) breach of, or transmission of malicious code to, computer systems owned or operated by The Company;

“Service Levels” means the service levels set out in Schedule 1;

“Services” the Implementation Services and Maintenance Services;

“Sub-Client” Any third party appointed by the Client and for whom a user account is created by the Client, and references in these Terms to “Client” shall be interpreted as including Sub-Client where the context indicates.

“Term” the period of time during which these Terms remains in force, being the Initial Term and any Renewal Terms;

“User ID” means the unique user identification assigned to an Authorised User to access and use the Product and the Services;

“Virus” anything or device (including any software, malware, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

THE PRODUCT

  1. In consideration of the Client’s acceptance of these Terms and the Client’s payment of the Fees set out on the Order Form, The Company shall provide access to the Product and hereby grants to the Client a non-exclusive and non-transferable Licence to use the Product on these Terms.

  2. The Licence permits the Client to: 

    1. access and use the Product for their own internal business purposes;

    2. grant sublicenses to Sub-Clients in accordance with clause 4 

  3. The Client shall not, and shall not allow any Authorised User or Sub-Client or third party to, in whole or in part:

    1. (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties) alter, adapt, merge, modify, port, translate, decompile, disassemble, create derivative works from or reverse engineer the Product, or otherwise attempt to derive the source code or engage in any other activities to obtain underlying information that is not visible to a user in connection with normal use of the Product, or make any copy of the Product or any part thereof in any form;

    2. transfer, sublicense, rent, lease, distribute, sell, or grant any rights or otherwise commercially exploit, or make the Product available to anyone, except in accordance with clause 4;

    3. publicise or distribute any code, algorithms, information or registration codes used by the Product or knowingly take any action that would cause any element of the Product to be placed in the public domain, except as expressly permitted;

    4. gain or attempt to gain unauthorised access to the Product;

    5. remove any proprietary notices or marks from the Product;

    6. use or access the Product to build or commission a product or service that competes with the Product; or

    7. engage in any activity which would be unlawful or would constitute a breach of any applicable law or regulation or result in the Company being in a breach of any law or regulation.

  4. Where the parties agree a Pilot Period, then no Implementation Fee or Licence Fee will apply, and the only fee will be a fee for Pilot Use as set out on the Order Form.  During the Pilot Period, all warranties and indemnities given by the Company contained in these Terms shall be disapplied, and the Company’s liability for all losses arising shall be limited to £1. The Client may terminate the Pilot Period at least 10 days prior to the end of the Pilot Period, and where no notice of termination is received, the Initial Term shall commence automatically on the expiry of the Pilot Period, and the terms of this clause 2.4 shall no longer apply.  

 

THE SERVICES

  1. The Company undertakes that it will perform all Services with reasonable skill and care and in accordance with Good Industry Practice, in a timely and efficient manner, using appropriately qualified and experienced staff and, wherever relevant, in accordance with the Order Form and the Service Levels.

  2. The Company undertakes that it shall comply with all applicable laws and regulations with respect to its activities under these Terms.

  3. The Company represents and warrants that the Product shall have been scanned for Viruses using reputable commercially-available Virus-detection devices and software on a regular basis, and any detected Viruses or other malicious code or data shall be promptly dealt with.

  4. The Company shall use reasonable endeavours to make the Product available at all times except during times of scheduled maintenance. The Company shall at all times use all reasonable endeavours to keep any service interruptions to a minimum and achieve the Service Levels.

  5. The Company will provide Maintenance Services in accordance with the Service Level Agreement. If the Company fails to meet a Service Level then it shall use all reasonable endeavours to minimise the impact of such failure on the Client, prevent the loss and corruption of any data, mitigate any detrimental impact upon the Services, and prevent such failure from recurring.

  6. The Company will have no obligation for any failure of the Product to operate substantially in accordance with the Order Form if the failure: 

    1. is due to a breach by the Client of these Terms;

    2. is caused by the Client’s negligence, abuse, or misuse of the Product;

    3. relates to or arises from the Client’s own computer equipment or computing environment;

    4. cannot be remedied using commercially reasonable endeavours

    5. arises from any errors or omissions in the Client Data;

    6. arises from systemic issues beyond its control, such as poor connectivity, errors in the GPRS system, delayed packets or other data flow issues which could give rise to anomalies in the data. 

SUB-CLIENTS AND AUTHORISED USERS

  1. The Client may appoint any number of Sub-Clients, which shall each have access to the Product subject to the terms of these Terms.

  2. The Client shall follow the Company’s process for the creation of user accounts for each Sub-Client and the creation of User ID’s for each Authorised User of a Sub-Client. The Client shall be responsible for maintaining a current and accurate written list of Sub-Clients and shall provide such list to the Company on request.

  3. The Client remains responsible for all actions and defaults of each of its nominated Sub-Clients and for flowing down terms of use to the Sub-Client which are no less onerous than these terms, in which case all references to Client shall include Sub-Client as appropriate, together any other terms as agreed between the Client and the Sub-Client.

  4. Clients shall designate their Authorised Users and may make changes at any time. The Client shall be responsible for maintaining a current and accurate written list of Authorised Users and shall provide such list to the Company on request.

  5. Authorised Users shall be the only users of the Product and the Services, and Authorised Users must access the Product solely for the benefit of the Client or the Sub-Client, as appropriate.

  6. To be an Authorised User, an individual must:

    1. have authorisation from the Client to access and use the Product;

    2. complete the registration process, and keep such registration Information current during the Term; and

    3. have a User ID, such as his or her email, to enable his or her access to the Product. 

  7. The Client is responsible for all damage and losses arising as a result of Authorised Users’ access to and use of the Product and Services. Any breach of these Terms by any Authorised User will be deemed to be a breach of these Terms by the Client, and the Client will be liable for any losses arising.

  8. The Client shall notify the Company as soon as reasonably possible if the Client becomes aware of any unauthorised use of the whole or any part of the Product by any of the Client’s employees, contractors or officers, or anyone else.

PAYMENT OF FEES

  1. The Licence Fee shall be calculated by reference to the total number of Geo Targeted Engagements arising from the Client’s (and its Sub-Clients’) use of the Product. The Company operates a tiered charging system, and the parties shall agree the Engagement Tier appropriate to the Client’s anticipated number of Geo Targeted Engagements. The Client shall be invoiced two months in advance, based on the anticipated Engagement Tier.  At the end of each month, the Client shall be invoiced for any excess Geo Targeted Engagements over the level of its current Engagement Tier based on the price per unit of the next Engagement Tier. If the Client does not generate the maximum number of Geo Targeted Engagements permitted in its current Engagement Tier, no rebate shall be payable by the Company. The Client may advise the Company of a change of Engagement Level on giving 30 days notice.

  2. By way of illustration, the Client shall be invoiced prior to the Go Live Date for the first and second month of the Initial Term on the basis of its anticipated Engagement Tier, as set out in the Order Form.  At the end of the first month, the Company shall invoice for the third month based on the anticipated Engagement Tier for that month, and shall also invoice for any excess Geo Targeted Engagements, if any, incurred in the first month over the agreed Engagement Tier for that month.

  3. All amounts payable to the Company by the Client under these Terms are (except where specifically agreed to the contrary) exclusive of applicable Value Added Tax.

  4. The Client shall pay the (in accordance with the payment milestones set out on the Order Form):

    1. Implementation Fees

    2. Licence Fees; and Usage fees

    3. Maintenance Fees;

  5. All payments which are to be made by the Client to the Company under these Terms shall be made within 14 days of the invoice date, and any advance payments set out in the Order Form shall be paid by the date stated in the Order Form

  6. In the event of late payment of any sum validly due under these Terms the Company reserves the right (in addition to its other rights) to charge interest from the due date in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 on the outstanding balance until payment is received in full by the Company.

  7. The Company may review and increase the Fees at the end of the Initial Term or each Renewal Term, as appropriate, and shall notify the Client 30 days before implementing any increase. The Company may also amend the Fees on no less than 30 days’ notice to reflect any material change to the scale and circumstances of the Client such as a significant merger or acquisition. The Client may terminate these Terms on receipt of any notice increasing the Fees in accordance with clause 14.

INTELLECTUAL PROPERTY RIGHTS

  1. The Product, all Intellectual Property Rights contained in or used by Product and the Services, the Company’s Confidential Information, and all other materials provided by the Company and accessible to the Client and Authorised Users are and will remain the exclusive property of the Company or any of their licensors, as applicable. The Client only has a limited and temporary right to the Product under these Terms. The Client shall not challenge or contest the rights to or ownership of the Product by the Company or otherwise attempt to assert any proprietary rights in the Product.

  2. The Client is and will remain the sole owner of the Client Data, and grants to the Company a limited licence to use the Client Data (and any other Intellectual Property Rights owned by the Client reasonably required by The Company for performing its obligations under these Terms) for the purposes of these Terms.  These Terms do not grant the Company any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of the Client Data, the Client’s Confidential Information or Client’s Intellectual Property Rights.

  3. Where the Product is specifically amended or developed to meet the needs of the Client at its request, all Intellectual Property Rights in the enhancement or addition shall become the property of the Company. 

  4. Any designations and proprietary notices placed on the Product shall not be removed or altered and the Company asserts all moral rights to be identified as the author of the works.

CLIENT’S OBLIGATIONS

  1. The Client shall, without prejudice to the Client’s rights and the Company’s obligations in these Terms, provide the Company with all reasonable assistance to resolve any operational issues with the Product, including, but not limited to, providing the Company with sufficient access to and information regarding the Client’s computing environment to enable the Company to resolve the problems or failures to the extent reasonably possible.

  2. The Client understands that neither the Product nor the Services are accessible offline, and the Client shall remain responsible for being able to access the internet. The Client must ensure that its computer equipment and any third party software upon which the Product relies (such as an internet browser) are not malfunctioning in a way that adversely affects the operation of the Product. The Company will provide all reasonable assistance to Client to ensure Client can comply with this clause 7.2.

  3. In relation to the Authorised Users, the Client undertakes that:

    1. it shall not knowingly permit anyone other than an Authorised User to use or access the Product other than a regulatory body or as otherwise required by law;

    2. each Authorised User shall keep a secure password for his use of the Product and that each Authorised User shall keep his password confidential;

    3. Authorised Users shall use only their own User IDs and never share their User ID; keep their respective User ID and password information secure and confidential; and change their password as frequently as is reasonably required by the Company. The Client shall adopt and maintain reasonable security precautions for User IDs to prevent their disclosure to and use by unauthorised persons and promptly notify The Company upon becoming aware that the security or integrity of a User ID or password has been compromised.

  4. it shall permit the Company to audit the Client’s use of the Product and the Services in order to establish the name and password of each Authorised User.  Such audit may be conducted at the Company’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;

  5. if any of the audits referred to in clause 7.3.4. reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Company’s other rights, The Company shall promptly disable such passwords and the Company shall not issue any new passwords to any such individual.

  6. The Client shall not, and shall not permit any Authorised User or third party to, access or use the Product in any way that:

  7. infringes, misappropriates or violates any Intellectual Property Rights or publicity, privacy or other right of the Company or any third party;

  8. violates any applicable laws, statutes, ordinances, rules or regulations or any judicial or administrative orders; or

  9. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities. 

In addition to any other rights the Company may have, the Company may, without liability, remove or disable access by any Authorised User that violates the foregoing restrictions.

  1. The Client shall not engage in any activity that:

    1. attempts to interfere with the proper functioning of the Product or attempts to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of, the Product, including transmitting any Virus; or

    2. attempts to circumvent, disable, or otherwise interfere with security- related features of the Service or features that enforce limitations on use of the Service.

  2. Client shall not access, store, distribute or transmit any Virus, or any material during the course of its use of the Product that are illegal or cause damage or injury to any person or property including the Product.  The Company reserves the right, without liability or prejudice to its other rights to the Client, to suspend or disable the Client’s access to the Product where there is evidence that the Client is in breach of the provisions of this clause.

  3. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Product or the Services and, in the event of any such unauthorised access or use, promptly notify the Company.

  4. The Client is responsible for taking commercially reasonable measures to prevent Viruses from entering its systems and to ensure the security of its systems and its access to and connection with the Product and the privacy and security of the Client Data.  The Client represents that the Client either has established or will promptly establish appropriate confidentiality, privacy and security policies and safeguards consistent with Data Protection Legislation, and industry standards and that the Client will educate Authorised Users on these policies and safeguards. 

THE COMPANY’S OBLIGATIONS

  1. The Company warrants that:

    1. the Product shall:

      1. conform in all respects to all the functionality stated on the Order Form;

      2. be developed in accordance with Good Industry Practice;

      3. comply with all applicable laws; and

      4. not infringe upon any Intellectual Property Rights of any third party

    2. the Company:

      1. shall use Good Industry Practice when providing any Services to the Client;

      2. has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms; and

      3. will prevent the loss and corruption of any Client Data and will maintain the confidentiality of all Client and User Data which shall only be used for the purposes of the Product.

  2. If the Company receives from the Client written notice of any breach of warranty by the Company, then the Company shall at its own expense and within a reasonable time but no longer than 60 days (unless otherwise agreed by the Client) after receiving the notice use reasonable endeavours to remedy the defect in question. When notifying a defect the Client shall (so far as it is able) provide the Company with a documented example.

  3. Unless the Company has done so as part of the Implementation Services, the Client acknowledges that the Product has not been prepared to meet the Client’s individual requirements unless such requirements are set out on the Order Form, and therefore it is the responsibility of the Client to ensure that the facilities and functions described in any promotional material relating to the Product meet its requirements. 

  4. Except as expressly provided in these Terms no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, performance, satisfactory quality or (in spite of anything contained in any Schedule) fitness for purpose of the Product is given by the Company and all such warranties, conditions, undertakings and terms are excluded.

CLIENT DATA

  1. The Client shall own all right, title and interest in and to all of its Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of its Client Data.

  2. The Company shall follow its data storage process for Client Data.  In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Company to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest backup of such Client Data maintained by the Company in accordance with its data storage process. The Company shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Company to perform services related to Client Data maintenance and back-up).

  3. The Company shall, in providing the Services and access to the Product, comply with any and all applicable data protection regulations and with its Privacy and Security Policy relating to the privacy and security of the Client Data available at www.bubbl.tech or such other website address as may be notified to the Client from time to time.

  4. If the Company processes any personal data on the Client’s behalf when performing its obligations under these Terms, the parties record their intention that the Client shall be the data controller and The Company shall be a data processor and in any such case:

    1. the Client acknowledges and agrees that the personal data shall be stored within the EU but may be accessed or processed in accordance with applicable legislation outside the EU or the country where the Client and the Authorised Users are located in order to provide access to the Product, and perform the Services and The Company’s other obligations under these Terms;

    2. the Client shall ensure that the Client is entitled to transfer the relevant personal data to The Company so that The Company may lawfully use, process and transfer the personal data in accordance with these Terms on the Client’s behalf;

    3. the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

    4. The Company shall process the personal data only in accordance with the terms of these Terms and any lawful instructions reasonably given by the Client from time to time; and

    5. each party shall take appropriate administrative, physical technical and organisational measures against unauthorised or unlawful processing of the personal data and Client Data or its accidental loss, destruction or damage.

    6. The Parties agree to regulate the processing of personal data under the terms Data Protection Legislation.

CONFIDENTIALITY

  1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms as well as the operation of the Product. A party’s Confidential Information shall not be deemed to include information that:

    1. is or becomes publicly known other than through any act or omission of the receiving party;

    2. was in the other party’s lawful possession before the disclosure;

    3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

    4. is independently developed by the receiving party, which independent development can be shown by written evidence; or

    5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

  2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of these Terms.

  3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms.

  4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. Notwithstanding the foregoing, the Company shall at all times be liable for the conduct of its subcontractors.

  5. The Client acknowledges that details of the Product and the Services, and the results of any performance tests of the Product, constitute the Company’s Confidential Information.

  6. The Company acknowledges that the Client Data is the Confidential Information of the Client.

  7. This clause 10 shall survive for five (5) years after termination of these Terms, however arising.

  8. No party shall make, or permit any person to:

    1. make any public announcement concerning these Terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction;

    2. Use the name or logo of the other party, except that the Client agrees that the Company may include the Client’s name and logo on the Company’s website, social media pages and in promotional materials such inclusion being limited only to express the fact that the Client is a user of the Product, and not for any other purpose.

  9. The Client agrees that the Company may include the Client’s name and logo to enable white labelling of the Product at the request of the Client.

LIABILITY

  1. The Company shall indemnify the Client in respect of any losses, costs (including reasonable legal fees), expenses, damages or liability suffered by the Client to the extent these arise as a result of:

    1. any death or personal injury caused to any person by the negligence of The Company or its employees;

    2. any breach by the Company of its obligations, warranties and representations under Clause 10 (Confidential Information); and

    3. or, in connection with, any breach of Data Protection Legislation by Client caused by:

      1. The Company’s breach of its obligations in Schedule 2; and

      2. The Company, through its acts or omissions, being in breach of, or otherwise causing Client to be in breach of the Data Protection Legislation,

      3. save where the Company’s breach or non-compliance is solely attributable to Client’s breach of its obligations under these Terms.

  2. In the event of any infringement of any third party’s intellectual property rights, the Company will at its own expense:

    1. modify or replace the Product or any infringing part of it with a compatible, functionally equivalent and non-infringing Product; or

    2. secure the right of the Client to continue using the Product.

  3. Should the remedies in clause 11.2 not be reasonably available within 30 days of the notification of the infringement to the Company then these Terms may be immediately terminated in whole or in part by either party.

  4. The Company shall defend, indemnify and hold harmless the Client against any direct losses, costs (including all legal fees), expenses, damages or liability resulting from or incurred by the Client as a direct result of any alleged or actual infringement of any third party’s Intellectual Property Rights or any valid claim by a third party that the normal use of the Product infringes the Intellectual Property Rights of such third party provided that:

    1. the Company is given immediate and complete control of such claim if allowed by applicable regulations;

    2. the Client makes no admissions or statements without the Company’s prior written consent (not to be unreasonably conditioned, withheld or delayed); and

    3. the Client gives the Company all reasonable assistance at the Company’s expense defending such claim.

  5. Save for the indemnities given by the Company above, the Company’s liability to Client for damages for any loss or claim under these Terms will under no circumstances exceed the total fees paid to the Company during the preceding (12) twelve months from the date such liability first arose. In particular, the Company shall have no liability to the Client for any losses, costs, fees, expenses or fines arising as a result of errors or omissions in any output generated by the Product, and the Client acknowledges that its use of the Product is based on accepting such output, including the issue of Geo Targeted Engagements, on an “as is” basis.

  6. During the term of these Terms the Company shall maintain in force, with a reputable insurance company a professional indemnity insurance of an amount not less than £1,000,000 and shall, on the Client’s request, produce the insurance certificate giving details of cover.

  7. Notwithstanding any provisions in these Terms, neither Party will under any circumstances be liable under the law of contract, tort or otherwise, for any loss of profits, loss of business, loss of revenue or savings or goodwill or for any consequential or indirect or special loss or damage or anticipated savings, (regardless of whether any of these types of loss or damage are, indirect or consequential), however caused, arising out of or in connection with these Terms. The parties agree that loss of Data (to include any corruption and cost of reconstituting Data) shall be considered a direct loss for the purposes of these Terms.

  8. Nothing in these Terms shall operate to limit or exclude any liability for i) death or personal injury caused by negligence, breach of intellectual property rights, breach of Confidentiality, fraud, fraudulent misrepresentation or any other liability which may not be excluded by law; or ii) any claim under the indemnities in Clause 11.4.

TERM AND TERMINATION

  1. The agreement constituted by these Terms and the Order Form shall be effective from the Commencement Date and shall continue in full force and in effect unless and until terminated in accordance with the provisions of this clause 12 and the Order Form.

  2. Either party may immediately terminate these Terms (including the Licence within it) if the other party:

    1. materially breaches these Terms by failure, neglect or refusal to comply with any of the material terms and conditions of these Terms and the defaulting party has failed to remedy that breach (if the breach is capable of remedy) within 30 (thirty) days of the date of notice from the non-defaulting party specifying the breach; or

    2. the other party ceases trading, or becomes apparently insolvent, or has a trustee in sequestration appointed, combines with its creditors, or has a liquidator, receiver or administrator appointed (or an Product is made either for the appointment of an administrator or for an administration order, an administrator is appointed, or notice of intention to appoint an administrator is given over all or any of its assets) over all or any of its assets other than for  the purposes of a solvent amalgamation or reconstruction, or undergoes any analogous act or proceeding under foreign law to any of those mentioned in this Clause 12.2.1 or if the Client has reasonable cause to suspect that any of the events in this Clause 12.2.1 is likely to happen.

  3. Termination will not affect the accrued rights and or liabilities of either party.

  4. Subject always to Client’s right to terminate in clause 12.2, the Client shall not terminate this agreement during the Initial Term. After the Initial Term, these Terms shall renew automatically for Renewal Terms as set out on the Order Form, until terminated by Client on 6 months’ written notice to the Company at any time during a Renewal Term.

  5. Upon termination, the Licence to the Product in Clause 3 shall be terminated and all access to the Product will cease, and all sublicences granted to Sub-Clients shall terminate on termination of this agreement. The Company shall bear no liability to the Client as a result of losses arising from the termination of the sublicences, howsoever such termination arises.

  6. Should there be an increase in the fees by the Company (other than any increase due to the Client’s increased usage), the Client will be entitled to terminate this agreement with 30 days’ notice to the Company.

  7. On the termination or expiry of this agreement however caused the Client shall pay to the Company all sums due to the Company up to and including the date of expiry or termination.

GENERAL

  1. Neither party shall, for the duration of this agreement, and for a period of six months following termination, directly or indirectly induce or attempt to induce any employee of the other party who has been engaged in the provision, receipt, review or management of the Product or otherwise in connection with these Terms to leave the employment of that other party.

  2. A delay or failure by either party to exercise any right shall not be treated as a waiver of any such right or any other rights. Consent by either party to a breach of any express or implied term of these Terms shall not constitute consent to any subsequent breach. If any provision of these Terms is not enforceable, the remainder of these Terms shall remain in full force and effect.

  3. These Terms together with the Order Form constitutes the entire agreement and understanding between the parties with respect to the subject matter of these Terms and supersedes all prior discussions, understandings and agreements between the parties and their agents and all prior representations and expressions of opinion by any party to the other party.

  4. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

  5. Neither party shall be responsible for any failure or delay in complying with the terms of these Terms (including but not limited to delays in delivery), where the failure or delay result from events beyond that party’s control. Where such events continue for more than 60 days, either party may terminate on giving notice to the other.

  6. For the purpose of Section 1(2) of the Contracts (Rights of Third Parties) Act 1999 the parties state that they do not intend any term of these Terms to be enforced by any third parties but any third party right which exists or is available independently of the Act is preserved.

  7. Any legal notices or demands shall be in writing and sent by registered post or delivered by one party to the other at the most recently specified address. Notices delivered by courier shall be deemed to have been received upon the signing by the recipient of the confirmation note of the courier.

  8. These Terms and any matters relating to it shall be interpreted under the laws of England and the parties agree to the exclusive jurisdiction of the English Courts.