PUREPROMOTER LIMITED trading as PURE360 (REFERRED TO ALSO AS “WE”, “US” AND/OR “OUR”) HAS A DIGITAL MARKETING PLATFORM KNOWN AS “PURECAMPAIGN” SOFTWARE (“SOFTWARE”)
THE LICENCE TERMS AS CONTAINED IN THIS DOCUMENT (“LICENCE AGREEMENT”), TOGETHER WITH THE CUSTOMER AGREEMENT (“CUSTOMER AGREEMENT”) (PREVIOUSLY TERMS OF BUSINESS) YOU HAVE RECEIVED FROM US, AND ANY OTHER TERMS AGREED IN WRITING BY PURE360 FROM TIME TO TIME, APPLY TO YOUR ACCESS AND/OR USE OF OUR SOFTWARE AND OTHER SERVICES SUPPLIED BY PURE360 FROM TIME TO TIME (“SERVICES”)
IF THERE IS A CONFLICT BETWEEN THE TERMS OF THIS LICENCE AGREEMENT AND THE CUSTOMER AGREEMENT THE TERMS OF THE CUSTOMER AGREEMENT WILL PREVAIL.
1.1 This Licence Agreement together with the Customer Agreement contains the terms relating to your access, use and support of the Software together with such documentation related to the Software (“Documentation”), and any Services we provide from time to time.
1.2 We hereby grant you a revocable, worldwide, non-exclusive, non-transferable licence to use the Software for an agreed period of time, upon the terms and conditions of this Licence Agreement. References to the “Software” in this Licence Agreement includes all, or any parts, of the suite of Software that you have purchased from time to time.
1.3 Subject to adherence of the payment terms contained in the Customer Agreement we will continue to grant you access to and use of the Software and Documentation and such right of use will be limited to the planning and running of your email, SMS, and other digital marketing campaigns on your behalf or on behalf of your clients (the “Purpose”) and for an agreed period of time, as set out in the Customer Agreement, on the basis of a revocable, non-exclusive and non-transferable licence (the “Licence”). Except as expressly permitted by this Licence Agreement you shall not use the Software or the Documentation for any purpose other than the Purpose.
1.4 Save for assigning the entire Licence to an affiliate or other organisation within your group of companies with our consent, such consent not to be unreasonably withheld or delayed, you agree not to yourself or via a competitor or by any third party, alter or modify the whole or any part of the Software, save to the extent and in the circumstances expressly permitted by law, create derivative works from or reverse engineer or decompile or disassemble the Software or attempt to so
1.5 Unless otherwise agreed in writing by us, you agree not resell, loan, rent, pledge, assign, sub-licence or otherwise transfer the Software or any rights granted under this Licence Agreement in particular the Licence without our prior written consent.
1.6 You agree not to, yourself or by a third party, use or permit the use of the Software in any manner which in any way prejudices our legitimate interests or conflicts with the normal exploitation of the Software by us.
1.7 You accept full responsibility and liability for the acts or omissions of any of such persons given access to the Software and/or Documentation by you, as if you had performed such acts or omissions yourself.
1.8 You will comply with any additional restrictions or terms stipulated in the Customer Agreement. We reserve the right upon reasonable notice to update our Licence Agreement.
1.9 Your use of the Software may be disrupted due to necessary Software upgrades and/or modifications to the Software but may also result from necessary server downtime and general maintenance of our system. We will notify you of such intended disruptions, and shall use all reasonable endeavours to limit such disruption and the amount of downtime to the minimum period of time.
1.10 The Licence granted to you by clause 1.3 will last until this Licence Agreement is terminated in accordance with its terms or the Customer Agreement (previously Terms of Business).
1.11 The Licence granted to you by us may also include the right to use or access or benefit from third party software and services in object code form only and you will receive a non-exclusive, non-transferable right to a limited use of the third party software, in conjunction with our Software. The third party software (“Third Party Software”)will be set out in the Customer Agreement, and the SLA. To clarify for the avoidance of doubt, the “Third Party Software” also refers to the following modules: PurePromotions, PureTargeting and PureIntelligence. The owner of the third party software (“Third Party”) retains exclusive ownership and all right, title and interest in and to the Third Party Software. Except to the extent permitted in law, you shall not modify, disassemble, decompile, reverse engineer or otherwise attempt to derive source code from the Third Party Software and you shall have no rights to claim against the Third Party or us for any indirect, special, contingent, or consequential damages arising out of any breach of the use of the Third Party Software. No warranty of any kind, express or implied, including, without limitation, of the implied warranties of merchantability and fitness for a particular purpose is offered against the Third Party Software.
2.1 You will be provided with a username and password for your designated users (“Users”) in order to access and use the Software and associated support functions, as set out in clause 2.4 (“Support”). Each username and password may only be used by one User at a time. You may at any time increase the number of Users of the Software by accepting a quote detailing the number of additional users and any additional information required by us and subject to payment of the subsequent invoice we will provide you with the additional username(s) and password(s).
2.2 You must ensure that your Users keep their usernames and passwords strictly confidential and not disclose them to any third party (including, if you are in a group of companies, other companies within that group or to whom you are associated) without our prior written consent. You must notify us immediately if it believes that such information is no longer secret. In the event you breach this clause 2.2 you will invalidate your warranties under clause 5 and any representations on our part as to the security of your data and systems.
2.3 You undertake to supervise and control the use and your Users’ access to and use of the Software and Documentation in accordance with the terms of the Licence Agreement and any breach of this clause 2.3 will entitle us to terminate the Licence Agreement. You will also be liable to us for any losses we suffer as a result of your breach of the clause 2.3.
2.4 Unless otherwise agreed in an Customer Agreement we provide the following Support:
2.4.1 Software Support Monday to Friday 09:00-17:30hrs excluding bank holidays or other statutory holidays in England and
2.4.2 Product Support is provided via helpline, ticket system accessed via PureCampaign, email and Twitter (as further detailed in our Customer community website).
3. Copyright and Intellectual Property Rights
3.1 You agree and acknowledge that title to all the intellectual property rights in the Software and the Documentation (“Intellectual Property Rights”), which includes but is not limited to, all copyright, design rights (except for your email design assets), utility models, inventions, service marks, logos, business names, database rights (including extraction and re-utilisation rights), trademarks (whether registered or unregistered), moral rights, Internet domain names, and applications for any of the foregoing, and any other rights in interface information, system generated data, system output data (excluding your confidential data or personal data), source codes, reports, specifications, know-how, trade secrets, confidential information, software designs and/or other materials, are and remain the absolute and exclusive property of and vest and remain vested in us, our nominees or licensor(s).
3.2 Title in any Intellectual Property Rights developed by either party pursuant to this Licence Agreement shall vest in us or our nominee. You have no right, title or interest in or to such developed Intellectual Property Rights other than such as may be granted or confirmed to you under this Licence Agreement. We acknowledge and agree that nothing under this Licence Agreement shall act as an assignment or transfer (in any way) any intellectual property rights in your intellectual property rights to us.
3.3 You will notify us immediately if you become aware of any unauthorised use of the whole or any part of the Software by any person. You further agree to assist us in maintaining the validity and enforceability of our Intellectual Property Rights over the Software or modifications thereto.
3.4 You agree to immediately inform us if at any time you discover or suspect any infringement of our Intellectual Property Rights by any person.
4. Conditions and Restrictions of use of the Software
4.1 You are allowed to use the Software only for the Purpose and you hereby agree not to use the Software for any other purpose.
4.2 You may not:
4.2.1 loan, rent, lease, or license the Software or Documents or any copy thereof;
4.2.2 use the Software to distribute and/or dispatch commercial offers by email that have not been solicited;
4.2.3 use the Software or Documents to provide third party training, except for training your employees without our written consent;
4.2.4 use or copy (except to the extent set out in this Licence Agreement), alter, create derivative works from, reverse engineer or decompile the Software or Documents except to the extent permitted by law;
4.2.5 use the Software for fraudulent purposes, or in connection with a criminal offence or other unlawful activity;
4.2.6 use the Software to send, use or reuse any material that is illegal, offensive, abusive, defamatory, or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or which consists of or contains software viruses,
4.2.7 use the Software to send Unsolicited Emails or “Spam”.
“Unsolicited Emails” or “Spam” means emails sent to a recipient who has not granted verifiable consent for the message to be sent to them (unless the recipient’s email details were obtained by the sender in the course of the sale or negotiations for the sale of a product or service to that recipient, and the email concerns the sender’s similar products and services only), or who has withdrawn such consent or has otherwise refused the use of his details for direct marketing. For clarity, consent is defined as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”.
4.3 We monitor accounts for Spam activity and if we find any evidence of Spamming activity on your account we reserve the right to suspend your Licence and account and then investigate the matter; which will include a request by us for evidence that your email communication was not Unsolicited Email. Except where we are obligated by an applicable law or a regulator to suspend your Licence without prior notice, we will as soon as reasonably practicable notify you of our intention to suspend the Licence. In the event of Spamming activity being confirmed, we also reserve the right to immediately terminate this Licence Agreement, your Licence and account permanently and you will forfeit all pre-payments made by you and credits provided to you under the Customer Agreement and we shall have no further liability to you. We reserve the right to refuse to address emails if we reasonably consider that the sending of emails may constitute Spamming.
4.4 You warrant and represent to us that (without limiting your obligations under clause 10) you have the right in accordance with the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended (including where necessary by means of a valid consent given by the addressee) to process your data by sending marketing emails, and to authorise us to do so on your behalf (including, without limitation, the use of each of the data fields that you provide for our use), and that the emails you request us to send are not Unsolicited Email or Spam. You undertake to that produce to us on demand proper evidence to this effect. If you cannot provide such evidence you will be deemed that you are in breach of this Licence Agreement and your Licence and account will immediately be suspended, pending further investigation. In this event we also reserve the right to terminate your Licence and account permanently, with no liability to us, and you agree to indemnify us against any liability arising from any breach of this provision.
4.5 You hereby acknowledge and agree that we reserve the right, at our sole discretion, to (i) refuse access to the Software and/or (ii) refuse access to our other Services if you are in breach of clause 4.
4.6 Any other right which is not expressly granted under this Licence Agreement is reserved to us.
5. Warranty and Disclaimer
5.1 We warrant to you (subject to the other provisions of this Licence Agreement) that we have the full capacity and authority to enter into and to perform this Licence Agreement including the authority to grant the Licence and/or make available Third Party Software under this Licence Agreement to you, and that any Services will be supplied using reasonable skill and care.
5.2 You acknowledge that software in general is not free from errors, and agree that the existence of such errors in the Software shall not constitute a breach of this Licence Agreement when those errors are corrected and don’t materially prevent your use of the Software. You also acknowledge while we make all reasonable efforts to ensure that the server that makes the Software available is virus free, we cannot provide any guarantee in this respect, and that owing to the nature of the Internet and the fact that your access to the Software involves functionality outside our control, we cannot be held responsible for any resulting technical problems that you may experience.
5.3 You warrant to us that you have the full capacity and authority to enter into and perform this Licence Agreement and that this Licence Agreement is executed by a duly authorised representative of us and that you will comply with all your obligations contained in this Licence Agreement and/or in an Customer Agreement.
5.4 You will notify us of any material breach of the warranties contained in this clause as soon as practicable however no later than fourteen (14) days upon becoming aware of the breach. We will be entitled at our option to remedy such breach, as soon as reasonably practical from receipt of notification and failure to remedy you can terminate the Licence Agreement. This clause 5.4 states our entire liability with regard to any breach of the warranties contained in this clause.
5.5 We will not be liable for breach of any warranties or other terms in this Licence Agreement to the extent the breach arises from:
5.5.1 use of the Software in breach of the terms of this Licence Agreement or not in accordance with normal operating procedures as described in the Documentation or as otherwise notified to you by us;
5.5.2 use of the Software in violation of any UK or EU law or regulation;
5.5.3 any alterations to the Software made by anyone other than us or someone authorised in writing by us;
5.5.4 any problem with the computer on which the Software is installed, any equipment connected to that computer or any other program which is installed on that computer;
5.5.5 any abnormal or incorrect operating conditions;
5.5.6 any other hardware or program being used with the Software unless this use has been approved by us in writing; or
5.5.7 any breach by you of clause 2.
5.6 No condition, warranty, representation or other term is given or entered into to the effect that the Software or the Documentation will be of satisfactory (or any other) quality or that you will be fit for any particular purpose (whether that purpose is made known to us or not). Save as expressly provided in this Licence Agreement, no other warranties, undertakings, conditions or terms of any kind, express or implied, statutory or otherwise shall apply and all warranties, conditions, terms or other undertakings implied at law or by custom as to the condition, quality, performance, or fitness for purpose of the Software or Documentation or any part thereof, or as to any of the Services, are hereby excluded.
6. Intellectual Property Rights Indemnity
6.1 Subject to the terms of this Licence Agreement and you complying with your obligations we shall indemnify you against any direct loss, claims, damages or expenses (including reasonable legal costs) that may be awarded or agreed to be paid by us to any third party in respect of any claim or action that the normal operation, possession or use of the Software (but not Third Party Software) by you infringes the Intellectual Property Rights of any third party in the United Kingdom (an “Intellectual Property Infringement”) provided that:
6.1.1 You notify us immediately you become aware of any such claim;
6.1.2 You make no admissions or other prejudicial statement in respect of such claim and comply with all reasonable instructions relating to the claim given by us;
6.1.3 You give us the complete conduct of the defence to and any settlement negotiations in relation to any claim or action in respect of any Intellectual Property Infringement and do not at any time admit liability or attempt to settle or compromise the said claim or action without prior consultation with and written consent of us.
6.2 In the event of an Intellectual Property Infringement, we shall be entitled at our own expense and option either to:
6.2.1 procure the right for you to continue using the Software in accordance with this Licence Agreement; or
6.2.2 make such alterations modifications or adjustments to the Software so that they become non-infringing without incurring a material diminution in performance or function; or
6.2.3 replace the Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function (and the provisions of this indemnity shall equally apply to any such substitutes).
6.3 If we are unable to exercise any of the options set out in clause 6.2 shall be entitled to terminate this Licence Agreement by providing us with seven (7) days’ notice and we will refund to you an equitable proportion of the access fees, as set out in the Customer Agreement.
6.4 This clause 6 states your entire remedy in relation to Intellectual Property Infringements and claims and actions relating to them.
6.5 We shall have no liability to indemnify you under this clause 6 if the claim in respect of which indemnity is sought results from:
6.5.1 any breach of your obligations under this Licence Agreement;
6.5.2 your alteration, adaptation, disassembly or reverse engineering of the Software, whether in accordance with this Licence Agreement or otherwise;
6.5.3 us following your instructions or an instruction of a third party acting on your behalf; or
6.5.4 the combination or use of the Software with any other software, hardware or goods not supplied, recommended or approved by us in writing.
6.5.5 in the case of a claim relating to the operation, possession or use of Third Party Software, the above indemnity shall only apply to the extent that we have a valid corresponding claim against the supplier of the Third Party Software and are able to recover the amount of your claim (which we shall use our reasonable endeavours to do) or in the case of multiple claims against us, a proportionate part of the total amount we are able to recover.
7. Exclusions and Limitations of Liability
7.1 Neither Party seeks to exclude or limit its liability (even if any other term of this Licence Agreement would otherwise suggest that this might be the case) for:
7.1.1 death or personal injury caused by our negligence or the negligence of our employees or agents;
7.1.2 under Part I of the Consumer Protection Act 1987;
7.1.3 breach of any condition as to title or quiet enjoyment implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982;
7.1.5 breach of clause 3, 4.2, 6 and 10; and/or
7.1.6 use by either party of the other party’s intellectual property otherwise than in accordance with this Licence Agreement,
Is not excluded or limited by this Licence Agreement, even if any other term of this Licence Agreement would otherwise suggest that this might be the case.
7.2 Save for liability that cannot be limited by law neither party accepts any liability under or in relation to this Licence Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
7.2.1 loss of profits;
7.2.2 indirect, consequential or special loss;
7.2.3 loss of sales;
7.2.4 loss of revenue;
7.2.5 loss arising from business interruption;
7.2.6 loss of contracts or loss of opportunity;
7.2.7 loss of any data but without prejudice to clause 9 hereof;
7.2.8 loss or damage incurred by us as a result of third party claims.
7.3 For the purposes of this clause 7 the term “loss” includes a partial loss or reduction in value as well as complete or total loss
7.4 Save for the liability arising under clause 7.1 (where our liability is unlimited) and liability arising due to a breach by us of clause 10 (Data Protection Legislation) where our liability shall be limited to the civil monetary penalties or fines levied on you by the Information Commissioner’s Office (or any successor regulatory or supervisory authority) in all other circumstances our total aggregate liability under this Licence Agreement and in relation to anything which we have done or not done in connection with this Licence Agreement (and whether the liability arises because of breach of contract, negligence, any indemnities under this Licence Agreement or for any other reason) shall be limited to an amount equal to one hundred percent of the total Charges paid by you under this Licence Agreement in any twelve (12) month period immediately preceding the matter, or circumstances giving rise to the claim.
7.5 You acknowledge that the limitations of liability contained in this clause 7 are a fair and reasonable allocation of the commercial risk between you and us. The provisions of this clause 7 will continue to apply after termination or expiry of this Licence Agreement.
8. Charges and Payments
8.1 You shall pay us the fees for the supply and access to the Software and related Support and any fees for any other Services agreed between you and ourselves (“Charges”) as set out in the relevant Customer Agreement.
8.2 You must pay our invoices strictly within the period indicated on the Customer Agreement regardless of your access or use of the Software and in the absence of a payment period you are to pay all invoices in full the day following the date of issue of the invoice or under the terms of your direct debit mandate.
8.3 If you are late in paying any valid invoices we may (at our sole discretion and upon reasonable notice) either (i) suspend your access to and use of the Software and/or any Services until you have settled such invoices in full or (ii) charge interest on all unpaid amounts. Interest will be payable from the date of issue of the invoice until the date of payment. The rate of interest will be 4% per annum above the base rate for the time being of the Bank of England.
8.4 All Charges and other sums payable under this Licence Agreement are exclusive of UK Value Added Tax and/or equivalent taxes in other countries which will be added and payable by you at the applicable rate and all sums due shall be paid in full without set-off, counterclaim or deduction.
8.5 You will notify us in writing within fourteen (14) business days of receipt of an invoice if you consider an invoice to be incorrect or invalid for any reason failing which you will raise no objection to any such invoice and shall make full payment in accordance with it.
8.6 In respect of disputed invoices notified in accordance with clause 8.5, we will negotiate in good faith to attempt to resolve the dispute promptly. We will provide all such evidence as may be reasonably necessary to verify the disputed invoice and shall raise a corrected invoice which shall be due and paid in full without set-off by you within ten (10) business days of the date of the new invoice.
8.7 In the event you are in breach of this Licence Agreement and we decide to suspend and/or terminate the Licence you will remain fully liable to pay all Charges due to us in accordance with the payment terms under the Order. We shall not be liable to refund any sums prepaid by you in the event this Licence Agreement is terminated due to your termination and/or breach.
9.1 The terms and conditions of this Licence Agreement and any confidential information disclosed here under are confidential and may not be disclosed to any third party. The parties may disclose such information to its employees only on a need-to-know basis. The parties will make no use of such information under the terms and during the existence of this Licence Agreement. The parties will ensure its employees’ compliance with this paragraph.
9.2 The parties’ obligations under this clause 9 shall survive any termination of this Licence Agreement and shall extend to the earlier of such time as the information is public domain (through no breach of confidentiality obligation of either party), or two (2) years following the termination of this Licence.
10. Data Protection Obligations and Legislation
10.1 In this clause 10, “Data Protection Legislation” means (until 25 May 2018) the Data Protection Act 1998 and (as from 25 May 2018) the EU General Data Protection Regulation, and any UK statute, regulations or secondary legislation supplementing or replacing the DPA or the GDPR, or otherwise regulating data protection, in each case as amended or updated from time to time, and any expressions defined in the Data Protection Legislation have the same meaning in this clause.
10.2 For the purposes of this Licence Agreement, we will act as a data processor in relation to personal data relating to your customers for which you are the data controller and in respect of which you use the Software and/or the Services (“Client Data”), and we will comply with our obligations under the Data Protection Legislation accordingly.
10.3 You warrant and undertake that:
10.3.1 in the case of existing Client Data, you have obtained or collected the Client Data lawfully, fairly and in a transparent manner, and in the case of future Client Data, you will obtain or collect the Client Data in that manner;
10.3.2 in the case of existing Client Data, you had a lawful basis, whether based on the consent of the data subject or on the processing being necessary for the purposes of the legitimate interests pursued by the data controller (“Lawful Basis”), for obtaining or collecting the existing Client Data, and will have such a Lawful Basis for obtaining or collecting any future Client Data, and you have kept, and will keep, proper records of that Lawful Basis;
10.3.3 in the case of Client Data for which the Lawful Basis is based on the consent of the data subject, you have complied with the conditions required under the Data Protection Laws for the giving of a valid consent by the data subject;
10.3.4 in the case of existing Client Data you have complied, and in the case of future Client Data you will comply, with your obligations under the Data Protection Legislation to provide the data subject with any information relating to the processing of Client Data which you are required to provide;
10.3.5 the existing Client Data is, and any future Client Data will be, adequate, relevant and limited to what is necessary in relation to the purposes for which they are to be processed pursuant to the agreement;
10.3.6 the existing Client Data is, and any future Client Data will be, accurate and, where necessary, kept up to date;
10.3.7 you will inform us promptly and without delay if you become aware that any of the Client Data is inaccurate, having regard to the purposes for which it is processed, or is no longer necessary for the purposes for which the Client Data is processed pursuant to this Agreement
10.4 Save where, for operational reasons, we share data with a third party processor who provides sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation, and agrees to adhere to substantially the same or similar confidentiality and data protection provisions, as set out in this Licence Agreement, we warrant that we will not disclose any Client Data to any business, organisation or individual without your knowledge, unless required or permitted to do so by applicable law.
10.5 We warrant that to the extent that we process any Client Data under this Licence Agreement that we shall:
10.5.1 process the Client Data only on your written instructions, unless required to do so by applicable laws, and notify you immediately if we believe that any of your instructions violate the Data Protection Legislation;
10.5.2 ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the Client Data and against its accidental loss or destruction or damage;
10.5.3 use appropriate measures to ensuring the confidentiality, integrity, availability and resilience of our systems and services, to ensure that availability of and access to the Client Data can be restored in a timely manner after an incident, and regularly assess and evaluate the effectiveness of the technical and organisational measures adopted by us;
10.5.4 ensure that all of our personnel who have access to and/or process the Client Data are obliged to keep it confidential;
10.5.5 assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, personal breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.5.6 notify you without undue delay, and in any event within 24 hours, on becoming aware of a data breach with respect to any of the Client Data;
10.5.7 update, amend or correct the Client Data on your or your customers’ written request (including deleting temporary files containing the Client Data);
10.5.8 cancel, block access to or delete any of the Client Data on your written request, unless we are required by applicable laws to retain and/or store the Client Data (and then only for the required period);
10.5.9 maintain and make available to you on request complete and accurate records (as required by the Data Protection Legislation) of our processing of Client Data and all information necessary to demonstrate our compliance with this clause; and
10.5.10 at your written request, and at your own cost, and wherever practical within twenty business days, or within such longer period as is necessary, taking into account the amount and complexity of the data, provide you with a copy of the Client Data that you have provided to us, unless you already have (or should reasonably have retained) a copy of such data.
10.6 We will not transfer any Client Data outside of the European Economic Area (and, if the United Kingdom is no longer part of the European Economic Area, outside of the United Kingdom unless the transfer is to a country that is a member of the European Union) unless:
10.6.1 the transfer is to a country which for the purposes of the Data Protection Legislation is recognised as ensuring an adequate level of protection; or
10.6.2 you or we have provided appropriate safeguards in relation to the transfer and the data subject has enforceable rights and effective legal remedies; or
10.6.3 the data subject has given prior written consent of to the transfer, after having been informed of the possible risks of such transfers.
10.7 We provide backups of data in accordance with good industry standards and you are likewise responsible for backing up your data and for implementing disaster recovery in accordance with good computing industry practice.
10.8 You are the data controller under the Data Protection Legislation in respect of any Client Data that we process under this Licence Agreement and in the course of providing our services. The Client Data is derived from data provided by you and is not checked or monitored by us and, accordingly, we have no liability or responsibility whatsoever howsoever arising directly or indirectly to you for the accuracy, contents or use of such Client Data. You accept that in certain circumstances the data analytical services you purchase under the Customer Agreement may require our use of Third Party Software and/or services. We confirm our Third Party’s will agree to adhere to the Data Protection Legislation.
10.9 We reserve the right to delete any Client Data which has not been edited or sent to customers for a period of more than six (6) months.
11.1 The Licence Agreement becomes immediately effective and binding on you on the date that you submit your signed Customer Agreement and may only be terminated in accordance with this clause 11.
11.2 We may immediately terminate this Licence Agreement (and your Licence to access and use the Software) if:
11.2.1 You breach any term of the Licence and you are unable to remedy that breach;
11.2.2 You breach any term of this Agreement and it is possible to remedy but you fail to do so within fifteen business days of being asked to do so by us. For the purposes of this clause, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party in the position it would have been in if the breach had never occurred;
11.2.3 You have breached your obligations under clause 4.
11.2.4 Your usage of the Software does not achieve the following thresholds on a rolling thirty (30) day average (i) Open Rates of eight (8) percent or above, or hard Bounce Rate of one (1) percent or lower. We will always act reasonably and are not obligated to terminate the Licence Agreement if you are in breach of clause 11.2.4.
Open Rates means: where we use an invisible tracking pixel within each message. When images are downloaded either in the preview pane or in full view, the pixel is activated and an open response is recorded (“Open”). An Open is also registered if a link is clicked within the email, regardless of images being downloaded – this is an assumed Open.
Bounce Rates means: when the receiving server rejects the message as undeliverable we will receive a reason code for the message being rejected and will not attempt to retry the delivery of that message.
11.3 Either party may terminate this Licence Agreement if:
11.3.1 the other becomes or is deemed insolvent and/or placed into administration;
11.3.2 any distress or execution is levied on any of party’s property or assets;
11.3.3 an offer to make any arrangement or composition with creditors is made by a party;
11.3.4 any resolution or petition to wind up a party’s business (other than for the purpose of amalgamation or reconstruction) is passed or presented or if a receiver or administrative receiver of the party’s undertaking, property or assets is appointed or a petition presented for the appointment of an administrator; or
11.3.5 a party is subject to any proceedings which are equivalent or substantially similar to any of the proceedings under sub-clause 11.3.1, 11.3.2, 11.3.3 or 11.3.4 under any applicable jurisdiction.
11.4 We may terminate this Licence Agreement and your access to the Software immediately and without notice if we reasonably suspect or you are in breach clause 2.2 or clause 4.2 or use or communicate any confidential information protected under clause 9.
11.5 Apart from any other rights which we might have, if we become aware of an actual or suspected breach of this Licence Agreement we may suspend your access to the Software until we have had an opportunity to investigate such breach and if requested you remedy the breach to our reasonable satisfaction. Where possible we will notify you in advance of any such suspension of access to the Software.
11.6 You hereby agree to indemnify defend and hold harmless us, our directors, shareholders against any and all losses, claims, causes, penalties, and demands arising out of or related to your breach of clause 4, clause 9 or clause 10.
11.7 For certainty no Customer Agreement (and any variations to the Customer Agreement) which has been accepted by us may be cancelled by you except with the prior written agreement of us. In the event we consent to such cancellation the cancellation will become effective at the end of your next billing period. You will be liable for all Charges due under the term of the Customer Agreement unless otherwise agreed by us. We further reserve the right to claim damages, charges and expenses properly and necessarily incurred by us and directly arising from such cancellation.
11.8 Unless otherwise agreed in the Customer Agreement, in the event you wish to terminate the Licence Agreement, you may only do so by serving written notice to firstname.lastname@example.org. You will be liable for the bill covering the period of notice. Unless otherwise agreed by us in the event you terminate the Licence Agreement you will automatically waive all pre-paid credits.
12. Consequences of Termination
12.1 On expiry of the Licence Agreement or the termination of this Licence Agreement for whatever reason your access will automatically be terminated.
12.2 Upon termination of the Licence Agreement your data will be permanently deleted from our systems and we will not be liable to refund you for any unused email credits or services. In the event your data is stored post termination of the Licence Agreement such storage may be subject to a fee to be determined and communicated by us to you.
12.3 Termination of this Licence Agreement will not affect any accrued rights or liabilities that either we or you may have by the time termination takes effect.
13.1 You may not sub-license the use of the Software or Third Party Software to your clients unless:
13.1.1 we give you prior written permission to do so;
13.1.2 any written permission to sub-licence the Software or Third Party Software will contain terms that are substantially the same as the terms relating to the Licence Agreement contained in this Licence Agreement and grants us direct rights as a third party; and
13.2 If you sub-license the use of the Software or Third Party Software to a customer in accordance with clause 13.1.2 above, then you acknowledge that you are fully responsible for such customers use of the Software or Third Party Software and you shall indemnify us against all demands, claims, legal action, damages, costs (including, without limitation, legal costs and expenses), loss, interest or expenses arising out of any misuse or negligent use of the Software or Third Party Software by your customer.
13.3 You may not assign any of your rights or obligations under this Licence Agreement without our prior approval in writing. We reserve the right to assign this Licence Agreement or any of our rights or obligations under it to any third party.
13.4 Neither party will be liable to the other party for any breach of this Licence Agreement which arises because of any circumstances which they cannot reasonably be expected to control.
13.5 The headings in this Licence Agreement are for reference only.
13.6 Any dispute or other action arising out of this Licence Agreement must be brought within one year of the date the cause of action accrued. An action for non-payment may be brought within two years of the date of last payment.
13.7 In the event of a dispute arising out of or in connection with this Licence Agreement or any contract between you and us, then you agree to use your best efforts to settle the dispute by engaging in good faith with us before commencing mediation, arbitration or litigation.
13.8 The Licence Agreement (together with any other document referred to in it) sets out all of the terms that have been agreed between us in relation to the subjects covered by it, and supersedes any previous understandings or representations (but nothing in this Licence Agreement affects the liability of either party for fraud or fraudulent misrepresentation). Save for the warranties and representations set out in clause 5 no other warranties or representations or other terms shall apply or form part of this Licence Agreement, and each party irrevocably waives any right that it might otherwise have to rely on any such warranties or representations or other terms.
13.9 Where this Licence Agreement refers to any person, this includes reference to legal as well as natural persons (so, for example, a limited company is a person for the purposes of this Agreement).
13.10 No term of this Licence Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Licence Agreement.
13.11 If any provision of this Licence Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this Licence Agreement, or this Licence Agreement as a whole.
13.12 The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Licence Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Licence Agreement.
13.13 This Licence Agreement may be executed via an online acceptance system or may be executed by exchange of signature pages in any number of counterparts, each of which shall be an original as against the Party whose signature appears thereon and all of which constitute one and the same instrument. A signature received via facsimile or via scanned document attached in an email shall be as legally binding for all purposes as an original signature.
13.14 This Licence Agreement is governed by English law and both parties submit to the exclusive jurisdiction of the English Court, but we may apply to any court of competent jurisdiction for emergency or interim relief, or for the purpose of recovering any debt owed by you to us and if you hereby agree to submit in such event to such court.