License Agreement

LICENCE AGREEMENT

PUREPROMOTER LIMITED trading as PURE360 (REFERRED TO ALSO AS “WE”, “US” AND/OR “OUR”) HAS A DIGITAL MARKETING PLATFORM KNOWN AS “PURE360 PLATFORM” (PREVIOUSLY ‘PURERESPONSE’) SOFTWARE (“SOFTWARE”)

THE LICENCE TERMS AS CONTAINED IN THIS DOCUMENT TOGETHER WITH THE ORDER FORM AND OTHER TERMS AS MAY BE NOTIFIED TO YOU IN WRITING BY PURE360 FROM TIME TO TIME APPLIES TO YOUR ACCESS AND/OR USE OF OUR SOFTWARE (“LICENCEAGREEMENT“).

IMPORTANT NOTICE: CONTRACT FORMATION

THIS LICENCE AGREEMENT TOGETHER WITH THE ORDER FORM WHICH YOU HAVE RECEIVED FROM US SETS OUT THE TERMS ON WHICH WE AGREE TO GRANT YOU PERMISSION TO ACCESS AND USE THE SOFTWARE. THE ORDER FORM FORMS PART OF THE LICENCE AGREEMENT BETWEEN YOU AND US. IF THERE IS A CONFLICT BETWEEN THE TERMS OF THIS LICENCE AGREEMENT AND THE ORDER FORM THE TERMS OF THIS LICENCE AGREEMENT WILL PREVAIL.

FOR CLARITY BY YOU ACCEPTING THE ORDER FORM YOU HAVE AGREED TO BE SUPPLIED WITH OUR SOFTWARE AND/OR ASSOCIATED SERVICES SUBJECT TO THE TERMS AND CONDTIONS CONTAINED IN THIS LICENCE AGREEMENT.

NO ORDER FORM WHICH HAS BEEN ACCEPTED BY PURE360 MAY BE CANCELLED BY YOU EXCEPT WITH THE PRIOR WRITTEN CONSENT OF PURE360.

READ THIS LICENCE AGREEMENT CAREFULLY AND ENSURE THAT YOU UNDERSTAND ITS TERMS PRIOR TO SUBMITTING THE ORDER FORM.

1. LICENCE

1.1 This Licence Agreement together with the Pure360’s order form you have received from us (the “ Order Form “) contains the terms relating to your access, use and support of the Software together with such documentation related to the Software as we provide from time to time (“Documentation“).

1.2 We hereby grant you a revocable, world-wide, non‑exclusive, non-transferable license to use the Software upon the terms and conditions of this Licence Agreement.

1.3 If we have agreed with you and stated in the Order Form that we will provide you, subject to payment, access to the Software for evaluation purposes, we hereby grant you a personal, non-exclusive, non-transferable licence to access and use the Software for the purpose of its testing and evaluation by you (the “Evaluation Purpose“), and references to the Evaluation Licence in this Licence Agreement are references to this licence. The Evaluation Licence granted to you under this clause 1.3 will last until the earlier of (i) thirty days from the date on which you first activate your account by accessing the Software using the username and password we have supplied you with unless otherwise determined by us (the “Evaluation Period”) or (ii) the date you acquire a permanent licence from us as detailed in clause 1.4 (if this is earlier than the expiry of the Evaluation Period).

1.4 Subject to adherence of the payment terms contained in the Order Form 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 such licence is granted on a revocable, non-exclusive and non-transferable basis (“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.

1.5 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.

1.6 You agree not to re-sell, loan, rent, pledge, assign, sub-licence or otherwise transfer the Software or any rights granted under this Licence Agreement in particular the Licence without the prior written consent of Pure360.

1.7 You agree not to yourself or by a third party alter, obscure, remove, interfere with or add to any trademarks, trade names, markings or names affixed to or contained within the Software and/or Documentation.

1.8  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 Pure360.

1.9  You accept full responsibility and liability for the acts or omissions of any of such persons given access to the Software and/or Documentation as if you had performed such acts or omissions yourself.

1.10  You will comply with any additional restrictions or terms stipulated in the Order Form or through any future communication from us to you. We reserve the right to update our Licence Agreement and such updates will be located on our website.

1.11   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 either in writing or via our web site “pop up” notification alerts. In the event such “pop up” notification occurs you will be required to accept such notification.

1.12   The Licence granted to you by clause 1.3 will last until this Licence Agreement is terminated in accordance with clause 10.

1.13  The Licence granted to you by us may also include a sub-licence to use third party software  (“Third Party Software”) in object code form only and under the sub-licence you will receive a non-exclusive, non-transferable license to use the Third Party Software, in conjunction with our Software. 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. 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.Users

2.1 You will be provided with a user name and password for your designated users in order to access and use the Software (“User”) and associated support functions as set out in clause 2.4 (“Support”). Each User name 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 submitting an Order Form 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 user name(s) and password(s).

2.2 You must keep your username and password strictly confidential and not disclose it 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 the prior written consent of us. 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 of the Software and Documentation in accordance with the terms of the Licence and Licence Agreement and any breach of this clause 2.3 will excuse us from our liability under the Licence Agreement. You will be liable to us for any direct losses we suffer as a result of your breach of the clause 2.3.

2.4  Unless otherwise agreed in an Order Form we provide the following Support:

2.4.1 Software Support Monday to Friday 0900-1730hrs excluding bank holidays or other statutory holidays in England and Wales;

2.4.2 Product Support is provided via helpline, email and Twitter (see our Customer community website for further details)

3. Copyright and Intellectual Property Rights

3.1 You agree and acknowledge that title to all the intellectual property rights, which includes but is not limited to, all design rights (except for your email design assets), utility models, inventions, service marks, logos, business names, database rights (including extraction and re-utilization rights, trademarks (whether registered or unregistered), moral rights, industrial property rights, Internet domain names, applications for any of the foregoing, copyright, rights in databases, interface information, system generated data, system output data (excluding your confidential data or information protected by the Data Protection Act 1998), source codes, reports, specifications, know-how, trade secrets, confidential information, software designs and/or other materials in the Software and the Documentation (“Intellectual Property Rights”) 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 Pure360 or its 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.

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 not to remove, suppress or modify any proprietary marking, including any trade mark or copyright notice, on or in the Software or Documentation.

3.5 You agree to 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 breach the Data Protection Act 1998;

4.2.5  use, copy, alter, reverse engineer or decompile the Software or Documents except to  the extent set out in this Licence Agreement;

4.2.6 use the Software for fraudulent purposes, or in connection with a criminal offence or  other unlawful activity;

4.2.7 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,

4.2.8 use the Software to spam.

Spam / Spamming means “Unsolicited Bulk Email”. Unsolicited means that the recipient has not granted verifiable permission for the message to be sent to them. Bulk means that the message is sent, as part of a larger collection of messages, all having substantively identical content. A message is Spam only if it is both Unsolicited and Bulk. Unsolicited Email is normal email such as first contact enquiries, job enquiries, sales enquiries. Bulk Email is normal email such as subscriber newsletters, customer communications, discussion lists.

4.3 We monitor your account for Spam activity and if we find any evidence of Spamming activity we will immediately suspend your Licence and account and then investigate the matter which will include a request by us for evidence that your email communication was solicited. In the event of Spamming activity we also reserve the right to terminate your Licence and account permanently with no liability to us. We reserve the right to refuse to address emails if we reasonably consider that the sending of emails may reasonably constitute Spamming.

You will be required to produce evidence that your data constitutes opted-in email addresses. For clarity “opted-in” means the recipient has positively consented to receiving emails from you. If you cannot provide such evidence it will be deemed that you have not obtained the necessary consent from the recipient and that you are then in breach of this 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.

4.4 You hereby acknowledge and agree that we reserve the right, at our sole discretion and without notification, to (i) refuse access to the Software and/or (ii) refuse access to our services if you are in breach of clause 4.

4.5 Any other right which is not expressly imparted under this Licence Agreement is reserved with us.

5.Warranty and Disclaimer

5.1 We warrant (subject to the other provisions of this Licence Agreement) to you that we have the full capacity and authority to enter into and to perform this Licence Agreement including the authority to grant the License under this Licence Agreement to you.

5.2 We warrant that the Software will, for a period of thirty (30) days after you first access the Software will be free from any material defect which would have a materially adverse effect on its use in accordance with this Licence Agreement.

5.3 Notwithstanding clause 5.2 you acknowledge that software in general is not error-free, and agree that the existence of such errors shall not constitute a breach of this Licence Agreement when those errors are corrected and don’t fundamentally prevent the use of the Software.

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 within a reasonable time from receipt of notification and failure to remedy you can terminate the Licence Agreement. This clause 5.6 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 violation to 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 it 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, satisfactory quality or fitness for purpose of the Software or any part thereof are hereby excluded.

5.7 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 the Company and that you will comply with all your obligations contained in this Licence Agreement and/or in an Order Form.

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 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, then you, without prejudice to any other rights and remedies you have in law, 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 monthly access fees, as set out in the Order Form.

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

6.5.3  the combination or use of the Software with any other software, hardware or goods not supplied, recommended or approved by us in writing.

7  Exclusions and Limitations of Liability

7.1 The Parties liability 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;

7.1.4  fraud;

7.1.5  breach of clause 3, 4, 6, 9 and 10.7 and/or

7.1.6  misappropriation by you of our Intellectual Property

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 Neither party accept 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 (i) loss of profits; (ii) indirect, consequential or special loss; (iii) loss of sales; (iv) loss of revenue, loss of contracts or loss of opportunity; (v) loss of any data; (vi) loss arising from business interruption; or (vii) loss or damage incurred by the Company 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 If for any reason the exclusion of liability in clause 7.2 above is void or unenforceable, in whole or in part our total liability for all loss or damage under this Licence Agreement shall be as provided in clause 7.5.

7.5 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 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 circumstance giving rise to the claim.

7.6 You acknowledge that the limitations of liability contained in clause 7.5 are a fair and reasonable allocation of the commercial risk between us. The provisions of this clause 7.6 will continue to apply after termination or expiry of this Licence Agreement.

8.Charges and Payments

8.1 You shall pay us the fee for the supply of the Software and related Support and any additional Consultancy Services fees agreed between ourselves (“Charges”) and as set out in the relevant Order Form. The invoice we send you for any of the above Charges will correspond to the Order Form.

8.2 You must pay our invoices strictly within the period indicated and agreed on the Order Form and in the absence of a payment period you are to pay all invoices in full within thirty (30) days of issue or under the terms of your direct debit mandate.

8.3  If you are late in paying any invoices we may (at our sole discretion) either (i) suspend your access to and use of the Software until you have settled such invoices in full or charge interest on all unpaid amounts. Interest will be payable from the date of the invoice is due until the date of payment and will continue to be payable even if we obtain a judgment from a court in relation to any claim for payment of the invoice. The rate of interest will be 4% per month above the base rate for the time being of HSBC Bank Plc.

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, counter claim or deduction.

8.5 You will notify us in writing within fourteen (14) 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) days of the date of the new Invoice.

9 Confidentiality and Data Protection Legislation

Confidentiality:

9.1 Each Party to this Licence Agreement undertakes that any confidential information of the other will be kept secret and will be disclosed to any third party only to such extent as is necessary for the purposes of this Licence Agreement.

9.2 Subject to the previous sub-clause, the Parties hereby undertake for themselves and every employee or sub-contractor whose services they may use:

9.2.1 that they will not divulge to any person or otherwise make use of (and shall use their best endeavors to prevent the publication or disclosure of confidential information; and in any event;

9.2.2 that they will explain to all relevant employees, agents and subcontractors about the provisions of this clause and will take appropriate steps to ensure compliance with these provisions by their employees, agents and subcontractors.

9.3 At all times before and after the termination of this Licence Agreement, you will not use the confidential information about us for any purpose other than the performance of his obligations under this Licence Agreement.

9.4 Without affecting clause 2.2, you will keep confidential any information which we supply to you (which will include the Documentation). This will not apply to any information which:

9.4.1 is available to the public other than because of any breach of this Licence Agreement;

9.4.2 is, when it is supplied, already known to you in circumstances in which You are not prevented from disclosing it to others;

9.4.3 is independently obtained by you in circumstances were you are not prevented from disclosing it to others;

9.4.4 is trivial or obvious; or

9.4.5 is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure.

Data Protection Obligations and Legislation

9.5 We are defined as a data processor under the Data Protection Act 1998 (as amended) (“DPA”) and we will comply with our obligations under the DPA.

9.6 We warrant that we will not disclose any personal data to any business, organisation or individual without your prior written consent, unless required by law.

9.7 We warrant that to the extent that we process any personal data (as defined under the DPA)  under this Licence Agreement that we shall:

9.7.1 have in place reasonably appropriate and industry standard technical and organisational measures to prevent accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access;

9.7.2 update, amend or correct data on your or your customers written request;

9.7.3 cancel or block access to any personal data on your written request ;

9.7.4 disclose any information required under Section 7 of the DPA;

9.7.5 delete temporary files containing your customers data; and

9.7.6 only process such personal data in accordance with your instructions and only to the extent reasonably necessary to fulfill our obligations under this Licence Agreement.

9.8 On your written request, we will upon ten business days provide you with a copy of your data.

9.9 Unless otherwise agreed in writing we have no responsibility or liability for the storage or back up of your data and although back-ups shall be carried out at regular intervals, you shall remain entirely responsible for making your own back-ups of such data if required, particularly but not limited to when you add a significant amount of data over a short time period.

9.10 You are the data controller under the DPA in respect of any personal data that we process in the course of providing our services and under the Licence. The personal 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 personal data.

9.11 You will keep its password and other access details for use of the Software strictly confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. You shall notify us immediately if it believes that such information is no longer secret. You are solely responsible for all activities that occur under your passwords or account. You will not permit any person to access the Software for any unauthorised purpose that would constitute a breach of this Licence Agreement if such a breach was carried out by you.

10 Termination

10.1 The Licence Agreement becomes immediately effective and binding on you on the date that you submit your signed Order Form and may only be terminated in accordance with this clause 10.

10.2 We may immediately terminate this Licence Agreement (and your Licence to use the Software)  if:

10.2.1 You breach any term of the Licence Agreement and you are unable to remedy that breach;

10.2.2 You breach any term of this Licence 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;

10.2.3 Your acts or omissions could or have negatively impacted our good name and/or reputation;

10.2.4 You have breached your obligations under clause 4.

10.3 We may terminate this Licence Agreement if:

10.3.1 You become or are deemed insolvent and/or placed into administration;

10.3.2 any distress or execution is levied on any of your property or assets;

10.3.3 You make an offer to make any arrangement or composition with creditors;

10.3.4 any resolution or petition to wind up your business (other than for the purpose of amalgamation or reconstruction) is passed or presented or if a receiver or administrative receiver of your undertaking, property or assets is appointed or a petition presented for the appointment of an administrator;

10.3.5 for convenience upon forty eight hours’ notice; or

10.3.6 You are subject to any proceedings which are equivalent or substantially similar to any of the proceedings under sub-clause 10.3.1, 10.3.2, 10.3.3 or 10.3.4 under any applicable jurisdiction.

10.4 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.

10.5 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 performance of any of its obligations or exercise of any of your rights under this Licence Agreement, including but not limited to the suspension of 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.

10.6 You hereby agree to indemnify defend and hold harmless us, our directors, shareholders and against any and all losses, claims, causes, penalties, and demands arising out of or related to your breach of clause 4 and clause 9.

10.7 For certainty no Order Form 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. We further reserve the right to claim damages, charges and expenses properly and necessarily incurred by us and directly arising from such cancellation.

10.8 If you wish to terminate the Licence Agreement you may only do so by serving written notice to accounts@pure360.com. Notice can only be served seven days prior to the start of your next monthly invoice and you will be liable for the monthly bill covering the period of notice.

11 Consequences of Termination

11.1 On expiry of the Licence Agreement or the termination of this Licence Agreement for whatever reason your access will automatically be terminated.

11.2 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.

11.3 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.

12 General

12.1 You may not sub-licence the use of Software to your customers unless:

12.1.1  we give you prior written permission to do so;

12.1.2  any written permission to sub-licence the 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.

12.1.3 we may require that you enter into a reseller or bureau agreement governing such sub-licence of our Software.

12.2 If you sub-licence the use of the Software to a customer in accordance with clause 12.1 above, then you acknowledge that you are responsible for such customers use of the Software and you shall indemnify us against all demands, claims, legal action, damages, costs (including, without limitation, legal costs), loss, interest or expenses arising out of any misuse or negligent use of the Software by your customer.

12.3 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.

12.4 We will not be liable to you for any breach of this Licence Agreement which arises because of any circumstances which we cannot reasonably be expected to control.

12.5 The headings in this Licence Agreement are for reference only.

12.6 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 nonpayment may be brought within two years of the date of last payment.

12.7 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.

12.8 The Licence Agreement sets out all of the terms that have been agreed between us in relation to the subjects covered by it. Save for the warranties and representations set out in clause 5 no other warranties or representations or terms shall apply or form part of this Licence Agreement.

12.9 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).

12.10 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.

12.11 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.

12.12 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.

12.13 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.

12.14 We reserve the right to delete list data which has not been edited or sent to for a period of more than six (6) months

12.15 We can provide under an Order Form certain consultancy services (“Consultancy Services”) which includes:

12.15.1 on and off site training;

12.15.2 best practice advice in digital marketing;

12.15.3 creative design work  for email templates and build;

12.15.4 preference centre design and build;

12.15.5 landing page design and build and related ad hoc advisory services; and or

12.15.6 custom data extracts and custom specific software features.

Subject to payment of the fees for the Consultancy Services we will grant you a non‑exclusive, non-transferable, revocable, royalty‑free licence to use, copy and reproduce for your internal business use those original works we produce for you

The requested Consultancy Services including any special terms and conditions and the fees will be specified in the relevant Order Form. Save for the special terms and conditions the Order Form and Consultancy Services will be governed by the Licence Agreement.

12.16 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 f you hereby agree to submit in such event to such court.

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