End User Licence Agreement (“EULA”)
Definitions in this Agreement shall have the following meanings:
“Account” shall mean the Customer’s account created when he registers with the Site to use the Software.
“Activation Date” shall mean the date the Customer presses the “Register” button on the registration form and the date at which the Customer’s ability to use the Software commences.
“Agreement” shall mean this End User Licence Agreement between the Parties.
“Associated Company” shall mean any subsidiary or holding company legally associated with Customer by way of part or whole ownership of equity and share capital or any subsidiary of such holding company, as such terms are defined in the Companies Act 1985.
“Business Day” shall mean the hours of 9:00am to 5:00pm English Time, Monday to Friday, excluding UK public holidays.
“Confidential Information” shall mean confidential information as defined in Clause 13 of this Agreement.
“Credit” a unit of credit purchased or to be purchased to use the SaaS and/or Software.
“Credit Balance” the number of Credits purchased by the Customer and available for use of the SaaS or Software.
“Customer” shall mean the Party who acquires the right to use the Software-as-a-Service (“SaaS”) under this Agreement.
“Customer Data” shall mean customer data as defined in Clause 7 of this Agreement.
“Documentation” shall mean all and any documentation pertaining to the use of Software under this Agreement.
“Direct Support” shall mean the provision of Support Services as defined in Clause 9 of this Agreement.
“E-mail Support” shall mean the provision of Support Services as defined in Clause 9 of this Agreement.
“Errors” shall mean the errors in the Software as defined in Clause 9 of this Agreement.
“Intellectual Property” shall mean all intellectual property rights of any kind existing in the world whether or not registered, and all applications, renewals and extensions of the same including (without limitation) copyright, moral rights, database rights, design rights, patents, trade marks, domain names, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information.
“Intelligent Flatplan” shall mean the SaaS provided by Purelabs to Customer under this Agreement.
“ISP” shall mean a third party Internet services provider selected to host the Software under this Agreement.
“Licence” shall mean the licence of the Software and the SaaS contained in this Agreement.
“Modules, Components and Scripts” shall mean the source code and object code defining the Software provided to Customer as Software-as-a-Service (“SaaS”) in this Agreement.
“New Release” or “New Releases” shall mean new dot releases of Modules, Components and Scripts of Software as made available from time to time to Customer by Purelabs..
“Quarter” shall mean a three (3) month period.
“Parties” shall mean Purelabs and Customer and “Party” shall mean either one of them.
“Password” or “Passwords” shall mean the passwords that enable Customer to access the Services under this Agreement and as specified in Clause 10 of this Agreement.
“Proprietary Rights” shall mean all Intellectual Property and other industrial, commercial and proprietary rights held by Purelabs and its licensors in Software and Services and Software-as-a-Service.
“Purelabs” shall mean Publishing Research Laboratories Limited, a company incorporated in England with registration number 6197563 and having its registered address at Fruitworks, 77 Stour Street, Canterbury, Kent, CT1 2NR.
“Security” shall mean security as specified herein Clause 10 of this Agreement.
“Services” shall mean any service provided by Purelabs, including but not limited to Software-as-a-Service (“SaaS”) and Support Services.
“Site” shall mean the website via which the SaaS is made available to Customer, www.intelligentflatplan.com or such other website as may be notified to the Customer from time to time.
“Software-as-a-Service” or “SaaS” shall mean the provision for use of the Software on the basis of Software-as-a-Service (“SaaS”) to Customer via ISP consistent with the terms and conditions herein this Agreement.
“Software” shall mean all software made available by Purelabs to the Customer pursuant to this Agreement for use as a Software-as-a-Service (“SaaS”) and shall include the features and modules listed in any features list (as may be amended from time to time).
“Support Line” or “Support Lines” shall mean telephone support lines provided by Purelabs to Customer pursuant to the Support Services provided pursuant to Clause 13 of this Agreement.
“Support Services” shall mean Support Services provided pursuant to Clause 9 of this Agreement.
“Term” shall mean the term of this Agreement pursuant to Clause 11 of this Agreement.
“Third Party Licences” shall mean third party software licences used as part of Services
“Websites” shall mean any website publicly available on the Internet.
In this Agreement, unless the context otherwise requires, the expression “person” shall include any individual, partnership, local authority, company and unincorporated association; words importing the singular include the plural and words importing any gender include every gender and in each case vice versa.
1. Software-as-a-Service. (“SaaS”)
Subject to the terms and conditions of this Agreement, Purelabs agrees to provide to Customer, on a Software-as-a-Service basis in exchange for purchasing Credits, the Software-as-a-Service offering identified, described and available online at the Site and as specified in this Agreement, which is to be made available to the Customer on the Activation Date hereof, and thereafter bug fixes or other minor enhancements or improvements as part of the Services, pursuant to this Agreement.
2. Licence Grant.
2.1 Purelabs hereby grants to Customer, subject to all of the terms and conditions of this Agreement, a non-exclusive, non-transferable non-sub-licensable Licence for access to the Software-as-a-Service via the Internet and to use the Software, in object code form only on a Software-as a-Service basis, solely for its own internal business purposes in accordance with the terms set out in this Agreement. The Software-as-a-Service is to be used by the Customer solely for the purpose of producing flatplans for multi-page publications for its own business and not for any other purpose and not on behalf of any other organisation unless authorised by Purelabs.
2.2 Access to the SaaS and the Site is permitted on a temporary basis for lawful purposes only. Purelabs reserves the right to amend or withdraw any Service on reasonable notice. Purelabs will not be liable if for any reason the Site or any Service is unavailable at any time or for any period.
3. Licence Restrictions.
Customer shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; (ii) modify, translate, or create derivative works based on the Software or the Software-as-a-Service; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software or the Software-as-a-Service; (iv) use the Software or the Software-as-a-Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove or alter any proprietary notices from the Software or the Software-as-a-Service or otherwise any reference to the Purelabs brand or name and shall not otherwise rebrand or rebadge the Software or the SaaS without Purelabs’ prior written consent and on payment of such additional charges as Purelabs may determine; (vi) publish or disclose to third parties any evaluation of the Software or the Software-as-a-Service without Purelabs’ prior written consent; or (vii) create any link to the Site, Software or the Software-as-a-Service or frame or mirror any content contained on, or accessible from, the Software-as-a-Service, [other than payment Services and/or fulfilment Services specified in this Agreement], or (viii) otherwise replicate or seek to replicate the functionality or look and feel of the Software.
4.1 To use payable Services Customer needs to purchase sufficient Credits. The Customer can purchase Credits with its debit or credit card, pro forma invoice or other means which may be made available by Purelabs from time to time. Purelabs reserves the right at any time to stop accepting debit or credit cards from one or more issuers.
4.2 Any services provided by Purelabs in addition to the Services shall be charged by Purelabs in addition to the charges for the Services and the Customer shall either purchase additional credits for such services, or pay by such other method as Purelabs may agree or specify from time to time.
4.3 Restrictions. Purelabs does not guarantee Customer will be able to use its Credit Balance to purchase all Services. Certain Services may have to be paid separately.
4.4 Credit expiration. Unused Credits expire 1 calendar year after their purchase date.
4.5 Once purchased, Credits are not refundable or transferable.
4.6 Purelabs may change the price of Credits any time by giving thirty days’ notice of such change on the Site.
4.7 All prices are stated in UK pounds-sterling and are exclusive of applicable Value Added Tax (VAT) at 17.5 %. Customer shall be responsible for the payment of any taxes, duties or tariffs applicable to the services provided under this Agreement
5. Copyright and Intellectual Property Rights.
5.1 Customer hereby acknowledges that the copyright in the Software is the property of Purelabs or its licensors. Purelabs or its licensors has exclusive ownership of all enhancements, alterations, modifications, fixes, patches, workarounds and other additions to the Software. Customer hereby acknowledges and agrees that the brand, name and all Intellectual Property in and to the Software and the SaaS vests in Purelabs and that nothing in this Agreement shall operate to transfer, or is intended to operate or transfer, any right, title or interest in or to the Software except that the Customer may use the Software in accordance with Clause 2.
5.2 Purelabs is the owner or the licensee of all Intellectual Property rights in the Site, and in the material published on it, including (without limitation) the Software. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
5.3 The Customer may print off one copy, and may download extracts, of any page(s) from the Site for its personal reference and may draw the attention of others within its organisation to material posted on the Site. All use of the Intelligent Flatplan is subject to the terms of the Licence.
5.4 The Customer must not modify the paper or digital copies of any materials it has printed off or downloaded in any way, and must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
5.5 Purelabs’ status (and that of any identified contributors) as the authors of material on the Site must always be acknowledged.
5.6 The Customer must not use any part of the materials on the Site for commercial purposes without obtaining a licence to do so from Purelabs or its licensors.
6. Customer Obligations.
6.1 Purelabs and Customer hereby agree to the following :
a. Hardware. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Site and the Software-as-a-Service, and for paying all third-party access charges (eg, ISP, telecommunications) incurred while using the administration and related functionality of the Software-as-a-Service.
b. Conduct. Customer shall be solely responsible for its actions and the actions of its users while using the Software-as-a-Service and the contents of its transmissions through the Software-as-a-Service and otherwise for all actions using its Passwords or any of them. Without prejudice to the generality of the foregoing, Customer agrees:
i. to abide by all local and international laws and regulations applicable to Customer’s Use of the Software-as-a-Service, including without limitation all laws regarding the transmission of technical data exported from United Kingdom through the Software-as-a-Service;
ii. not to upload or distribute in any way files that contain viruses, trojans, worms, time bombs, logic bombs, corrupted files, or any other similar software or programs that may damage the operation of the Software-as-a-Service or another’s computer
iii. not to Use the Software-as-a-Service for illegal purposes;
iv. not to interfere or disrupt networks connected to the Software-as-a-Service;
v. not to upload, post, promote or transmit through the Software-as-a-Service any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;
vi. not to upload amounts of data and/or materials in excess of any limits specified by Purelabs from time to time and not to create large numbers of accounts or otherwise transmit large amounts of data so as to clog the SaaS or comprise a denial of service attack or otherwise so as to have a detrimental affect on the Services;
vii. not to upload, promote, transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability; and,
viii. to obtain all Third Party Licences necessary to access the internet and the Services;
ix. to comply with all regulations, policies and procedures of networks connected to the Software-as-a-Service. Customer acknowledges and agrees that Purelabs neither endorses the contents of any customer communications nor assumes any responsibility for any threatening, libellous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Purelabs may remove any violating content posted on the Software-as-a-Service or transmitted through the Software-as-a-Service, without notice to Customer. Customer further acknowledges, that while Purelabs is not under any duty or obligation to monitor the content of any material uploaded, transferred to, posted, submitted or otherwise transmitted through the Software-as-a-Service or the Site, Purelabs may monitor any such material at its discretion and may also disclose such material to the police or other authorities where it is required to do so, or in order to
co-operate with the police and/or such authorities or where it considers that an offence may have been committed;
x. to ensure that all registration and other data and information provided to Purelabs is true and accurate in all respects;
xi. to ensure that any user of the Password or Customer’s account is aware of, and adheres to, the terms of this Agreement;
xii. to only post, transfer or upload material which belongs to the Customer or which it is authorised to post, upload, transfer and otherwise use.
c. Software-as-a-Service may provide links to other Websites or resources. Customer acknowledges and agrees that Purelabs is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources. Purelabs shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.
6.2 Purelabs has adopted a philosophy that assumes the honesty and good intent of its customers, therefore Software-as-a-Service is provided in as unrestricted a manner as possible to allow Customer the richest experience possible. However, use of the SaaS is subject to certain conditions and the pricing of the use is subject to certain assumptions.
6.3 Customer acknowledges that one Credit is deemed payment for one page, of one issue, of one title. Without prejudice to clause 6.4, Purelabs accepts that during normal use of the Software and SaaS it may be necessary to delete and/or move and/or rename editorial items, advertorial items and advertising items and/or rename a title and/or issue to accommodate expected changes.
6.4 The Customer shall not delete and/or move and/or rename editorial items, advertorial items and advertising items and/or rename a title and/or issue to reuse an existing flatplan for a new title and/or future issue of an existing title.
6.5 Customer acknowledges and accepts that Purelabs reserves the right to automatically or manually monitor the number of deletion, movement and/or renaming actions. If Purelabs considers the number of deletion, movement and/or renaming actions is above expected normal use or above average, Purelabs reserves the right to notify Customer of its concerns and ask Customer to modify its use of the Software accordingly within 7 days. If Customer fails to modify its use of the Software within 7 days or subsequently again exceeds normal or expected use, Purelabs reserves the right to terminate the Agreement with immediate effect, without recompense and delete any files held on its servers forthwith on serving written notice with immediate effect on the Customer.
6.6 Customer acknowledges that the policy comprised in clauses 6.2 to 6.5 may be revised, without notice, at any time, at the sole discretion of Purelabs. Any changes will be notified to the Customer via the log-in page to the SaaS.
7. Customer Data.
7.1 As between Purelabs and Customer, Customer shall own all data, information or material that Customer enters into the Software-as-a-Service or has entered on its behalf (“Customer Data”). Except as permitted in this Agreement, Purelabs will not edit, delete or disclose the contents of any Customer Data unless authorised by the Customer or unless Purelabs is required to do so by law or in the good faith belief that such action is necessary to:
i. conform with applicable laws or comply with legal process served on Purelabs;
ii. protect and defend the rights or property of Purelabs; or
iii. enforce this Agreement.
7.2 Purelabs may provide user statistical information such as usage or traffic patterns in aggregate form to third parties, but such information will not include personally identifying information. Purelabs may access Customer Data to respond to service or technical problems with the Software-as-a-Service.
7.3 Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data, and Purelabs assumes no responsibility for the deletion, correction, destruction, loss, of any Customer Data or the infringement by the Customer Data of any regulation, law, Code, directive or other requirement.
7.4 Purelabs reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Data that Customer may store, post or transmit on or through the Software-as-a-Service. Customer shall be responsible for maintaining an archive or back-up copy of all Customer Data, and Purelabs shall have no liability for any loss of any Customer Data or the failure of the Services to store any Customer Data, whether caused by Purelabs or any third party service provider.
7.5 Purelabs shall retain Customer Data for a period of 36 months after expiration or termination of this Agreement. On termination, Customer may request a copy of the personal data comprised in the Customer Data from Purelabs, and, if Customer requests, Purelabs agrees to provide an unformatted copy of such personal data to the Customer at Purelabs’ then current rates on a time and materials basis. After 36 months, Purelabs may delete and destroy all Customer Data without notice or further liability to Customer. The Customer may request that the Customer Data be deleted at any time. If Customer’s account is not used for a period of 36 months, Purelabs will deactivate the account and delete the Customer Data without notice to the Customer.
7.6 Purelabs may use the Customer’s registration details to inform the Customer about its products and services, send a newsletter and to contact the Customer in connection with the Services and the Customer’s use of the SaaS. The Customer has the right to opt out from receiving the newsletter and information concerning Purelabs’ products and services. Purelabs uses these registration details to provide the Services pursuant to this Agreement, including administration of your account, and also, as part of its legitimate interests of promoting its business and keeping the Customer informed about new products, services and features, however if you do not want to receive such news and updates information, please email us at firstname.lastname@example.org. From time to time we may incorporate additional functionality to enable you to opt out in other ways from receiving such mailings, for example through your My Flatplan screen.
7.7 Where the Customer Data comprises or includes personal data (as defined in Data Protection Legislation) the following provisions apply. For the purposes of this paragraph 7.7, Data Protection Legislation means the General Data Protection Regulation (EU 2016/679) (“GDPR”) or any successor legislation to the GDPR. Both parties will comply with all applicable requirements of the Data Protection Legislation.
a. The parties acknowledge that, except in connection with registration to open an account, Purelabs does not require any personal data in order to provide the Services under this Agreement but that Customer may at its discretion include personal data in the Customer Data submitted to the Services. The parties further acknowledge that for the purposes of the Data Protection Legislation, and except for registration data, Customer is the data controller and Purelabs is the data processor (as defined in the Data Protection Legislation) of such Customer Data. Accordingly, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Data to Purelabs for the duration and purposes of this Agreement.
b. The Customer acknowledges that, except for registration data, unless Purelabs is specifically notified that personal data is being processed in the Services or an extract of personal data is sent to Purelabs in the course of providing the Support Services, it will not have knowledge that personal data is being transmitted in the Services ie used in Customer’s flatplans.
c. Without prejudice to paragraph 7.7b, Purelabs shall:
i. process the personal data only on the written instructions of the Customer and in accordance with this Agreement unless Purelabs is required by the laws of the European Union to otherwise process personal data, in which case Purelabs shall promptly notify the Customer of this.
ii. ensure that it has in place appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage of or to such personal data.
iii. notify the Customer without undue delay on becoming aware of a personal data breach.
d. The Services are provided in and from the UK and Purelabs will not transfer any personal data outside of the UK without notifying the Customer of this and providing appropriate safeguards in relation to the transfer.
e. Purelabs uses subcontractors to host the Services and provide bookkeeping services in connection with the Services. These subcontractors are based in the UK. Purelabs has arrangements in place with these subcontractors providing for adequate measures and safeguards in place to protect any personal data comprised in the Customer Data.
f. The Customer undertakes to ensure that the subusers are informed of and agree to the provisions of this section 7 and shall be responsible for the acts and omissions of all subusers.
8. Obligations of Purelabs.
a. Purelabs warrants that it will provide the Support Services with reasonable skill and care and use reasonable endeavours to correct Errors.
b. Except as set forth above, Customer expressly agrees that use of the Software-as-a-Service is at the Customer’s sole risk. The Software-as-a-Service is provided on an “as is”, “as available” basis. Subject to Clause 8a, Purelabs expressly disclaims all warranties of any kind, whether express or implied, statutory or otherwise. including, but not limited to, the implied warranties of satisfactory quality, fitness for a particular purpose, title and non-infringement, as well as warranties arising by usage of trade, course of dealing or course of performance. Subject to clause 8a all warranties, terms, conditions, representations and undertakings are expressly excluded to the fullest extent permitted by law.
c. Without prejudice to the generality of the foregoing, Purelabs makes no warranty that the Software-as-a-Service will meet Customer’s requirements, that the Services will be uninterrupted, timely, secure or error-free, or that defects in the Services will be corrected. Purelabs makes no warranty as to the results that may be obtained from use of the Software-as-a-Service or as to the accuracy or reliability of any content or information obtained or made by the Software-as-a-Service or displayed on the Site.
d. Customer understands and agrees that any material or data downloaded or otherwise obtained through the Software-as-a-Service is done at Customer’s own discretion and risk and that the Customer will be solely responsible for any damage to Customer’s computer systems or loss of data or income that results from the download of such material or data or transactional Use of the Software-as-a-Service. Customer acknowledges that it is its responsibility to use up-to-date virus-checking software and other software to keep its systems secure.
9. Support Services
a. Support to be provided by Purelabs. During the term of this Agreement Purelabs shall provide the Customer with Support Services for the Software which shall comprise of the following:
i. E-mail Support. E-mail Support shall comprise the provision of technical advice by email, relating to use of the SaaS.
ii. Direct Support. Direct Support shall comprise the following services:
• the dispatch out, at Purelabs’ sole discretion, by e-mail of fix announcements to Services,
• information regarding forthcoming New Releases and technical newsletters;
• the creation and upload to the Services, from time to time at Purelabs sole discretion, of patches and fixes in respect of the Software;
• the diagnosis of Errors in the Software and the rectification of such Errors (remotely or by attendance on site as determined by Purelabs) by the issue of fixes in respect of the Services and the making of all consequential amendments (if any) to the Documentation;
iii. where “Error” shall mean any failure of the Software or the SaaS to operate materially in accordance with the Documentation excluding any exclusion listed under paragraph c.
iv. any other support service offered to Customer by Purelabs from time to time which Purelabs may, at its sole discretion, designate as a Support Service; and,
v. the issue of New Releases of Software for the Software-as-a-Service.
c. Exclusions. Support Services shall not include the diagnosis and rectification of any Errors resulting from:
i. any modifications of the Software made by any person other than Purelabs:
ii. minor defects in the Software which do not significantly affect or impair the Use of the Software;
iii. any incorrect or improper use of the Software or Software-as-a-Service;
iv. the failure by Customer to implement recommendations in respect of any solutions to Errors previously advised by Purelabs;
v. the use of the Software or the Software-as-a-Service for any purpose for which it was not designed;
vi. any Error arising from an error, fault, virus, defect in the Customer’s operating system, including any software on that system and/or any Error relating to the inter-operability of the Customer’s system with the Software.
d. Rectification of Errors. Purelabs may, at its sole discretion, upon request by Customer, provide diagnosis and rectification of Errors notwithstanding that the error in question results from any of the circumstances described in Clause 9c. Purelabs shall charge for any such diagnosis and/or rectification of such errors on a time and materials basis.
e. Customer Obligations. During the Term Customer shall:
i. provide Purelabs (so far as Customer is able) with a documented example of any Error in respect of which a request for diagnosis and rectification has been made under this Agreement;
ii. co-operate fully with Purelabs personnel in the diagnosis of any Error in the Software, Software-as-a-Service or the Documentation and perform such tests of the Software or Software-as-a-Service as Purelabs shall request in the evaluation of any request for Support Services by Customer;
iii. ensure that the administration functionality of the Software-as-a-Service is used in a proper manner by competent trained employees only or by persons under their supervision; and,
f. Customer Personnel. Purelabs considers the person named on the Registration Form as the sole contact point and channel of communication for the provision by Purelabs of the Services during the term of this Agreement. Customer shall inform Purelabs in writing of any change in the identity of such person. Customer should inform Purelabs of the name and contact details of any person who is authorised to administer the account on the Customer’s behalf in the absence of the person named on the registration form.
g. In addition to the exclusions set out in Clause 9c, Purelabs shall not be obliged to deal with any query which amounts to an abuse by the Customer of the Support Services, for example where the Customer raises the same queries on numerous occasions, raises inappropriate queries.
10. Passwords and Security.
Purelabs and Customer hereby agrees to the following :
a. Passwords. Purelabs shall issue to Customer, or shall authorise a Customer administrator to issue, a password for each user authorised to use Customer’s account. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorised user. Customer is entirely responsible for any and all activities that occur under Customer’s account. Customer agrees to immediately notify Purelabs of any unauthorised use of the Customer’s account (including each Password of each user accessing the Software-as-a-Service by means of Customer’s account) or any other breach of security known to Customer. Purelabs shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements nor for any use of such Passwords prior to any such notification. Purelabs will maintain Customer passwords as confidential and will not disclose them to third parties.
b. Purelabs has the right to disable any Password or user identification code at any time if in its opinion the Customer has failed to comply with any provision of this Agreement, or if it has any reason to suspect that the security of the Customer’s account may be compromised, or if any Password or user identification code has not been used for a period of 6 months or more.
c. Security. Purelabs will maintain the Software-as-a-Service at a reputable third party ISP and hosting facility, where they are subject to commercially reasonable security precautions to prevent unauthorised access to the Software-as-a-Service. Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorised third parties to circumvent such precautions and illegally gain access to the Software-as-a-Service and Customer Data. Accordingly, Purelabs cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the Internet.
11. Term and Termination.
11.1 Unless Purelabs refuses an applicant’s application to register (which Purelabs may at its discretion do for any reason) this Agreement will come into force on the Activation Date (when the Customer presses the “Register” button accepting the terms of this Agreement) and continue unless and until terminated pursuant to this clause 11.
11.2 Any termination of this Agreement pursuant to this Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Upon termination of this Agreement for whatever reason, Customer will immediately deliver up any materials [copies of the Software] and any confidential and proprietary information which it has no contractual right to retain, and will cease all use of the Software, SaaS and Services with immediate effect.
Any Account with a zero Credit Balance and zero Customer Use for a period of six months will be deemed abandoned and Purelabs reserves the right to terminate the Agreement, suspend all Passwords and user identification codes with immediate effect, without recompense and to delete any files held on its servers.
Purelabs may terminate this Agreement and the Licence with immediate effect on serving written notice to the Customer if the Customer makes any voluntary arrangement with its creditors or goes into liquidation or if a receiver is appointed to any of the property or assets of the Customer or if the Customer ceases or threatens to cease to carry on the whole or any part of its business or cannot pay its debts as they fall due.
11.5 This Agreement and the Licence will terminate automatically with immediate effect if Purelabs goes into liquidation or is wound up or ceases to carry on its business.
At any time when Purelabs is entitled to terminate the Agreement, it may at its sole discretion decide instead to suspend the Agreement and the Customer’s Passwords temporarily while the issue in question is resolved. If the issue in question has not been resolved within 14 days of suspension, Purelabs may then (at its option) terminate this Agreement and all Licences granted hereunder. If Purelabs does not terminate this Agreement, it shall be entitled to extend the suspension for a further period of 7 days, after which time it shall either terminate the Agreement with immediate effect or reinstate the Customer’s account (at its sole option).
13 . Confidentiality.
Purelabs and Customer hereby agrees to the following:
a. Parties’ Obligations. Each of the Parties agrees to maintain in confidence any non-public information of the other Party, whether written or otherwise, disclosed by the other Party in the course of performance of this Agreement (‘Confidential Information’). The parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto. The receiving Party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each Party agrees to restrict access to the Confidential Information of the other Party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither Party shall make Confidential Information available to any other person or entity without the prior written consent of the other Party.
b. Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving Party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving Party; (iii) subsequently disclosed to the receiving Party on a non-confidential basis by a third party not having a confidential relationship with the other Party hereto that rightfully acquired such information; (iv) communicated to a third party by the receiving Party with the express written consent of the other Party hereto; or (v) legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the receiving Party provides prompt notice of any such subpoena, order, or the like to the other party so that such Party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
c. Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each Party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other Party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving Party in any form or for any reason.
Purelabs and Customer hereby agrees to the following:
a. Infringement. Purelabs, at its own expense, will defend any claim brought by a third party against Customer to the extent that the claim is based on a claim that the Software-as-Service, as used within the scope of this Agreement, directly infringes any United Kingdom copyright or misappropriates any trade secret recognised as such under the laws of England and Wales, and Purelabs will pay those costs and damages finally awarded against Customer that is specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action.
b. Conditions. Purelabs’ obligations under the preceding paragraph with respect to a claim are conditional on: (i) Customer notifying Purelabs promptly in writing of such claim, (ii) Customer giving Purelabs sole control of the defence of all such claims and any related settlement negotiations and (iii) Customer cooperating with Purelabs in such defence (including, without limitation, by making available to Purelabs all documents and information in Customer’s possession or control that are relevant to the infringement or misappropriation claims, and by making Customer’s personnel available to testify or consult with Purelabs or its legal advisers in connection with such defence). If Customer settles any such claim without Purelabs’ prior written approval, Purelabs shall be relieved of all liability with respect to such claim.
c. Exclusions. Notwithstanding the foregoing, Purelabs shall have no liability or obligation with respect to any infringement or misappropriation claim based upon: (i) any Use of the Software-as-a-Service not in accordance with this Agreement or for purposes not intended by Purelabs; or (ii) any modification of the Software-as-a-Service made by any person other than Purelabs where such modification is not authorised by Purelabs.
d. Remedies. If the Software-as-a-Service becomes, or in Purelabs’ opinion is likely to become, the subject of an infringement or misappropriation claim, Purelabs may, at its sole option and expense, either: (i) procure for Customer the right to continue to use the Software-as-a-Service pursuant to this Agreement; or (ii) replace or modify the Software-as-a-Service to make it non-infringing; or (iii) terminate this Agreement and Customer’s right to use the Software-as-a-Service and refund to Customer any unused Credits as of the date of Termination.
e. By Customer. Customer agrees to defend, indemnify and hold Purelabs, its parent, subsidiaries, officers, directors, employees, successors and assigns harmless from any claim, demand, damages, costs and expenses (including reasonable legal fees), arising from any third party claim against Purelabs due to or arising out of: (i) any use of the Software-as-a-Service by Customer, its affiliates, employees agents, successors and assigns other than in accordance with this Agreement; (ii) any breach of this Agreement by Customer, its affiliates, employees agents, successors and assigns; and (iii) any unauthorised modification of the Software-as-a-Service by Customer, its affiliates, employees, agents, successors and assigns, including any claims for intellectual property infringement arising therefrom.
15. Limitation of Liability.
15.1 In no event shall Purelabs be liable for direct damages arising out of this Agreement (whether arising under contract, tort, strict liability, breach of warranty or otherwise) in amounts greater than the value of any sums paid by the Customer for the use of the SaaS in the 12 months preceding any breach of contract or default by Purelabs being claimed for by the Customer provided that nothing in this Agreement shall limit Purelabs’ liability for (i) death or personal injury caused by its negligence, or (ii) fraud.
15.2 In no event shall Purelabs be liable for any indirect, incidental, punitive, special or consequential damages for loss of profits, use, data or other intangible property, loss of actual or anticipated savings, loss of revenue or business even if Purelabs has been advised of the possibility of such damages and notwithstanding the failure of any essential purpose.
15.3 Customer agrees that any cause of action arising out of or related to this Agreement shall be brought by it within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
15.4 Purelabs will not be liable to Customer for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may in fact harm Customer’s computer equipment, computer programs, data or other proprietary material due to Customer’s use of the Site or to it downloading any material posted on it, or on any website linked to it.
Purelabs may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Services in its general advertising and marketing materials. Each Party shall obtain the other Party’s permission prior to using the other Party’s name for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement, any dispute under this Agreement, or Customer’s subscription to or use of the Services, will be prepared jointly between Purelabs and Customer and will be issued upon mutual agreement of the Parties.
All notices to a Party shall be in writing and sent to the addresses specified in this Agreement or the Customer’s registration form (as the case may be) and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
18. Entire Agreement.
This Agreement contains the entire agreement of the Parties and supersedes any and all previous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement supersedes any terms printed on Customer’s purchase order or other forms.
This Agreement shall be binding on and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Except with respect to wholly owned affiliates, Customer may not assign this Agreement without Purelabs’ prior written consent, not to be unreasonably withheld. Purelabs may assign this Agreement to any parent, subsidiary or affiliate or to any successor to its business, and Purelabs may subcontract any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.
20. Governing Law.
This Agreement and any disputes hereunder shall be governed in all respects, including validity, interpretation and effect, by the laws of England and Wales, without regard of its conflict of laws principles. Any dispute under this Agreement shall be brought exclusively in the courts of England and Wales, and Customer hereby submits to the exclusive jurisdiction of such courts. Customer agrees that any cause of action arising out of or related to this Agreement shall be brought within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
21. Activation, Counterparts and Facsimile.
This Agreement may be activated by use of the Software-as-a-Service and by clicking the “I Accept” button during the process of activating Use of Software-as-a-Service on or after the Activation Date via the Internet and Password(s) and Security provided by Purelabs to Customer.
The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
23. English Language.
It is the express will of the Parties that this Agreement has been written in English.
24. No Waiver.
No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise.
In the event that any one or more of the provisions of this Agreement are invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
26. Force Majeure.
Neither party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labour disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.
27. Entire Agreement.
By activating the Software-as-a-Service on the Activation Date agreed and making use of the Software-as-a-Service via Password(s) and Security provided by Purelabs to Customer, Purelabs and Customer agree to be bound by the terms herein this Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all negotiations, discussions and prior agreements relating to it.
Purelabs reserves the right to audit the Customer’s use of the Software to ensure compliance with the terms of this Agreement.
Purelabs reserves the right to change or withdraw the Services at any time on serving not less than 14 days’ notice to the Customer by way of posting information regarding the changes on the Site.
30. Rights of Third Parties
A person who is not a party to this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 shall have no right to enforce any provision of this Agreement but this shall not affect any right which exists or is available apart from that Act.