Definitions
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” or "Sign Up" 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.
“Subscription” shall mean the payment plan to use the SaaS and/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.
“Intelliforma” shall mean the SaaS provided by Albaware Limited 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.
"License Plan" refers to the selected Customer subscription plan for Intelliforma.
“Modules, Components and Plugins” 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 Plugins of Software as made available from time to time to Customer by Albaware Limited.
“Quarter” shall mean a three (3) month period.
“Parties” shall mean Albaware Limited 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 Albaware Limited and its licensors in Software and Services and Software-as-a-Service.
“Albaware” shall mean Albaware Limited, a company incorporated in England with registration number 7882402.
"Intelliforma" shall mean the UK trademarked Saas product offered by Albaware Limited.
“Security” shall mean security as specified herein Clause 10 of this Agreement.
“Services” shall mean any service provided by Albaware Limited, 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, secure.intelliforma.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” “Software” shall mean Intelliforma and/or any additional software made available by Albaware 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 Albaware Limited 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.
Subject to the terms and conditions of this Agreement, Albaware agrees to provide to Customer, on a Software-as-a-Service subscription basis, 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.
2.1 Albaware 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 its own business and not for any other purpose and not on behalf of any other organisation unless authorised by Albaware.
2.2 Access to the SaaS and the Site is permitted on a temporary basis for lawful purposes only. Albaware reserves the right to amend or withdraw any Service on reasonable notice. Albaware will not be liable if for any reason the Site or any Service is unavailable at any time or for any period.
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 The Customer can subscribe to the product with its debit or credit card or other means which may be made available by Albaware from time to time. Albaware reserves the right at any time to stop accepting debit or credit cards from one or more issuers.
4.2 Any services provided by Albaware in addition to the Services shall be charged by Albaware in addition to the charges for the Services and the Customer shall pay by such other method as Albaware may agree or specify from time to time.
4.3 Albaware may change the subscription charge any time by giving thirty days’ notice of such change on the Site.
4.4 All prices are stated in UK pounds-sterling and are exclusive of applicable Value Added Tax (VAT). Customer shall be responsible for the payment of any taxes, duties or tariffs applicable to the services provided under this Agreement
5.1 Customer hereby acknowledges that the copyright in the Software is the property of Albaware or its licensors. Albaware 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 Albaware 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 Albaware 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 All use of Intelliforma is subject to the terms of the Licence.
6.1 Albaware 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 Albaware 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 Albaware 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. Albaware 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 Albaware 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, Albaware 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 Albaware 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 Albaware 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. Albaware 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 Albaware 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 and accepts that Albaware reserves the right to automatically or manually monitor the number of customer transactions. If Albaware considers the number of transactions is above expected normal use or above average, Albaware 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, Albaware 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.
6.4 Customer acknowledges that the policy comprised in clauses 6.2 to 6.3 may be revised, without notice, at any time, at the sole discretion of Albaware. Any changes will be notified to the Customer via the log-in page to the SaaS.
a. As between Albaware 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, Albaware will not edit, delete or disclose the contents of any Customer Data unless authorised by the Customer or unless Albaware 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 Albaware; ii. protect and defend the rights or property of Albaware; or
iii. enforce this Agreement. b. Albaware 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. Albaware may access Customer Data to respond to service or technical problems with the Software-as-a-Service.
c. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data, and Albaware 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. d. Albaware 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 Albaware 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 Albaware or any third party service provider. e. Customer shall be responsible for compliance with all obligations imposed by the Data Protection Act 1988 and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of such Data, and any implementing or amending legislation as may be enacted from time to time, and Customer shall indemnify, defend and hold Albaware harmless from and against any third party claims against Albaware resulting from the use and disclosure by Albaware of personal information consistent with the terms of this Agreement.
f. Albaware shall retain Customer Data for a period of thirty (90) days after expiration or termination of this Agreement. Customer may request a copy of the Customer Data from Albaware, and, if Customer requests, Albaware agrees to provide an unformatted copy of the Customer Data to the Customer at Albawares’ then current rates on a time and materials basis. After thirty (90) days, Albaware may delete and destroy all Customer Data without notice or further liability to Customer.
g. Albaware reserves the right to 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 Albawares’ products and services.
a. Albaware 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, Albaware 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, Albaware 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. Albaware 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.
a. Support to be provided by Albaware. During the term of this Agreement Albware 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 Albawares’ 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 Albawares' 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 Albaware) 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 Albaware from time to time which Albaware 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 Albaware: 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 Albaware; 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. Albaware 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. Albaware 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 Albaware (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 Albaware 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. Albaware considers the person or persons named on the Registration or Sign Up Form as the sole contact point and channel of communication for the provision by Albaware of the Services during the term of this Agreement. Customer shall be responsible for updating the relevant configuration details in the SaaS software of any change in the identity of such person.
g. In addition to the exclusions set out in Clause 9c, Albaware 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 or raises inappropriate queries.
Albaware and Customer hereby agrees to the following : a. Passwords. 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 Albaware 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. Albaware 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. Albaware will maintain Customer passwords as confidential and will not disclose them to third parties.
b. Albaware 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. Albaware 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, Albaware cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the Internet.
11.1 Unless Albaware refuses an applicant’s application to register (which Albaware may at its discretion do for any reason) this Agreement will come into force on the Activation Date (when the Customer presses the "Sign Up" or “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.
11.3 Abandonment Any Account with a non-valid or expired payment method or zero Customer Use for a period of six months will be deemed abandoned and Albaware 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. Albaware 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 Albaware goes into liquidation or is wound up or ceases to carry on its business.
At any time when Albaware 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, Albaware may then (at its option) terminate this Agreement and all Licences granted hereunder. If Albaware 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).
Albaware 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.
Albaware and Customer hereby agrees to the following: a. Infringement. Albaware, 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 Albaware 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. Albawares’ obligations under the preceding paragraph with respect to a claim are conditional on: (i) Customer notifying Albaware promptly in writing of such claim, (ii) Customer giving Albaware sole control of the defence of all such claims and any related settlement negotiations and (iii) Customer cooperating with Albaware in such defence (including, without limitation, by making available to Albaware 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 Albaware or its legal advisers in connection with such defence). If Customer settles any such claim without Albawares’ prior written approval, Albaware shall be relieved of all liability with respect to such claim.
c. Exclusions. Notwithstanding the foregoing, Albaware 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 Albaware; or (ii) any modification of the Software-as-a-Service made by any person other than Albaware where such modification is not authorised by Albaware.
d. Remedies. If the Software-as-a-Service becomes, or in Albawares’ opinion is likely to become, the subject of an infringement or misappropriation claim, Albaware 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 subscription fees as of the date of Termination.
e. By Customer. Customer agrees to defend, indemnify and hold Albaware, 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 Albaware 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.
15.1 In no event shall Albaware 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 Albaware being claimed for by the Customer provided that nothing in this Agreement shall limit Albawares’ liability for (i) death or personal injury caused by its negligence, or (ii) fraud.
15.2 In no event shall Albaware 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 Albaware 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 Albaware 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.
Albaware 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 Albaware 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.
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 Albawares' prior written consent, not to be unreasonably withheld. Albaware may assign this Agreement to any parent, subsidiary or affiliate or to any successor to its business, and Albaware may subcontract any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.
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.
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.
It is the express will of the Parties that this Agreement has been written in English.
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.
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.
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 Albaware to Customer, Albaware 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.
Albaware reserves the right to audit the Customer’s use of the Software to ensure compliance with the terms of this Agreement.
Albaware 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.
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.