Standard Software as a Service – Reseller Terms
1.1 This page sets out the Conditions (as defined below) which apply to any of Licensor’s Services (as defined below) which Licensee resells to Customer’s as a software as a service distributor or reseller.
1.2 The parties’ agreement is made up of (i) these Conditions; and (ii) the Commercial Terms; and (iii) any other written document either issued by Licensor (and expressly referring to and incorporating itself into the Agreement) or any amendments or supplements to the Agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement, and apply to the agreement between the parties to the exclusion of any other terms that Licensee may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3 When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.4 These Conditions are published on Licensor’s website. Licensee should print or save a copy of these Conditions for its records.
1.5 Licensor may amend these Conditions from time to time as set out in clause 17.18. Every time Licensee agrees new Commercial Terms with Licensor, Licensee should check these Conditions to ensure that it understands the terms which will apply to the Agreement at that time. This version one of these Conditions was most recently updated on 31 January 2020.
2. DEFINITIONS AND RULES OF INTERPRETATION
2.1 In the Agreement the following definitions and rules of interpretation shall apply (unless otherwise clearly expressed):
Affiliate means an entity, which is a subsidiary or a parent company of or under common control either directly or indirectly, now or hereafter with either party. For these purposes, an entity shall be treated as being controlled by another if that other entity has more than fifty percent (50%) of the votes in such entity or is either able to direct its affairs or to appoint a majority of the members of the board of directors or an equivalent body.
Authorised Users means those employees of Licensee and its Affiliates who have been authorised by Licensee to access, use and resell the Subscription Services and (as applicable) the Other Services, as well as (where applicable) employees and other permitted users of the Customer to whom Licensee has resold the Services.
Branded means that the Subscription Services shall be accessible to Licensee’s Customers on a Licensor branded basis, via the regular Licensor portal, albeit that the legal entity reselling the Subscription Services to Customers shall be the Licensee.
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland or the jurisdiction in which Licensee is based.
Communication Services means third-party forums, online communities, blogs, personal web pages, calendars, and/or social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Services that enable Licensee to communicate with the public or with a private group.
Confidential Information has the meaning given in clause 11.1.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Consultancy Charges means the fees for any Other Services.
Crowdsourced Data has the meaning given to it in the Zymplify General Customer Terms. (zymplify.com/customer-terms.pdf)
Customer Data means the data and content inputted by Customers and their Authorised Users, or (if applicable) Licensor (or its sub-contractors) on behalf of the foregoing persons) for the purpose of facilitating use of the Services by Customers of the Licensee.
Data Protection Legislation: any applicable legislation of legal force relating to personal data and all other legislation and regulatory requirements in force from time to time which apply relating to the use of personal data (including, without limitation, the privacy of electronic communications), including the General Data Protection Regulation 2016); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC and the Privacy and Electronic Communications Regulations 2003.
Disclosing Party has the meaning given in clause 11.1.
Documentation means all manuals, documentation, datasheets, designs, schematics, user guide and other written materials that Licensor provides to Licensee in relation to the Services whether in printed or electronic form.
Commercial Terms the commercial terms agreed between Licensor and Licensee which set out more particularly the commercial terms on which Licensee is entitled to resell the Services on Licensor’s behalf.
Customer means any customer of Licensee or its Affiliates who purchase the relevant Services on the basis contemplated in these Conditions.
Enrichment Data has the meaning given to it in the Zymplify General Customer Terms. (zymplify.com/customer-terms.pdf)
EULA means a separate end user license agreement between Licensor and each Customer governing (inter alia) use by each Customer of the applicable Services and Documentation.
Intellectual Property Rights means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Initial Term has the meaning given to it in the Commercial Terms.
Lead Data has the meaning given to it in clause 12.12.
Licence has the meaning given to it in clause 3.1.
Licensee means the licensee identified in the Commercial Terms.
Licensor means Zymplify Limited, a company incorporated in Northern Ireland under registered company number NI068866, with registered office address at 27-28 The Promenade, Portstewart, Northern Ireland, BT55 7AE.
Licensor’s IPR has the meaning given to it in clause 9.1.
Mandatory Policies means Licensor’s business policies and codes as provided and amended by notification to Licensee from time to time
Net Sales Price means the actual invoiced price, less, to the extent identified on the invoice, any sales or goods tax and any other government taxes, duties or levies, and trade discounts and other allowances granted (but not commission or cash discounts).
Open Source Software means any open source, community, or other free software code or libraries of any type, including, without limitation, any code that (a) is made generally available for free or that meets the definition of “open source” or “free” as defined by the Open Source Initiative or Free Software Foundation or (b) is licensed under any licence agreement approved by either such entity (such as, for example purposes only, the GNU GPL, GNU LGPL, Mozilla, or Apache licences).
Purpose means the use of the applicable Services by Customers for their internal marketing automation, mailing, data and customer relationship management purposes, as they are functionally contemplated to operate, subject to the terms of the Agreement and the EULA.
Receiving Party has the meaning given in clause 11.1.
Regulatory Authority means any competent authority in any country or region.
Renewal Period means rolling terms of 12 months each.
Services means the Subscription Services and the Other Services.
Other Services means any consultancy, development, professional or support services which the parties may separately agree in writing that Licensor is to provide to Licensee, other than the Subscription Services.
Software means the relevant browser-based marketing automation, mailing, data and Licensee relationship management software applications, collectively marketed under the Licensor® brand. Unless otherwise noted, or where the context otherwise requires, these software applications and the Documentation may be referred to collectively herein as “Software”.
Subscription Charges means the total amount payable by Licensee for each active licence of the Subscription Services re-sold by Licensee to its Customers, to be paid in accordance with the timeframes and other stipulations set out in the Agreement, as assessed by Licensor by accessing Licensee’s dashboard for the software platform on a monthly basis.
Subscription Services means the software as a service to be delivered to Licensee as identified in the Commercial Terms.
Support means the reasonable level (subject to fair usage restrictions) of remote second-level support services provided by Licensor to the Licensee, which shall be made available, unless otherwise specified, during Licensor’s standard business hours (9am to 5pm UK time on UK Business Days) either within the Software platform using Licensor’s integrated support platform, by email to firstname.lastname@example.org or by telephone to +4428 7087 8244. Remote access must be provided by Licensee and any Sub-Licensees to allow Licensor access to Licensee’s, its Affiliates’ or its Customers’ equipment for emergency fixes, if required and requested. Licensor may also maintain an online support library for Authorised Users.
Specification means Licensor’s written specification for the Subscription Services, which may be changed upon notice in writing from Licensor to Licensee from time to time (provided this does not materially adversely impact the Subscription Services).
Term means the date commencing on the Effective Date for the Initial Term (plus any subsequent Renewal Periods) or until earlier termination of the Agreement in accordance with its terms.
Third-Party Services means non-embedded software products provided as a service, and professional services that are provided by third parties, which interoperate with or are used in connection with the Subscription Services.
Third-Party Sites means third-party websites linked to from within the Subscription Services, including Communications Services.
Updates means patches (pieces of software) designed to fix problems with the Subscription Services.
White Label means that the Subscription Services shall be made available by Licensee to Customers on a white-label basis, branded under the relevant brands and marks of Licensee agreed between the parties, rather than the brand and marks of the Licensor.
2.2 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns
2.4 Clause headings shall not affect the interpretation of the Agreement. References to clauses are to the clauses of these Conditions, unless otherwise specified.
2.5 “Words” in the singular shall include the plural and vice versa.
2.6 Any references to “Customer” hereunder shall include the Licensee where it is also, and in its capacity as, a direct customer of Licensor’s Services.
2.7 A reference to any law, statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate law for the time being in force made under it.
3. LICENCE GRANT AND RESTRICTIONS
3.1 Licensor hereby grants to Licensee and its Affiliates (in respect of whom Licensee shall be responsible and liable, and whom Licensee should ensure comply with the terms of the Agreement) a non-exclusive, non-transferable (except in the case of permitted assignment under clause 17.4), worldwide, non sub-licensable fee-bearing Licence to market and resell its Services to Customers for the Purpose, subject to the restrictions set out in the Agreement but not, for the avoidance of doubt, to use or commercialise the Services or Documentation in any other way. Licensor also grants to Licensee a non-exclusive, worldwide right and Licence to use, copy, display, modify, distribute and reproduce the Documentation as necessary to exercise Licensee’s rights set forth in this clause 3.1. The licences granted in this clause 3.1 shall together be known as the Licence. Licensee acknowledges that it has no right to have access to the Software in source code or object code form or in unlocked coding or with comments. Licensor reserves the right to market the Services, directly or indirectly, to any customer worldwide.
3.2 Licensee and its Affiliates shall act in good faith in exercising their rights under the Licence, and shall only purport to licence rights to the Subscription Services to arms’ length Customers on bona fide commercial basis for fair value, and shall not in any way attempt to circumvent, restrict or reduce the payment of the fees that would normally be due to Licensor on account of the Licence.
3.3 Licensee shall only be able to offer free trials of the Subscription Services to Customers for any periods agreed in writing with the Licensor (which shall normally mirror the limits on such Services offered by Licensor itself directly to customers).
3.4 Licensee shall not remove any identifying marks or designations of Licensor from the Software (unless agreed as part of any White Label solution).
3.5 Licensee undertakes that: (a) it shall be responsible for compliance by Authorised Users (who must be aged 18 or over, or 20 in Japan, to use the Subscription Services) with the terms of the Agreement, and that the restrictions on Licensee set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) where it, or any Authorised Users, is/are provided with any password in respect of the Subscription Services or its documentation those shall be kept secure and confidential; and (c) it will not allow or suffer any one Authorised User’s account to be used by more than one individual unless it has been reassigned in its entirety to another individual, in which case the prior individual shall no longer have any right to access or use that account.
3.6 Neither party shall access, store, distribute or transmit any viruses or other harmful or dangerous code during the course of its use of the Subscription Services, or exercise its rights or perform its obligations under the Agreement in a way that is unlawful, harmful, or causes damage or injury to any person or property.
3.7 Licensee shall not, and shall cause any of Licensee’s employees and any Affiliates not to: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means, nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (b) access all or any part of the Software in order to build a product or service which competes with the Software or any element of it; (c) use the Software to provide services to third parties (unless as permitted under the Agreement); (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software on a standalone basis available to any other person except the Customers and the Authorised Users, as permitted and on the basis set out herein; (e) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein; (f) attempt to gain unauthorised access to the Software or its related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Software, or permitting the Software or any part of it to be combined with, or become incorporated in, any other programs (except to the extent expressly agreed in writing between the parties where a White Label solution has been agreed); or (g) attempt to correct errors, defects and other operating anomalies of the Software, without Licensor’s prior consent.
3.8 Licensee shall not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to Licensor’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Services in any manner that damages, disables, overburdens, or impairs any of Licensor’s websites or interferes with any other party’s use of the Subscription Services; (iii) attempt to gain unauthorised access to the Subscription Services; (iv) access the Subscription Services other than through Licensor’s interface; or (v) use the Subscription Services for any purpose or in any manner that is unlawful or prohibited by the Agreement.
3.9 Licensee may not use or resell the Subscription Services if Licensee is legally prohibited from using or reselling same under the laws of the country in which Licensee are resident or from which Licensee proposes to access or use same. The Subscription Services are not designed to comply with industry-specific regulations such as the US Health Insurance Portability and Accountability Act (HIPAA), or other laws relating to industries where financial data or other sensitive information is regularly exchanged, so Licensee may not use the Subscription Services where Licensee’s communications would be subject to such laws. Licensee agrees not to use the Subscription Services to collect, manage or process sensitive information. Licensor will not have any liability that may result from Licensee’s use of the Subscription Services to collect or manage sensitive information.
3.10 Licensee shall use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or its documentation and, in the event of any such unauthorised access or use, promptly notify Licensor.
3.11 Licensee shall be entitled to describe itself as an “Authorised Reseller” of the Services (where they are being sold on a Branded basis), but neither party shall: (a) represent itself as an agent of the other party for any purpose; (b) pledge the other party’s credit; (c) give any condition or warranty on the other party’s behalf; (d) make any representation on the other party’s behalf; or (e) commit the other party to any contracts.
3.12 Licensee shall not without Licensor’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Services which are inconsistent with those contained in the promotional material supplied by Licensor (including, without limitation, the EULA) or otherwise incur any liability on behalf of Licensor howsoever arising.
3.13 Licensee shall not sell any of Services through a sub-licensee or reseller without the prior express written permission of Licensor which shall not be unreasonably withheld or delayed. Where Licensor agrees to any such appointment, Licensee shall ensure that it enters into a written contract with such sub-licensee or reseller on terms which are approved by Licensor.
3.14 Licensee shall ensure that each Customer is aware that it will be required to agree to a separate EULA with Licensor on Licensor’s standard terms as a pre-requisite to their commencing to use or access the relevant Services, whether on a White Label or Hosted basis. For avoidance of doubt between the parties, the execution of a EULA is a separate transaction between the Licensor and Customer. Licensee shall be responsible for such Customers, and their Authorised Users, adherence to the terms of the EULA. More specifically, Licensee agrees to include in its sale quotations to Customers the following language: “The use of Zymplify’s software is governed by the applicable elements of the Zymplify Customer Terms”
3.15 Except for the Licence granted in clause 3.1, Licensor retains all right, title and interest in and to the Services and Documentation, and updates to same, and all Intellectual Property Rights therein.
3.16 Licensee undertakes and agrees with Licensor to: (a) use all reasonable endeavours to promote the sale of the Services; (b) within a reasonable period upon written request by Licensor submit to Licensor by such means as Licensor may notify reports in the format stipulated by Licensor showing details of any information relating to the performance of its obligations under the Agreement Licensor may reasonably require from time to time (including details of any enquiries regarding the Subscription Services made by prospective Customers (of which Licensee shall keep proper records; (c) during the period of their subscription to the Subscription Services provide to Customers a first line support service in respect of Subscription Services on terms at least as favourable as the first line support service Licensor provides in respect of the Subscription Services to direct customers of Licensor, including, without limitation, timely responses to Customers’ general questions and assistance to Customers in the diagnosis and correction of problems encountered in using Subscription Services; and (d) inform Licensor immediately of any changes in ownership or control of Licensee and of any change in its organisation or method of doing business which might affect the performance of Licensee’s duties under the Agreement.
3.17 Licensee warrants to Licensor that it has informed Licensor of all law and legislation affecting the sale of Services which are in force in any specific jurisdictions other than Canada, the USA, the UK, Ireland, or New Zealand (Local Regulations) into which Licensee proposes to sell the Services during the term of the Agreement. Licensee shall give Licensor as much advance notice as reasonably possible of any prospective changes in the Local Regulations. On receipt of such notification from Licensee under clause 8.4, Licensor shall use reasonable endeavours ensure that Services it provides comply with any relevant Local Regulations as soon as is reasonably possible thereafter.
3.18 In performing its obligations under the Agreement, Licensee shall comply with the Mandatory Policies.
3.19 The Licensee shall also be subject to Zimplify’s General Customer Terms (zymplify.com/customer-terms.pdf) when using the Subscription Services and the Other Services.
3.20 Licensee represents and warrants that it is regularly engaged in the business of performing activities of the kind contemplated in the Agreement and that it holds all relevant permits, licenses and authorisations. Licensee will promptly report to Licensor any changes to the information supplied in the Commercial Terms (and warrants and represents that all such information was complete and accurate when given). Licensee will not misrepresent its relationship with Licensor or suggest to customers that it is more than an authorised reseller of Licensor’s Services.
4. OPEN SOURCE AND THIRD PARTY SOFTWARE AND THIRD PARTY SERVICES
4.1 Licensor’s Software may from time to time third party and open source software components which are subject to third party and open source licence terms. Accordingly, any terms and conditions set out at Zymplify.com/third-party-licences shall apply to Licensee’s and Customer’s use of Licensor’s Software and Subscription Services in addition to the provisions set out elsewhere in the Agreement. The details of the third party and open source software components and their relevant licence terms specified at this URL may change from time to time and all such changes shall be deemed as having been notified to the Licensee and the Customer.
4.3 Licensor shall procure hosting of the Software from its hosting sub-contractor and make the Subscription Services available to Licensee in accordance with the terms imposed upon it by its hosting sub-contractor from time to time, a copy of which will be provided to Licensee upon request. Licensor shall use reasonable endeavours to inform Licensee in advance of any planned service interruption.
5. SUPPORT AND UPDATES
5.1 Licensor may, from time to time at its discretion, make available to Licensee general Updates and improvements to the Software as it sees fit and are released to its customers. Licensee acknowledges that such upgrades and improvements may affect its and its Customers use of the Subscription Services. Otherwise, Licensor shall have no obligation to provide any Updates to the Software, unless expressly agreed in writing.
5.2 Licensor will, at no additional cost to Licensee other than the Subscription Fees, provide Licensee and its Customer (on a second level basis, via the Licensee) with the Support in accordance with Licensor’s support services policy (if any) in effect at the time that the Support is provided, subject to fair usage. Any on-site Support, or level of Support beyond the basic service levels set out herein and in Licensor’s standard support policy, where required by Licensee and agreed by Licensor, will be chargeable as an Other Service.
5.3 As part of the Support, Licensee and any Sub-Licensees shall receive the benefit of such routine updates, minor version changes and bug fixes as Licensor makes generally available in relation to the relevant Software modules free of charge for the duration of the Term but any new features or functions of the Subscription Services may fall outside scope and be marketed as additional services for which additional amounts need to be paid. Licensee acknowledges that such updates and improvements may affect its and its Customers’ use of the Software, but that this shall be without prejudice to any warranties given under the Agreement by Licensor.
5.4 Licensor is entitled upon written notice to Licensee at any time to discontinue any particular features or elements of the Services as it thinks fit if for any reason.
6. OTHER SERVICES
6.1 Licensee may purchase Other Services by agreeing a quotation with Licensor. Unless Licensor otherwise agrees (including in the Commercial Terms or subsequent written quotation), the Other Services will be delivered in English. Consultancy Charges are in addition to Subscription Charges. All Other Services shall be performed remotely, unless Licensee and Licensor otherwise agree.
6.2 For Other Services performed on-site (where specifically agreed in a written quotation), Licensee will reimburse Licensor its (or its sub-contractor’s) reasonable costs for all expenses incurred in connection with the Other Services.
6.3 Where Licensor has been appointed on an ad-hoc basis to provide Other Services, and no monthly retainer or other fixed project fee or retainer arrangement exists (as may be set out within the Quotation), the charges for all Other Services shall be calculated on a time and materials basis at Licensor’s then prevailing hourly rates, with any reasonably incurred expenses in the provision of the Services also recoverable upon demand.
6.4 Licensor may appoint a suitably qualified sub-contractor to perform or provide certain Other Services on its behalf. Licensee will continue to be liable to pay Licensor any fees due under the Agreement and shall not be liable directly for any of the fees or expenses of the sub-contractor (unless otherwise specifically agreed in the Quotation in respect of Other Services).
6.5 Licensor may need access to Licensee’s property, information, tools and resources for, and during the course of, provision of Other Services. If requested by Licensor, Licensee will provide or procure free and unfettered access to these. Licensee hereby warrants and acknowledges that it is entitled to grant all such access, and provide any such information, tools or resources as may be reasonably sought by Licensor pursuant to this clause.
6.6 Licensee acknowledges that, in giving any opinion or advice in the course of provision of the Other Services, Licensor may rely on the information about Licensee / its Customers and its or their business and will not seek to establish the reliability of such information. Accordingly, Licensee (on behalf of its and its Customers for whom the Other Services are provided): (i) undertakes to provide complete and accurate information about itself and about anything which is or may be relevant to the Services and to provide such other information as Licensor may reasonably request; and, (ii) warrants and represents that any such information provided is accurate, complete and not misleading.
7. PRICE AND PAYMENT TERMS
7.1 In consideration of Licensee being granted the Licence, Licensee will pay the Licensor the Licence Fees on the basis specified in the Agreement.
7.2 For sale of Subscription Services, Licensee shall be invoiced monthly in advance for the Subscription Charges on the basis of the number of Customers that have an active account for the Subscription Services at the start of each month. Pricing shall be on the basis of Licensor’s standard pricing for Subscription Charges were it selling the Subscription Services directly to customers on its own account, less any discount or subject to any alternative pricing arrangements agreed in the Commercial Terms. Changes to Licensor’s standard pricing shall be communicated to Licensee by 30 days advance notice (including by email). Such invoices shall be payable within 14 days of the date of invoice if Licensee is paying by bank transfer, or immediately upon demand if Licensee is paying using credit card.
7.3 If, at any time whilst using the Subscription Services, Licensee or its Customers exceed the Licence Restrictions, Licensor shall charge Licensee, and Licensee shall pay, Licensor’s then prevailing charges for such excessive use, less any discount or subject to any alternative pricing arrangements agreed in the Commercial Terms.
7.4 Licensee will keep its contact information and billing information up to date and notify Licensor of any change to same.
7.5 Any sums paid shall not be returnable, non-cancellable and not available for credit against any other sums payable by Licensee under the Agreement.
7.6 All sums payable under the Agreement are exclusive of VAT (or similar tax), withholding tax, as well as any relevant customs duties, import or export taxes or other governmental or statutory levies or duties and shall be paid free and clear of all deductions and withholdings whatsoever, excluding taxes that are imposed by the applicable domestic governments on the income of Licensor for which Licensor shall be responsible. If Licensee is required by law to make a deduction or withholding, Licensee shall, within 10 (ten) Business Days after making the deduction or withholding within its payment, provide a statement in writing showing the gross amount of the payment, the amount of the sum deducted, and the actual amount paid. Licensee shall also provide the deduction or withholding payment certificate to Licensor once it receives same. Licensee shall use all reasonable endeavours to assist Licensor to claim recovery or exemption under any double taxation or similar agreement with respect to any such deduction.
7.7 Licensee shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind (including customs duties and clearance charges) imposed by governmental or other authority in respect of the import, sale or other distribution of the Services to its Customers, and for obtaining any necessary licences or permits required to facilitate same.
7.8 Except as expressly stated in the Agreement or otherwise mutually agreed in writing, each party will be solely responsible for and will pay any and all costs and expenses incurred by that party under the Agreement.
7.9 In the event Licensee does not pay any due sum within ten (10) Business Days of payment becoming due, and Licensor has notified Licensee of same, Licensee shall pay to Licensor interest (calculated on a daily basis) on the overdue payment from the date when such payment was due to the date of actual payment at a rate of 8% per annum, unless applicable law requires a lower interest rate for which such lower interest rate shall apply.
7.10 In the event Licensee does not pay any due sum within ten (10) Business Days of payment becoming due, and Licensor has notified Licensee of same, Licensee may suspend access to any or all Subscription Services and/or suspend the provision of any Other Services, to Licensee and/or any of its Customers, until such non-payment has been remedied to Licensor’s satisfaction.
7.11 Unless expressly provided in the Agreement (including any exhibit hereto), all amounts are stated in and are payable only in the currency denominated within the Commercial Terms.
7.12 Any disputes regarding invoiced shall be raised only in good faith and any undisputed portion shall be paid on the due date.
7.13 All amounts due under the Agreement shall be paid by Licensee to Licensor in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. REPRESENTATIONS AND WARRANTIES
8.1 Licensor represents and warrants to Licensee that Licensor has full corporate power to enter the Agreement, to carry out its obligations hereunder, and to grant the rights herein granted to Licensee.
8.2 Licensee represents and warrants to Licensor that Licensee has full corporate power to enter the Agreement, to carry out its obligations hereunder.
9. INTELLECTUAL PROPERTY
9.1 Unless otherwise agreed between the parties, all Intellectual Property Rights in and to Services and the products of the Services belong, and shall belong, to Licensor and/or its licensors.
9.2 Each party shall promptly provide the other with copies of all communications relating to the Services or Licensor’s IPR with any regulatory, industry or other authority, including any Regulatory Authority, in each where there is likely to be any implication for the other party arising out of or in respect of such communications.
9.3 Licensee shall not, nor directly or indirectly assist any other person to, do or omit to do anything to diminish the rights of Licensor in any of Licensor’s IPR in violation of the Agreement, except in the case of defective or non-conforming Software whereby Licensee shall inform a Customer about such defect and Licensor shall correct such defective or non-conforming Software under clause 13. More specifically, Licensee will not attempt to register any trademarks, name, URL, (or any element, derivation, adaptation, variation or name thereof) owned by Licensor, or adopt any mark confusingly similar to any of Licensor’s trademarks, or challenge the registration of the Licensor’s trademarks, anywhere in the world.
9.4 Licensor makes no representation or warranty as to the validity or enforceability of the Licensor’s IPR nor as to whether the same infringe on any Intellectual Property Rights of third parties.
9.5 In the event of: (a) of any actual, suspected or threatened infringement, unauthorised disclosure, misappropriation or misuse of Licensor’s Intellectual Property Rights comprised in the Software (including any challenge to any of Licensor’s patents) (Licensor’s IPR); (b) any person applies for, or is granted, a patent by reason of which that person may be, or has been, granted rights that conflict with any of the rights granted to Licensee under the Agreement; (c) any application is made for a compulsory Licence under any patent owned by Licensor and relevant to the Software; or (d) of any other form of attack, charge or claim to which the Licensor’s IPR may be subject, the following shall apply: (i) Licensor shall, in its absolute discretion, decide what action, if any, to take; (ii) if Licensor decides, in its absolute discretion, to institute proceedings, it may do so in its name alone; (iii) Licensor shall have exclusive control over, and conduct of, all claims and proceedings; (iv) Licensee shall not make any admissions other than to Licensor without Licensor’s prior written consent, except in the case of a valid court order, and shall provide Licensor with all assistance that it may reasonably require in the conduct of any claims or proceedings (at Licensor’s reasonable cost); and (v) Licensor shall bear the cost of any proceedings and shall be entitled to retain all sums recovered in any action for its own account.
9.6 Nothing in the Agreement shall constitute any representation or warranty that the exercise by Licensee of the Licence will not infringe the rights of any person.
10.1 Licensee shall: (a) be responsible for the advertising and promotion of the Services provided that the use by Licensee of any advertising materials and promotional literature containing the Licensor’s IPR or other references to the Licensor or to the Services in connection with the Licensor shall be subject to the prior written consent of Licensor; (b) observe all reasonable directions and instructions given to it by Licensor in relation to the promotion and advertisement of the Subscription Services to the extent that such promotions or advertisements fall within sub-clause (a) above; (c) conduct its business in a manner that reflects favourably at all times on Licensor and the good name, goodwill and reputation of Licensor and not enter into any contract or engage in any practice that is or may be detrimental to the interests of Licensor in the Subscription Services; and (d) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Licensor, the Services or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to Licensor or Services.
10.2 Licensor will provide Licensee with marketing literature, sales support, training, and technical support as well as information regarding developments in the Services, such as changes, additions or new releases.
11. CONFIDENTIAL INFORMATION
11.1 Each party agrees that any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information of commercial value all code, inventions, know-how, business, technical and financial information known and belonging to a party and concerning its business, suppliers, customers, products or services (including without limitation the Software and Documentation, which shall be the confidential information of the Licensor) which a party (the Receiving Party) obtains from the disclosing party (Disclosing Party) constitute the confidential property of the Disclosing Party (Confidential Information), including any other information which is either identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.
11.2 Confidential Information will not include information that: (i) is in or enters the public domain other than through the fault of the Receiving Party; (ii) was demonstrably in possession of the Receiving Party prior to first receiving it from the Disclosing Party; (iii) is developed by the Receiving Party independently without use of or access to Confidential Information of the Disclosing Party; (iv) is obtained by the Receiving Party from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (v) is disclosed with the prior written consent of the Disclosing Party.
11.3 Each party will use the other party’s Confidential Information only as reasonably required to exercise its rights and perform its obligations under the Agreement. Each party will refrain from disclosing the other party’s Confidential Information to any third party except to its employees, employees of its Affiliates, and consultants as is reasonably required in connection with the exercise of its rights and obligations under the Agreement, and only then on the basis that it shall be liable and responsible for such parties, or as is required in respect of sub-licensing of the Software, as permitted herein. Each party will take all reasonable measures to maintain the confidentiality of all such Confidential Information, but not less than the measures it uses for its Confidential Information of similar importance. However, each party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party subject to such order gives reasonable notice to the other party to contest such order or requirement; and (ii) on a confidential basis to legal or financial advisors.
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve remove or replace, a party’s obligations under the Data Protection Legislation.
12.4 Without prejudice to the generality of clause 12.1, Licensor shall, in relation to any Customer Personal Data: (a) process that Customer Personal Data only on the written instructions of Customer unless Licensor is required by applicable laws to otherwise process that Customer Personal Data; (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep Customer Personal Data confidential; (d) assist Licensee, at Licensee’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (e) notify Licensee without undue delay on becoming aware of a Personal Data breach; and (f) at the written direction of Customer, delete or return Customer Personal Data and copies thereof to Customer on termination of their agreement to use the Licensor’s Services unless required by Applicable Law to store Customer Personal Data (subject always to Licensee having paid Licensor any then outstanding charges owing under the Agreement).
12.7 Licensee acknowledges and agrees that Customer Personal Data may be transferred or stored outside the EEA or the country where Licensee and the Authorised Users are located in order for Licensor to provide the Services and access to the Software and fulfil Licensor’s other obligations under the Agreement.
12.8 Licensee shall ensure that (a) it is entitled to transfer the relevant Customer Personal Data to Licensor so that Licensor may lawfully use, process and transfer the personal data in accordance with the Agreement on Licensee’s behalf; and (b) that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Legislation.
12.9 Licensor may monitor use of the Subscription Services by Licensee and its Customers and use Customer Data gathered in an aggregated and anonymised manner. Licensee agrees, and Customers shall agree, that Licensor may use and publish such information, provided that such information does not contain any personal data, identify Customer or any of its contacts specifically and is used solely in an aggregated and anonymised manner, for example, stating numbers of contacts falling within particular job categories contacted within particular industries. This data may be used by Licensor as part of internal data processes to develop and improve Enrichment Data. With these internal data processes, in no event will specific Customer Data be disclosed, included within or provided to other customers or third parties. For clarity any data provided to other customers or third parties will only be in an aggregated and anonymous manner. This does not include Crowdsourced Data, if applicable, which Licensee acknowledges and accepts will be available to other customers of Licensor’s through the Software.
12.10 If Licensor makes Enrichment Data available to Licensee, then Licensee may only use that Enrichment Data in connection with Licensee’s use of the Subscription Services (unless, of course, Licensee have a source other than the Subscription Services for such Enrichment Data.) Enrichment Data may be made available to Licensee based on Customer Data, but Licensor will not use Customer Data to enrich data for other parties, except as Licensor describe in clause 12.8 above. The Enrichment Data Licensor provide may be provided from or through third party service providers or public sources.
12.11 For the avoidance of doubt the Licensee can also be a Customer and the obligations and provisions in this Agreement vis-à-vis Customers shall be deemed to apply to Licensee acting in this capacity directly.
12.12 As part of the Other Services, Licensor may provide specific data leads to Licensee or its Customers, which may include Personal Data relating to third parties (Lead Data). Such Lead Data may only be used by Licensee or its Customers (as applicable, depending on the entity for whom the Lead Data was sourced) for their internal business purposes, and the provisions in clause 12.10 above regarding Enrichment Data shall equally apply to Lead Data (as applicable). Whilst Licensor believes such Lead Data to constitute publicly available information collected from publicly available websites, and regard the resale of Lead Data as compliant with Licensor’s obligations under the Data Protection Legislation, for avoidance of doubt, Licensee acknowledges and agree that Licensor accepts no responsibility or liability to Licensee and its Customers in connection with the provision of such Lead Data. All Lead Data obtained has been collected by third party contractors with whom Licensor works and for whom Licensor cannot be held liable or responsible. It shall be Licensee’s sole responsibility, and that of its Customers, to ensure that any such Lead Data resold to it or them is used lawfully in accordance with relevant Data Protection Legislation and other relevant laws. In particular, Licensee agrees that where any individual whose Personal Data has been captured in the Lead Data has indicated to Licensee that they no longer wish to be contacted by third parties, that this is communicated to Licensor so that such individual’s Personal Data can be removed from the Lead Data.
13.1 Licensee shall: (a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); (b) comply with any relevant industry codes on bribery as updated from time to time (Relevant Policies); (c) have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies, and will enforce them where appropriate; (d) promptly report to Licensor any request or demand for any undue financial or other advantage of any kind received by Licensee in connection with the performance of the Agreement; (e) immediately notify Licensor (in writing) if a foreign public official becomes an officer or employee of Licensee or acquires a direct or indirect interest in Licensee (of which it warrants there are none currently); (g) upon written request by Licensor, certify to Licensor in writing signed by an officer of Licensee, compliance with this clause 13 by Licensee and all persons associated with it, providing such supporting evidence of compliance as Licensor may reasonably request.
13.2 Without prejudice to clause 13.1 Licensee shall be responsible for ensuring that any person associated with it who is performing services in connection with the Agreement complies with the requirements of clause 13.1.
13.3 Breach of this clause 13 shall be deemed a material breach, which is irredeemable for the purposes of the Agreement.
14.1 Licensor undertakes to Licensee that any Other Services will be provided with reasonable skill and care and ensure that the Subscription Services shall materially conform to their Specification, when used as intended and as permitted under the Agreement, subject to downtimes for planned maintenance.
14.2 Licensee acknowledges and agrees that the Subscription Services are available with only limited functionality when accessed through a mobile device.
14.3 The undertaking in clause 14.1 shall not apply (nor does Licensor take responsibility for Support issues) to the extent of any non-conformance or issues in the functioning of the Subscription Services which are caused by: (a) use of the Services contrary to Licensor’s instructions or otherwise than as permitted by the Agreement; (b) modification or alteration of the Subscription Services or the output of any Services by any party other than Licensor or Licensor’s duly authorised contractors or agents, without Licensor’s written consent; (c) use of the Subscription Services in an application, or with any software, hardware or materials for which it was not intended (as specified by Licensor from time to time); (d) the use of the Software, Documentation, or Services otherwise than as permitted by the Agreement; (e) issues with Licensee Equipment (including that of any Customers); (f) interaction of the Subscription Services with hardware, or other software programs or plugins maintained by Licensee or Sub-Licensee (save to the extent indicated by Licensor in the Specification); (g) hardware configurations (outside the requirements set out in the Specification); or (h) things otherwise outside of Licensor’s reasonable control (including any breach of the Agreement or negligent act or omission by Licensee, Affiliate or any Customer). Licensor reserves the right to act using its reasonable discretion regarding the application of these categories and the provision of Support.
14.4 If the Services or Documentation do not conform to the undertaking in clause 14.1, Licensor will, at its expense, use its best endeavours to promptly correct any such non-conformance promptly (on a remote basis), or provide Licensee or Sub-Licensee with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Licensee or Customer’s sole and exclusive remedy for any breach of such undertaking. Notwithstanding the foregoing, Licensor does not warrant that Licensee’s or its Customer’s use of the Services, or Documentation will be uninterrupted or error-free. Except as specifically outlined in the Agreement the Services, and Documentation are provided on an “as is” basis.
14.5 Any warranties provided by Licensor under the Agreement are not applicable to third party software components or hardware which may be licensed or provided by Licensor from time to time, including as incorporated in the Subscription Services.
14.6 Timing for performance of Licensor’s obligations under the Agreement shall not be of the essence.
15. LIMITATIONS OF LIABILITY
15.1 Except for liability which cannot be excluded or limited by law, or for death or personal injury, in no event will Licensor be liable to Licensee for any, indirect, special, punitive, or consequential damage, whether economic or other, including, without limitation, for any loss of profits, loss of business, loss of anticipated savings, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, arising out of the Agreement, however caused and whether based on breach of contract, breach of warranty, breach of statutory duty, or other theory of liability, even if advised of their possible existence.
15.2 Except for liability which cannot be excluded or limited by law, or for death or personal injury, the total aggregate liability of licensor to Licensee under or in connection with the Agreement shall in no circumstances exceed a sum equal to the amounts paid or payable by Licensee to Licensor, however caused and whether based on breach of contract, breach of warranty, breach of statutory duty, or other theory of liability, even if advised of their possible existence
15.3 The parties have agreed that the limitations specified in this clause 15 will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose. each party acknowledges that the foregoing serves as a material inducement for it to enter into the Agreement.
15.4 Licensee shall maintain insurance in types and amounts appropriate for Licensee’s business related to performance of its obligations to Licensor with a reputable insurance company, and shall provide Licensor evidence of such coverage and proof of payment of premium upon request including, at a minimum the insurances which Zymplify specifies in the Commercial Terms.
16. TERM AND TERMINATION
16.1 The Agreement will commence on the Effective Date and will continue in full force and effect until the end of the Term or until terminated pursuant to this clause 16. Except where the Term has been terminated pursuant to this clause 16, the Term shall automatically renew over each Renewal Period.
16.2 Each party will have the right to terminate the Agreement without cause at any time after the Initial Term by giving not less than three (3) months’ notice in writing to the other party prior to that date.
16.3 Each party will have the right to terminate the Agreement with immediate effect by notice in writing if: (i) the other party breaches any material term or condition of the Agreement and fails to cure such breach within thirty (30) days after written notice; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within thirty (30) days of filing.
16.4 Upon any termination or expiration of the Agreement and at the written request of a party, the other party will promptly return or destroy all copies of any Confidential Information of the requesting party in such party’s possession or control and, upon request, shall furnish to other party an affidavit or declaration signed by an officer of such party certifying that such delivery or destruction has been fully effected. Licensee shall be entitled to retain one copy of any Confidential Information required to perform any warranty services.
16.5 Upon termination or expiration of the Agreement: (a) all outstanding fees payable by Licensee to Licensor shall become due and payable as set forth in the Commercial Terms; (b) the Licensee’s right under the Licence to resell the Services shall immediately cease, except that the Licensee shall procure that any of its Customers as at the date of termination or expiry sign or assent to such documentation required to ensure that their contracts to use the Services are transferred directly to the Licensor over the duration of an agreed transition period to effect this transfer. All relevant terms of the Agreement shall continue to apply as between the parties for the duration of the transition period; (c) Licensee shall promptly return to Licensor, or otherwise dispose of as Licensor may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to Licensee and relating to Licensor’s business (other than correspondence which has passed between the parties) which Licensee may have in its possession or under its control; (d) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; (e) subject to the provisions of sub-clause 16.5(b), all rights and licences of Licensee under the Agreement shall terminate.
17. GENERAL PROVISIONS
17.1 Agreement shall be governed by and construed under the laws of Northern Ireland, without regard to conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. The parties irrevocably agree that the courts of Northern Ireland have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).
17.2 Each party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under the Agreement.
17.3 If for any reason a court of competent jurisdiction finds any provision of the Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of the Agreement will remain in full force and effect.
17.4 Licensee may not assign its rights or delegate its obligations under the Agreement, or otherwise deal with its rights or obligations, in whole or in part, to any third party either temporarily (such as loaning, rental or timeshare) or permanently, and any attempt to do so will be void.
17.5 Licensor shall be entitled to identify Licensee as a customer in presentations to potential customers and to use Licensee’s name in its online list of customers, without Licensee’s prior written consent.
17.6 Failure by either party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of the Agreement will be effective only if in writing and signed by duly authorised representatives of the parties.
17.7 All notices, consents and other communications required or permitted to be given under the Agreement will be in writing and delivered by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices, consents and communications will be sent to the addresses set forth in the Commercial Terms or to such other address as may be specified by either party to the other in accordance with this clause.
17.8 Neither party will be liable for any delay or failure of its performance under the Agreement due to events beyond its reasonable control (events of Force Majeure), provided that the affected party provides prompt written notice to the other party of such Force Majeure and uses its reasonable commercial efforts to resume performance. A party’s time to perform its obligations under the Agreement will be extended for a period equal to the duration of the delay caused by the Force Majeure, but not in excess of sixty (60) days.
17.9 The parties to the Agreement are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
17.10 The Agreement is made subject to any restrictions concerning the export of products or technical information from the United States of America, the United Kingdom or other countries which may be imposed upon or related to any such country from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under the Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export Licence or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity.
17.11 Neither party will directly solicit for hire any of the employees of the other party from the initiation of the Agreement until one year after the termination of the Agreement, without prior written consent of the other party. Notwithstanding the foregoing, nothing herein shall limit the right of either party to hire any individual who responds to a general solicitation for employment.
17.12 Unless otherwise expressly provided, no provisions of the Agreement are intended or will be construed to confer upon or give to any person or entity other than Licensor and Licensee any rights, remedies or other benefits under or by reason of the Agreement.
17.13 The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
17.14 Without prejudice to any other rights or remedies that Licensor may have, Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of the Agreement by Licensee. Accordingly, Licensor shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of the Agreement.
17.15 The Agreement and its exhibits are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. Each of the parties acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in the Agreement.
17.16 For the avoidance of any doubt, the Agreement shall not prevent either party from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
17.17 The provisions of any clause which expressly or by implication is intended to survive termination or expiration shall remain in full effect following termination or expiration of the Agreement.
17.18 No amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). This shall be without prejudice to the Licensor’s general right to amend these Conditions from time to time, which amended version shall apply to any future Agreement signed between Licensor and the Affiliate on the basis of new Commercial Terms.