1. Software Licence and Services This Agreement sets out the terms on which the Company agrees to: (i) grant to Customer a licence (Licence) to access and use the Software on the Web Address specified overleaf; and (ii) provide to Customer the services more particularly described overleaf (Services).
2. Software Licence the Company hereby grants to Customer a non-exclusive licence to access and use the Software for the duration of this Agreement. Save as otherwise provided in this Agreement, Customer may only access and use the Software via the Web Address. Customer agrees that it shall use the Software:
- solely in the course of its normal business,
- in the manner directed by the Company, and
- in a manner consistent with all applicable laws and regulations including but not limited to the Data Protection act and the Electronic Communication Act
3. Term This Agreement shall be effective commencing on the Effective Date stated overleaf for the Initial Term and any Extension Terms specified overleaf.
4. Upgrades The Company will provide upgrades to the Software from time to time at its discretion (Upgrades).
5. Software Performance, Support and Fault fixing The Company will ensure that the Software will perform, in all material respects, to the Specification which is defined by the online Help Files. In the event that the Software does not perform in accordance with the Specification then the Customer will report such event and the Company will provide a support and repair service as described in the CommuniGator Support Charter which is attached hereto.
6. Software Access Customer acknowledges that the Software will be hosted by a third party which is separate from the Company (Software Host) and that the Software is accessed via the internet which is out of the control of the Company. Whilst the Software Host uses industry best practice operations to reduce downtime, the Company does not guarantee that Customer or any third parties will be able to access the Web Address at any particular time. Customer acknowledges that the need for routine maintenance and error correction may result in down time and that the Company cannot control the timing or volume of attempts to access the Web Address.
7. Services The Company will provide the Services using appropriately skilled and competent consultants, and Services will be performed and delivered in a professional and workmanlike manner.
8. Fees Customer agrees to pay the fees specified overleaf (Fees), together with VAT thereon at the rate prevailing from time to time. Customer must pay the Fees to the Company or the Collection Agent specified overleaf by the payment method defined overleaf. All sums payable and to become payable by Customer under this Agreement shall be paid in full on the due dates for payment without any deduction, set-off or counterclaim, unless expressly permitted by this Agreement.
9. Default Interest and late payment fees If the Customer fails to pay Communigator Ltd any sum due pursuant to the Agreement, the Customer shall be liable to pay interest to Communigator Ltd on such sum from the due date for payment at the annual rate of 8% above the Bank of England’s base lending rate, accruing on a daily basis until payment is made. Communigator Ltd reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998. 3.5. The Customer agrees to cover the cost of any third party debt recovery agency fees.
10. Data, Data Protection
10.1 Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws.
10.2 The Client is the data controller and CommuniGator is the data processor in respect of any personal data that CommuniGator processes in the course of providing Services. Personal data is derived from data provided by the Client and is not checked or monitored by CommuniGator. CommuniGator has no liability or responsibility whatsoever howsoever arising directly or indirectly to the Client for the accuracy, content or use of such personal data under this clause 10.2, provided that such use is in accordance with the instructions of the Client and CommuniGators obligations set out in this agreement.
10.3 CommuniGator shall not disclose any personal data to any business, organisation or individual without the Client’s prior written consent, unless required by law. Details of all third party providers who may access, process or store personal data in connection with the provision of the Services can be requested at any time. The Client hereby permits such third party providers used by CommuniGator to access, process and store personal data on behalf of the Client. CommuniGator confirms that: (a) its agreement with such third party providers contains data protection provisions that are no less equal to those contained in this Agreement; and (b) CommuniGator shall be liable for any breaches of this agreement caused by such third party providers as if such breaches had been committed by CommuniGator itself.
10.4 CommuniGator has no responsibility or liability for the back up of Client data and although CommuniGator makes regular backups in line with industry best practice, the Client remains responsible for making its own backups, particularly but not limited to when the Client adds a significant amount of data to the Services over a period of 24 hours.
10.5 CommuniGator shall only process personal data in accordance.
11 Copyright Indemnity – the Company will indemnify the Customer in full and on demand for all costs, claims, demands, expenses (including professional advisers fees) and damages awarded under any final judgement by a competent court of jurisdiction or agreed the Company in final settlement for infringement of copyright as a consequence of the authorised use or possession of the Software in accordance in all respects with the Licence provided that (a) the Customer makes no statement prejudicial to the Company; (b) such infringement is not caused or contributed to by any act on behalf of the Customer other than the use of the Software in accordance with the Licence; (c) the Company is promptly notified in writing of the details of the claim; (d) the Customer gives the Company all reasonable assistance in connection therewith, and (e) the Company shall have sole conduct and control of its settlement or compromise. To avoid potential infringement, even if not alleged, the Company may at its option and at no charge to the Customer obtain a licence, or modify, or substitute an equivalent of, or remove the Software The foregoing states the entire liability of the Company with respect to infringement or alleged infringement of any third party proprietary rights by the Software.
12. Termination If any of the following events occurs then Customer shall be deemed to have repudiated this Agreement and the Company shall be entitled to terminate it and/or the provision of the Services forthwith:
(a) Customer fails to pay any Fee or other amount payable under this Agreement within fourteen (14) days from the due date for payment;
(b) Customer breaches clause 2(c) above;
(c) The Customer breaches any other of its other obligations under this Agreement, and fails to remedy the same within fourteen (14) days after written notice from the Company requiring the same to be remedied;
(d) Customer ceases doing business as a going concern, transfers all or a substantial part of its assets, is unable to pay its debts (within the meaning of the Insolvency Act 1986) or admits in writing its inability to pay its debts as they become due;
(e) Customer makes an arrangement or composition with, or an assignment for the benefit of, its creditors;
(f) any receiver, administrative receiver, administrator, liquidator, trustee or similar officer is appointed in respect of Customer, or any person takes any steps with the intention of appointing any of the foregoing;
(j) Customer is dissolved, de-constituted, reconstituted or replaced by any statutory or other successor, or
(k) there is a change in the ownership, control or financial position of Customer which the Company considers to be material.
If any of the above events of default occurs then, instead of terminating this Agreement and the Services, the Company may at its option arrange for the Software to be rendered inoperable by the Customer and/or for the Services to be suspended until such time as relevant event of default has been remedied to the satisfaction of the Company.
13. Effect of Termination If this Agreement and/or the provision of the Services is terminated for any reason:
(i) Customer shall immediately pay to the Company any arrears of Fees and other sums which have accrued due for payment under this Agreement as at the date of termination; and
(ii) Customer shall immediately cease its use of the Software and related Services; and
(iii) Customer shall, at the Company’s sole option, return or destroy all of the Company’s Confidential Information and all copies of the Software in Customer’s possession, custody or control; and, if the Company opts for anything to be destroyed, Customer shall deliver to the Company the written certificate of a duly authorised officer of Customer confirming that it has done so.
In the event of Termination due to breach of clause 2(c) the customer may request within 48 hours of Termination, that the Company provide a copy of all email addresses, unsubscribes and hard bounce data that used by the Customer on the Software. The Company will provide this data once the Customer has paid a one off fee for its provision of £500 plus VAT and settled all outstanding amounts under this Agreement. If no request under this clause is received within the 48 hour period or if the Customer has not settled all outstanding sums due within 7 days of Termination then this data will be destroyed.
14. Limited Warranty To the fullest extent allowed by law, the Company’s warranty provided under this Agreement is exclusive and in lieu of all other warranties, terms and conditions, express or implied either in fact or by operation of law, statutory or otherwise, including, but not limited to any warranties of quality, fitness for a particular purpose, accuracy of information generated, title and non-infringement, all of which are disclaimed. The Company does not warrant that the Software or Services will meet Customer’s requirements or that the operation of the Software or Services will be uninterrupted or error-free. These disclaimers constitute an essential part of this Agreement.
15. Limitation of Liability In no event (death or personal injury excepted) will the Company be liable to Customer for any indirect, incidental or consequential damages, or loss of profit, even if the Company has been advised of the possibility of such damages. The Company’s liability to Customer for any other loss or damage from any cause whatsoever, regardless of the form of the action, will be strictly limited to the Fees paid for the prior 12 months.
16. Confidential Information Customer and Company shall use the same care and discretion, but in no event less than reasonable care and discretion, to prevent disclosure, publication or dissemination of any information made available by the one party to the other from time to time or which either party specifies is confidential (Confidential Information) as it employs with similar information of its own; and shall not use, reproduce, distribute, disclose or otherwise disseminate the Confidential Information except as required by law.
17. Data Usage –In the normal course of providing the service under this Agreement the Company will gather data on the association of the IP address and company name in the client data (where present). The Company has the right to use this data to deliver look up services to all CommuniGator Customers.
18. Assignment. This Agreement and the rights here under are personal to Customer and are not transferable or assignable by Customer without the prior written consent of the Company. Customer acknowledges that the Company may assign its rights to payment under this Agreement to a third party (Assignee). The Assignee shall not be liable for the performance of the Software, the Services or any of the Company’s obligations under this Agreement.
19. Governing Law This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby agree to submit to the exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with this Agreement.
20. Social Media Use. This privacy statement (“Privacy Statement”) applies to the treatment of personally identifiable information submitted by, or otherwise obtained from, you in connection with CommuniGator’s social posting platform GatorSocial. By using or otherwise accessing GatorSocial, you acknowledge that you accept the practices and policies outlined in this Privacy Statement.
21. Entire Agreement This Agreement and all attached schedules and appendices constitute the entire agreement between the Company and the Customer regarding its subject matter and all prior agreements, both oral and written, between the parties on this subject matter are cancelled, replaced and superseded by this Agreement.