IMPORTANT – PLEASE READ CAREFULLY. BY DOWNLOADING LIGHT BLUE AND BY ACCESSING THE ONLINE SERVICES PROVIDED BY LIGHT BLUE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1.1 The definitions in this clause apply in this Agreement.
2.1 Subject to the terms of this Agreement, in consideration of the payment to Us (being Light Blue Software Limited, company number 06671025) by You (being the individual downloading the Software) of the Licence Fee, We grant You a non-exclusive and non-transferable licence (the Licence): (a) to download and use the Software for Your internal purposes only; and (b) if you subscribe for the Online Services, to access and use the Online Services during the Term for Your internal business purposes only.
2.2 We may use a third party provider or providers in order to provide the Online Services. If We do, then the standard terms and conditions of that third party provider will apply and will take precedence over the terms of this Agreement, except for clause 9, which shall take precedence over the standard terms and conditions of that third party provider. The terms of this Agreement will also apply to the extent that they do not directly conflict with the terms of the third party provider.
3.1 You will be deemed to have accepted the Software Materials when You use of the Software Materials in a live environment.
4.1 The Licence will be restricted to the use of the Software on one Device only, unless on registration You elect to add a licence for more than one Device or You subsequently notify Us to add further Devices.
4.2 You may increase or decrease the number of Devices covered by the Licence at any time during the term of this Agreement and upon payment of any additional sums due for the remainder of the current invoicing period. If there is any change to the number of Devices licensed or variables relating to the Software Materials, Online Services, and/or the Charges due under this Agreement, We will confirm this to You, and/or take any changes into account in the renewal invoice issued to You before the commencement of the Renewal Term.
4.3 You may access and use the Software via the Online Services for processing Your own data and for Your own internal business purposes only.
4.4 You shall not: a) use or attempt to use the Software Materials or permit any third party to do so to provide a data processing service to any third party, or otherwise, or contrary to any other restrictions stated in this Agreement without Our prior written consent; b) translate or adapt the Software Materials for any purpose nor arrange or create derivative works based on the Software Materials without Our express prior written consent in each case; c) transfer or distribute (whether by licence, loan, rental, sale or otherwise) or otherwise deal in, charge or encumber all or any part of the Software Materials to any other person or use the Software Materials on behalf of any third party or make available the same to any third party; d) make, or permit any third party to make for any purpose (including without limitation for error correction), any alterations, modifications, additions or enhancements to the Software Materials; e) Yourself or permit any third party to, alter, adapt, make error corrections to, decompile, reverse engineer or disassemble the Software Materials or any part or permit the Software to be combined with any other programs.
4.5 You shall follow all lawful and reasonable instructions and directions given by Us from time to time in relation to the use of the Software Materials and Online Services.
4.6 You shall use appropriate hardware and software to access the Software Materials in accordance with the specifications notified to You and will take appropriate security precautions to prevent unauthorised access to Your computer systems.
4.7 You may not access or use the Software Materials other than as specified in this Agreement without Our prior written consent.
5.1 We shall use reasonable endeavours to maintain twenty four (24) hour online presence for the Software Materials. However, we cannot guarantee continuous, uninterrupted use. There will be times when We will be required to interrupt the provision of the Online Services in order to carry out routine maintenance, repairs, reconfigurations or upgrades on a regular basis or in circumstances beyond Our control. We shall notify You in advance by email of any planned interruptions.
5.2 We may suspend the Online Services without notice and without any liability to You if: a) the Online Services or Software Materials are being used in breach of this Agreement (including without limitation failure to pay any Charges); b) there is a breach of security in respect of which We reasonably believe that the suspension of the Online Services is necessary to protect Your or Our network or a third party network; c) any third party networks and/or services, including without limitation telecommunications and ISP services are unavailable; d) required by law, regulation or court order or as compelled by a law enforcement or government agency or other relevant regulatory agency.
5.3 In the event the Online Services are suspended due to Your act or omission, We reserve the right to charge You for a reconnection fee prior to resuming provision of the Online Services.
5.4 We may from time to time upgrade Our hosting facility and it may become necessary to relocate the hosting equipment within the same location or to another location. In each such case, We shall give You reasonable advance notice and use reasonable endeavours to minimise the effect that any such change will have on the Online Services.
5.5 We shall use commercially reasonable efforts to safeguard and accurately maintain Your data stored on the Software in accordance with general industry standards.
6.1 Once You have opened an account with Us, You may purchase Credits at any time through Your account.
6.2 Unless otherwise agreed in writing by Us, You can only pay for Credits in advance using a debit card or credit card or Your PayPal account approved by Us or any other method of payment that We may permit from time to time. Additional administrative charges may apply, depending on the method of payment.
6.3 We may amend methods of payment approved by Us (including withdrawing methods of payment previously approved by Us) at any time.
6.4 You warrant that any information supplied as part of the payment process is accurate and pertains to You and any credit card, debit card or equivalent method of payment provided belongs to You or You are authorised to use such payment method.
6.5 You agree to indemnify Us against any loss We may suffer resulting from incorrect payment information provided or resulting from Your use of a payment method which You were not authorised to use.
6.6 By purchasing Credits, You authorise Us to charge the designated payment method for the total amount of the purchase.
6.7 Once payment has been successfully received by Us Your account will be credited with the corresponding number of Credits.
6.8 Credits are non-refundable unless We terminate Your use of the Service and/or close Your account pursuant to clause 17.2.
6.9 We accept no liability for any loss caused by You due to failed payments.
6.10 By purchasing Credits from Us, You agree to Our prices which will be set out on Our Site or notified to You by Us at the time You purchase the Credits.
6.11 The price of Credits excludes any applicable taxes.
6.12 We shall endeavour to inform You when You have used Your pre-paid Credits, but are under no obligation to do so and shall not be liable for any consequences of not doing so.
7.1 Light Blue Software Ltd accepts no liability for any breach of Your obligations under these Terms of Service. We provide the Service as a medium between You and third parties and We are in no way responsible for Your use of the Service.
7.2 You will comply with all applicable laws, regulations and industry codes of practice in relation to Your use of the Service.
7.3 You agree that You are solely responsible for:
7.3.1 maintaining Your account and Contact Details and ensuring that the information provided by You is true, accurate, complete and not misleading at all times;
7.3.2 all activities that occur on and through use of Your account and the Service whether authorised by You or not and any consequences and/or liability in respect thereof;
7.3.3 Your conduct in using Your account and the Service and any consequences thereof;
7.3.4 the Content that You send via the Service and any consequences and/or liability in respect thereof, as more specifically set out below in clause 12;
7.3.5 backing up any Content, Contact Details or other information that You store or send through Us.
7.4 You warrant and represent that You shall not use the Service:
7.4.1 to initiate the sending of unsolicited advertising or promotional material including, without limit, junk-mail for commercial or non-commercial purposes;
7.4.2 to send anything which consists of or contains viruses;
7.4.3 to do anything that will harm Our reputation and Our good will with Our customers or otherwise;
7.4.4 to store or send any Special Category Data (as defined in the General Data Protection Regulation EU 2016/679) or any bank account details, personal identification numbers, passwords and medical information and any confidential information.
7.5 In the case of 7.4 (c) above, what is harmful to Our reputation and Our good will shall be determined at Our sole discretion;
7.6 You agree to indemnify Light Blue Software from any loss suffered resulting from Your breach of Your legal obligations when utilising the Service. This indemnity includes loss suffered due to damage caused to Our reputation resulting from Your breach.
8.1 Any Content You create during the use of the Service is owned by You and You are responsible for the Content.
8.2 By submitting and sending Content through Us and uploading it to Our platform, You grant us permission to store, process and transmit the Content as necessary to deliver the Service.
8.3 In order to deliver the Service, We may need to modify the Content as necessary to meet any requirements or limitations of any network operators, devices, services or media.
8.4 You are responsible for the use of any Content (other than any use by Us in breach of these Terms of Service) and for any consequences thereof, including the use of the Content by the recipients of the Content.
8.5 You represent and warrant that You have obtained all the necessary licenses, permissions, consents, rights, and have the power and authority necessary to use, upload and publish the Content and any other material You have used and send via the Service and grant the rights granted herein to any Content and any other material You have used and send via the Service.
8.6 You represent and warrant that:
8.6.1 any Content You create or provide, will not: infringe any third party intellectual property rights; be abusive; be unlawful; be pornographic; be libellous; racist or discriminatory in any way;
8.6.2 the Content provided by You shall not constitute a criminal offence or give rise to a civil action against You or Us;
8.6.3 where You are a business user using the Service for direct marketing purposes You will comply fully with the applicable direct marketing and advertising industry guidelines and codes at the time of using the Service.
8.7 You agree to indemnify Light Blue Software Ltd against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by TxtLocal arising out of or in connection with Your Content.
8.8 We may remove or refuse to transmit Content without notice, at Our sole discretion, and without liability to You.
8.9 We will not monitor, edit or remove any of Your Content before it is transmitted as part of the Service and any transmission of the Content or other use of the Content in connection with the Service does not constitute acceptance by Us that the Content does not breach these Terms of Service.
8.10 We reserve the right to review Content which has already been sent, in response to a complaint received by a third party.
8.11 We reserve the right for any reason to access, read, preserve and disclose any of the Content whether or not it has been transmitted, where, particular, We believe it necessary to do so in order to do the following, which is not an exhaustive list:
8.11.1 comply any applicable laws, regulations, police, regulator, legal process or governmental request;
8.11.2 enforce these Terms of Service, including investigating any potential breach thereof;
8.11.3 detect, prevent or otherwise address fraud, security or technical issues;
8.11.4 respond to request or query from a third party who has received the Content;
8.11.5 protect the rights, property or safety of Light Blue Software Ltd, its users, its staff, its officers, its agents, its advisers and the public.
8.12 Any commercial Content should also be clearly identified as such and should contain the name of the natural or legal person on whose behalf it is being sent. Any promotional offers or games must be clearly identified as such.
9.1 It is Your responsibility to ensure Your Contacts have expressly consented to the use of their data in relation to the Service and You represent and warrant that You have properly obtained such consent from each Contact within the last 12 months and that such consent has not been withdrawn. You are responsible for ensuring that You have the necessary permission to transfer Contacts to Us and to allow Light Blue Software Ltd to receive and process data and send communications to Your Contacts on Your behalf.
9.2 You warrant and represent that You will comply with all laws and regulations, including data protection, electronic commerce, electronic communication and privacy laws, that apply to the collection, storage, transfer and use of Contact Details contained in Your account. You agree that You are solely responsible for ensuring such compliance.
9.3 You must be able to provide written evidence to Us on request of each Contact's "opt-in" to Your database.
9.4 We have the right to permanently block Your ability to send Messages to third parties and We are under no obligation to inform You of that a block has been placed before doing so.
9.5 We reserve the right to keep records of how Your Contacts interact with links across Our Service, including, but not limited to, recording whether Your Contact has clicked a link provided as part of the Service, the time of click, the number of times the link was clicked and Internet protocol (IP) address. We do this to help provide You with reports on Your Contacts' interactions if requested by You and provided at Our sole discretion. In order to do this, We may need to shorten links and this will be done automatically and We accept no liability for the linked content.
9.6 You agree to indemnify Light Blue Software Ltd against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Light Blue Software Ltd arising out of Your failure to obtain such consent from Contacts to use Contacts Details and other data in relation to the Service and any use You make of Contacts Details and other data.
9.7 You warrant and represent that all Contact Details provided (including Your own) are true, accurate, complete and not misleading at all times and You agree to indemnify Us from any claim made against Us or loss suffered by Us resulting from a breach of this clause 9.7, Should You provide false information and data to Us or fail to adequately update this information or data We retain the right to cancel or suspend Your account without notice.
10.1 You warrant that whenever You send Messages You will include an "opt-out" for recipients of those Messages. Failure to include an "opt-out" will result in a breach of Your obligations under the relevant electronic commerce and electronic communications laws and regulations.
10.2 You agree that We can temporarily or permanently "opt-out" one or more of Your Contacts or any of their Contact Details at any time for any reason including a request to "opt-out" from the Contact directly and/or a network operator. You cannot re-"opt-in" a Contact unless they subsequently agree to receive communications from You.
10.3 We bear no responsibility for ensuring You comply with the applicable laws and regulations referred to at 10.1, this is entirely Your responsibility and We will not be liable for any breach of these obligations by You.
11.1 All copyright, database rights and other IPR in the Software, or relating to the Online Services or Documentation and rights in any copies of them shall belong to Us and You shall have no rights in respect of any of them except the right, as expressly granted under this Agreement, to use them in accordance with this Agreement. You shall do or procure to be done all such further acts and things and shall execute or procure the execution of all such other documents as We may from time to time require for the purpose of giving Us the full benefit of the provisions of this clause.
11.2 You shall notify Us immediately if You become aware of any unauthorised access to, or use of any part of the Software Materials or Documentation.
12.1 We agree to provide the support in accordance with the terms of this Agreement to people taking a trial of the Software Materials or to licensed users of the Software Materials or Online Services.
12.2 Support covers assistance in relation to (i) availability of the Online Services and (ii) significant operational errors that make the Software unusable when operated in conformity with the online user instructions in the help function in the program or the Documentation (as the case may be). Such errors or unavailability shall be notified to Us by email.
12.3 If You make unreasonable, excessive or inappropriate use of the Support, then We may at Our absolute discretion either suspend or charge extra for such Support and invoice You, and You agree to pay, for the additional Charges in respect of time spent supplying such Support at the then current rates.
13.1 You undertake:
13.1.1 to ensure that the number of Devices though which You access the Online Services does not at any time exceed the number previously notified to us.
13.1.2 not used.
13.1.3 to ensure each user of the Software and each user who accesses the Online Services keeps Your password for their use and access to the Software Materials and/or Online Services secure and does not disclose it to any third party
13.1.4 not to store, distribute or transmit any viruses or unsolicited emails, or any material through the Online Services that are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitate illegal activity, depict sexually explicit images, or promote unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, breach third party intellectual property rights; include personal data of any person that was not collected or is not being stored in accordance with applicable legislation and guidance from regulatory authorities, breach third party confidentiality or privacy rights or any other illegal or actionable activities;
13.1.5 to comply with the acceptable usage policy as may be notified to You by Us from time to time;
13.1.6 to comply with all licensing terms in respect of any Third Party Software and will indemnify Us for any breach of this clause 13.1.6;
13.1.7 not to provide or otherwise make available the Software Materials in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) in any form to any person other than Your employees, temporary staff, agents or sub-contractors who need it for the purposes of this Agreement;
13.1.8 to accept full responsibility for the acts or omissions of any of Your employees, sub-contractors, consultants and/or agents given access to the Software Materials and the Online Services as if they were Your acts or omissions;
13.1.9 to comply with all applicable laws and regulations in relation to Your activities under this Agreement;
13.1.10 to allow Us to access Your information and data used with the Software for the purpose of rectifying any problems with the Software in relation to provision of Support;
13.1.11 to ensure that the operating system and compiler and any other software with which the Software will be used is either Your property or it is legally licensed to You for use with the Software. You will indemnify Us in respect of any claims by third parties and all related costs, expenses or damages in the event of any alleged violation of third party proprietary right which results in any claims against Us;
13.1.12 not to bypass any security and/or access feature of the Online Services or Software Materials;
13.1.13 to use reasonable endeavours to ensure that its own system or equipment does not contain any trojan horse, worm, logic bomb, time bomb, back door, trap door or other common viruses;
13.1.14 to ensure that all information that You provide to Us or input, upload or otherwise communicate (whether to Us or to any third party) via the Software and/or the Online Services is complete, true and accurate and does not infringe the rights (including without limitation the IPR) of any third party.
13.2 You shall indemnify Us against any losses, damages, costs (including legal and other professional fees) and expenses incurred by or awarded against Us as a result of Your breach of this Agreement or any negligent or wrongful act by You or Your officers, employees, contractors or agents.
13.3 You accept and acknowledge that We are not responsible for the acts or omissions of any third party suppliers, including but not limited to telecommunications and internet service providers and/or Your third party suppliers.
13.4 You shall not re-sell or permit the resale directly or indirectly (whether or not for profit) of the Software Materials or Online Services (or any part of either) to any third party, or to allow any third party to receive or make use of the Software Materials or Online Services (or any part of either) directly or indirectly (whether or not for profit).
13.5 In the event of any loss or damage to Your data, Your sole and exclusive remedy shall be for Us to use reasonable endeavours to restore the lost or damaged data from the latest back-up of such data maintained by Us in accordance with the archiving procedure. Subject to clause 16.1, We shall not be responsible for any loss, destruction, alteration or disclosure of Your data caused by any third party (except those third parties sub-contracted by Us to perform services related to Your data maintenance and/or back-up.)
13.6 If You use our Online Services You shall only store files relating to Your day to day business management. We may impose a reasonable monthly charge for above 5GB of compressed stored files.
13.7 If You wish to use any Contract Facility provided by Us:
13.7.1 You shall be fully responsible for ensuring that any Contract Documents uploaded or otherwise used by You via the Contract Facility comply with all applicable laws, regulations and codes of practice;
13.7.3 You acknowledge that the Contract Facility is provided as an administrative tool, that We are not solicitors or legal advisers, that Our making available of the Contract Facility does not constitute legal advice for any particular circumstances, and accordingly that We give no representation, warranty or undertaking that the Contract Facility will be effective in creating a legally binding Customer Contract (whether incorporating any Contract Documents or otherwise); and
13.7.4 You acknowledge and agree that You shall be exclusively responsible for the formation and performance of all Customer Contracts and the resolution of any disputes arising thereunder and You agree to fully indemnify Us from and against all claims, damages, liabilities, costs and expenses that We suffer or incur as a result of or in connection with any breach or purported breach by You of a Customer Contract.
14.1 You agree to pay Us the Charges not later than 30 days of the date of invoice and otherwise in accordance with this clause 14.
14.2 The charges for the Software Materials shall be payable on the Purchase Date. You agree to provide Us with Your credit card details for this purpose.
14.3 The charges in respect of the Online Services for all subsequent months shall be payable in advance before the start of the period in which they relate. If You permit Us to retain Your credit card details we will take Your payment automatically. If You do not permit Us to retain Your credit card details we will email You our invoice. The Online Services may be suspended if this invoice is not paid on time.
14.4 All amounts due under this Agreement are exclusive of VAT and any other taxes, duties or levies.
14.5 After the initial term we will be entitled to increase any Charges due under this Agreement by giving You thirty (30) days prior notice of such increase.
14.6 We will not activate the Online Services in respect of the Software Materials until payment of all Charges due under this Agreement have been received by Us in full and in cleared funds.
14.7 If any payment due under this Agreement or any other Agreement with Us is or are in arrears, We reserve the right without prejudice to any other right or remedy to: a) charge interest on such overdue sum on a daily basis from the original due date until payment is received in full as well as after any judgment at a rate of 3% per annum above The Co-operative Bank PLC's base lending rate in force from time to time and alternatively reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or b) suspend the provision of the Online Services, under this Agreement on seven (7) days. prior notice to You; and/or c) withhold the activation of the Online Services until any outstanding payment is both received and cleared; and/or d) terminate this Agreement pursuant to clause 17.
14.8 You will notify Us in writing within fourteen (14) days of receipt of an invoice if You consider such invoice incorrect or invalid for any reason and the reasons for withholding payment, failing which such invoice will be deemed accepted and You will make full payment in accordance with it.
14.9 We reserve the right to refuse to provide the Online Services, at any time without refunding the Charges paid by You, if any attempt is made, other than by Us, to tamper with the Online Services or Software Materials, or if You have failed to pay an invoice from Us in accordance with this Agreement or where, in Our reasonable opinion, Your system and/or the equipment has ceased to be capable of receiving the Online Services and running the Software Materials successfully for any reason.
15.1 We warrant the functionality of the Software, when properly used in conjunction with the Online Services and in conformity with the user guide in the help function in the Software and/or the Documentation, will, for a period of three (3) months from the Acceptance Date, operate substantially in accordance with the Specification or Documentation.
15.2 Our obligation and Your exclusive remedy under the warranty given in clause 15.1 is at Our option either repair within a reasonable period of time, or replace the Software in whole or in part, and in the case of Third Party Software the supply of a corrected version where available from the supplier of the same. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated in this Agreement whether by statute, common law or otherwise, are hereby excluded including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
15.3 We will have no liability or obligation under clauses 15.1 or 15.2 unless prior written notice of any alleged default is received from You within fourteen (14) days of the Acceptance Date in the case of Software. The warranty in clause 15.1 shall not apply to any Software developed or modified under the Agreement or in respect of any previous software licensed by Us to You in respect of which the originally agreed warranty period has expired.
15.4 You acknowledge that it is Your responsibility to ensure that the facilities and functions of the Software Materials meet Your requirements and that We will not be liable for any failure of the Software Materials to provide any facility or function not described in the Specification or Documentation or for any failure of the Software Materials attributable to any modification to the Software or the equipment by persons other than Our staff or combination of the Software Materials with other software or equipment without Our express prior written consent, or for the results of, loss or damage arising from any Support We have given to help You to develop or implement back-up routines.
15.5 We will use reasonable care and skill in performing and providing the Online Services.
15.6 We will investigate any problem or error in any provision of Online Services, or provided that You notify Us in writing within seven (7) days following performance or delivery giving Us all necessary information to be able to investigate the problem, breach or error and limit Our liability to the right to re-submit the Deliverable or re-perform the Online Services.
15.7 We will not be liable for breach of the warranties in clause 15.5 unless You notify Us in accordance with clause 15.6 or if the error or failure has been caused by incorrect use or abuse or corruption of the Software Materials or Online Services.
15.8 Except as provided in this Agreement no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, availability, reliability, suitability, performance or fitness for purpose of the Support or Online Services and Professional Services provided hereunder is given or assumed by Us.
16.1 Nothing in this Agreement shall in any way exclude or limit Our liability for death or personal injury caused by negligence, or liability for fraudulent misrepresentation, or for any breach of Our obligations as to title under section 12 of the Sale of Goods Act 1979 or section 2 of Supply of Goods and Services Act 1982 or for any other liability which by law it is not possible to exclude or limit.
16.2 Our liability for the loss or damage to tangible property, during the repair or upgrade of the Software Materials whether or not the same are under warranty, shall be limited in accordance with clause 16.3 of this Agreement.
16.3 Subject to sub-clause 16.6 below, Our total liability for direct losses in contract, tort, misrepresentation or otherwise in connection with this Agreement or the provision of the Software Materials or Online Services, or for any one event or a series of related events shall be limited to the total Charges and resulting sums paid (excluding VAT and expenses) by You to Us in the 12 months before the event(s) complained of.
16.4 We shall have no liability to You in respect of defaults covered by clause 16.3 unless You notify Us within six (6) months of the date You became aware of the circumstances giving rise to the event(s) complained of. We shall have not less than ninety (90) days following written notice by You) or such other notice period notified to You in which to remedy any default.
16.5 In no event will We be liable to You in contract, tort, misrepresentation or otherwise, for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, nor for any direct or indirect loss of profit, loss of anticipated profits, loss of revenue, loss of anticipated revenue, loss of savings or anticipated savings, loss of business opportunity, increases in cost of working whether anticipated or not, loss or corruption of data, loss of use or loss of operating time and any costs and expenses associated therewith, loss or damage to Software or data which it contains during repair or upgrade whether or not the same are under warranty, the cost of purchasing elsewhere, depletion of goodwill or reputation or otherwise which arise out of or in connection with this Agreement and whether or not foreseeable or made known to Us.
16.6 We shall indemnify You against any claim that the normal use or possession of the Software or Documentation infringes the intellectual property rights of any third party which are effective in the UK provided We are notified promptly of any claim, We are given control of any claim, You do not prejudice Our defence of any claim and You give Us all reasonable assistance (at Our reasonable cost) and that the claim does not arise as a result of
16.6.1 the use of the Software or Documentation in combination with equipment or software not approved by Us;
16.6.2 by reason of alteration or modification not approved by Us; or
16.6.3 where the claim arises because of a feature specified and requested by You. We shall have the right to procure the continuing use of the infringing part, modify or replace the infringing part or refund an equitable proportion of the Online Services Fee provided that exercise of any of these options shall operate as an entire discharge of Our liability to You under this sub-clause.
16.7 You will indemnify and keep Us indemnified against any loss, damage, claim or expense arising out of (i) the physical injury of or death of any of Our consultants, employees, agents or authorised representatives arising by reason of defective equipment supplied by You, Your failure to provide a safe place of work or otherwise by reason of any negligent act or default on Your part or Your employees, agents or authorised representatives; (ii) Your failure to comply with the terms and conditions governing the use of any Third Party Software; (iii) any claim that the storage and/or transmission of Your data, information, materials, and/or Contract Documents via the Online Services and/or Software Materials by Us infringes the intellectual property rights of any third party.
17.1 This Agreement will commence on the Purchase Date. The Online Services will commence on the Commencement Date and will continue for the Initial Term and unless terminated earlier in accordance with these terms, shall automatically renew on expiry of the Initial Term for subsequent periods of one month ("Renewal Term") provided that You have not breached this Agreement. You will pay any Charges due to Us in respect of such Renewal Term in accordance with Our invoice and sub-clause 17.3 below.
17.2 We may terminate this Agreement (or at Our discretion, the supply to You of any Software Licences, Online Services, Support:
17.2.1 immediately if You fail to pay any sum due to Us under this Agreement and such sum remains unpaid for fourteen (14) days after notice has been given to You that such sum has not been paid ; or
17.2.2 on sixty (60) days' prior written notice provided that We refund to You pro rata any monies paid by You in advance.
17.3 You may only terminate this Agreement by giving not less than thirty (30) days' prior written notice to take effect after the expiry of the Initial Term.
17.4 Either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other if the other:
17.4.1 is in material breach of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy the breach within thirty (30) days of receipt of written notice setting out the breach and indicating that failure to remedy the breach may result in termination of this Agreement;
17.4.2 becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or notice has been received of a pending appointment of or the appointment of a receiver, manager, administrator or administrative receiver over all or any part of its undertaking, assets or income, intends to pass or has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order, or has ceased or threatened to cease to trade.
17.5 Termination of the Agreement, however caused, shall not affect the rights of either party under this Agreement which may have accrued up to the date of termination.
17.6 On termination of this Agreement however caused the Licence shall terminate and accordingly Your right to use the Software Materials via the Online Services will automatically cease. If the Agreement is terminated by You pursuant to clause 17.4.1, We will, at Our sole discretion, either make Your data available to You in standard readable form via email, CD-ROM or DVD or allow You 30 days. access to the Online Services following such termination to retrieve and store a read only copy of Your data. If the Agreement is terminated by Us or by You under any other clause, then We reserve the right to make a reasonable charge for such service or access.
18.1 No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, or negligence or default of suppliers or sub-contractors. For the avoidance of doubt, nothing in this clause 13 shall excuse You from any payment obligations under this Agreement. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate this Agreement forthwith by prior written notice without prejudice to the accrued rights of either party.
19.1 We may assign, sub-contract or otherwise transfer any of Our rights or obligations under this Agreement without Your consent. You may only assign, sub-contract or otherwise transfer any of Your rights or obligations with Our prior written consent.
20.1 Any notice required to be given pursuant to this Agreement shall unless otherwise stated in it, be in writing, sent to the other party marked for the attention of the person at the address specified in this Agreement (or to such other address as either party may from time to time notify to the other in writing in accordance with this clause).
20.2 For the purpose of notices to be given by Us in writing, the expression "writing" or "written" shall be deemed to include email communications. At Our option, We may send You written notice by email at the email address You supply to Us.
20.3 A correctly addressed notice sent by first-class post shall be deemed to have been delivered 72 hours after posting, and correctly addressed emails shall be deemed to have been delivered 24 hours after sending.
21.1 If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
22.1 No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
23.1 This Agreement and any document expressly incorporated in it contains the entire and only agreement between the parties and supersedes all previous agreements between the parties with respect to the subject matter hereof. Each party acknowledges that in entering into this Agreement, it has not relied on any representation, undertaking, promise or statement whether oral or in writing which is not expressly set out in this Agreement. Except as expressly provided in this Agreement all conditions, warranties, stipulations and other statements whatsoever that would otherwise be implied or imposed by statute, at common law, or otherwise howsoever are excluded to the fullest extent permitted by law. Nothing in the foregoing shall however affect any liability for fraudulent misrepresentation.
24.1 A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
25.1 In this clause:
25.1.1 "Data Protection Legislation" shall mean the Data Protection Act 1998, or, from the date it comes into force in the UK, the General Data Protection Regulation (EU) 2016/679 (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals; and
25.1.2 "Personal Data", "Controller", "Processor", "Data Subject" and "Processing" have the same meaning as in the Data Protection Legislation.
25.2 The parties acknowledge that for the purposes of this Agreement:
25.2.1 We are a Processor acting on Your behalf; and
25.2.2 unless otherwise expressly stated, details of the type of Personal Data and categories of Data Subjects (together, "Your Personal Data"), and the subject matter and duration of the Processing, including the nature and purpose of the Processing are set out in the table below:
|Duration of Processing||For the duration of the provision of the Online Services to You plus 2 years.|
|Nature/purpose of Processing||To enable Us to carry out the Online Services (which form the subject matter of the Processing).|
|Type of Personal Data||Identifying information contained in the photographs
Names of Your customers and their:
|Categories of Data Subjects||Any subjects of any photographs uploaded by You to the Online Software.
Your employees (if applicable).
|Third countries or international organisations||Ireland and USA|
|Personal Data will be transferred to Sub-Processors||Amazon Web Services
Payment processors (including PayPal and Stripe)
SMS messaging providers
25.3 We shall comply with our obligations under the Data Protection Legislation and shall, in particular:
25.3.1 Process Your Personal Data only to the extent, and in such manner, as is necessary for the purpose of providing the Online Services and in accordance with Your written instructions and this clause 25;
25.3.2 implement appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing;
25.3.3 ensure that any employees or other persons authorised to process Your Personal Data are subject to appropriate obligations of confidentiality;
25.3.4 not engage any third party to carry out its processing obligations under this Agreement without obtaining Your prior written consent and, where such consent is given, procuring by way of a written contract that such third party will, at all times during the engagement, be subject to data processing obligations equivalent to those set out in this clause 25 and save that, You consent to Us using the sub-processors listed in the table above in clause 25.2.2;
25.3.5 on Your request and taking into account the nature of the Processing and the information available to Us, use all reasonable endeavours to, assist You in ensuring compliance with your obligations under Articles 32 to 36 of the General Data Protection Regulation (EU) 2016/679 (where applicable) in respect of Your Personal Data;
25.3.6 on Your request, make available all information necessary to demonstrate Our compliance with this clause 25 and on reasonable advance notice in writing otherwise permit, and at your own cost contribute to, audits carried out by You (or your authorised representative) with respect to Your Personal Data, save that You shall (or shall ensure Your authorised representatives shall):
(i) sign a non-disclosure agreement in terms acceptable to Us prior to undertaking such audit;
(ii) be accompanied by a member of Light Blue Software at all times whilst on site during the audit;
(iii) use Your reasonable endeavours to ensure that the conduct of any such audit does not unreasonably disrupt Our normal business operations; and
(iv) comply with Our relevant IT and security policies whilst carrying out any such audit;
25.4 on termination or expiry of this Agreement, destroy or return (at Your direction) all Your Personal Data and delete all existing copies of such data unless We are required to keep or store such of Your Personal Data by law.
25.5 You acknowledge and consent to Us transferring Your Personal Data outside the European Economic Area for the purposes of maintaining and using relevant IT systems, provided that any such transfer meets the relevant requirements under Articles 44 – 50 of the General Data Protection Regulation. We will not otherwise transfer Your Personal Data outside of the European Economic Area without Your prior written consent, unless required to do so by law.
25.6 You acknowledge that You are responsible for obtaining any necessary consent for Personal Data to be submitted or uploaded to, or processed via, the Online Services and You warrant that You will obtain such consent from or on behalf of any relevant individual prior to submitting, uploading or allowing their Personal Data to be processed via the Online Services.
25.7 You hereby indemnify Us and will keep Us indemnified against all losses, damages, costs or expenses and any other liabilities (including legal fees) incurred or awarded against Us, or agreed to be paid by Us as part of any settlement negotiated and/or approved by You, arising as a result of any third party claim brought against Us in connection with: (a) Your failure to obtain the appropriate consent for Us to process Personal Data as anticipated under this Agreement; and/or (b) Our processing of Personal Data in accordance with Your instructions and Your obligations under this Agreement.
26.1 Both parties agree not to use or disclose confidential information relating to or owned by the other, received or disclosed to it by the other party during the term of this Agreement, save for use or disclosure required in order to perform their respective obligations under this Agreement. Disclosure shall be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.
26.2 The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, or is received from a third party without any obligations of confidentiality, or is used or disclosed with the prior written consent of the owner of that information, or is disclosed in compliance with a legal requirement, or is independently developed by the receiving party.
26.3 Any confidential information will be returned or destroyed by the receiving party forthwith at the prior written request of the owner.
26.4 In the event that the parties execute a separate confidentiality agreement, the terms of that agreement shall prevail over this clause 26.
27.1 This agreement and any dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
27.2 You irrevocably agree, for Our sole benefit that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual claims). Nothing in this clause shall limit Our right to take proceedings against You in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
27.3 We irrevocably consent and You irrevocably consent to any process in any legal action or proceedings under clause 27.2 above being served on it in accordance with the provisions of this agreement relating to service of notices. Nothing contained in this agreement shall affect the right to serve process in any other manner permitted by law.