General Terms and Conditions 20180920 : Thursday, September 20, 2018
General Terms and Conditions (from September 2018)
These General Terms, Software Licence, Data Licence, Support and Maintenance Terms, Cloud Services Terms and the Order (as the case may be) form and are incorporated into the Agreement between you and 51Degrees.mobi Limited ("we", "us" or "our", as applicable), a company incorporated under the laws of England and Wales (company numbered 07397529) with its registered office located at 5 Charlotte Close, Caversham, Reading RG4 7BY and apply to the products and/or services we supply to you.
These General Terms contain provisions which limit our liability to you, as set out under the heading "Our Liability", below.
|51D Software||software produced or distributed by us, whether licensed on open source terms or the Software Licence, as the case may be.|
|Adaptation||a version, amended version or translation. "Adaptations" shall be interpreted accordingly.|
|Business Day||a day that is not a Saturday, Sunday and bank or public holiday in England.|
|Business Hours||between 09.00 hours and 17.30 hours UK time, on a Business Day.|
|Customer||either you or a customer of yours.|
|Documentation||the latest version of the documentation we may publish in respect of Licensed Materials, as updated from time to time.|
|Developer||a developer is an individual, who is you, an employee of yours, or an employee or contractor to a software development company engaged by you.|
|Enhanced Data||device data which we license to you and attracts a Fee.|
|Enhanced Software||software produced by us which we make available to you and attracts a Fee.|
|Fees||the costs and charges payable for the goods and/or services as set out in the Order and/or as notified by us to you under clause 6 of these General Terms. "Fee" shall be interpreted accordingly.|
|General Terms||these General Terms and Conditions.|
|Initial Term||the initial term for the applicable licence or services, as set out in the Order.|
|Licence Key||the licence key to activate products or services or enable access to products or services.|
|Licensed Materials||products and/or services licensed by us to you, other than under the terms of an open source licence.|
|Mozilla Public Licence||version 2.0 of the Mozilla Public Licence published at www.mozilla.org/MPL/2.0/|
|Order||the order placed by you setting out details of the licences and/or services which you wish to be supplied by us, and includes the description of the products and/or services, and any other terms referred to the order or description.|
|Services||the services we provide to you.|
|Support Fees||Fees payable by you for Support Services (as defined in the Support and Maintenance Terms), as set out in the Order or as notified by us to you under clause 4 of these General Terms.|
|Website||our website published at 51degrees.com for the time being.|
|you||the customer specified in the Order (if applicable) or the owner of the domain, website, server or computer initiating a Request (as defined in the Cloud Services Terms) or an agency, developer or other service provider using the Cloud Services for or on that owner’s behalf. "Your" shall be interpreted accordingly.|
2 Intellectual Property Rights
2.1 You agree that all intellectual property rights in the Licensed Materials throughout the world remain vested at all times with us and/or our licensors, that rights in the Licensed Materials are licensed and not sold to you, and that you have no rights in or to use the Licensed Materials other than the licence expressly granted herein, and not otherwise.
2.2 As at the date of the Agreement, the Licensed Materials do not infringe the intellectual property rights of any third party.
3.1 Other than as provided in the Agreement or as permitted by your statutory rights which cannot be excluded by Agreement, you agree that you will not:
a) copy any Licensed Materials except where such copying permitted under the terms of the Agreement;
b) rent, lease, sublicense, loan, translate, merge, make Adaptations of or otherwise modify Licensed Materials;
c) permit or authorise Licensed Materials or any part thereof to be combined with or become incorporated in any other program, or used as a library by any other program;
d) use the Licensed Materials and/or Documentation to provide services to third parties and shall only use Licensed Materials for your own internal business purposes;
e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided for in the Agreement; and/or
f) use Licence Keys issued by us other than in accordance with the Agreement; and/or disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Licensed Materials.
3.2 The Agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Licensed Materials and services and all warranties and conditions other than those set out herein are excluded to the extent permitted by law. No condition, warranty, misrepresentation or other terms, express or implied, are binding on us except other than as expressly stated in the Agreement. Any condition, warranty, misrepresentation or other term concerning the supply of the Licensed Materials or our services which might otherwise be implied into, or incorporated in, the Agreement, or any collateral contract, whether by statute, common law or otherwise howsoever is excluded to the fullest extent permitted by law.
3.3 You agree that Licensed Materials:
a) have not been developed to meet your individual requirements and that it is your responsibility to ensure that the facilities and functions of Licensed Materials meet your requirements.
b) are not free of bugs or errors and you accept that the existence of any errors which do not materially interfere with the overall functioning of the Licensed Materials as a condition of supply and licensing of Licensed Materials;
c) may rely upon the proper functioning of third party computing infrastructure which we do not control, and you accept that where such infrastructure fails services made available by Licensed Material may not be available to you;
d) shall not be accessed in order to build a product or service which competes with the Services and/or the Documentation; and
e) are licensed to you and not to any subsidiary or holding company or entity.
3.4 You warrant, represent and undertake to:
a) implement and maintain security measures to safeguard the Licensed Materials from use contrary to the terms of the Agreement;
b) refrain from exceeding terms of licences granted to use Licensed Materials;
c) without prejudice to any of our other rights or remedies, pay on demand for unlicensed use of Licensed Materials;
d) procure that third parties shall not cause you to exceed your entitlement to use Licensed Materials; and
e) maintain a full and accurate documentary record of use and distribution of Licensed Materials and shall produce that record to us on request.
3.5 We only wish to contract with traders, within the meaning of section 2 of the Consumer Rights Act or any successor legislation ("a Trader"). It is a condition precedent of this contract that you are a Trader within the meaning of the Consumer Rights Act. We retain the right to terminate any agreement which may be formed with any person who is not a Trader. You warrant, represent and undertake that you are a Trader and not a Consumer within the meaning of section 2 of that Act.
3.6 You shall not make any use of the Licensed Materials for purposes, or in connection with products or services, that in our sole opinion could substitute for any of our products or services.
4.1 Fees are exclusive of VAT, which is payable by you at the rate and in the manner for the time being prescribed by law.
4.2 Where Fees are specified in an Order, you must pay the Fees on or before the start of the Initial Term or renewal term. If you have agreed to pay by instalments, payments are due as set out in the Order. You irrevocably authorise us to use any credit or debit card details to take payments due from you to draw payment. Should you not provide us with credit or debit card details, you must pay the Fees within the time period allowed for such payment. If you miss a payment you are obliged to make, we will be entitled to draw the entire outstanding balance for the relevant period without notice to you.
4.3 In the event that you do not pay the Fees, and we terminate any licences granted to you, you will pay us 80% of the outstanding Fees for the Licensed Materials forthwith upon demand.
5.1 You must permit us or our representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the Licensed Materials are being kept or used, and any records kept pursuant to the Agreement, for the purpose of ensuring that you are complying with the terms of the Agreement and ascertaining the extent of any misuse, past or present.
5.2 You will provide within 24 hours of a request made in writing any information and documentation reasonably requested setting out the production environment, development environment, and infrastructure of the computer systems upon which Licensed Materials reside, are consumed or accessed, which shall include but not be limited to:
a) The machine names of servers, computers and devices, including all virtual machines installed on physical servers ("machines");
b) Internal and external IP addresses of such machines;
c) The physical location of machines; and/or
d) The names, job role(s) and job description of persons accessing Enhanced Data during the terms of this Licence and the machines from which they do so.
5.3 In the event that you do not comply with the requirements or produce the records maintained as required by this clause 5, our records of use of Licensed Materials shall be deemed conclusive of your use and use of others authorised by you to use Licensed Materials.
6.1 We may terminate the Agreement immediately by written notice to you if you are in material breach which is incurable or if you fail to remedy a curable breach within 14 days of your receipt of written notice specifying the breach and requiring you to remedy the same within the said period, or are in persistent breach of the terms of the Agreement without notice to you. It will be a material breach of the Agreement to fail or refuse to comply with any of the provisions of clauses 2 to 5 of these General Terms.
6.2 We may terminate any Order immediately by written notice to you within 14 days after we accept that Order for our convenience. Non-exhaustive examples of when we may do so are where we believe that you are a competitor or may intend to misuse any Licensed Materials, but we are not obliged to state any reason for such termination. We will refund all Fees paid by you in respect of the Order up to such termination.
7 Effects of Termination
7.1 Upon termination of the Agreement or any Order for any reason:
a. all rights and licences granted to you under the Agreement terminate;
b. you will cease all activities authorised by the Agreement;
c. you must immediately pay any sums due to us under the Agreement; and
d. you will immediately and irretrievably delete Licensed Materials from all computer equipment in your possession or control upon request and certify in writing to us upon request that you have done so upon request.
8 Our Liability
8.1 Nothing in the Agreement will limit or exclude our liability for death or personal injury resulting from our own negligence, or fraudulent misrepresentation.
8.2 We will not under any circumstances whatever be liable, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any (i) loss of income, loss of business profits or contracts, business interruption, loss of the use of money or anticipated savings, loss of information, loss of opportunity, goodwill or reputation, or loss of, damage to or corruption of data, or (ii) any indirect or consequential loss or damage of any kind however arising.
8.3 Subject to any liability cap expressly set out in the Software Licence, Data Licence, Support and Maintenance Terms, Cloud Services Terms or Order, our maximum aggregate liability under or in connection with all agreements with you including the Agreement, whether in contract, tort (including negligence) or otherwise, for any and all claims arising during any calendar year, will in all circumstances be limited to a sum equal to the lesser of £3,000 and 120% of the Fees paid during that calendar year relating to the particular Services to which the claim relates.
9 Force Majeure
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 10 days , the party not affected may terminate the Agreement by giving 14 days' written notice to the affected party.
10.1 All notices given by you to us must be given to us at our registered address or email address published at /ContactUs.
10.2 We issue notices to you at (where available): (1) the email address or postal address provided by you when placing an Order; (2) the registered office of your business; (3) any business address published by you; and/or (4) the email or postal address provided by you and recorded in the Account Details area of our Website.
10.3 Notice will be deemed received and properly served on the next Business Day after an email is sent; three Business Days after the date of posting of any letter, and if hand delivered, on that day. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an email, that the email was sent to the specified email address of the addressee.
11.1 The licences granted under the Agreement are personal to you. You may not transfer the licences granted hereunder to any other person other than as specified herein. Should you attempt to do so, all licences granted hereunder shall automatically terminate. We may assign the benefit of the Agreement to any person at any time without notice to you.
11.2 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement which is caused by any event or events outside our reasonable control.
11.3 We may amend or replace these General Terms or any other terms or licence by posting them to our Website. Please check our Website regularly. Where we consider in our sole discretion that any such change to the terms of the Agreement has a material adverse effect on you and notify this to you in writing, then you may terminate the Agreement by notice in writing to us given not more than 28 days after we publish an updated version to our Website. If you do so, we will reimburse Fees for the future period of Services or applicable licence.
11.4 If any of the terms of the Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, that term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
11.5 The Agreement and any document expressly referred to in it constitute the whole agreement between us and supersedes and extinguishes any previous arrangement, understanding or Agreement between us in relation to its subject matter. You confirm that you have not relied on any statement made by us other than those set out in the Agreement prior to entering into the Agreement. Our Licensing Guidance do not form part of the Agreement.
11.6 No forbearance, delay or indulgence by either party in enforcing the provisions of the Agreement shall limit or restrict the rights of that party. Any waiver of rights shall not operate as a waiver of any subsequent breach and no right, power or remedy conferred upon or reserved for either party is exclusive of any other right or remedy available to that party. Each such right power or remedy is cumulative.
11.7 You agree that we may include your company name or trading name in our list of customers on our Website and in any other promotional material we produce for our Website or elsewhere. We may display your company logo on our Website and in any promotional material, wherever we may choose to publish or arrange to publish such material.
11.8 The Agreement, its subject matter or its formation (including non-contractual disputes or claims) will be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of English Courts.