PLEASE READ CAREFULLY BEFORE UTLISING ANY SERVICE FROM THIS WEBSITE:
This licence agreement (Licence) is a legal agreement between you (Licensee or you) and SERPsketch Limited, Unit 3, Vista Place, Ingworth Road, Poole, Dorset, BH12 1JY (Licensor, us or we) for:
We license use of the Software and Document to you on the basis of this Licence. We do not sell the Software or Documents to you. We remain the owners of the Software and Documents at all times.
IMPORTANT NOTICE TO ALL USERS:
You should print a copy of this Licence for future reference.
1. GRANT/SCOPE OF LICENCE AND CHARGES
1.1 In consideration of payment by you of the agreed licence fee and you agreeing to abide by the terms of this Licence, we hereby grant to you a non-exclusive, non-transferable licence to use the Software and the Documents in the European Union and UK on the terms of this Licence.
1.2 You may use the Software for your personal purposes (if you are a consumer) or your internal business purposes (if you are a business) only.
1.3 You will provide to the Licensor valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Licensor and any other relevant valid, up-to-date and complete contact and billing details and, if you provide yours credit card details to the Licensor, you hereby authorise the Licensor to bill such credit card for the agreed licence fee upon entering into this agreement on the anniversary of each month in advance (unless this agreement is terminated in accordance with its terms). The Licensor is subject to and complies with the Payment Card Industry Data Security Standard.
1.4 If the Licensor has not received payment within 30 days of payment of the due date or the payment has been declined date, and without prejudice to any other rights and remedies of the Licensor:
the Licensor may, without liability to you, disable the your password, account and access to all or part of the Software and/or the Documentation and the Licensor shall be under no obligation to provide access to the Software and/or the Documentation until such time as the payment has been made in cleared funds; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
1.5 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Licensor’s invoice(s) at the appropriate rate.
1.6 If, at any time whilst using the Software and/or the Documentation, you exceed the usage provided by the agreed licence fee, as set out by the agreed credit allowance, the Licensor shall charge you, and you shall pay, the Licensor’s then current overage fees.
1.7 The Licensor shall be entitled to increase the licence fee, at the start of each new year of the subscription upon 90 days’ prior notice to you.
2.1 For the purpose of this Licence (i) Virus shall mean anything (including any software, code, file, device or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices and (ii) Vulnerability shall mean a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability.
2.2 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
(a) not to copy the Software or Documents;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documents;
(c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) not to access all or any part of the Software and/or the Documentation in order to build a product or service which competes with the Software and/or the Documentation;
(f) not to introduce or permit the introduction of, any Virus or Vulnerability into the Licensor’s network and information systems;
(g) to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;
(h) not to provide or otherwise make available the Software 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 without prior written consent from us.
2.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software and/or the Documentation that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(j) facilitates illegal activity;
(k) depicts sexually explicit images;
(l) promotes unlawful violence;
(m) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(n) is otherwise illegal or causes damage or injury to any person or property;
and the Licensor reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this condition.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 You acknowledge that all intellectual property rights in the Software and the Documents anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documents other than the right to use them in accordance with the terms of this Licence.
3.2 You acknowledge that you have no right to have access to the Software in source code form.
4. LIMITATION OF LIABILITY IF YOU ARE A BUSINESS USER
4.1 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documents meet your requirements.
4.2 If you are a business customer, we only supply the Software and Documents for internal use by your business, and you agree not to use the Software or Documents for any re-sale purposes.
4.3 We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:
(a) loss of profits, sales, business, or revenue;
(b) business interruption;
(c) loss of anticipated savings;
(d) loss or corruption of data or information;
(e) loss of business opportunity, goodwill or reputation; or
(f) any indirect or consequential loss or damage.
4.4 Other than the losses set out in condition 4.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 100% of the Licence Fee. This maximum cap does not apply to condition 4.5.
4.5 Nothing in this Licence shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other liability that cannot be excluded or limited by English law.
4.6 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documents. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software and Documents which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
5. LIMITATION OF LIABILITY IF YOU ARE A CONSUMER USER
5.1 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documents meet your requirements.
5.2 If you are a consumer, we only supply the Software and Documents for domestic and private use. You agree not to use the Software and Documents for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
5.3 Our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 100% of the Licence Fee. This does not apply to the types of loss set out in condition 5.4.
5.4 Nothing in this Licence shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited by English law.
6.1 We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
6.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 6.2(d) to condition 6.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
6.3 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must immediately cease all activities authorised by this Licence; and
(c) you must immediately pay to us any sums due to us under this Licence; and
(d) you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software and Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
7. DATA PROTECTION AND CONFIDENTIAL INFORMATION
7.1 For the purposes of this condition 7, the following terms shall have the following definitions:
Confidential Information: information that is proprietary or confidential.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Licensee Data: the data inputted by you or the Licensor on your behalf for the purpose of using the Software and/or the Documentation or facilitating your use of the Software and/or the Documentation.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
7.2 You shall own all right, title and interest in and to all of the Licensee Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Licensee Data.
7.3 In the event of any loss or damage to Licensee Data, your sole and exclusive remedy against the Licensor shall be for the Licensor to use reasonable commercial endeavours to restore the lost or damaged Licensee Data from the latest back-up of such Licensee Data maintained by the Licensor. The Licensor shall not be responsible for any loss, destruction, alteration or disclosure of Licensee Data caused by any third party.
7.5 Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.6 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, 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 (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
7.7 Either party may, at any time on not less than 30 days’ notice, revise conditions 7.2 to 7.7 by replacing it with any applicable controller to processor standard conditions or similar terms forming part of an applicable certification scheme.
7.8 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
7.9 Subject to condition 7.12, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
7.10 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
7.11 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this condition 7.12, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
7.12 You acknowledge that details of the Software and/or the Documentation, and the results of any performance tests of the Software and/or the Documentation, constitute the Licensor’s Confidential Information.
7.13 The Licensor acknowledges that the Licensee Data is your Confidential Information.
7.14 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.15 The above provisions of conditions 7.9 to 7.14 shall survive termination of this agreement, however arising.
8. COMMUNICATIONS BETWEEN US
8.1 If you are a consumer, if you wish to contact us in writing, or if any condition in this Licence requires you to give us notice in writing, you can send this to us by e-mail or by pre-paid post to SERPsketch Limited at firstname.lastname@example.org or at Unit 3, Vista Place, Ingworth Road, Poole BH12 1JY. We will confirm receipt of this by contacting you in writing, normally by e-mail.
8.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your order for the Software.
8.3 If you are a business customer, please note that any notice given by you to us, or by us to you, will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
9. EVENTS OUTSIDE OUR CONTROL
9.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in condition 8.2.
9.2 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks.
9.3 If an Event Outside Our Control takes place that affects the performance of our obligations under this Licence:
(a) our obligations under this Licence will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavours to find a solution by which our obligations under this Licence may be performed despite the Event Outside Our Control.
10. OTHER IMPORTANT TERMS
10.1 We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.
10.3 You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.
10.4 If you are a business customer, this Licence constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence or any document expressly referred to in it. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this in this Licence or any document expressly referred to in it.
10.5 If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
10.6 Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
10.7 If you are a consumer, please note that this Licence, its subject matter and its formation, are governed by English law. You and we both agree to that the courts of England and Wales will have exclusive jurisdiction.
10.8 If you are a business customer, this Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.