Deeho Ltd with offices at 4, windmill Lodge, Hillfoot Road, Shillington, Beds, SG5 3NJ (“Deeho”), and the customer referred to on page one of this agreement (hereinafter referred to as “you” or “your”) as specified on the Deeho Sales Agreement (“Agreement”), have by both parties signing the agreement, agreed to be bound by the terms and conditions on the Order and by the following (“terms and condition”):
1.1 “Content” shall mean any information or data, stored by Deeho or it’s agents on it’s servers for or on your behalf.
1.2 “Products” shall mean those products listed on Order, as amended from time to time.
1.3 “User” shall mean a person/entity with a status specified as “active” in your user data base on the Deeho servers.
1.4 “Services” shall mean the services provided by Deeho to you as listed on the Agreement or the other services as required.
2 PRODUCTS AND SERVICES
Deeho hereby grants you a non-exclusive, non-sub licensable, non-transferable license to use the products subject to such security measures as Deeho may impose from time to time and on the TERMS AND CONDITIONS of this agreement.
3 CUSTOMER OBLIGATIONS AND WARRANTIES
3.1 Content – You warrant that you are the owner of the content and/or have necessary licenses and authority to use the Content and that you are authorised to license Deeho to use the Content to the extent necessary for the provision of the services and the operation of the products hereunder. You are solely responsible for all aspects of the accuracy of the Content.
3.2 Branding and Marketing – You agree that Deeho may refer to you by name and may use samples of your web pages, logo, electronic messages and case study materials for marketing purposes on the Deeho website and in other Deeho literature, following written consent. During the term of this Agreement, you may display the Deeho Trademark in a banner on your website for the purposes of linking your website to the Deeho website. All representations of the Deeho Trademark that you intend to use should first be submitted to Deeho for approval.
3.3 Permission Based Communications – You agree that you shall not use Content in connection with sending unsolicited messages. You also agree that you will honour all unsubscribe requests in the spirit of permission based communications.
3.4 General Obligations – You shall: – (i) provide Deeho promptly with all necessary information, decisions, support and co-operation that may reasonably be requires to enable Deeho to carry out it’s obligations to you under this agreement; (ii) provide at no charge to Deeho the adequate office accommodation, telephone services and other facilities including access to your applicable equipment to enable Deeho to perform the services at your site; (iii) abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the products and services.
4 DEEHO OBLIGATIONS
4.1 Product Support – Deeho will support the Product on Deeho standard Product Support terms as published on the Deeho website.
4.2 Content – Deeho does not own your Content and will not distribute or disclose any of your content to third parties except in accordance the provision of services associated with this Agreement. Deeho may access your account, including Content, to respond to the service or technical issues, to determine billing charges or as stated in this Agreement. On termination of this Agreement, Deeho shall return the Content to you in a non-proprietary file format provided you agree to pay all reasonable costs incurred in complying with this request.
5 USE, STORAGE AND OTHER LIMITATIONS – Deeho reserves the right to establish or modify general practices and limits concerning use of the Products and Services, including without limitation, the maximum number of days that Content will be retained by the Service and the maximum disc space that will be allotted to you on the Deeho servers.
6 PAYMENTS – You shall pay the fees on the terms of the Agreement. In addition to its other rights hereunder, including the right to terminate, Deeho may charge interest in respect of late payment of any sum due under this Agreement at the rate of ten percent (10%) per annum, or, if higher, the maximum rate permitted by applicable law, from the due date of the invoice until the date paid.
7 WARRANTY AND EXCLUSIONS
Warranty – Descriptions or specifications of deliverables in any statement shall constitute project objectives and not express warranties. Deeho shall have no liability to remedy a breach of warranty where such a breach arises as a result of any of the following circumstances:- (i) The improper use of the Products; (ii) The merger or use (in whole or in part) with any software or hardware by any person other than Deeho; (iii) Any failure by you to implement recommendations previously advised by Deeho; (iv) The use of the Products for a purpose not reasonably to be inferred from the Documentation. You expressly agree that Deeho shall have no liability for non-performance or failure of functionality of the Products where it is due to third party telecommunications equipment or services, or your computer equipment or software.
7.1 Exclusion of Warranties and Consequential Damages – Except as expressly stated in this agreement, Deeho hereby excludes all liabilities whether express or implied, statutory or otherwise in respect of the Products and Services to the greatest extent permitted by applicable law. Deeho gives no warranty of fitness for a particular purpose or merchantability to you under any circumstances. DEEHO GIVES PARTICULAR PURPOSE OR MERCHANTABILITY TO YOU UNDER ANY CIRCUMSTANCES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DEEHO SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR LOST PROFITS, CONSEQUENTIAL INCIDENTAL, SPECIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF DEEHO HAS BEEN APPRISED OF THE LIKLIHOOD OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE.
8 LIMITATION OF LIABILITY – IN NO EVENT SHALL DEEHO’S LIABILITY TO YOU, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND, TO THE EXTENT PERMITTED BY LAW, STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AMOUNT RECEIVED BY DEEHO FROM YOU FOR THE PRODUCTS AND/OR SERVICES COMPLAINED OF PERSUANT TO THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE LICENSEE NOTIFIES DEEHO OF SUCH ACTION OR CLAIM OR £10,000, WHICHEVER IS THE LESSER AMOUNT.
9 CUSTOMER INDEMNITY – You warrant that the Content shall not be libelous, or constitute malicious falsehood or disparagement of goods or services, or be otherwise defamatory, immoral, obscene, pornographic, illegal, and shall not advocate illegal activity or constitute a violation of privacy or a breach of any obligation of confidentiality to any third party, nor shall it infringe the proprietary or Intellectual Property Rights of any third party. You will indemnify and keep Deeho fully and effectively indemnified against all costs, claims, demands, expenses and liabilities (of whatever nature) arising out of or in connection with any claim based on breach of the warranty in this clause 9 or any breach by you and your employees or agents in terms of this Agreement. You shall also indemnify Deeho in respect of any claim for injury to any person or property due to the Products or Services sold or referred to in or due to the Content or arising out of your acts or omissions and those of your employees or agents including, without prejudice to the generality of the foregoing, the manner in which you use the Products.
10 PROPRIETARY RIGHTS OWNERSHIP
10.1 Proprietary Rights – You acknowledge that Deeho owns or has been assigned or licensed the use of all rights, title and interest in the intellectual property rights related to the Products and the deliverables (if any) of the Services (the “deliverables”), including, without limitation, all patents, trademarks, trade names, inventions, copyrights, (including copyright in computer programmes), database rights, know-how, and trade secrets (“Intellectual Property Rights”) relating to the design, manufacture, operation or service of the Products and Deliverables.
Your use of any of these Intellectual Property Rights is authorised only for the purpose and to the extent set forth in this Agreement, and upon termination of this Agreement for any reason such authorisation shall cease. Nothing herein shall grant to you any right, title or interest in the Intellectual Property Rights in the Products and Deliverables.
10.2 Software – You shall not reverse compile, copy, adapt, modify alter, vary, reverse engineer, de-compile, disassemble or create any derivative work based on, or including, the software forming part of the Products (the “Software”), subject always to any rights which you enjoy under applicable law.
10.3 Deeho Third Party Intellectual Property Rights Indemnity – Deeho will indemnify you and keep you fully and effectively indemnified against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Products or Deliverables by you infringes the Intellectual Property Rights of said third party (an “Intellectual Property Infringement”) provided that you give Deeho the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement, and do not at any time admit liability or otherwise settle or compromise, or attempt to settle or compromise the said claim or action except upon the express instructions of Deeho and gives to Deeho such assistance as it shall reasonably require in respect of the conducts of the said defence. Should notice be given to you by a third party that any of the Products or Deliverables infringes any intellectual property rights owned or controlled by the third party, or should you learn of any infringement by a third party of any of Deeho intellectual property rights in the Products or Deliverables, you shall immediately notify Deeho thereof.
11.1 General – Each party shall treat as confidential all information obtained from other party pursuant to this Agreement and shall not divulge such information to any person (except to such party’s own employees and then only to those employees who need to know same) without the other party’s prior written consent, provided however, that this clause shall not extend to information, which is already public knowledge or will become so at a future date (otherwise than as a result of a breach of this clause) or which is trivial or obvious. Each party shall ensure that it’s employees are aware of and comply with the provisions of this clause. The foregoing obligations as to confidentiality shall survive any termination of the Agreement.
11.2 Employees – Each party undertakes and agrees that it shall not, without the prior written consent of the other, recruit or hire, any personnel of the other under this Agreement until six (6) months after termination of this agreement.
12 TERM AND TERMINATION
12.1 Term – This agreement shall commence on the Effective Date, and shall continue for a period of twelve (12) months unless otherwise specified on the Agreement (the “Initial Term”). The Agreement will be renewed for additional consecutive periods at the then current Fees unless either party gives notice of its intent not to renew thirty (30) days prior to the expiration of the then current term or unless the Agreement is for a single event. Any continued use of the Products and Services beyond the Initial Term shall be subject to this Agreement.
12.2 Termination for Cause – If either party defaults in the performance of any material provision of this Agreement, then the non-defaulting party may give notice to the defaulting party of such default. If the default is not cured during the ten-day (10) period after such notice, then the Agreement automatically shall terminate at the end of that period.
12.3 Termination for Insolvency – This Agreement shall terminate immediately, without notice, (i) upon the institution by or against EITHER PARTY of insolvency, liquidation (whether voluntary or compulsory, except for the purposes of a bona fide reconstruction on amalgamation) receivership, examinership, bankruptcy or administration proceedings or any other proceedings for the settlement of debts of EITHER PARTY making a general assignment for the benefit of creditors, or (iii) upon the dissolution of EITHER PARTY.
12.4 Effects of Termination – In the event of the expiration or earlier termination of this Agreement, the licences granted to you shall automatically terminate and you shall cease to use the Deeho trademarks. In the event of termination of this Agreement during the Initial Term, all fees due and payable by you in respect of the then un-expired portion of the Initial Term, together with all sums then outstanding, shall become immediately due and payable by you.
13.1 Governing Law – This agreement shall be governed in all respects by the substantive laws of England. Any and all disputes, controversies or differences arising from or in connection with this Agreement shall be settled by mutual consultation between the parties hereto in good faith as promptly as possible, but failing an amicable settlement shall be resolved by binding mediation or arbitration in the English language before a single independent third party mediator or arbitrator to be agreed upon by the parties, or failing agreement, to be chosen pursuant to the Commercial Arbitration Rules of the United kingdom Arbitration Association. The arbitration shall be held in Bedfordshire. This agreement was negotiated and executed in English, and the original English language shall be controlling.
13.2 Independent Agents – The parties are independent contractors and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint ventures, co-owners, principal and agent, or otherwise as participants in a join or common undertaking.
Assignment- you shall not assign, sub-contract or otherwise transfer any of your rights, obligations or licenses hereunder or appoint any agent to perform your obligations hereunder without the prior written consent of Deeho.
13.4 WAIVER – Failure by any party to enforce any of its rights under this Agreement shall not be deemed a waiver of any right, which that party has under this Agreement.
13.5 Excused Performances – Except for the payment of any monies due under this Agreement non-performance of either party shall be excused, and any performance date shall be extended, to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, telecommunications services or equipment or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party.
13.6 Notices – All notices and communications hereunder shall be in writing and delivered personally, by recognised international courier (such as UPS or Federal Express) or by facsimile or electronically to such facsimile number or email address as may be notified by each party to the other in writing from time to time. All such written communications delivered personally or by courier shall be delivered to the parties hereto at their respective addresses set forth on the Order subject to the right of either party to change its address by delivering written notice to the other. Notices shall be deemed to be effective upon three (3) business days following the date of the deposit of such written notice by the courier or upon receipt if by facsimile, or electronic or personal delivery.
13.7 Invalid Provision – If any provision of this Agreement is held to be invalid or unenforceable, the other provisions will not be affected to the greatest extent possible consistent with the parties’ intent, and the invalid, void or unenforceable provision shall be modified as may be necessary to make it valid, effective and enforceable to the greatest extent possible consistent with the parties’ intent.
13.8 Entire Agreement – This Agreement (including the Order) reflects the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior agreements between the parties, whether written or oral.
Modification to Terms- Deeho reserves the right at its discretion to change the terms and conditions of `this Agreement or its policies relating to the Products and Services at any time and shall notify you by posting an updated version of this Agreement on the Deeho website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
13.10 Headings and Definitions – Headings to clauses in this Agreement are for the purpose of information only and shall not be construed as forming part of this Agreement. All defined terms shall have the same meaning in these terms and conditions and the order.