By accepting these terms, either by clicking or checking a box, or some other similar method or by completing your order for a subscription you indicate your acceptance of these Terms and any future modifications of these Terms (as more fully set out below) which, together with your order for a subscription, forms the basis of the agreement between you and Wearisma in respect of the User Interface, the Content and your use of the Publisher Information and the User Search Function.
These Terms were last updated on 24th May 2018.
1. Definitions And Interpretation
- The definitions and rules of interpretation in this clause apply in this agreement.
- Content – all content including text, information, data, software, executable code, images, audio, or video material in any medium or form provided by Wearisma to the Licensee and/or accessed by the Licensee via the User Interface. For the avoidance of doubt, references to Content shall include any Publisher Information, and/or any results you generate using the User Search Function.
- Data Protection Legislation – means the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time.
- Data Subject – shall have the meaning given to it in Data Protection Legislation.
- Derivative Work – work generated or developed following the date of this agreement which is based on the Content or an underlying work in relation to this (including translations, sound recordings, abridgements, condensations, or any other form in which a work may be recast, transformed or adapted).
- Intellectual Property Rights – patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Named Account – has the meaning given to it in the Order Form.
- Order Form – means the order form entered into between you and Wearisma.
- Personal Data – shall have the meaning given to it in Data Protection Legislation.
- Publisher(s) – means any relevant source identified and indexed on the User Interface in respect of a particular brand, topic, promotion, campaign or otherwise.
- Publisher Information – means the aggregation, computation and/or analysis of the Raw Data carried out by Wearisma for the purposes of providing the relevant information reports, index of Publishers or other Services (as specified in the Order Form) to the User or Users via the User Interface or User Search Function.
- Raw Data – means the publicly available information obtained by Wearisma for the purposes of providing the Services, providing Publisher Information and/or providing the User Interface.
- Reserved Rights – all rights in, or in relation to, the Content that are not expressly granted to Licensee under this agreement, including any and all Derivative Works, and any other rights (whether known now, or created later, and whether or not in the contemplation of the parties at the time of this agreement).
- Services – the services set out in the Order Form.
- Subscription Fee – the fee payable by the Licensee for the Subscriptions as set out in the Order Form.
- Subscription – the subscriptions purchased by the Licensee from Wearisma for access to the Publisher Information, User Search Function and User Interface and incorporating these Terms.User(s)a person or person(s) that the Licensee creates a Named Account for.
- User Interface – means the user interface provided by Wearisma for the purposes of providing the Services, which shall for the avoidance of doubt include, but shall not be limited to, the Publisher Information and the User Search Function and accessed by the User or Users.
- User Search Function – means access to the independent search function made available to the User via the User Interface whereby the User(s) may search for Publishers.
- Wearisma – means Wearisma Limited (company number 09327823) a company incorporated in England and Wales with registered office at 146 New London Road, Chelmsford, Essex, CM2 0AW.
- Clause and paragraph headings shall not affect the interpretation of this agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- A reference to writing or written includes fax and e-mail.
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. About Us
- Wearisma Ltd (company number 09327823) (we and us) is a company registered in England and Wales and our registered offices is at 146 New London Road, Chelmsford, Essex, CM2 0AW. Our main trading address is at 41 Corsham Street, London, N1 6DR.
- We operate the website www.wearisma.com (the “Website”).
3. Contacting Us
- To contact Wearisma, telephone +442032864002 or e-mail firstname.lastname@example.org.
4. Subscribing To The User Interface
- We provide you with access to the User Interface, which helps you search for Publishers for the purposes of promoting a brand, product, service or otherwise. The User Interface will (1) provide you with Publisher Information and, (2) the User Search Function. Which type of access you have to the User Interface shall be agreed in the Order Form.
- To gain access to the User Interface, you agree to sign up to a subscription “Subscription” set out in any applicable Order Form.
- From time to time, we may offer trials of a Subscription for a specified period of time without payment or at a reduced rate (the “Trial”).
- We reserve the right in our absolute discretion, to determine your eligibility for a Trial, and subject to applicable laws, to withdraw or modify a Trial at any time without prior notice, with no liability, to the greatest extent permitted under the law.
- Please follow the prompts on our Website to begin the process to place an order with us. This will require you to complete some basic login information. We will then contact you directly by telephone or email to discuss the Services following which you may place an order based on these Terms. Confirmation of your order will be sent within 24 hours via email. You may only submit an order using the method set out on the Website. Each order is an offer by you to buy the Services subject to these Terms.
- Wearisma’s acceptance of your order takes place when the Order Form is agreed and signed at which point and on which date the contract between you and Wearisma will come into existence (which contract shall be these Terms and the Order Form (the “Contract”). The Contract will only relate to those Services confirmed in the Order Form. If Wearisma are unable to supply the Services for any reason, Wearisma will inform you of this by email and Wearisma will not process your order. If you have already paid for the services Wearisma will refund you the full amount.
- Your Subscription shall be for the period agreed in the Order Form, beginning on the date of the Contract.
5. Cancelling Your Order And Obtaining A Refund
- To cancel your Subscription you must contact Wearisma at email@example.com. Please include details of your order to help us identify it. Please note that if you cancel your Subscription you will no longer receive any updates to information available on the User Interface, including any up to date Publisher Information.
- If you cancel your Subscription prior to its end date no refund will be issued to you.
6. Grant Of Licence
- Wearisma hereby grants to the Licensee a non-transferable, non-exclusive licence to use the Content for the duration of the Licensee’s Subscription(s) on the terms as provided for in the Contract and as set out in these Terms.
- For the avoidance of doubt, the grant of licence at clause 6.1 shall not apply to use of Raw Data but shall apply to use of the User Interface and Publisher Information provided by Wearisma.
- The Licensee shall not grant sub-licences, in whole or in part, of any of the rights granted under this agreement, or sub-contract any aspects of exploitation of the rights licensed to it, without Wearisma’s prior written consent or except as provided for in the Order Form.
- For the avoidance of doubt, the grant of license is by Wearisma in favour of the Licensee. The Licensee may create accounts for specified employees, consultants or other people engaged by you subject to any limit set out in the Order Form. Further accounts may be created at Wearisma’s sole discretion. The Licensee shall be responsible and liable for its Users’ actions.
- Access to the User Interface and Content may be subject to limitations at Wearisma’s option.
7. Wearisma’s Obligations And Rights
- Wearisma expressly retains the Reserved Rights for its own and/or third party exploitation.
- Wearisma may develop, market, sell and promote Derivative Works and may exploit (including by licensing it to third parties) the Content in any media, format or products and for any purpose.
- Wearisma may investigate complaints, reported violations and/or where it has grounds to suspect that the Licensee is violating these Terms. Where Wearisma find or has grounds to suspect that the Licensee is violating these Terms including, but not limited to, suspecting unlawful activity, then, without prejudice to its other remedies available under these Terms, Wearisma may suspend the Licensee’s access to the User Interface and/or make such reports and provide such information as it deems appropriate to the relevant regulator or law enforcement agencies.
- Wearisma may require the Licensee to cease all use of any of the Content if Wearisma reasonably believes that the Licensee’s use of this Content infringes the Intellectual Property Rights of any third party or breaches any applicable law or regulation. In this instance, Wearisma may, at its option either:
- provide the Licensee with alternative Content so as to avoid the infringement; or
- terminate the Contract immediately on written notice.
- While the User Interface will enable you to identify the social media accounts of Publishers you should use this only for your legitimate business purposes of identifying Publishers for potential marketing campaigns. Should Wearisma believe that you or your Users are using the User Interface for purposes not provided for in the Order Form or these Terms then Wearisma may, at its option, choose to suspend or terminate the Content immediately. Such instances of unacceptable use include, but are not limited to, use of the User Interface to monitor the behaviour of Publishers in their capacity as a private individual.
- Wearisma may change at any time, with as much prior notice to the Licensee as is reasonably practicable:
- the content, format or nature of Content or the User Interface;
- the fees and prices associated with the User Interface; and
- the means of access to the Content or the User Interface.
- Wearisma may change or withdraw at any time profiles or parties displayed on the User Interface.
- Wearisma may from time to time, offer such additional features or functions through the User Interface or Website. Such additional features may be subject to separate terms and conditions.
- Wearisma may use and display the Licensee’s name in the context of those parties that use the User Interface and Content.
8. Licensee’s Obligations And Rights
- Subject to the other provisions of these Terms and the Order Form, the Licensee may use the User Interface to, and may provide access to its Users to:
- the Publisher Information and User Search Function provided by Wearisma or information derived from the Publisher Information, User Search Function and/or User Interface in connection with the Licensee’s internal business purposes;
- review information available on Publishers or search for Publishers;
- Except for the rights to use the Content and User Interface expressly set forth in these Terms, the Licensee agrees not to otherwise store, reproduce, duplicate, copy or re-sell any part of the Content or User Interface.
- The Licensee agrees not to:
- other than as provided for in these Terms, make available or permit access to the User Interface to any third party whether or not for consideration;
- modify, decompile, disassemble or reverse engineer any portion of the Content or User Interface;
- print, store or otherwise retain a substantial portion of the Content where the purpose is to create a separate library or database; and
- other than as provided for by these Terms, to access, acquire, copy or monitor any portion of the Content or User Interface, by whatever means.
- The Licensee shall comply with all applicable laws in performing its obligations and exercising its rights under this agreement.
- The Licensee shall not use the User Interface or Content in any manner that infringes or violates the rights of Wearisma or any third party, or which would adversely affect or harm Wearisma, Publishers, other users of the User Interface, other customers of Wearisma, or any of Wearisma’s suppliers or service providers.
- The Licensee shall obtain, at its own cost, all clearances, consents and provisions (including from any relevant authorities, collection societies and other relevant third parties) that are required in connection with its exploitation of the Content.
- The Licensee shall not, and shall procure that any of its users shall not, infringe any moral rights (as defined in Chapter IV of the Copyright, Designs and Patents Act 1988) that subsist in respect of the Content.
- The Licensee shall ensure that the Content is kept secure and in an encrypted form, and shall use the best available practices and systems applicable to the use of the Content to:
- enforce the territorial and use restrictions of this agreement; and
- prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Content.
- If the Licensee becomes aware of any misuse of any Content, or any security breach in connection with this agreement that could compromise the security or integrity of the Content or User Interface or otherwise adversely affect Wearisma, the Licensee shall, at the Licensee’s expense, promptly notify Wearisma and fully co-operate with Wearisma to remedy the issue as soon as reasonably practicable. Wearisma may suspend the Licensee’s rights under this agreement until the misuse or security breach is remedied.
- Nothing in this clause 8 shall operate to modify the ownership by Wearisma of the Content and User Interface.
9. User Accounts
- You shall be required to sign up accounts for any User(s) using the process available on the Website to access the User Interface. The License shall be granted to no more than the number of User(s) as specified in the Order Form and subject to these Terms.
- User accounts will be linked by Wearisma to the user name provided.
- The log-in details for each User shall be personal to that individual, and the Licensee shall procure that any User(s) shall not share their log-in details with anyone else.
- Where the Licensee wishes to provide access to more than those User(s) as specified in the Order Form, this shall be by separate agreement with Wearisma and Wearisma reserves the right to charge extra for any additional Licenses.
- The Licensee shall be responsible for, and shall procure that, its Users who are granted access to the User Interface, User Search Function and Publisher Information pursuant to a Subscription observe these Terms.
10. Licensee Use
- Should the Licensee decide to contact a Publisher or Publishers, then is shall be for the Licensee to agree with the Publisher or Publishers the terms of their engagement with the Publisher, the scope of their work and any other relevant factors. The Licensee hereby agrees and undertakes to hold harmless and indemnify Wearisma against all claims, liabilities and expenses arising out of any breach or disagreement among the Licensee and any Publisher or Publishers.
- For the avoidance of doubt, the Licensee acknowledges that Wearisma does not itself provide any Publisher content or promotion services. Wearisma acts solely provides Publisher Information of any potentially applicable Publishers to the Licensee for information purposes only. Any contact made between the Licensee and a Publisher shall be at the sole discretion and responsibility of the Licensee.
- Wearisma accepts no responsibility for any matter arising between you and a Publisher and you agree to hold Wearisma harmless in respect of any dispute or claim between you and a Publisher.
- For access to the User Interface, the User Search Function, Publisher Information and the license pursuant to clause 6 the Customer shall pay to Wearisma the Subscription Fees.
- Wearisma reserves the right to change the Subscription Fees or applicable charges and to institute new charges and Subscription Fees at the end of the Initial Service Term or then current renewal term, upon (30) thirty days prior notice to the Licensee (which may be sent by email).
- If the Licensee believes that Wearisma has billed incorrectly, the Licensee must contact Wearisma no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Wearisma’s customer support department at firstname.lastname@example.org.
- Wearisma may choose to bill through an invoice in which case, full payment for invoices issued in any given month must be received by Wearisma no later than 30 days after the mailing date of the invoice. Unpaid amounts shall be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services.
- The Licensee agrees to immediately notify Wearisma by email of any change in its billing address or any account information provided to Wearisma used for payment hereunder. Failure by the Licensee to pay or provide sufficient details to Wearisma to establish the payment process described above my result in the temporary or permanent suspension and/or termination by Wearisma of the Contract, at its sole discretion.
12. Intellectual Property Rights
- Wearisma retains ownership of all Intellectual Property Rights in the Content and User Interface, and in any Derivative Works which it may create. Except as expressly provided in these Terms, nothing herein shall grant the Licensee any right and/or license to any of the Content or the User Interface.
- The Licensee assigns to Wearisma, and shall assign, all other Intellectual Property Rights in any development of the Content or any Derivative Work it may create, by way of future assignment of copyright and database rights. The Licensee shall execute this assignment or confirmatory assignment as Wearisma may require.
- The Intellectual Property Rights assigned to Weairmsa under clause 12.2 shall form part of the Content, and of the licence granted, from the date of that assignment.
- This warranties in this clause 13 are subject to the terms of clause 19 of this agreement.
- Each party warrants to the other that it has full power and authority to enter into and perform its obligations under this agreement.
- Except as expressly stated in these Terms, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
- Whilst Wearisma shall undertake to deliver high quality Services to its Users. the Publisher Information provided by Wearisma is based on Raw Data which is obtained from time to time from publicly available sources. Without limiting the effect of clause 13.3, Wearisma cannot and does not warrant the accuracy, adequacy, completeness, reliability, security, usefulness, fit for purpose, timeliness or availability of the underlying Raw Data upon which any Publisher Information or results provided by the User Search Function may be based.
- By acceptance of these Terms, the Licensee accepts that Wearisma can only provide Publisher Information based on Raw Data available to it at the date the relevant Publisher Information is produced. From time to time third parties may remove, amend or make unavailable their Raw Data upon which Publisher Information or results from the User Search Function may be based. Wearisma shall not be responsible for the continuity, reliability or availability of any such Raw Data. Wearisma will not take any steps to check the accuracy or truthfulness of any Raw Data, which shall be processed and provided ‘as is’.
- The Licensee hereby agrees and undertakes to hold harmless and indemnify Wearisma against all claims, liabilities and expenses arising out of any breach or disagreement among the Licensee and any Publisher or Publishers (which may result from any reliance on Publisher Information or User Search Function results which may be based on Raw Data).
- Wearisma cannot absolutely guarantee that the Publisher Information or results generated via the User Search Function will be error-free and/or free from interruption.
- The Licensee warrants that its use of the Publisher Information, User Search Function and User Interface and its development and use of any Derivative Works:
- will not infringe any third party’s Intellectual Property Rights;
- is not defamatory, libellous, obscene, or otherwise unlawful;
- does not violate any applicable law, statute or subordinate legislation; and
- does not, to the best of its knowledge and belief, contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information.
14. Advertising And Marketing
- The Licensee undertakes to ensure that its use of the Content shall not reduce or diminish the reputation, image and prestige of Wearisma or the User Interface.
- The Licensee shall indemnify and hold harmless Wearisma against all claims, liabilities and expenses arising out of:
- the Licensee’s activities under this agreement;
- the Licensee’s failure to comply with all applicable laws and regulations;
- the violation of the Licensee of these Terms.
- Any indemnity under this agreement shall only apply to the extent that the indemnified party:
- promptly notifies the indemnifying party in writing of any claim or suit relevant to the indemnity;
- makes no admissions or settlements without the indemnifying party’s prior written consent;
- allows the indemnifying party complete control over any negotiations or litigation and/or the defence or settlement of such suit or claim; and
- gives the indemnifying party all information and assistance as it may reasonably require.
- The Licensee shall promptly notify Wearisma of any actual or suspected infringement of the Content that comes to its attention (Infringement).
- The Licensee shall co-operate fully with Wearisma by taking all steps required by Wearisma (in its sole discretion) in connection with any Infringement, including, without limitation, legal proceedings in the name of Wearisma or in the joint names of the parties. Wearisma shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Licensee shall use all reasonable to assist Wearisma in any legal proceedings relating to any Infringement.
17. Unauthorised Use
If any unauthorised use is made of the Content or User Interface and such use is attributable to the act or default of, or through, the Licensee or any of the Licensee’s users then, without prejudice to Wearisma’s other rights and remedies the Licensee shall immediately be liable to pay Wearisma an amount equal to the fees that Wearisma would have charged, had Wearisma or the Licensee (as the case may be) authorised the unauthorised user at the beginning of the period of that unauthorised use together with interest at the rate of 5% above the Barclays’ base rate from the date of that unauthorised use to the date of payment.
- Subject to earlier termination as provided below, these Terms shall cover the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively the “Complete Term”), unless either party requests not to renew for an additional Complete Term at least 30 days prior to the end of the then-current term.
- Without affecting any other right or remedy available to it, Wearisma may terminate this Agreement by giving 30 day’s notice by email.
- In addition to any other remedies it may have, either party may also terminate the Contract upon 30 days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms of the Contract.
- The Licensee shall pay in full for the Services up to and including the last day on which Services were provided.
- Without affecting any other right or remedy available to it, Wearisma may terminate this agreement with immediate effect by giving notice to the Licensee if:
- the Licensee fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment; or
- the Licensee commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified to do so; or
- the Licensee 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; or
- the Licensee is found to be a direct competitor of Wearisma’s, or has provided any part of the Content and/or access to the User Interface to a competitor of Weairmsa;
- the Licensee challenges or disputes Wearisma’s ownership of, or rights in, the Content, or the validity of those rights;
- the Licensee 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the Licensee 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 any of its creditors;
- 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 the Licensee (being a company);
- 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 Licensee (being a company);
- the holder of a qualifying floating charge over the assets of the Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the Licensee or a receiver is appointed over all or any of the assets of the Licensee;
- a creditor or encumbrancer of the Licensee 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 Licensee’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Licensee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.1(f) to clause 18.1(l) (inclusive);
- the Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- there is a change in the control of the Licensee (within the meaning of section 1124 of the Corporation Tax Act 2010);
- On any expiration or termination of this agreement:
- all rights and authorisations granted by Wearisma to the Licensee under this agreement shall automatically terminate and immediately revert to Wearisma; and
- the Licensee shall immediately cease all use of the Content and access to the User Interface, and shall, at Wearisma’s option and according to Wearisma’s instructions, immediately return to Wearisma or destroy all Content in the Licensee’s possession or subject to its control including from back-up systems and any cached Content within the Licensee’s control.
- The User Interface, Publisher Information and User Search Function are provided for information purposes and are solely for the purposes set out in the Contract.
- The Publisher Information, User Search Function and User Interface are provided as is and without warranty or condition of any kind. Use of the User Interface, Publisher Information and User Search Function is at the Licensee’s own risk. Wearisma does not make any representations, warranties or conditions about the quality, accuracy, reliability, completeness, or timeliness of the Publisher Information or Raw Data. The User Interface may include errors, permissions and inaccuracies. Wearisma does not assume any responsibility for any errors, omissions or inaccuracies in the User Interface, results generated by the Licensee using the User Search Function or the Publisher Information.
- Any material displayed or made available on the User Interface or on any site linked to the User Interface is that of the respective author or distributor and not of Wearisma, and Wearisma shall have no liability in respect of such material or any Raw Data.
- Wearisma has no obligation to update the Content, advise on further developments concerning topics mentioned or update the User Interface (except as provided for in a separate written agreement between the Licensee and Wearisma), and the Licensee should make no assumption in this regard.
20. Data Protection
- Wearisma and Licensee will comply with all applicable requirements of Data Protection Legislation. This clause 20 is in addition to, and does not relieve, remove or replace, a party’s obligations under Data Protection Legislation.
- The parties acknowledge that for the purposes of Data Protection Legislation, Wearisma is the data controller and the Licensee is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in Data Protection Legislation).
- Without prejudice to the generality of clause 20.1, Wearisma will ensure that it has all necessary appropriate notices in place to enable lawful transfer of the Personal Data to the Licensee for the duration and purposes of this agreement.
- Without prejudice to clause 20.1, Wearisma undertakes and confirms that any information required to be provided to a Data Subject has been so provided or an applicable exemption is available and is being relied upon by Wearisma.
- Without prejudice to the generality of clause 20.1, the Licensee shall, in relation to any Personal Data processed in connection with the performance by Wearisma of its obligations under this agreement:
- process that Personal Data only on the written instructions of Wearisma unless the Licensee is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Licensee to process Personal Data (“Applicable Laws”). Where the Licensee is relying on laws of a member of the European Union or European Union law as the basis for processing the Data, the Licensee shall promptly notify Wearisma of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Licensee from so notifying Client Party;
- ensure that it has in place appropriate technical and organizational measures, reviewed and approved by Wearisma, 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);
- ensure that all Licensee personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
- ensure that no Personal Data transferred to Licensee by Wearisma is transferred to a third party without the prior written consent of Wearisma;
- ensure that where Personal Data is transferred outside the EEA, adequate measures will be taken to ensure the Personal Data will be protected to an adequate level and the Data Subject’s or Data Subjects’ rights under Data Protection Legislation will not be prejudiced by such a transfer;
- maintain complete records of processing activities carried out on behalf of the client;
- assist Wearisma, at its cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify Wearisma without undue delay on becoming aware of a Personal Data breach; and
- at the written direction of Wearisma, delete or return Personal Data and copies thereof to Wearisma on termination of the agreement unless required by Applicable Law to store the Personal Data.
- The Licensee will only appoint a third-party processor:
- with the prior written consent of Wearisma; and
- when Wearisma has indicated its acceptance in writing of the terms on which the third party will be engaged by the Licensee.
- Wearisma is responsible for ensuring the security of transfers of Personal Data to the Licensee and the Licensee only assumes obligations as Data Processor on receipt by the Licensee of Personal Data from Client Party.
- The provisions of this clause 20 are subject to the jurisdiction of the courts of England and Wales to the exclusion of any contrary statement in applicable terms entered into from time to time by the parties.
- Either party may, at any time on not less than 30 days’ notice, revise this clause 20 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
- Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.
- Nothing in this licence shall operate to exclude or limit Wearisma’s liability for:
- death or personal injury caused by its negligence;
- any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
- fraud; or
- any other liability which cannot be excluded or limited under applicable law.
- Wearisma shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
- loss of use;
- loss of profits;
- loss of anticipated savings;
- loss of business opportunity;
- loss of contracts;
- loss of goodwill; or
- loss arising from damaged, corrupted or lost data;
- Subject to clause 21.2, Wearisma’s liability, whether in contract, tort (including negligence), or otherwise and whether in connection with this licence or any collateral contract, shall not exceed the sum of the subscriptions received from the Licensee from its use of the User Interface and Content in the preceding 12 months.
22. Third Party Rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
23. Assignment And Other Dealings
- The Licensee shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any manner with this agreement or any of its rights and obligations under this agreement without the prior written consent of Wearisma.
- Wearisma may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
- Wearisma may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party.
- The Licensee shall, at Wearisma’s request, execute any agreements or other instruments (including any supplement or amendment to this agreement) which may be required in order to give effect to or perfect any assignment, transfer, mortgage, charge or other dealing referred to in clause 21.2.
24. Force Majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 5 days’ written notice to the affected party.
- If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
- If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
26. No Partnership Or Agency
- Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- “Confidential Information” means any information (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence. This includes know-how and information about design, development, specifications, manuals, instructions, customer lists, sales, marketing, promotion, distribution, business plans, forecasts, and technical or other expertise.
- Any pricing information in respect of the Content and User Interface payable by the Licensee is the Confidential Information of Wearisma.
- Each party undertakes that it shall not at any time during this agreement, and for a period of five years after the expiry or termination of this agreement, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, nor any of the terms of this agreement, except as permitted by clause 27.4.
- Each party may disclose the other party’s Confidential Information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential information comply with the obligations set out in this clause 27.4 as if they were a party to this agreement; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
- Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by fax to its main fax number.
- Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second day after posting (other than a Saturday, Sunday or public holiday in England when banks in London are open for business) or at the time recorded by the delivery service;
- if sent by fax, at 9.00 am on the next day after transmission (other than a Saturday, Sunday or public holiday in England when banks in London are open for business).
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
29. Inadequacy Of Damages
Without prejudice to any other rights or remedies that Wearisma may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Licensee. Accordingly, Wearisma shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement.
30. Further Assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
32. Entire Agreement
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it 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 agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
34. Governing Law
This agreement and any dispute or claim 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.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).