E-commerce Terms

1. PURPOSE

This Agreement (as it may be amended from time to time), the Data Processing Agreement and the Purchase Order(s) attached hereto, form a binding agreement between the Service Provider and the Client. In the event of any conflict or inconsistency between this Agreement, and the Purchase Order, the order of precedence shall be: (1) this Agreement; and (2) the Purchase Order.

2. CERTAIN DEFINITIONS

The following definitions apply to the Agreement:

2.1. “Upstream Site(s)” means any web site under Service Provider’s control, whether partial or otherwise;

2.2. “Grow Platform” means the collection of tools and technologies used to collect, store, process and display data; including without limitation hardware (servers and databases) and Service Provider’s web based digital interface and software running either on Service Provider’s hardware or on the Client’s website.

2.3.  “Services” means the products, and services made available to Client by Service Provider or its agents via the Upstream Site(s), which are specified in this Agreement and more fully in the Purchase Order.

2.4. “Service Provider’s Content” means web pages, web forms, programming (including software code used on the Sites and in the Services, including without limitation (i) tools, kits, and object libraries, (ii) all third-party or open source code embedded therein, and (iii) any upgrades, updates, releases, fixes, enhancements or modifications to the foregoing), graphics, images, design (color combinations and page layout), text, information, data and other content made available through the Sites by Service Provider.

2.5. “Service Provider Materials” means, collectively, the Service Provider Content, Upstream Sites and Services.

2.6. “Databases” means various commercial databases operated and licensed by Service Provider.

2.7. “Client” means the person or entity (including such person or entity’s employees) that has licensed the Services through the present Agreement and as such, has agreed to be bound by the terms of the present Agreement.

2.8. “Client Site(s)” means any web site or platform under Client’s control and on which the Services may be used.

2.9. “Client Content” means images, text, logos, branding elements, and other content provided by Client to be displayed in, incorporated into, or distributed through the Services for Client, but excluding the Client Data.  Client Content includes Client’s domain names, trademarks, service marks, trade dress, trade names, corporate names, and logos.

2.10 “Client Data” means any documents, files, information or data stored or processed through use of the Services that concerns Client’s business that has been uploaded to the Services by the Client. Client Data includes, without limitation, the names, addresses, telephone numbers, e-mail addresses and any other personally identifiable information of Client, Client’s employees, or Client’s clients. Client Data does not include (a) credit card data, (b) End User Data; (c) information or data collected directly by Third Party Providers from Client or any End Users (as described in Section 11 below); or (d) any Service Provider Content.

2.11 “Client Personal Data” means personal data contained within Client Data and subject to Data Protection Laws with respect to the processing of such personal data. Client Personal data does not include any personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

2.12. “Client Materials” means, collectively, Client Content and Client Data.

2.13. “End User” means any third-party individual (i) whose Data are collected, stored or processed through the use of the Services on behalf of the Client and as authorized by the Client; (ii) who has access to Client’s services or uses Client’s services; and (iii) is in any capacity contractually bounded with the Client and/or has accepted (among other things) Client’s terms on conditions regarding the processing, storage and display of End User’s Data.

2.14. “End User Data” means identified and de-identified data or information regarding: (i) End Users’ personal information and social habits, preferences, interests, experience, status e.tc. (including, by way of example and not limitation, data relating to End Users’ name, occupation, location, age, gender, e.tc.); (ii) information on actions taken by End Users on the Sites (such as page views, site navigation patterns and other End User activity); and (iii) End User’s purchases from the Client’s business, including products purchased, the date and other purchase information. End User Data does not include (a) credit card data, (b) any personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation,

2.15. “Confidential Information” means all trade secrets and other nonpublic information obtained by a Party under this Agreement that relates to the other party’s business or technology, including without limitation its products, customer lists, development and marketing plans, and financial information.

2.16. “Internal User” means a single Client employee or other individual who has access to the Services pursuant to Client’s authorization under Section 6.1 of this Agreement.

2.17. “User Account” means an account with Service Provider through which an Internal User can access and use the Services.

2.18. “Purchase Order” means an ordering document signed by both the Client and the Service Provider which incorporates the terms and conditions of this Agreement and describes the Services purchased by the Client and the pricing of same.

2.19. “Third-party Services” means products, services, applications, or websites, which are not part of the Services (as defined above), but they are made available by third parties and not the Service Provider through the Services.

3. THE SERVICES

3.1. The Services will be provided to the Client through the Upstream Platform accessed through the Upstream Site and delivered upon execution of the Purchase Order.

3.2. The Services include (but are not limited to) the following possibilities accessible by the Client via the Upstream Site(s):

3.2.1. The use, configuration and/or installation on the Client’s sites of the number of the purchased tools made available through the Upstream platform to engage Client’s sites visitors and collect, process and display End User Data.

3.2.2. The extraction of End User Data from Third-Party Services on behalf of the Client and as authorized by the Client.

3.2.3. The storage of End User Data and the storage of the output of the processing of such data.

3.2.4. The segmentation and export of the End User Data to Third-Party Services on behalf of the Client and as authorized by the Client.

3.3. The exact set of the Services provided to the Client will be specified in details in the Purchase Order.

3.4. Notwithstanding provisions of the clause 3.4., the functionality of the Service may vary according to:

• Social network performance and End Users’ consent on information sharing and on processing of End Users’ Data;
• The Social network API’s and API Policies which may change over time in terms of which information of the End User’s Data they allow Third-Party Providers (as defined below in section 11) to access;
• Any other third party limitations that are out of the Service Provider control.

3.5. The Parties will use good faith efforts to cooperate with each other in all matters relating to the provision and receipt of Services. Such cooperation shall include exchanging information, performing true-ups and adjustments, and obtaining all third party consents, licenses, sublicenses or approvals necessary to permit each Party to perform its obligations hereunder.

4. SERVICE FEES AND INVOICING

4.1. For the Services provided in accordance with this Agreement and the Purchase Order, the Client will be charged a  monthly or yearly subscription fee in the amount set out in the Purchase Order. Except as otherwise specified in the Purchase Order, such fee is payable simultaneously with Client’s registration at the Upstream Platform.

4.2. The Client has the right to change the subscription method from monthly to yearly subscription any time notifying beforehand the Service Provider in accordance with the provisions of this Agreement.

4.3. The Service Provider does not provide the possibility of change from yearly subscription within the paid period. The change may only be applied as of the first month after the expiration date of the paid yearly subscription.

4.4. The Service Provider will automatically withdraw payment from Client’s account provided when registering to the Service Provider’s Site.

4.5. Invoices will be sent to the e-mail that the Client has indicated at the registration process. For that reason, the Client shall make sure that it has registered its current e-mail. For this purpose, the Client will be asked at the registration stage to submit its VAT number (if available, according to the Client’s applicable legislation).

4.6. If for any reason the Client wishes to dispute the transactions related to the Services, the Client must notify the Service Provider immediately in writing. In this event the Service Provider will decide at its own discretion the validity of the amounts to be paid.

4.7. The Service Provider reserves the right to change the rates and charge differently for its Services. These changes will not affect the Client who has already paid fees for a Service.

4.8. The fee (as indicated on Service Provider’s Site and/or in the Purchase Order) must be paid via wire transfer or online banking. The Client may only order a service if the Client is considered capable of entering into an enforceable contract in the applicable jurisdiction.

4.9. The Client is solely responsible for the payment of any banking and transaction costs. Any additional credit or debit charges that may incur due to the transaction will be paid also by the Client and not by the Service Provider.

4.6. If the outstanding balance becomes older than 21 days (starting from the registration at the Upstream Platform or the date of the upgrade or the renewal of the subscription as the case maybe), the Service Provider reserves the right to suspend the Service for all Client’s accounts until the payment.

4.7. If the outstanding balance becomes older than 60 days, the Service provider has the right to  terminate the Service and the Client’s account completely and permanently delete all Client related data without any notice. In case the Client’s account is deleted, the Service Provider does not provide any possibility of recovery of any data related to the Service. The Client shall not be entitled to claim any compensation or remedies if the account is removed in accordance with this clause.

5. CLIENT’S DUTIES AND OBLIGATIONS

5.1. The Client shall, at all times act towards the Service Provider dutifully and in good faith and shall cooperate with the Service Provider in the performance by the Service Provider of the Services, including, without limitation: (i) promptly rendering all decisions and approvals so as not to delay or impede the performance of Services by the Service Provider; (ii) promptly notifying the Service Provider of any issues, concerns or disputes with respect to the Services; and (iii) providing a stable, fully functional system infrastructure environment which will support the Services and allow the Parties to work productively.

5.2. The Client is solely responsible for the appropriate and lawful usage of the Services. The Client shall release the Service Provider from any liability related to or arisen from the unlawful usage of the Services by the Client.

5.3. The Client shall pay to the Service Provider the agreed remuneration, pursuant to section 4 of the present Agreement.

5.4. The Client shall be solely responsible towards its End Users and assumes all and any liability arisen out of or in connection with any action or omission of the End Users in relation to any direct or indirect  usage of the Services by the End User.

5.5. The Client agrees to perform its obligations under this Agreement in a manner that is consistent and in compliance with all applicable laws, rules, regulations and codes of practice now or hereafter in effect.

5.6. Prior to usage of the Services, the Client shall ensure that certain provisions are incorporated into the terms and conditions of the services provided by the Client to its End Users in relation to the Services and posted on Client’s Site, including indicatively the following:

5.6.1. Disclosure to the End Users of the collection, use, processing and sharing of the usage data and the End User Data on or through the Services by the Client and/or the Service Provider, explicitly disclose the Service Provider as an appointed Data Processor, the use of the Services including the processing activities that Service Provider performs on End User’s Data as instructed by the Client, and all other disclosures and election procedures that may be required under any applicable law or regulation in connection with the Services.

5.6.2. The End Users may use the Services only for lawful purposes, in compliance with all applicable local, state, national and foreign laws, treaties and regulations. End Users shall acknowledge that (a) use of the Service is at End Users’ own risk and discretion, and they must take reasonable precautions in all interactions with other users; (b) Client and Service Provider do not have any obligation to monitor, screen or restrict End Users, their access to or use of the Services, or any information or contents uploaded, posted, submitted, linked, reproduced, distributed or otherwise submitted or transmitted by End Users using the Services, including without limitation text, data, graphics, images, photos, audio or video files, communications, bulletin board messages, chat, or graphics (“End User Content”); (c) Client and  Service Provider are not responsible for any aspect of such use, or the accuracy, completeness, appropriateness, legality or applicability of any End User Content; (d) Client and Service Provider do not endorse any End User Content or any opinion, recommendation or advice expressed therein; and (e) Client and  Service Provider retain the right to remove and permanently delete any End User Content from the Services without notice, and for any reason they deem sufficient.

5.6.3. Client and Service Provider provide the Services “as is” and disclaim any and all warranties or liability to the End User or any third party relating to End User use of the Services or End User Content.

5.6.5. End Users shall not, directly or indirectly (through others), while using or accessing the Services:

(a) offer, display, use, distribute, or transmit, any End User Content (i) that is unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains any adult or child pornography, is threatening, abusive, encouraging or furthering unlawful action, false or deceptive (including impersonating another), defamatory, libellous, or violent or constitutes hate speech or is otherwise objectionable in the opinion of Client or the Service Provider; (ii) that contains any viruses, worms or other malicious computer programming code or files able to interrupt, destroy or limit the Services or access thereto, including without limitation overloading, flooding, spamming or mail-bombing the Services; (iii) which End User does not have the lawful right to copy, transmit and display, or does not have the consent or permission of each identifiable person in the End User Content; or (iv) that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right or moral right or right of publicity).

(b) Upload, post, submit or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or another form of unsolicited solicitation;

              (c) Probe, scan, test, interfere with, or disrupt any Services delivery systems, or disobey, disable, interfere with or circumvent any Services security, authentication, or other features, requirements, procedures, policies;

              (d) Collect or store personal data about other Services users without their express permission; or

              (e) Use the Services in any manner not permitted by the Client or the Client terms of service.

5.7. The Client is solely liable for the proper, correct and lawful incorporation of the provisions set out in article 5.6 above and shall release the Service Provider from any liability arisen out of or in connection with such incorporation and/or the content of these provisions. In case that the said provisions are inconsistent with any law or regulation, applicable to the Client, the Client shall modify them accordingly.

6. CLIENT’S RESPONSIBILITIES

6.1. Each Client and each Client employee, contractor, agent or other individual who has access to the Services pursuant to Client’s authorization under this article 6.1 and uses the Services for or on behalf of Client (“Internal Users”) shall create and maintain its account by registering on the Upstream Site. Client and each Internal User (i) must be at least 18 years of age to create an account at the Upstream Site; (ii) agree to provide the Service Provider with accurate and complete information and promptly update such information with any changes that may affect the operation of such Internal User account; (iii) are responsible for safeguarding the confidentiality of all Internal User usernames, passwords and other account information; and (iv) will not use any false identity, impersonate any other person, or use any other person’s username or password when using the Services.

6.2. Client is entirely and solely responsible and liable for (i) any and all activities or actions of Internal Users or that occur under the accounts of Internal Users, whether or not Client or any Internal User has authorized such activities or actions; and (ii) Internal Users’ compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Client shall immediately notify the Service Provider of any unauthorized use of an Internal User username, password or the account, or of any other known or suspected breach of security with respect to the Services.

6.3. Between the Service Provider and Client, Client is solely responsible for all aspects of its End Users’ access to or use of the Services on a Client Site. All use of the Services on a Client Site by visitors to such Client Site (“End Users”) shall be governed by written terms of service and a written privacy policy posted by Client on the Client Site. Client acknowledges and agrees that End Users will also be subject to the terms of service of third party websites or web pages in connection with their use of the Services.

6.4. Client shall always comply with the terms of the Service Provider’s current Copyright and Intellectual Property Policy, posted on the Service Provider’s Site(s) and amended by the Service Provider from time to time.

6.5. Without limiting other remedies, the Service Provider may at any time and without prior notice suspend or terminate any Internal User’s account or access to the Services, or suspend or terminate Client’s access to or use of the Services, if the Service Provider determines that such Internal User has (i) failed to comply with any provision of this Agreement; or (ii) engaged in actions that may be illegal or cause liability, harm, embarrassment or disruption for Client or the Service Provider.

6.6. Acceptable Use of Service Provider Materials. Client is prohibited from violating or attempting to violate the security of the Upstream Sites, including, without limitation: (i) accessing data not intended for Client or logging into a server or account which Client is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any other user, host or network, including, without limitation, via means of submitting a virus to the Upstream Sites, overloading, “flooding”, “mail bombing” or “crashing”; (iv) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or providing false or misleading representations in the sender information, subject line, locator, or content of any electronic message; (v) altering transmission data without consent; (vi) harvesting e-mail or other electronic addresses through automated means without consent; or (vii) taking any other action that is inconsistent with this Agreement, misleading or incomplete, or in violation of any applicable law, statute, code, rule, or regulation.  Client is specifically prohibited from using the Services to send unsolicited email or other electronic communications, including by way of sending electronic messages that offer, advertise, market or promote a product or service; or, at Service Provider’s sole discretion, are excessive in frequency or are irrelevant to a particular End User or to the Services.  Client represents, warrants and agrees that it will not use (or plan, encourage or help others to use) the Service Provider Materials for any purpose or in any manner that is prohibited by this Agreement or by applicable law. It is Client’s responsibility to ensure that its use of the Service Provider Materials complies with this Agreement and all applicable laws.

 

7. TERM AND REVIEW

The initial term of this Agreement shall commence on the Effective Date and shall remain in effect until the date specified in the Purchase Order (the “Expiration Date”), unless earlier terminated under Article 8. This Agreement may be extended by the Parties in writing, either in whole or with respect to one or more of the Services; provided, however, that such extension shall only apply to the Services for which the Agreement was extended.

8.TERMINATION

8.1. The Service Provider reserves the right to suspend or terminate Client’s access to and use of Services, and may terminate this Agreement, at any time if the Service Provider determines that the Client is in breach of this Agreement.  The Client may terminate this Agreement upon thirty (30) day’s written notice if the Service Provider breaches a material provision of this Agreement and fails to cure that breach within the thirty (30) day notice period. If, at any time during the course of this Agreement, the Client should terminate the Agreement, not to include Client’s termination in the case of breach of this Agreement by the Service Provider, the Client understands and agrees that the Service Provider shall be entitled to receive all payments (the total sum) from the Client for the Services agreed (whether already used or not) in accordance with this Agreement and specified in the Purchase Order. In such case, no refund is possible for any portion of the Services.

8.2. Survival. Those Sections of this Agreement that, by their nature, are intended to survive termination will survive in accordance with their terms. Notwithstanding the foregoing, in the event of any termination with respect to one or more, but less than all Services, this Agreement shall continue in full force and effect with respect to any Services not terminated hereby.

9. DATA EXTRACTS

Within thirty (30) days following (i) the termination or expiry of this Agreement or (ii) the disclosing Party’s reasonable earlier request at any time, the Service Provider shall destroy or return to the Client (at its option) any and all of End User Data, stored on behalf of Client by Service Provider (the “Stored Data”), and shall purge all copies and traces of the same from any storage location and/or media.

10. WARRANTIES, WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS

10.1. Warranties. Each party represents and warrants that it has the legal power and authority to enter into the Agreement. The Client represents and warrants that (a) it has neither falsely identified itself nor provided any false information to gain access to the Services, (b) its billing information is and at all times will be correct, and (c) it shall use and operate the Services in accordance with all laws that apply to its operations.  If at any time the Service Provider comes to the understanding that the Client: (i) misled the Service Provider regarding its business practices and/or services, or (ii) purchased Services that do not represent its precise business, the Service Provider reserves the right to terminate Client’s Agreement.

10.2. Disclaimers.

(a) The warranties expressly stated in this section are the sole and exclusive warranties offered by the Service Provider.  The Service Provider Content, Upstream Sites and Services are provided on an “as is” basis without any warranties of any kind, express or implied. The Service Provider, to the fullest extent permitted by law, disclaims all warranties, including, but not limited to, the warranties of satisfactory quality, title, description, and fitness for particular purpose. The Service Provider makes no warranties about the accuracy, reliability, completeness, or timeliness of the Service Provider Content, Upstream Sites or Services.

(b) Without limitation on the foregoing, to the extent permitted by law:

(i) The Service Provider does not warrant that the Upstream Sites or Services will operate error-free or that the Upstream Sites or Services are free of computer viruses or other harmful mechanisms. If Client’s use of the Upstream Sites or Services results directly or indirectly in the need for servicing or replacing equipment or data, the Service Provider is not responsible for those costs.

(ii) The Service Provider assumes no responsibility and makes no representations, warranties or guarantees regarding (a) the truthfulness, timeliness, reliability, accuracy, completeness, appropriateness, legality or applicability of any End User Content or Client Materials, or of any form of communication engaged in by or between End Users and the Client or End User and other third parties; and (b) the activities, omissions or other conduct of End Users or of any third-party operated system.

(iii) The Client assumes all responsibility for determining whether the Services or the information generated thereby are accurate or sufficient for the Client’s purposes. In particular, the Service Provider does not warrant that the Services (including any reports, forms, notices, disclosures, data sets or other items provided to the Client through the Services) will satisfy any legal, regulatory, reporting, recordkeeping, privacy or other requirements that may be applicable to the Client or the Client’s clients.

(iv) The Service Provider does not warrant that the Services will meet the Client’s business objectives. The Service Provider is not responsible and shall have no liability for any business, decisions, for whatever reason made, made by the Client or the Client’s clients.

10.3. Limitation of Liability

(a) Nothing in this Agreement shall limit or exclude the Service Provider’s (or any of its officers, directors, shareholders, employees, subsidiaries, affiliates, agents or advertisers) liability for (a) death or personal injury resulting from its negligence, or the negligence of its employees, agents or subcontractors; or (b) fraud, fraudulent misstatement or fraudulent misrepresentation.

(b) Subject to clause 10.3 (a):

(i) The Service Provider (or any of its officers, directors, shareholders, employees, subsidiaries, affiliates, agents or advertisers) shall in no circumstances whatever be liable to the Client whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any: (A) loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; (B) any loss of goodwill or reputation; or (C)  indirect or consequential,  losses suffered or incurred by the Client arising under or in connection with this Agreement; and

(ii) The Service Provider’s (or any of its officers, directors, shareholders, employees, subsidiaries, affiliates, agents or advertisers) total liability to the Client in respect of all loss arising under or in connection with this Agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances [(and including any indemnities given by The Service Provider under this Agreement)] exceed the amount of the payments paid by the Client to the Service Provider under this Agreement in the twelve months prior to the event giving rise to such liability.

(c) Due to the nature of this Agreement, in addition to monetary damages, the Client agrees that the Service Provider will be entitled to seek equitable relief upon a breach of this Agreement by the Client.

10.4. Indemnification

The Client will, at its sole expense, defend, indemnify, and hold harmless the Service Provider and its affiliates, successors and assigns (collectively, the “Service Provider Indemnified Parties”) from and against any and all damages, losses, costs and expenses (including any reasonable attorney’s fees and expenses), which the Service Provider Indemnified Parties pay to third parties in connection with any claim, suit, action, or proceeding brought against a Service Provider Indemnified Party to the extent arising out of (a) any End Users’ use of or inability to use the Services; (b) any claims arising from or in connection with Client’s use of the Services or any Third Party Services (as defined hereafter); or (c) an allegation that the Client Materials or any other content, data or information supplied by Client, or the use thereof in accordance with this Agreement, infringes the copyright, patent right, or trademark right, or misappropriates the trade secrets, of a third party.

11. THIRD PARTY PROVIDERS

The Services may enable or assist you to access, interact with, and/or purchase Third-Party Services from other third parties. When you access the Third-Party Services, you will do so at your own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not the Service Provider. The Service Provider makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by the Client with any such third party.

12. INTELLECTUAL PROPERTY

12.1. Service Provider’s Intellectual Property Rights. The Service Provider Materials and all right, title and interest in and to the Service Provider Materials are the sole property of the Service Provider or its licensors, and are protected by copyright, trademark and other laws. The Service Provider Materials are licensed and are not sold.  Except for the limited licenses expressly granted to Company in this Agreement, the Service Provider reserves for itself and its licensors all other rights, titles and interest. “UPSTREAM” trade mark, design logos and certain other names or logos are service marks or trademarks of the Service Provider, and all related product and service names, design marks and slogans are the service marks or trademarks of the Service Provider. In addition, the “look” and “feel” of the Upstream Sites (including color combinations, button shapes, layout, design and all other graphical elements) are also protected by Service Provider’s trademarks, service marks and copyrights. Any code that Service Provider creates to generate or display the Service Provider Content or the pages making up the Upstream Sites is also protected by Service Provider’s copyright.  Client must retain all copyright, trademark, service mark and other proprietary notices contained on the Service Provider Content on any authorised copy that Client may make of the Service Provider Content. All other product and service marks contained on the Upstream Sites are the trademarks of their respective owners.

12.2. License. Subject to the terms and conditions provided herein, Service Provider hereby grants to the Client a limited, non-exclusive non-transferable license during the term of this Agreement to (a) use the Service Provider Materials solely for the use of the Services and; and (b) download, store, print, and display the Service Provider Materials only as reasonably necessary for Client to use the Services (collectively, 12.2(a) and 12.2(b) are the “Intended Purpose”). Client may use the Service Provider Materials subject to the licensing provisions of this Section 12.2 and only for the Intended Purpose. Service Provider is the sole interpreter of the Intended Purpose for the Service Provider Materials.

12.3. Restrictions on Use. Client may not sell, transfer, distribute, sublicense or assign any of the Service Provider Materials or its rights to any of the Service Provider Materials to any third party, or use them in any other way for public or commercial purpose. Company may not alter, reverse engineer, decompile, disassemble or attempt to derive source code from the Service Provider Materials.  Client will not use or access the Service Provider Materials to: (a) build a competitive product or service, (b) make or have made a product or service with similar features, functions, text, graphics or other content, (c) make derivative works based upon the Service Provider Materials, (d) copy any features, functions, text, or graphics of the Service Provider Materials, or (e) provide services to others except as specifically authorised in the Agreement.  Notwithstanding anything to the contrary contained herein, this prohibition includes: (i) copying or adapting the HTML code used to generate web pages on the Upstream Sites; (ii) using or attempting to use engines, manual or automated software, tools, devices, agents, scripts, robots or other means, devices, mechanisms or processes (including, but not limited to, browsers, spiders, robots, avatars or intelligent agents) to navigate, search, access, “scrape,” “crawl,” or “spider” any web pages or any Services provided on the Upstream Sites other than the search engine and search agents available from Service Provider on such Upstream Sites and other than generally available third party web browsers (e.g., Internet Explorer, Firefox, Safari); and (iii) aggregating, copying or duplicating in any manner any of the Service Provider Materials, without the express written consent of Service Provider. The use of the Service Provider Materials on any other web site or in a networked computer environment for any purpose is strictly prohibited. The Service Provider Materials are not considered to be works for hire and Client may duplicate such Service Provider Materials only for the purposes outlined in the Agreement.

12.4. Suggestions. Client hereby grants to Service Provider a nonexclusive, perpetual and irrevocable license to use any suggestions, recommendations or other feedback regarding the Services provided by Service Provider to Client (including any suggestions, recommendations or other feedback generated by its End Users) in any manner and for any purposes whatsoever without compensation of any kind.

13. CLIENT MATERIALS

13.1. Ownership.  Client shall own all Client Materials.  Client hereby grants Service Provider a non-exclusive license to use, copy, modify, store, transmit and display Client Materials solely to the extent reasonably required to provide and maintain the Services for Client’s use and in accordance with Section 15 of this Agreement.

13.2. Warranty Regarding Client Materials. Client represents, warrants and agrees that any Client Materials provided by Client for use in connection with the Services will not violate any laws or regulations or third-party proprietary rights, including, without limitation, copyright, trademark, obscenity, rights of publicity or privacy, and defamation laws. Company will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Client Materials.

13.3. Marketing and Publicity.  Service Provider may use Client’s name and logo on the Upstream Sites and marketing collateral in compliance with any branding guidelines provided by Client.

 

14. CONFIDENTIALITY

14.1. Non-Disclosure of Confidential Information. The party receiving Confidential Information (the “Receiving Party”) shall not disclose Confidential Information to any third party without the prior written consent of the party disclosing such confidential information (the “Disclosing Party”) and shall restrict dissemination of Confidential Information within its own organisation to those employees who have a need to have access to the Confidential Information. The Receiving Party agrees to protect Confidential Information by using at least the same degree of care as it would use to protect its own information of like importance, but in no case less than reasonable care. Each party shall take appropriate measures, and in no event less than reasonable measures, by instruction and written agreement, with confidentiality terms no less stringent than those herein, prior to disclosure to such employees to protect against unauthorised use or disclosure.

14.2  Each Party agrees that before any of its subcontractors and/or agents may be given access to Confidential Information, each such subcontractor and/or agent shall agree to be bound by a confidentiality undertaking comparable to the terms of this Agreement. Notwithstanding the return of any Confidential Information, each Party and its subcontractors and/or agents will continue to hold in confidence all Confidential Information, which obligation shall survive any termination of this Agreement.

14.3. Exceptions to Confidential Information. The obligations in Section 14.1 do not apply to Confidential Information which: (a) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party, as evidenced by the Receiving Party’s records; (b) is or becomes publicly available without breach of this Agreement by the Receiving Party; (c) becomes known or available to the Receiving Party from a source other than the Disclosing Party without a restriction on use or disclosure of such Confidential Information; (d) is independently developed by the Receiving Party without use of the Confidential Information; or (e) is required to be disclosed by the Receiving Party pursuant to an order issued by a court or other governmental authority, provided that the Receiving Party (i) provides the Disclosing Party prior written notice of such obligation so as to give the Disclosing Party a reasonable opportunity to oppose such disclosure or obtain a protective order, unless prohibited by law from doing so, and (ii) discloses Confidential Information only to the extent legally required.

14.4. Equitable Relief. The Parties acknowledge that the unauthorised use or disclosure of Confidential Information may cause irreparable harm to the Disclosing Party. Accordingly, the Parties agree that the Disclosing Party shall be entitled to seek equitable relief, including injunctive relief, in addition to all other remedies available at law for any threatened or actual breach of this Agreement with respect to Confidential Information.

14.5. Ownership. Each Party shall retain all right, title and interest to such party’s Confidential Information disclosed to the other Party. Subject only to the Receiving Party’s limited use of the Confidential Information for the Intended Purpose (in the case of Client), or to the extent required to provide and maintain the Services for Client’s use (in the case of Service Provider), the Receiving Party acknowledges and agrees that nothing in this Agreement shall be construed as granting or implying any rights, license or otherwise, to any Confidential Information disclosed pursuant to this Agreement whether under any trademark, patent or copyright, or application of same which are now or thereafter may be obtained by such Party. The Receiving Party shall not violate any of the Disclosing Party’s intellectual property or other rights in or to the Confidential Information.

15. NOTICES

15.1. Any notice or communication under the Agreement shall be in writing and shall be delivered personally or sent by first (1^st) class pre-paid post or by facsimile transmission to the party due to receive the notice or communication to its registered office stated in the Preamble of this Agreement or to such other address or facsimile number as a party may have notified in written to the other party.

15.2. Any such notice will be deemed to have been effected:

15.2.1. if delivered personally, at the time when left at the registered office or such other address as shall be notified;

15.2.2. if delivered by post, two (2) business days after posting;

15.2.3. if sent by facsimile transmission at the time of transmission or, if the time of transmission is outside normal working hours, upon the next business day.

15.3.  E-mail notice shall not be valid for the purposes of the Agreement.

16. FORCE MAJEURE

16.1. If either Party is prevented, hindered or delayed from or in performing any of its obligations under the Agreement (other than a payment obligation) by a Force Majeure Event it shall promptly notify the other Party of the nature and extent of the circumstances in question and the effects of the Force Majeure Event on its ability to perform its obligations under the Agreement.

16.2. Notwithstanding any other provision of the Agreement, neither Party shall be deemed to be in breach of the Agreement or otherwise be liable to the other Party for any delay in performance or the non-performance of any of its obligations under this Agreement (other than a payment obligation) to the extent that the delay or non- performance is caused by the Force Majeure Event of which it has notified the other Party, and the time for performance of that obligation shall be extended accordingly.

16.3. If the Force Majeure Event continues for more than one month, the Parties shall   enter into discussions in good faith with a view to alleviating its effects or to agreeing  upon such alternative arrangements as may be fair and reasonable.

17. REGULATORY APPROVALS

If any of the regulatory or other competent  Authorities, either in UK or in the place where the Client is located or is conducting its business, requires at any point during the term of the present Agreement, that any change is made to any of the Services or that the use of any or all of them is suspended or ceased, then the Parties will work together to identify a commercially reasonable solution, but should no such solution be identified (the Parties having acted in good faith and used all reasonable endeavours to do so), then either Party shall be entitled to terminate this Agreement forthwith without any further liability to the other.

18. MODIFICATION OF SERVICES-AMENDMENTS TO THIS AGREEMENT

The Agreement may be amended upon mutual written signed consent between the parties.  Any new or different terms supplied by the Client are specifically rejected by the Service Provider unless Service Provider agrees to them in a signed writing specifically including those new or different terms.

19. RELATIONSHIP CREATED-ASSIGNMENT

19.1. The relationship between the Parties established under this Agreement is that of independent contractors and neither Party is an employee, agent, partner, franchisee or joint venturer of or with the other.

19.2. The Service Provider will have sole control of the manner of its performance of professional ethics and adherence to applicable laws.

19.3. Neither Party does have, nor shall it hold itself out as having, any right of power to create any contract or obligation in the name of or binding upon the other Party, unless agreed by them.

19.4. Service Provider shall be solely responsible for determining the method, details, and means of performing the Services.

19.5. Subcontractors. Service Provider may at its sole discretion to engage a Subcontractor (as defined below) to perform all or any portion of its duties under this Agreement, provided that any such Subcontractor agrees in writing to be bound by confidentiality obligations at least as protective as the terms of Article 14 regarding confidentiality above, and provided further that the Service Provider remains responsible for the performance of such Subcontractor. As used in this Agreement, “Subcontractor” will mean any individual, partnership, corporation, firm, association, unincorporated organization, joint venture, trust or other entity engaged to perform hereunder, other than Service Provider, its subsidiaries and/or affiliates.

20. GENERAL

20.1. If any provision of the Agreement is held by a court or other competent jurisdiction to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected.

20.2. The Parties agree that all rights afforded by any third party to this Agreement or to any Assignment Confirmation Letter by the Service Provider (Rights of Third Parties) Act 1999 shall and are hereby expressly excluded.

20.3. Governing Law. The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability) and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales except for each conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction. Each of the parties to this Agreement irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this Agreement or its formation or validity and, for these purposes, each Party irrevocably submits to the jurisdiction of the courts of England and Wales.

20.4. Entire Agreement.  This Agreement together with d the Purchase Order (s) shall constitute the entire agreement among the Parties hereto with respect to the subject matter hereof, and supersedes and is in full substitution for any and all prior understandings or agreements with respect to the subject matter hereof.

20.5. Amendments. This Agreement may be amended only by an instrument in writing signed by the Parties hereto, and any provision hereof may be waived only by an instrument in writing signed by the Party or Parties against whom or which enforcement of such waiver is sought. The failure of any Party hereto at any time to require the performance by any other Party hereto of any provision hereof shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by any Party hereto of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or a waiver of the provision itself or a waiver of any other provision of this Agreement.

20.6. Rule of Construction.  The Parties hereto acknowledge and agree that each Party has reviewed and negotiated the terms and provisions of this Agreement and has had the opportunity to contribute to its revision. Accordingly, the rule of construction to the effect that ambiguities are resolved against the drafting Party shall not be employed in the interpretation of this Agreement. Rather, the terms of this Agreement shall be construed fairly as to both Parties hereto and not in favor or against either Party.

20.7. Binding Effect. This Agreement is binding on and is for the benefit of the Parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives.

20.8. Severability.  Any provision of this Agreement (or portion thereof) which is deemed invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and subject to this Section, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions thereof in such jurisdiction or rendering that or any other provisions of this Agreement invalid, illegal, or unenforceable in any other jurisdiction.  If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant shall be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable.  No waiver of any provision or violation of this Agreement by the Service Provider or the Client shall be implied by Service Provider’s or Client’s forbearance or failure to take action.

20.9. Nonassignability. Except as specifically permitted herein, neither Party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer this Agreement, without the other Party’s prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of such other Party.

20.10. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

20.11. Headings. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of any provision hereof.

20.12. Final Agreement. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both Parties.

20.13. Advice of Counsel. Each Party acknowledges that, in executing this agreement, such Party has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any Party by reason of the drafting or preparation hereof.