Personalyze Limited t/a TopicDNA – Software Platform Licence Contract
By signing up to use the TopicDNA software platform (the Software) you are agreeing to be bound by the following terms and conditions.
Terms and Conditions (Terms)
These Terms govern the relationship between Personalyze Limited t/a TopicDNA, a company incorporated and registered in England and Wales with company number 10464780 whose registered office is at 22 Lever Street, Manchester, UK M1 1EA (referred to hereinafter as the Supplier, Personalyze, we or us) and you, the business entity which has signed up to use the Software (referred to as Customer or you).
All terms and conditions provided or referred to by the Customer relating to this relationship are expressly excluded.
The Supplier is the entire legal and beneficial owner and licensor of the Software and is willing to license the Customer to use the Software and associated services.
1.1 The definitions and rules of interpretation in this clause apply in these Terms.
- Acceptance Date: the date on which the Customer accepts the licence of the Software by completing and submitting the relevant form(s) required by the Supplier.
- Affiliate: includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
- Enterprise Plans: 12 month rolling contract for larger Customers
- Fee: the licence fee payable by the Customer to the Supplier under clause 4.
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, trade 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 preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
- Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
- New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
- Services: the provision of data and subject profiling and analysis services including any business, marketing, advertising or strategic advice related thereto or to the Customer.
- Software: the TopicDNA software platform provided by the Supplier.
- Source Code Materials: the source code of the Software, and all technical information and documentation required to enable the Customer to modify and operate it.
- Standard Plans: SMEs 6 month or monthly rolling
- Subscription: the subscription by the Customer to the Software on these terms.
- Term: the term selected by the Customer when signing up, being a Standard or Enterprise Plan and then continuing on a rolling basis for the same term subject to termination in accordance with these Terms, subject to any Trial Period.
- Trial Period: the free trial period from the Acceptance Date which entitles the Customer to access the Software for a period of 30 days from the Acceptance Date, as agreed by the Customer at the time of signing up.
1.2 Holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006.
1.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.4 Unless the context otherwise requires:
(a) words in the singular shall include the plural and in the plural shall include the singular;
(b) a reference to a statute or statutory provision is a reference to as amended, extended or re-enacted from time to time;
(c) 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.
1.5 In the case of conflict or ambiguity between any provision contained in the body of these Terms and any provision contained in the Customer’s order or acceptance form(s), the provisions of the order or acceptance forms shall take precedence.
1.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.7 References to clauses are to the clauses in these Terms.
2. Trial Period, Delivery, acceptance and installation
2.1 You can purchase the ability to access and use the Software and access the Services by following the “Sign Up” process on www.topicdna.com (the Website).
2.3 If you decide that you do not want to continue using the Software and the Services following the expiry of the Trial Period you must cancel the subscription on not less than 14 days’ notice ending no later than the expiry of the Trial period.
2.4 Following the expiry of the Term the Subscription shall automatically renew unless it is cancelled by providing notice in writing to us no later than 1 calendar month prior to the expiry of the (and each subsequent) Term.
2.5 The Supplier shall provide access to the Software to the Customer within 48 hours of the date of the Customer’s acceptance.
3.1 In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence for the duration of the Trial Period and the Term to use the Software.
3.2 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction.
3.3 The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 3.2 to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.4 The Customer shall not sub-license, assign or novate the benefit or burden of this licence or these Terms in whole or in part, allow the Software to become the subject of any charge, lien or encumbrance or deal in any other manner with any or all of its rights and obligations under these Terms, without the prior written consent of the Supplier.
3.5 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under these Terms, provided it gives written notice to the Customer.
3.6 The Customer shall:
(a) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
(b) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
4.1 Following the expiration of the Trial Period, the Customer shall pay to the Supplier fees stated on the relevant order and acceptance form(s) on acceptance by the Customer of the licence of the Software and provision of services, and subsequently monthly or annually during the Terms (as appropriate), in advance on or before the first day of the month or other period in question after the Acceptance Date.
4.2 All sums payable under these Terms are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
4.3 The Customer authorises Supplier to take payment due under clause 4.1 from any payment method provided to it and undertakes to keep payment method current and up to date at all times.
4.4 If the Customer fails to make any payment due to the Supplier under these Terms by the due date for payment, then, without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5. Confidentiality and publicity
5.1 The Customer shall, during the term of the licence of the Software and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the Supplier disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to the Customer from the Supplier and which relates to the Supplier or any of its Affiliates, unless that information is public knowledge. The Customer shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
5.2 The Customer shall not make, or permit any person to make, any public announcement concerning these Terms or the provision of services or the Software without the prior written consent of the Supplier, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
6. Export of data
6.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under these Terms (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
6.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
7. Limits of liability
7.1 Except as expressly stated in clause 7.2:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), 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:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,
provided that this clause 7.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 7.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 7.1(a);
(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with these terms or any collateral contract, shall in no circumstances exceed a sum equal to the fees payable by the Customer to the Supplier in the 12 month period prior to the date of any circumstance giving rise to a claim; and
(c) the Customer agrees that, in entering into an agreement with the Supplier, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these Terms or (if it did rely on any representations, whether written or oral, not expressly set out in these Terms) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of these Terms.
7.2 The exclusion in clause 7.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
7.3 All dates supplied by the Supplier for the delivery of the Software and the provision of Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
7.4 All references to “the Supplier” in this clause 7 shall, for the purposes of this clause and clause 7.3 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 7.3.
8. Intellectual property rights
8.1 The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Supplier or the relevant third-party owners (as the case may be) from whom the Supplier licences such rights, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with these Terms.
8.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with these terms infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 8.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with these Terms, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
8.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 8.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
8.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with these Terms;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate the contract with the Customer and the licence granted hereunder immediately by notice in writing to the Customer and refund any of the fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof.
8.5 Notwithstanding any other provision in these Terms, clause 8.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
8.6 This clause 8 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 7.1.
9. Duration and termination
9.1 Without affecting any other right or remedy available to it, the Supplier may terminate the contract governed by these Terms with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the Customer commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified [in writing] to do so;
(c) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;
(g) the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(c) to clause 9.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9.2 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the contract shall remain in full force and effect.
9.3 Termination or expiry of the contract governed by these Terms shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination or expiry.
9.4 On termination for any reason:
(a) all rights granted to the Customer under the licence granted to it and these Terms shall cease;
(b) the Customer shall cease all activities authorised by these Terms;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under these Terms; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
9.5 Any provision of these Terms which expressly or by implication is intended to come into or continue in force on or after termination of the contract governed by these Terms including clause 1, clause 5, clause 6 (except clause 6.1), clause 7, and clause 9 shall remain in full force and effect.
No failure or delay by a party to exercise any right or remedy provided under these Terms 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.
Except as expressly provided in this contract, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
12. Entire agreement
12.1 These Terms contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
12.2 Each party acknowledges that, in agreeing to these Terms and the documents referred to in them, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to these Terms or not) (Representation) other than as expressly set out in these Terms or those documents.
12.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in these Terms.
12.4 Nothing in this clause shall limit or exclude any liability for fraud.
13.1 These Terms may be varied from time to time by the Supplier, provided that such variation shall be notified to the Customer before coming into effect.
13.2 If any provision or part-provision of these Terms 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 these Terms.
13.3 If any provision or part-provision of these Terms are 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.
13.4 A person who is not a party to these Terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
13.5 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.6 Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this the contract governed by these Terms by giving 7 days’ written notice to the affected party.
14.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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
(b) sent by email to such address as provided by each party to the other.
14.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service.
(c) if sent by email at 9.00 am on the next business day after transmission.
14.3 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. For the purposes of this clause, “writing” shall not include e-mail.
15. Governing law and jurisdiction
15.1 These Terms and any dispute or claim arising out of or in connection with them or their 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.
15.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).