DIFFUSION CLOUD SERVICE
Terms and Conditions
These terms and conditions govern your use of Diffusion Cloud as a cloud service and are made between Push Technology Limited, a company registered in England and Wales with registered office address at 110 High Street, Maidenhead, Berkshire, SL6 1PT (company number 06034919) (“PUSH”) and you, the company accessing and/or using the Diffusion Cloud cloud services (“Customer” or “You”). If you do not agree to the terms set out here please do not sign up for the Diffusion Cloud cloud services. If you are contracting as a Consumer please contact PUSH separately prior to registering for Diffusion Cloud. By registering for Diffusion Cloud you warrant that you are not contracting with PUSH in your capacity as a Consumer.
1.1 In this Agreement, the following terms shall have the following meanings:
- ‘Agreement’ means these terms and conditions and the schedules and any documentation expressly incorporated herein by reference and shall include any amendments or supplementary agreements specifically referenced hereto and effected as provided in clause 15.1.
- ‘Confidential Information’ means all confidential information (however recorded, preserved or disclosed) supplied to one party (“Receiving Party”) by or on behalf of the other party (“Disclosing Party”) whether before or after the date of the Agreement in relation to the Agreement, including all commercial information whatsoever (including accounts, financial information, operating statistics, production and marketing records, forecasts, analyses, compilations and studies, notes, contacts and personnel data, information or opinions as to the affairs of the Disclosing Party, all technical and scientific information whatsoever (including specifications, prototypes, models, drawings, computer software (unless permitted by Additional Rights), visual demonstrations, and samples, designs, plans, processes, formulae, know-how, production, marketing and other scientific and technical techniques used by or known to the Disclosing Party)) whether or not proprietary or protected, or capable of protection, by Intellectual Property Rights and all other information to the extent such commercial, technical, scientific or other information relates to all or part of the actual, past or proposed business affairs and activities of the Disclosing Party and all copies thereof. For the avoidance of doubt, Diffusion Cloud and any derivative works, material, idea, data or other information as well as research, developments, trade secrets, financial, technical, commercial or business affairs relating thereto shall be the Confidential Information of PUSH and the Customer’s use and disclosure of the same shall be subject to the terms of the Agreement.
- “Consumer” has the definition given to it in the Consumer Rights Act 2015. ‘‘Customer’s Group’ means the Customer’s subsidiaries, holding company and other subsidiaries of its holding company.
- “Data Processing Supplement” means the document setting out the parties’ obligations in relation to the processing of personal data, as appended to this Agreement as a supplement and incorporated by reference.
- ‘Defect’ means any reproducible material defect, error or problem with Diffusion Cloud which substantially hinders or prevents the Customer from accessing or using a material part of the functionality of Diffusion Cloud.
- ‘Holding company’ and ‘Subsidiary’ mean a “Holding Company” and “Subsidiary” as defined in section 1159 of the Companies Act 2006.
- ‘Intellectual Property Rights’ means all patents, trade marks and service marks, business and domain names, design rights, copyrights, trade secrets, know how, database rights, inventions and all other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, subsisting in any part of the world.
- “Message” means each message which is sent through Diffusion Cloud and each message which is received through Diffusion Cloud.
- “Overage” means the additional sum payable by the Customer to PUSH in the event that the Customer’s use of Diffusion Cloud exceeds their Permitted Use Allowance. The Overage rates are as set out on the Website, as amended from time to time in accordance with this Agreement, and shall depend upon the subscription chosen by the Customer.
- “Payment Provider” means Stripe, PayPal, the IBM marketplace, IBM Bluemix or such other payment provider as PUSH may nominate from time to time on reasonable notice to the Customer.
- “Permitted Use Allowance” means the number of Messages that may be used by the Customer in each month of th Subscription Period in accordance with the subscription selected by the Customer.
- ‘Diffusion Cloud’ means: (a) the SaaS-delivered version of PUSH’s Diffusion software (or such other product name or software file name that may be applied to such product) and is provided on a software-as-a-service basis and accessed via the Website and/or API URLs specified by PUSH from time to time, (b) all or any part(s) of any products of the same type and specification; (c) any other products and related documentation developed by PUSH and which PUSH may permit the Customer, by express notice in writing, to use pursuant to this Agreement; (d) any upgrade, update or fix provided by PUSH ; (e) any Third Party Software; and (f) the associated documentation relating to each of them.
- “Subscription Fee” means the sum payable by the Customer to PUSH for the Customer’s subscription for the Diffusion Cloud cloud service, as may be amended from time to time in accordance with the terms of the Agreement.
- “Subscription Period” means the period for which the Customer has subscribed for the Diffusion Cloud cloud service together with any subscription renewal.
- “Support Fee” means the sum payable by the Customer to PUSH in consideration of Support and Maintenance Services, as may be amended from time to time in accordance with the terms of this Agreement.
- “Support and Maintenance Agreement” means the agreement between PUSH and Customer relating to Support and Maintenance Services, the terms of which are incorporated into this Agreement by reference.
- “Support and Maintenance Services” means the support and maintenance services to be provided by PUSH to the Customer in connection with Diffusion Cloud, as more particularly described in the Support and Maintenance Agreement and in clause 4.
- ‘Third Party Cloud Provider’ means any entity hosting cloud services through which the Customer interacts to download Diffusion Cloud.
- ‘Third Party Software’ means all software products owned by a third party or other computer code which embedded within or otherwise provided by PUSH with Diffusion Cloud and which is available under standard proprietary licence terms or public licences such as free and open source software licences. Any Third Party Software provided pursuant to the Agreement is detailed in Schedule 1 (as may be amended from time to time by PUSH).
- ‘Trade Marks’ means any trade mark registrations and applications, including the trade names and unregistered marks “Push” and “Diffusion” and the phrase “Powered by Diffusion” owned by PUSH from time to time.
- “Website” means the website at https://marketplace.ibmcloud.com/home, http://www.ibm.com/cloud-computing/bluemix and/or www.Diffusion Cloud.io or such other URL as nominated by PUSH from time to time.
1.2 References to the words “include” or “including” shall be construed as being without limitation to the generality of the preceding words. Words imparting the singular include the plural and vice versa.
1.3 Unless the context otherwise requires, all references to a particular Clause, Schedule or Supplement are references to the corresponding Clause, Schedule or Supplement in or to the Agreement.
1.4 The headings in the Agreement are for ease of reference only and shall not affect its interpretation.
1.5 Any references, express or implied, to an enactment includes references to:
1.5.1 that enactment as amended, extended or applied by or under any other enactment before or after the Agreement;
1.5.2 any enactment which that enactment re-enacts (with or without modification); and
1.5.3 any subordinate legislation made (before or after the Agreement) under any enactment, including one within clause 1.5.1 or clause 1.5.2 above, but does not include any enactment after the date of the Agreement to the extent that it is retrospective.
1.6 Unless the context otherwise requires references to PUSH and the Customer include their permitted successors and assigns.
2 Commencement and Duration
2.1 This Agreement commences when the Customer first registers for Diffusion Cloud and selects the “Accept” button on the registration page and continues for the Subscription Period, unless terminated earlier in accordance with clause 14, and thereafter shall automatically continue for further successive periods equal to the Subscription Period unless Customer cancels its subscription prior to the end of its current Subscription Period by deleting its account.
3 Access and Use Rights
3.1 PUSH grants to the Customer, and the Customer accepts, a non-exclusive, non-transferable limited right for the Subscription Period to access and use PUSH’s instance of Diffusion Cloud for, (a) its own internal business purposes or (b) an evaluation of Diffusion Cloud, in accordance with the terms and conditions of the Agreement up to the Permitted Use Allowance selected by the Customer for its subscription.
3.2 The Customer may extend the benefit of the Agreement to the members of the Customer’s Group subject to:
3.2.1 giving notice to PUSH of the identity and address of the member of the Customer’s Group to which the Agreement has been extended (“Additional Customer”);
3.2.2 the Customer remaining liable to PUSH for the acts and omissions of any member of the Additional Customer and indemnifying PUSH in full in respect of any losses, damages or expenses incurred by PUSH as a result of the negligent or unauthorised use of Diffusion Cloud by or on behalf of any Additional Customer its employees, agents and contractors; and
3.2.3 if required by PUSH, the Additional Customer agreeing in writing to be bound by the terms of the Agreement.
3.3 Where Diffusion Cloud incorporates Third Party Software, the Customer acknowledges that the Third Party Software is licensed on the terms set out or referred to in Schedule 1. Customer agrees to comply with the terms and conditions (including if so required the execution and return of a Third Party Software licence) applicable to the Third Party Software and will indemnify PUSH in full against any proceedings instigated by a Third Party Software owner against PUSH as a result of any breach by or on behalf of the Customer or any member of the Customer’s Group of such terms and conditions.
3.4 The Customer may not use Diffusion Cloud other than as specified in this Agreement without the prior written consent of a director of PUSH and the Customer acknowledges that additional fees may be payable on any change of use approved by PUSH.
3.5 This Agreement grants the Customer rights to access and use Diffusion Cloud on a cloud basis and, except for limited client-side code, this is not a software licence. Accordingly the Customer does not have any rights under the Software Directive (2009/24/EC) or Copyright Designs and Patents Act 1988 and shall not reverse engineer, copy, modify, adapt, disassemble or decompile Diffusion Cloud in whole or in part for any purpose.
3.6 The Customer may not modify, enhance or alter the client-side code in Diffusion Cloud or any part of it without the prior written permission of PUSH nor authorise third parties to do likewise. In the event that PUSH should give such permission, the Customer shall require any third party it so authorises to be bound by the provisions of this clause 2 and clauses 6 (Title and Copyright) and 10 (Confidentiality). The Customer shall in any event remain liable for any act or omission of such third party.
3.7 The Customer may not perform (or procure a third party to perform) any penetration testing on Diffusion Cloud.
3.8 The Customer may not access Diffusion Cloud (a) other than through its published interface and (b) programmatically, including through scrapers or spiders, but otherwise than as permitted by (a), must access Diffusion Cloud only by means of human interaction.
3.9 The Customer may not use Diffusion Cloud or the Website (or any part of it, including the forums) (a) in any unlawful or illegal manner, for any unlawful or illegal purpose or in any manner which is inconsistent with this Agreement; (b) to infringe PUSH or any third party’s intellectual property rights; (c) to transmit any material that is defamatory, offensive or otherwise objectionable; (d) in any that could damage, disable or overburden or impair or compromise PUSH or any third party’s systems or security or interfere with other users and (e) to access or attempt to access or use any other user’s account.
3.10 The Customer is responsible for maintaining the confidentiality of its password, login and other registration data or access tokens. The Customer shall notify PUSH immediately of any unauthorised use of its account, password, login or any other breach of security. The Customer may be held liable and indemnify PUSH and hold PUSH harmless for losses incurred by PUSH or any other user of Diffusion Cloud due to breach of this clause or someone else using the Customer’s password or login, including but not limited to any third party costs (e.g. hosting costs).
3.11 The Customer confirms it is acting on its own behalf and not for the benefit of any other person other than the Additional Customer.
4 Support and Maintenance
4.1 Support and Maintenance Services are available for paid subscriptions in accordance with the Support and Maintenance Agreement applicable to that level of subscription.
4.2 Where the Customer is using a free or trial version of Diffusion Cloud, Diffusion Cloud is provided “as is” and “as available” only with no service levels or uptime guarantees. However, (a) Customers using free or trial versions can ask support questions on the forums accessible via the Website and these may be responded to by PUSH and other third party members of the community. PUSH is not liable or responsible for the responses given by any third party and does not guarantee that it will respond to questions posted on forums; (b) PUSH aims to provide a default level 99.9% uptime for Diffusion Cloud save where it is performing planned or emergency maintenance in which case Diffusion Cloud may be unavailable but provides no guarantee in this regard; (c) PUSH may provide updates and upgrades from time to time. Customers taking free or trial versions of Diffusion Cloud can upgrade their subscription at any time in the “My Account” section subject to the payment of the applicable fee.
5 Fees and Payment Terms
5.1 The Subscription Fees, Overage and Support Fees chargeable to the Customer as are set out on the Website at the time the Customer registers for Diffusion Cloud and as confirmed in the email confirmation sent by PUSH. PUSH reserves the right to amend the Subscription and Support Fees at its discretion at any time provided that it gives the Customer not less than 30 days’ prior notice by email of such changes. If the Customer does not agree to the amended fees it may terminate this Agreement in accordance with clause 14.2.
5.2 Payment of Subscription Fees and Support Fees will be due monthly in advance for the subscription and Support Services, if any. Where the Customer exceeds the Permitted Use Allowance the Overage shall be charged in arrears at the end of the month in which they were incurred. The Customer shall make payment via the Payment Provider on or before the due date.
5.3 For the avoidance of any doubt, in the event that the Customer does not use all Messages in its Permitted Use Allowance in any month, the unused Messages may not be rolled over into any subsequent month and no other refund, rebate, reduction or credit shall be given for any such unused Messages.
5.4 In the event that the Customer does not pay all fees when due (a) PUSH reserves the right to charge interest at 4% per annum above the prevailing base rate on any unpaid amount from the due date until payment is received in full, whether before or after judgement and (b) PUSH may suspend the Customer’s access to Diffusion Cloud until such time as payment (including any accrued interest) is made.
5.5 Where applicable, VAT (or such other applicable local taxes) will be charged in addition to the Subscription Fee and any Overage and Support Fees where required by law and at the prevailing rate. The Customer hereby warrants and agrees that all information provided by it to PUSH at the time of its registration is accurate and complete and that the Customer shall immediately notify PUSH of any changes to such information. The Customer shall indemnify PUSH against any claims, losses, costs, damages, penalties and liabilities suffered or incurred by PUSH as a result of a breach of the foregoing warranty by the Customer, including a requirement to pay tax.
5.6 The Customer agrees that the payment of any Subscription Fee, Overage and Support Fee is irrevocable, non-cancellable and non-refundable and the Customer shall not withhold payment of the Fees for any reason, save as expressly set out in an applicable Support and Maintenance Agreement.
5.7 In the event that the Customer has any dispute or issues making payment via the Payment Provider (or such other payment provider as nominated by PUSH from time to time) the Customer shall contact PUSH prior to raising a dispute with the payment provider and shall cooperate with PUSH in relation to any dispute resolution procedure.
6 Title and Copyright
6.1 No title or rights of ownership in any Intellectual Property Rights or otherwise in Diffusion Cloud (including for the avoidance of doubt any upgrades provided pursuant to any Support and Maintenance Agreement) are or will be transferred to the Customer and the Customer shall have no rights in or to Diffusion Cloud other than the right to access and use it in accordance with the terms of the Agreement and, in the case Third Party Software, the specific licence applicable to the relevant component of Third Party Component (which licence shall, in the case of conflict with this Agreement, supersede the terms of this Agreement in respect of that Third Party Component).
6.2 The Customer understands that Diffusion Cloud contains proprietary and confidential information of PUSH and agrees that, except with PUSH’s prior written consent, it will not provide or otherwise disclose or make Diffusion Cloud available for any reason to any other person, firm, company or organisation.
6.3 The Customer shall not delete or obscure any proprietary marks, disclaimers or other notices contained in or on Diffusion Cloud and any related documentation (whether printed or stored electronically).
6.4 The Customer will ensure that all of its employees and agents having access to or knowledge of Diffusion Cloud are advised that Diffusion Cloud contains confidential information of PUSH and that all Intellectual Property Rights in it vest in and are the property of PUSH or its licensors, and the Customer will ensure that its employees, agents and contractors comply with all the terms and conditions of the Agreement and this clause 6 in particular.
6.5 The Customer agrees to indemnify PUSH in respect of any losses, damages or expenses incurred by PUSH as a result of the negligent or unauthorised access or use of Diffusion Cloud by or on behalf of the Customer its employees, agents and contractors or any third party engaged by the Customer however caused.
7 Push’s Warranty
7.1 PUSH warrants that:
7.1.1 it has the right to grant the access and use right granted in clause 2 in respect of Diffusion Cloud; and
7.1.2 subject to clause 7.2, for a period of 30 days from the commencement of the first Subscription Period (the “Warranty Period’) Diffusion Cloud will not contain any Defects.
7.2 PUSH shall have no obligations under clause 7.1.2 above where a material non-conformity results from:
7.2.1 any unauthorised modification or alteration of Diffusion Cloud;
7.2.2 use of Diffusion Cloud not in accordance with related documentation;
7.2.3 any failure of or defect in any third party software (not licensed by PUSH to the Customer) used by the Customer; or
7.2.4 any failure of or defect in other software or equipment with which Diffusion Cloud interfaces or with which Diffusion Cloud interacts or any fault or failure with the Customer’s utilities or connectivity.
7.3 Subject to clause 13, PUSH’s sole obligation in respect of any breach of the warranties in clause 7.1 shall be to at PUSH’s option:
7.3.1 use reasonable commercial endeavours to obtain the necessary rights to enable it to grant the rights in clause 2 in the case of a breach of the warranty in clause 7.1.1;
7.3.2 use reasonable endeavors to remedy any Defects in the case of a breach of the warranty in clause 7.1.2; or
7.3.3 in either event, terminate the Agreement immediately by notice in writing to the Customer and refund any pre-paid Subscription Fee and Support Fees.
7.4 The above clause 7.1 constitutes the only warranties and conditions provided by PUSH in respect of Diffusion Cloud. The obligations and liabilities of PUSH in the Agreement are in place of, and the Customer accordingly waives, in so far as it is permitted to do so by law, all implied warranties and conditions including, without limitation, any warranty of merchantability, satisfactory quality or fitness for a particular purpose whether or not any specific purpose has been notified to PUSH.
7.5 The Customer acknowledges that:
7.5.1 Diffusion Cloud has not been produced to meet the Customer’s individual needs or specifications;
7.5.2 Diffusion Cloud cannot and has not been tested in advance in every possible operating combination and environment; and
7.5.3 Diffusion Cloud may not be free from errors and/or may not run properly on all computer hardware and/or operating systems. PUSH does not warrant that the use of Diffusion Cloud will be uninterrupted or error-free.
PUSH reserves the right to make improvements, substitutions, modifications or enhancements to any part of Diffusion Cloud provided that the functionality and performance of Diffusion Cloud will not as a result be materially affected to the Customer’s detriment. PUSH will issue “Customer Advisories” from time to time via the Website or by email setting out its intended roadmap for Diffusion Cloud but gives no guarantees as to the time for implementation for any changes.
9 Infringement of Intellectual Property Rights
9.1 Subject to clauses 9.2 and 12, PUSH undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer by a third party alleging that the Customer’s access and use of Diffusion Cloud in accordance with the terms of this Agreement infringes the UK Intellectual Property Rights of such 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, this clause 9.1 shall not apply where the Claim in question is attributable to access or use of Diffusion Cloud (or any part thereof) by the Customer other than in accordance with the terms of the Agreement.
9.2 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, PUSH’s obligations under clause 9.1 are conditional on the Customer:
9.2.1 as soon as reasonably practicable, giving written notice of the Claim to PUSH, specifying the nature of the Claim in reasonable detail;
9.2.2 not making any admission of liability, offer of settlement, agreement or compromise in relation to the Claim without the prior written consent of PUSH;
9.2.3 giving PUSH 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 PUSH and its professional advisers to examine them and to take copies (at PUSH’s expense) for the purpose of assessing the Claim; and
9.2.4 taking such action as PUSH may reasonably request to avoid, dispute, compromise or defend the Claim.
9.3 If any Claim is made or in PUSH’s reasonable opinion is likely to be made, against the Customer, PUSH may at its sole option and at its own expense, either:
9.3.1 obtain for the Customer the right to continue to use Diffusion Cloud in accordance with the terms of the Agreement;
9.3.2 replace or modify Diffusion Cloud so that it becomes non-infringing; or
9.3.3 terminate the Agreement immediately by notice in writing to the Customer and refund any of the Subscription Fee paid by the Customer as at the date of termination (discounted on a straight-line basis over five years commencing upon the date of the Agreement at twenty per cent per year or part thereof).
9.4 In no circumstances will PUSH be liable for any costs or expenses incurred by the Customer without PUSH’s written authorisation and the foregoing states the exclusive remedy of the Customer in respect of any patent, design right, trade secret or copyright infringement by Diffusion Cloud.
10.1 The Receiving Party hereby undertakes to the Disclosing Party to keep strictly confidential and not to disclose to any third party any Confidential Information so disclosed to it without the prior written consent of the Disclosing Party and the Receiving Party further undertakes that the Confidential Information so received by it shall be used solely in relation to the performance of the Agreement and that, should written permission be given for disclosure to third parties, such disclosure shall not be made until the Disclosing Party has approved such disclosure and the third party has signed a confidentiality agreement containing at least equivalent provisions of confidentiality as contained herein.
10.2 Notwithstanding clause 10.1 above, the Receiving Party shall have the right to communicate to such of its employees such part of the Confidential Information as is essential to perform its rights and obligations hereunder, provided that it shall procure that each such “need to know” employees having access to the Confidential Information are made aware of the obligations of secrecy attached thereto and shall instruct each such employee that the Confidential Information be treated as secret and kept in safe custody, shall prohibit them from retaining copies of it and shall procure that any of its employees to whom disclosure of the Confidential Information is made in accordance herewith shall adhere to the terms of the Agreement as if it were a party hereto.
10.3 If the Receiving Party becomes aware of any breach of confidence by any of its employees, agents or sub-contractors it shall promptly notify the Disclosing Party thereof and give the Disclosing Party all reasonable assistance in connection with any proceedings which the Disclosing Party may institute.
10.4 Notwithstanding clause 10.1, nothing in the Agreement shall be construed to prevent or restrict PUSH from disclosing or using in the course of its business any technical knowledge, skill, know-how, concepts or expertise of a generic nature whether acquired by PUSH in the performance of the Agreement or otherwise.
10.5 The restrictions and obligations of non-disclosure and non-use contained herein shall not apply to any information which it can be clearly demonstrated by existing competent written records maintained in the ordinary course of business:
10.5.1 is in the public domain at the time of disclosure by the Disclosing Party or which later enters the public domain through no fault of the Receiving Party; or
10.5.2 enters the public domain at any time hereafter through no fault of the Receiving Party; or
10.5.3 is acquired by the Receiving Party in good faith from third party sources unconnected with and owing no duty of confidentiality to the Disclosing Party.
10.6 The Receiving Party shall not be in breach of its obligations of confidentiality where it is required to disclose Confidential Information by law, any court of competent jurisdiction or by any other regulatory body provided that the Receiving Party undertakes to give the Disclosing Party not less than 10 working days’ notice of such required disclosure in writing wherever lawful and practicable.
10.7 The Receiving Party shall indemnify the Disclosing Party in full against any loss or damage and reasonable costs which the Disclosing Party may sustain or incur as a result of the Receiving Party failing to comply with the obligations of confidentiality under this clause10.
10.8 The obligations of confidentiality set out herein shall survive termination of the Agreement.
11 Personal Data
The parties shall each comply with Data Processing Supplement.
12 Risk of Loss or Damage
All risks of loss or damage to any information resides with the Customer and the Customer is responsible and liable for backing up any information as appropriate. PUSH shall not be responsible for recovering any lost or corrupted information save as expressly set out in an applicable Support and Maintenance Agreement.
13 Limits of Liability and Customer Indemnity
13.1 Subject to clause 13.3, PUSH’s maximum liability for any loss or damage suffered by the Customer in contract, common law, tort (including negligence) or otherwise howsoever arising in relation to the Agreement or otherwise relating to Diffusion Cloud or the Third Party Software (which may be subject to a greater limitation as set out in the relevant licence) shall not exceed (a) $10, where the Customer is using a free or trial version of Diffusion Cloud; or (b) the Subscription Fee plus any Overage and Support Fee actually received by PUSH from the Customer in the twelve months prior to the event giving rise to the claim in all other instances.
13.2 PUSH shall not be liable in respect of any claim brought by the Customer more than two years after the cause of action has accrued.
13.3 Nothing in this clause 13 or any other provision of the Agreement shall limit the liability of PUSH in relation to death or personal injury caused by PUSH’s negligence or for fraud or for fraudulent misrepresentation or any other liability which may not lawfully be excluded.
13.4 Except as expressly stated in the Agreement, PUSH disclaims all liability to the Customer for misrepresentation, negligence, tort, breach of statutory duty and breach of contract.
13.5 Neither party shall be liable to the other for special, indirect or consequential damages whether arising from tort (including negligence), breach of contract or howsoever, or for loss of profits, loss of use of profit, economic loss, loss of goodwill or anticipated savings, or any losses arising from the loss of data.
13.6 The Customer will indemnify and defend PUSH and its employees in respect of any third party claims which arise from any PUSH performance carried out on the instructions of the Customer or its authorised representative except to the extent that such claims have resulted from PUSH’s willful misconduct or gross negligence.
13.7 The Customer acknowledges and agrees that the suppliers of Third Party Software expressly disclaim any and all liability for consequential and indirect damages and implied warranties including all warranties of non-infringement, satisfactory quality, merchantability and fitness for a particular purpose, except to the extent that such warranties cannot be lawfully limited or excluded.
14.1 PUSH may terminate the Agreement at any time with immediate effect, without liability, in the event that the Customer is using a free or trial version of Diffusion Cloud.
14.2 The Agreement may be terminated immediately by the Customer ceasing to use Diffusion Cloud and deleting their account via the Website but no pre-paid fees shall be refunded in the event of such termination.
14.3 The Agreement may be terminated by PUSH if:
14.3.1 the Customer commits a breach of any of its material obligations under the Agreement which is incapable of remedy;
14.3.2 the Customer is in material breach of any of its obligations under the Agreement and fails to remedy the breach (if capable of remedy) within a period of 30 (thirty) days after receiving written notice thereof from PUSH. For the avoidance of doubt the failure to pay any sums due under the Agreement shall be considered a material breach;
14.3.3 the Customer is involved in any legal proceedings concerning its solvency or ceases trading or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or equivalent circumstances occur in any other jurisdiction;
14.3.4 there is an event of force majeure pursuant to clause 15.7.
14.4 Any termination of the Agreement will be without prejudice to any other rights or remedies of either party under the Agreement or at law and will not affect any accrued rights or liabilities of either party prior to the date of termination.
14.5 On termination of the Agreement for any reason, the rights of access and use granted pursuant to clause 2 shall terminate and the Customer’s log in details and password and any access tokens will be deactivated by PUSH and the Customer will not be able to access or recover any information previously viewed or stored within Diffusion Cloud.
14.6 On termination of the Agreement for any reason no Subscription Fees, Overage or Support already paid by the Customer shall be refunded (save as expressly stated in the Agreement) and the Customer’s liability for Subscription Fee, Overage and Support Fees which are due on or before the date of termination together with any unpaid interest shall continue.
14.7 Clauses 1, 5, 6, 9, 10, 13, 14 and 15 together with any other provision of the Agreement which expressly or by implication is intended to come into or remain in force on or after termination shall remain in full force and effect notwithstanding the expiry or termination of the Agreement.
15 Ancillary Provisions
15.1 ENTIRE AGREEMENT AND VARIATIONS: The Agreement together with the documents expressly referred to in it constitute the entire agreement between the parties and supersede all prior agreements, arrangements and understandings between the parties relating to its subject matter. Each party confirms that it has not relied upon any representation not recorded in this document inducing it to enter into the Agreement. No variation of these terms and conditions will be valid unless confirmed in writing by authorized signatories of both parties on or after the date of the Agreement.
15.2 SEVERABILITY: If any of the provisions or part of a provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions or provision will not be prejudiced unless the substantive purpose of the Agreement is then frustrated, in which case either party may terminate the Agreement forthwith on written notice.
15.3 WAIVER: No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
15.4 RELATIONSHIP OF THE PARTIES: The relationship between PUSH and the Customer is that of independent contractors. Neither party is agent for the other, nor does neither party have any authority to make any contract, whether expressly or by implication, in the name of the other party, except where that party’s prior written consent has been obtained. Nothing contained in the Agreement shall construe the parties as partners, joint ventures, co-owners or otherwise as participants in a joint undertaking.
15.5 ASSIGNMENT: The Customer may not assign the Agreement or any rights granted under the Agreement or any benefits or interests arising under the Agreement without the prior written consent of PUSH which will not be unreasonably withheld or delayed. PUSH shall be entitled to assign, sub-contract or sub-licence the Agreement or any part of the Agreement to any other party.
15.6 NOTICES: Any notice required to be given under the Agreement by either party must be in writing and may be delivered either personally or by first class post in the United Kingdom, if sent from an address in the UK to another address in the UK and by airmail in all other cases, or by facsimile transmission. In the case of post such notices shall be deemed to have been received 7 working days after the date of posting. In case of facsimile transmission notices shall be deemed to have been received by confirmed facsimile transmission. Notices will be delivered or sent to the addresses of the parties set out in the Agreement or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of the Agreement.
15.7 FORCE MAJEURE: Neither party will be liable to the other party for any delay or failure to perform its obligations under the Agreement (other than a payment of money) as a result of any cause beyond its reasonable control (including but not limited to any industrial dispute, Acts of God, war, riot, malicious acts of damage, fire, acts of any government authority, failure of the electricity supply). If either party is prevented from meeting any of its obligations due to any cause outside its reasonable control, it shall promptly notify the other party in writing of the circumstances and the other party shall grant a reasonable extension for the performance of the Agreement, provided however that if such delay or failure continues for at least 90 days, the party not affected by the cause in question will be entitled to terminate the Agreement by notice in writing.
15.8 PUBLICITY: PUSH shall be entitled to refer to the Customer as a customer of PUSH in its sales and marketing information.
15.9 COUNTERPARTS: The agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of the agreement, but all the counterparts shall together constitute the same agreement.
15.10 THIRD PARTY RIGHTS: A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act..
15.11 GOVERNING LAW AND JURISDICTION: The Agreement is governed by and shall be construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts.
16.1 If either party considers there to be in existence a dispute as to whether PUSH is in breach of clause 6.1(“Dispute”) they will immediately give notice of it to the other party.
16.2 Immediately upon receipt of a notice under clause 16.1 the parties will use reasonable endeavours to resolve the Dispute and record any agreement reached between them in writing.
16.3 If the parties have not reached an agreement in writing to resolve the Dispute within 14 days of the service of the notice under clause 16.1 hereof it will be referred to such expert as the parties will jointly nominate.
16.4 If the parties fail to nominate an expert within 21 days of the service of the notice under clause 16.1 then the expert will be nominated at the request of either party by the President for the time being of the Institute of Arbitration.
16.5 The expert, whether appointed under clause 16.2 or 16.3, will act as an expert whose decision (which will be in writing) will, except in the case of manifest error, be final and binding upon the parties. At the request of either party the expert will give reasons in writing for his decision.
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