IndieBI: Terms of Use

Last updated on 17.11.2022
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Indiebi Spółka Akcyjna is incorporated and registered in Poland with company (KRS) number 0000897480 and registered office Polskiej Organizacji Wojskowej 25, 90-248 Lodz, Poland (“IndieBI”, “we”, “us”, or “our”). IndieBI has developed software implementing three functions:

  1. a software application (“Application”) which allows customers to pool information about sales of games (“Sales Data”) which they have collected from distribution platforms (such as Steam) (“Channels”); and
  2. an online service to which the Application may connect, which offers certain data analysis functionality from time to time, and may enable customer to access insights and predictions relevant to them (“Platform”); and
  3. a data collection tool (“Tool”) customers can use to collect Sales Data (to the extent available in a compatible format from Channels) and automatically deliver that information to the Platform.

The Application, the Tool, and the Platform jointly constitute a single product and are licensed as such, and are not to be distributed or used separately.

Customers can analyse and compare Sales Data in near-real time with benchmarks and trends available through the Application and Platform and use the insights they develop, along with other information and recommendations supplied through the Application and Platform, to inform their commercial strategy (“Purpose”).

IndieBI may from time to time make the Application, Tool, and Platform (together, the “Software”) available for the Purpose. This document (together with materials referred to herein) sets out the conditions (“Terms of Use”) upon which you may use the Software

Please read these Terms of Use carefully before placing orders (each an “Order”) for Software. If you do not accept these Terms of Use, you are not permitted to use the Software. Each Order once accepted by us in writing in accordance with clause 3, together with the Terms of Use, forms a legally binding agreement between us (the “Agreement”).

  1. Definitions and interpretation

    1. Certain terms in these Terms of Use are capitalised and have special meanings as set out in Schedule 1 (Glossary).
    2. Unless otherwise specified, a reference to:
      1. the singular includes the plural and vice versa and any gender includes the others;
      2. a person includes natural persons, firms and companies;
      3. clause or Schedule is to a clause of, or Schedule to, these Terms of Use;
      4. legislation or Applicable Law is to that legislation or Applicable Law as amended from time to time;
      5. including, include, in particular or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms; and
      6. writing or written includes email but not faxes.
    3. Headings are for convenience only and do not affect interpretation of these Terms of Use.
    4. Where there is any conflict between an Order and the Terms of Use, the Terms of Use take precedence save only in respect of provisions labelled as “Special Conditions” in the Order.
  2. Ordering, Configuration and Access

    1. Except for your End Users, you may not authorise or permit anyone to use the Software. You warrant that your End Users are at least 18 years old. Before we provide access to any Software, you agree to follow the on-boarding process (On-Boarding) detailed in our Set-Up Instructions and otherwise instructed by our accounts team (which shall be conditional for our granting access to the Software, failing which we may terminate this Agreement without liability).
    2. You may start using Software as soon as we give you access to it, for as long as you have a fully-paid up licence to the relevant Software. Time is material but not of the essence with respect to supply of the Software. We are not in control of or liable for interruptions or delays caused by any third parties including (without limitation) any delay or failure of Channels in providing Sales Data in a form compatible with or available via the Software.
    3. Where agreed in an Order, we may make available a means for you to collect data from the Software for use within your own systems (for example, without limitation, by offering an API or similar means to extract data into Tableau or similar software). If so, this forms part of the Software. We do not collect Sales Data directly, and rely on you to run the Tool on your own infrastructure in order to do so, and to supply Sales Data to the Platform and Application.
  3. Formation of Contract

    1. All Orders are subject to:
      1. you paying applicable Fees (if any) in advance (where any such fees are payable in advance, including any On-Boarding fee set out in the Order) and our receiving that fee in cleared funds; and
      2. acceptance by us by notifying you in writing that we have accepted your Order whereupon a legally binding agreement will be formed between you and us.
  4. Price and Payment

    1. The Fees for the Software shall be as set out in the Order and this Agreement.
    2. You will be charged your Licence fee for the Software from the Commencement Date set out in the Order unless the Software has not been made available to you by that date wholly as a result of our breach of this Agreement in which case you may either (as your sole and exclusive remedy in respect of such delay):
      1. agree to our proposal for a reasonable extension of the Commencement Date; or
      2. terminate this Agreement without further liability to us save for those sums validly invoiced up to the effective date of termination.
      You acknowledge that, in accordance with the foregoing, you may be liable to pay the Licence fee in respect of Software which is not available if such non-availability arises from your delay or default.
    3. On-Boarding fees (if any) are payable in full on or before our acceptance of your Order. Unless otherwise specified in the Order and save in respect of any On-Boarding Fees all other Fees are payable either within 30 days of the date of invoice or by calendar month in advance by credit or other payment card (in which case you authorise us to charge your card for the sums referred to in this clause, agree to keep your card details with us up to date, and agree that you shall be responsible for payment of any third party bank or other charges incurred in the course of payment).
    4. Failure to pay Fees when due shall be a material breach which entitles us to suspend or terminate the Agreement (pursuant to Clause 11.3.1 of these Terms of Use). This, in turn, will affect your access to the Software. Fees remain chargeable at rates agreed in the Order during the suspension. If we terminate these Terms of Use for your material breach, we will require you to pay, without delay, all fees and costs accruing before the termination date, all unpaid Licence fees and any other amounts you owe us under these Terms of Use.
    5. If you fail to pay any amount due under these Terms of Use, we may charge you interest on the overdue amount, payable by you on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue daily and be compounded quarterly.
    6. All overcharges or billing disputes must be reported within 90 days of the date of invoice. Failure to do so will mean you have accepted our invoice. We may change the applicable Licence and other fees from time to time by giving you one month’s written notice. If you do not accept those changes, you may terminate by written notice before they come into effect, otherwise, those changes will apply from the date our notice expires. If you have paid Licence fees in advance for a particular period, and terminate in accordance with this clause before conclusion of that period, we will refund the sums paid in advance pro-rate in respect of the period following termination.
  5. Warranties

    1. You warrant, represent and undertake you shall:
      1. comply with all Applicable Laws (and shall be responsible for obtaining and providing all licences, notices, clearances and consents) which apply to your use of the Software (including, for the avoidance of doubt, collection of Sales Data using the Tool and supplying that Sales Data to us), and acknowledge we are merely a provider of access to the Software and accept no responsibility for your use thereof or your compliance with Applicable Law or to any End User (other than to the extent we are required by Applicable Law);
      2. not use the Software for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Software;
      3. not introduce any virus and/or any other contaminant that may be designed to have a material, adverse effect on the Software;
      4. not use the Software for any purpose other than the Purpose;
      5. not infringe, misappropriate or violate our Intellectual Property Rights;
      6. not do, or omit to do, anything which disparages, defames or puts into disrepute us, our Intellectual Property Rights and/or the Software; and
      7. be and are fully entitled to enter and grant all rights granted under this Agreement and that entering into this Agreement shall not in any way conflict with your existing obligations, either at the date hereof and/or throughout the Term.
    2. Subject to the remaining provisions in this Clause, we warrant that:
      1. during the Term we will provide the Software with reasonable care and skill in accordance with these Terms of Use, and in compliance with such English law and regulation as is applicable to our supply of the Software;
      2. subject to completion of the On-Boarding, the Software will perform, in all material respects, in accordance with the Specification;
      3. the Software (for the avoidance of doubt, this excludes Client Data) shall not infringe any third party’s Intellectual Property Rights (save that we shall have no liability in respect of material to the extent it is a reproduction or adaptation of content supplied by you or any End User).
    3. The warranties in Clause 5.2 do not cover or apply to failures or shortcomings in the provision of the Software caused by, arising out of or due to:
      1. your or any End User’s Internet connection;
      2. patents of which we are not aware;
      3. accident, or use of the Software in a manner inconsistent with these Terms of Use; or
      4. events beyond our reasonable control.
    4. Subject to Clause 5.3, if the Software does not meet the warranties in Clause 5.2, we will, at our sole option and as your sole and exclusive remedy for any breach of such warranties, either:
      1. modify, improve, or update the Software to make it conform; or
      2. obtain clearances, licences, or consents at our cost as may be necessary to enable you to use the Software; or
      3. return Licence fees paid for such Software for the period it failed to conform.
    5. Except as expressly provided in the Agreement, the Software is provided “as is” and “as available” to the fullest extent permissible under Applicable Law. You acknowledge it is your sole responsibility to determine that the Software meets your business requirements. To the fullest extent permissible pursuant to Applicable Law, we disclaim all warranties, terms, and conditions express or implied, including implied warranties of satisfactory quality, fitness for a particular purpose and non-infringement, in relation to the Software, its use and the results of such use. We do not warrant the Software will meet your requirements, be uninterrupted, error free or entirely secure.
  6. Liability

    1. This clause 6 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents, and sub-contractors) to you, including, without limitation, in respect of:
      1. any breach of the Agreement; and
      2. any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Use
    2. Nothing in this Agreement excludes our liability for:
      1. death or personal injury caused by our negligence; or
      2. fraud or fraudulent misrepresentation; or
      3. any other liability which cannot be excluded by law.
    3. We shall accept liability for reasonably foreseeable losses arising as a direct result of breach by us of our contractual or statutory duty. However we shall not be liable where the causes or potential causes of the loss:
      1. arose from use of the Software for purposes other than for the Purpose; or
      2. were foreseeable and preventable by you such as those arising from, but not limited to:
        1. virus damage; or
        2. user problems such as failure to read or follow instructions provided by us in writing or orally
    4. In claiming against us for any such losses you are expected to try and avoid losses occurring and take reasonable precautions to avoid loss and shall contact us as soon as reasonably possible upon becoming aware of an issue.
    5. Subject to clause 6.2, we will not be liable under the Agreement for any indirect, special, or consequential losses or any loss of profits, revenue, goodwill, reputation, wasted management time or anticipated savings or for any claim arising out of or in connection with:
      1. a modification of the Software, or use of the Software in combination with third party software or data, by you or your agents;
      2. use of the Software in a manner contrary to the instructions given to you by us;
      3. your use of Client Data;
      4. use of the Software after notice of an alleged or actual infringement has been given to you by us or by any appropriate authority; or
      5. a feature which was specified by you or on your behalf.
    6. If performance of our obligations is prevented or delayed by any act or omission of you, your Affiliates, agents, subcontractors, consultants or employees, or End Users we shall not be liable for any losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs sustained or incurred by you or your Affiliates that arise directly or indirectly from such prevention or delay
    7. Subject to clause 6.2, 6.5 and 6.6 our total aggregate liability in any 12 months period arising under or in connection with the Agreement or otherwise (whether in contract, tort, including negligence or otherwise, or for breach of statutory duty), whether foreseeable or not will not exceed a sum equal to 100% of the amount actually paid by you to us in connection with the provision of the Software to you in that 12 month period.
  7. Confidentiality

    1. Each party may be given access to Confidential Information from the other party to perform its obligations under this Agreement. A party’s Confidential Information shall be deemed not to include information that:
      1. s or becomes publicly known other than through any act or omission of the receiving party; or
      2. was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or
      3. is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure; or
      4. is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
      5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law or for performance or exercise of obligations or rights under the Agreement, not make the other’s Confidential Information available to any Third Party, or use it for any purpose other than for the purposes of the Agreement. We maintain and use our reasonable efforts to ensure compliance with an internal policy applicable to our employees prohibiting insider trading activities.
    3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, sub-contractors or agents in violation of these Terms of Use or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if lost, and prevent further unauthorised use or disclosure of it.
    4. We will use all our reasonable efforts to keep secure, and avoid unauthorised disclosure of, your Client Data and Confidential Information, and at least the same efforts as we use to protect our own Confidential Information
    5. We may issue press releases and deliver presentations regarding your selecting us as a provider of the Software and, for this purpose, may include your logo and/or name in any such releases and/or on our website and/or in presentations.
    6. Clauses 7.1 - 5 shall survive termination of these Terms of Use, however arising, for a period of five (5) years.
    7. This Agreement shall be without prejudice to, and shall not in any matter exclude or limit, more restrictive obligations regarding our Confidential Information assumed by you nor deprive IndieBI of any rights granted by you under any separate agreements concluded between you and us.
  8. Data Protection

    1. You shall comply with all applicable law and regulation in connection with your use of the Software and the processing of personal data. You warrant that (save for personal data relating to your End Users provided to us solely in accordance with our Privacy Policy) no Client Data will include personal data.
    2. Where we collect personal data from you or on your behalf, you shall clearly inform the data subjects to whom personal data relates of such collection, provide them with a prominent link to our privacy policy and secure and maintain all consents, permissions and licenses and provide all notices, required for us to lawfully: (i) transfer Client Data to or from us, and (ii) process Client Data as reasonably necessary to provide the Software, and otherwise as described in these Terms of Use.
  9. Intellectual Property Rights

    1. We grant to you a personal, non-exclusive, non-transferable right for End Users to install one copy of, access, and use the Software solely for the Purpose upon and subject to the terms of the Agreement. You may not use the Software for any other purpose without our prior written consent.
    2. The Software is provided subject to the following, which you hereby agree:
      1. you undertake you shall not (and shall not permit any End User or Third Party to) copy, reverse engineer, decompile, disassemble, modify, or adapt the Software in whole or in part, except to the extent permitted by law or with our prior written consent.
      2. you will pay the applicable On-Boarding, Licence and other Fees (if any).
    3. We or our licensors own all Intellectual Property Rights in and to the Software and the Service Data. Except as expressly stated herein, these Terms of Use do not grant you any Intellectual Property Rights or any other rights or licences in respect of the Software or any related documentation. Where your use of the Software entails use of Third Party services or materials (such as Channels or Sales Data) you shall (and shall procure that End Users shall) comply with all applicable policies, restrictions and limitations relating to use thereof and shall defend, indemnify and hold us, our Affiliates and their (and our) respective directors and employees harmless against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) suffered and/or incurred by us arising out of your failure to do so.
    4. You, the relevant licensor or, where applicable, End Users, own all Intellectual Property Rights in and to the Client Data. Except as expressly stated herein, these Terms of Use do not grant us any Intellectual Property Rights or any other rights or licences in respect of the Client Data and all such rights are expressly reserved to you. You hereby grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to: (i) create summaries and/or reports including and/or reflecting your Client Data, display or otherwise make available to you your Client Data (including such summaries and/or reports) through the Software, and/or use your Client Data to offer, provide, maintain, and/or improve the products we offer or provide to you; (ii) retain, reproduce, and otherwise use your Client Data to provide estimates and insights to our customers or prospective customers; and (iii) de-identify and/or anonymize your Client Data and use such de-identified and/or anonymized data for any business purpose, including to provide, maintain, improve, and/or develop any of our current and/or future products, and/or to market and promote our products.
    5. We may (before or after the term of the Agreement) make use of suggestions, comments or feedback you provide in relation to our Software, in order to make improvements and develop new features (to or for the Software, or other products or services).
  10. Indemnity

    1. You shall defend, indemnify and hold us, our Affiliates and their (and our) respective directors, agents, contractors and employees harmless against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) arising out of or in connection with:
      1. your use of the Software;
      2. claims from a third party that Client Data is defamatory, obscene, offensive, inaccurate or misleading, or infringes the Intellectual Property Rights or other rights;
      3. any breach of warranties or representations under these Terms of Use; and/or
      4. any breach by you of Applicable Law.
  11. Term and Termination

    1. The Agreement will come into effect on the date of the Order, subject to clause 3.1, and shall remain in effect for the initial term specified in the Order (or, for 12 months where no such period is specified in the Order) (the “Initial Term”) and shall automatically renew for a period equal to the Initial Term (the Initial Period and any such renewal period together are the “Licence Period”) at the fee then listed in the Order (or such other fees as are agreed in the Order in respect of renewal periods) unless and until terminated in accordance with its terms.
    2. Unless agreed otherwise in writing between you and us (for example where an alternative “Notice Period” is agreed in the Order), the Agreement may be terminated for convenience by either party giving notice at least 30 days prior to the expiry of any Licence Period, provided that such notice shall not expire earlier than the expiry of the then current Licence Period.
    3. Notwithstanding anything else contained in these Terms of Use, we may terminate (or, at our option, suspend) the Agreement or part thereof:
      1. immediately on giving notice in writing to you if you fail to pay any sum due under the Agreement (other than as a consequence of any default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid;
      2. immediately on giving notice in writing to you if you are in material breach of any term of the Agreement (other than any failure by you to make any payment hereunder, in which event the provisions of Clause 11.3.1 shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring you to do so.
    4. If you choose to terminate pursuant to the terms of Clause 11.2 you are not entitled to a refund in respect of the remainder of any period in respect of which your Licence or other fee was paid in advance (if applicable). If we terminate without cause (which we may do on 90 days’ written notice), then we will refund to you (to the extent you have already paid it to us), on a pro-rata basis, Licence fees paid in respect of a period following termination.
    5. Notwithstanding the above, we may suspend access to (or your licence and right to use) any part of the Software immediately without notice if:
      1. you are in breach of this Agreement; or
      2. your use of the Software has or is likely to have an adverse impact on us, our clients, or any other third party
      3. Suspension in accordance with the foregoing shall not relieve you of any of your liabilities or obligations under the Agreement.
    6. Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on written notice to the other if:
      1. the other party commits a material or persistent breach of any of its obligations under these Terms of Use and (in the case of a breach capable of being remedied) does not remedy such breach within 30 days of receiving from the other party written notice of the breach and a request to remedy it; or
      2. the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
      3. the other party 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 that other party with one or more other companies, or the solvent reconstruction of that other party; or
      4. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 11.6.2 to 11.6.3 (inclusive).
    7. Any termination of the Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
  12. Force Majeure

    1. Provided we have complied with the provisions of clause 12.3, we shall not be in breach of the Agreement nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under the Agreement that is caused by events outside our reasonable control (“Force Majeure Event”). Force Majeure Events include, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors or other third parties.Our performance under the Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.
    2. We will use reasonable commercial endeavours to mitigate the effect of any Force Majeure Event and to carry out our obligations under the Agreement in any way that is reasonably practicable despite the Force Majeure Event and to resume performance of our obligations as soon as reasonably possible.
  13. Variations

    1. We may amend these Terms of Use from time to time to the extent reasonably necessary to comply with any requirement under or change of applicable law or any regulatory requirements affecting rights and/or obligations arising from or connected with these Terms of Use, and after giving to you as much as advance written notice as reasonably possible of such amendment and the date upon which it is to be effective. If such amendment materially prejudices your interests under these Terms of Use, you may notify us that you wish to terminate the Agreement, and termination shall be effective on the date upon which such amendment to these Terms of Use would otherwise be effective between you and us, unless we notify you before that date that such amendment shall not be effective between you and us.
    2. n addition, you acknowledge that from time to time during the Term we may apply upgrades to the Software, and that such upgrades may, subject to Clause 13.3, result in changes to the appearance and/or functionality of the Software.
    3. No upgrade shall disable, delete, or significantly impair the existing functionality of the Software set out in the Specification.
    4. You shall not be subject to additional charges arising out of the application of upgrades, save where the upgrade introduces new functionality and you are given the opportunity whether to accept such new functionality and additional charges associated with such functionality (after, if applicable, any free trial period) and you subsequently do accept such new functionality. Any decision by you not to accept the new functionality will not prejudice your access to and use of the rest of the Software.
  14. General

    1. Assignment: You may not assign or sub-contract the Agreement or any rights and obligations thereunder without our prior written consent. We may assign the Agreement to our Affiliates.
    2. Notices: Except as set out in the Order:
      1. any notice under the Agreement must be in writing and must be delivered by hand or sent by recorded delivery to the address specified in the Order, or by email to the email address notified by a party for such purposes or to such other address as may have been notified by a party for such purposes; and
      2. a notice delivered by hand or by recorded delivery will be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9am on the first Business Day after delivery). A notice sent by e-mail will be deemed to have been received when sent (or, if despatch is not in Business Hours, at 9am on the first Business Day following despatch), unless the sender receives a response to the effect that the e-mail has not been received or the recipient is not available.
    3. Waiver:
      1. A failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or by law shall not constitute a waiver of that, or any other, right, power or remedy and shall not, and nor shall any single or partial exercise of any such right, power or remedy, preclude the further exercise of that, or any other, right, power or remedy.
      2. Any waiver of any right under the Agreement is only effective if it is in writing and it shall only apply to the party to whom the waiver is addressed and to the circumstances for which it is given.
    4. Severance: : If any provision, or part of a provision, of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, this shall not affect other provisions of this Agreement, which shall remain in full force and effect.
    5. Third party rights: Other than our Affiliates, a person who is not a party to the Agreement has no right or benefit under or to enforce the Agreement whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
    6. Entire agreement:
      1. These Terms of Use, the Schedules, and the Order constitute the sole and entire understanding of the parties in relation to the subject matter of the Agreement and supersede all previous agreements, representations and arrangements between the parties (either oral or written) with regard to the subject matter of the Agreement.
      2. The parties confirm that they have not entered into the Agreement on the basis of any representations that are not expressly incorporated in these Terms of Use, Schedules, or Order.
      3. Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind the Agreement for any misrepresentation in relation to the subject matter of the Agreement whether or not contained in these Terms of Use or the Order or for breach of warranty not contained in these Terms of Use or the Order unless such misrepresentation or warranty was made fraudulently.
      4. Save where expressly indicated, the Agreement may only be amended or supplemented in writing and signed by an authorised representative of both parties.
    7. Relationship: : The Agreement does not constitute, establish or imply any partnership, joint venture, agency, employment or fiduciary relationship between the Parties.
    8. Subcontracting:We may use subcontractors to discharge our obligations under the Agreement provided we remain solely responsible for such subcontractors.
    9. Remedies:
      1. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
      2. Any right or remedy expressly included in any provision of the Agreement (or the exercise of them) shall not be considered as limiting a party’s rights or remedies under any other provision of the Agreement (or the exercise of them).
    10. Governing law and jurisdiction: The Agreement is governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom, including both contractual and non-contractual disputes

SCHEDULE 1 – GLOSSARY

Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006;

Applicable Law means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice;

Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London; Business Hours means 9.00am to 5.30pm local UK time, on a Business Day;

Client Data means data and material supplied, input or uploaded by you or on your behalf (for example, the Sales Data);

Commencement Date has the meaning given in the Order;

Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood to be confidential. The term “Confidential Information” shall also include any information not publicly available concerning the products, services, finances or business of a party (including the Software);

End User means end users who are authorised by you to access and use the Software in accordance with these Terms of Use;

Fees includes Licence fees, together with On-Boarding fees (if any);

Intellectual Property Rights means any of the following rights existing in any part of the world: all patents, utility models, rights to inventions, plant variety rights, copyright and neighbouring and related rights, moral rights, rights in designs, semiconductor topography rights, trade and service marks, trade names, logos, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, domain name registrations, database rights and rights in confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered; applications to register any of those rights; rights to apply for and be granted renewals or extensions of, and rights to claim priority from, any of those rights; and any similar or equivalent rights

Order means an offer to us to purchase a licence in respect of the Software subject to these Terms of Use, by submitting a request for the Software and “Ordered” is construed accordingly;

Purpose, Application, Software, Channels, Sales Data, Platform and Tool have the meaning given in the introduction;

Service Data means metadata and other data derived from use of the Software (including aggregated data and statistics) but excluding unaggregated Client Data which has not yet been anonymised so as to no longer refer to you;

Set-Up Instructions means the instructions for setting up the Software as set out in the Order or otherwise notified by us to you in writing;

Specification means the functional and technical specification in respect of the Software from time to time available upon request by reference to this definition;

Licence fee means the fees payable to us for a licence to use Software under these Terms of Use as set out in the Order.

Licence Period has the meaning ascribed to it in clause 11.1;

Term means the duration the Agreement is in force in accordance with its terms;

Third Party means any person other than you and us;

you/your/yours means you the entity named in the Order, which is entering into the Agreement