Website Terms & Conditions
Last updated: October 26th, 2020
These terms & conditions set out the terms between you the user and us the website owner. If you use of this website and any service contained within, you are agreeing to accept and be bound by these terms & conditions. Please do not use this website if you do not accept any part of these terms and conditions.
The term Kinesis CI or “us” or “we” refers to the owner of the website whose registered office is Number 22, Mount Ephraim, Tunbridge Wells, Kent TN4 8AS, United Kingdom. Our company registration number is 10911924. The term “you” refers to the user or viewer of our website.
2. Customer Information
2.1. Our website is only intended for use by adults.
2.2. We reserve the right to restrict or remove your access to this website where you breach these terms and conditions. Such restriction or removal will take place without recourse or explanation to you where we solely deem it appropriate or necessary.
4. Use of our website
4.1. You can access the content, information and services contained within our website for personal use only.
4.2. You may download and cache (using your browser) individual pages from our website, however you may not modify individual pages or substantial parts of our website.
4.3. Our website design, layout, content or text cannot be copied, edited or otherwise manipulated or be placed within the frame-set of another site.
4.4. Our website is only intended for use by adults.
5.1. This website and all of its content, including but not limited to logos, graphics, icons, layout is our copyright.
5.2. Any redistribution or reproduction of part or all of the contents in any form is prohibited other than with our express prior written permission.
6. Limitations and Exclusions of Liability
6.1. The website kinesis-ci.com is provided on an ‘as is’ basis. The information contained in this website is for general information purposes only. We endeavour to keep the information up to date and correct, however we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance on such information is therefore s trictly at your own risk.
6.2. Nothing on this website constitutes, or is meant to constitute, advice of any kind.
6.3. In no event will we be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits, anticipated savings, contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data arising out of, or in connection with, the use of this website.
6.4. Through this website you are able to link to other websites which are not under our control. We have no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.
6.5. Every effort is made to keep the website up and running, however we take no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues.
By your use of our website you hereby indemnify us and undertake to keep us indemnified at all times against all possible claims relating to any breach of these terms and conditions by you. Such indemnities to include, (but not be limited to) all costs legal and otherwise, all other expenses, damages or settlements arising from your breach of these terms and conditions.
We reserve the right to alter these terms and conditions at any time, without prior notice. Such altered terms and conditions shall automatically apply to the use of our website from the date of publication on our website.
We reserve the right to assign our rights and also our obligations under these terms and conditions, without giving notice to you. This right of assignment shall only apply to us and shall not apply to you in any way.
The foregoing paragraphs, sub-paragraphs and clauses of these terms and conditions shall be read and construed independently of each other. Should any part of this agreement or its paragraphs, sub-paragraphs or clauses be deemed invalid it shall not affect the remaining parts of the agreement.
11. Entire Terms and Conditions
These terms and conditions set out the entire agreement and understanding between you and us.
12. The Consumer Rights Act 2015
These Terms and Conditions are specifically written in accordance with the Consumer Rights Act 2015. Should these Terms and Conditions conflict with the Act, the Consumer Rights Act 2015 shall prevail and apply.
13. Your Statutory Rights
Where acting as a consumer your statutory rights are unaffected.
This agreement shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
Last updated: October 26th, 2020
This policy may change from time to time and any changes to the statement will be communicated to you by way of an e-mail or a notice on our website.
The term “Site” refers to the https//kinesis-ci.com website.
The term Kinesis CI or “us” or “we” refers to the owner of the website whose registered office is Number 22, Mount Ephraim, Tunbridge Wells, Kent TN4 8AS, United Kingdom. Our company is registered by the Companies House England and Wales with registration number 10911924. The term “you” refers to the user or viewer of our website.
The term “Software” or “Kinesis CI Software” refers to Kinesis CI’s Tableau Testing software solution.
We are committed to protecting our customer privacy and takes its responsibility regarding the security of customer information very seriously. We will be clear and transparent about the information we are collecting and what we will do with that information.
This Policy sets out the following:
- What personal data we collect and process about you in connection with your relationship with us as a customer or potential customer;
- Where we obtain the data from;
- What we do with that data;
- How we store the data;
- Who we transfer/disclose that data to;
- How we deal with your data protection rights;
- And how we comply with the data protection rules.
All personal data is collected and processed in accordance with UK and EU data protection laws.
2. Data Controller
We are the data controller responsible for your personal data.
3. What Data we Collect
We only hold the data necessary to offer services provided by us.
We may collect the following information:
- Information you give us “Submitted Information”: This is information you give us about you by filling in forms in our Kinesis CI Software and/or the Site, or by corresponding with us (for example, by e-mail). It includes information you provide when you download and register to use the Software, participate in discussion boards or other social media functions on the Site, and when you report a problem with the Software or the Site or any other service we provide. If you contact us, we will keep a record of that correspondence. The information you give us may include your name, e-mail address, phone number, company name, job title.
- Preferences, interests and questions regarding our products and services.
- Information we collect about you and your device. Each time you visit our Site we will automatically collect the following information: technical information, including your, browser type and version, time zone setting, browser plug-in types and versions, operating system and platform.
- Information about your visit, including the full uniform resource locators (URL), page response times, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs), methods used to browse away from the page, device information.
- When you generate or renew a license related to our Software, we will collect technical information, including the MAC address of the Device, operating system, time and date when the license was generated.
- Other information relevant to customer offers.
4. What we do with the information we gather
We require this information to understand your needs and provide you with a better service, and in particular for the following reasons:
- Internal record keeping.
- We may use the information to improve our products and services.
- We send you communications about the services you have asked for and any changes to such services. These communications are not made for marketing purposes and cannot be opted-out of.
- We may periodically send promotional emails about new products, special offers or other information which we think you may find interesting using the email address which you have provided. All subscription emails sent by us contain clear information on how to unsubscribe from our email service.
- From time to time, we may also use your information to contact you for market research purposes. We may contact you by email or phone.
We will only process your personal data where we have a legal basis to do so. The legal basis will depend on the reasons we have collected and need to use your personal data for.
In most cases we will need to process your personal data so we can enter into a contract to provide Kinesis CI Software and related services.
5. Data Security
We follow strict security procedures in the storage and disclosure of your personal data, and to protect it against accidental loss, destruction or damage.
6. Data Storage
For administrative reasons data may be passed to and stored securely with third party service providers located outside the EEA (European Economic Area).
7. Controlling your Personal Information
- Government authorities, law enforcement bodies, regulators for compliance with legal requirements;
- Trusted service providers we are using to run our business such as cloud service and e-mail marketing service providers assisting our marketing team with running customer surveys and providing targeted marketing campaigns;
- Legal and other professional advisers, law courts and law enforcement bodies in all countries we operate in, in order to enforce our legal rights in relation to our contract with you;
In accordance with the Privacy and Electronic Communications (EC Directive) Regulations 2003, we never send bulk unsolicited emails, (popularly known as Spam) to email addresses.
9. Email Content
All emails sent by us will be clearly marked as originating from us. All such emails will also include instructions on how unsubscribe from our email service and any future emails.
Our website uses ‘cookies’ to track use of our website. Please see our Cookies Policy.
11. Your Data Protection Rights
Under certain circumstances, by law you have the right to:
- Request information about whether we hold personal information about you, and, if so, what that information is and why we are holding/using it.
- Request access to your personal information (commonly known as a “data subject access request”). This enables you to receive a copy of the personal information we hold about you and to check that we are lawfully processing it.
- Request correction of the personal information that we hold about you. This enables you to have any incomplete or inaccurate information we hold about you corrected.
- Request erasure of your personal information. This enables you to ask us to delete or remove personal information where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal information where you have exercised your right to object to processing (see below).
- Object to processing of your personal information where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground. You also have the right to object where we are processing your personal information for direct marketing purposes.
- Object to automated decision-making including profiling, that is not to be subject of any automated decision-making by us using your personal information or profiling of you.
- Request the restriction of processing of your personal information. This enables you to ask us to suspend the processing of personal information about you, for example if you want us to establish its accuracy or the reason for processing it.
- Request transfer of your personal information in an electronic and structured form to you or to another party (commonly known as a right to “data portability”). This enables you to take your data from us in an electronically useable format and to be able to transfer your data to another party in an electronically useable format.
- Withdraw consent.In the limited circumstances where you may have provided your consent to the collection, processing and transfer of your personal information for a specific purpose, you have the right to withdraw your consent for that specific processing at any time. Once we have received notification that you have withdrawn your consent, we will no longer process your information for the purpose or purposes you originally agreed to, unless we have another legitimate basis for doing so by law.
If you want to exercise any of these rights, then please send an e-mail to firstname.lastname@example.org, or contact our DPO by post at our registered office.
You will not have to pay a fee to access your personal information (or to exercise any of the other rights). However, we may charge a reasonable fee if your request for access is clearly unfounded or excessive. Alternatively, we may refuse to comply with the request in such circumstances.
We may need to request specific information from you to help us confirm your identity and ensure your right to access the information (or to exercise any of your other rights). This is another appropriate security measure to ensure that personal information is not disclosed to any person who has no right to receive it.
We try to respond to all legitimate requests within one month. Occasionally it may take us longer than a month if your request is particularly complex or you have made a number of requests. In this case, we will notify you and keep you updated.
12. Contact Us
Subscription License Agreement (“Agreement”)
PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION LICENSE AGREEMENT (“SUBSCRIPTION AGREEMENT”) CAREFULLY BEFORE OPENING, DOWNLOADING, OR INSTALLING, THE SOFTWARE COVERED BY THIS AGREEMENT. THEY CONSTITUTE INTELLECTUAL PROPERTY OWNED OR CONTROLLED BY GB AND SMITH LTD (“LICENSOR”), AND ARE LICENSED (NOT SOLD) TO YOU. IF YOU DOWNLOAD, OPEN, OR INSTALL THE SOFTWARE, OR HAVE PAID THE LICENSE FEE SPECIFIED IN A SUBSCRIPTION QUOTATION FOR THE SOFTWARE THAT LICENSOR SUPPLIED TO YOU, YOU ARE INDICATING THAT YOU HAVE ACCEPTED AND AGREED TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT AND THE SUBSCRIPTION QUOTATION. IF YOU ARE NOT WILLING TO BE SO BOUND, YOU SHOULD STOP USING THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE AND DESTROY ANY COPIES IN ANY FORM. LICENSOR AND YOU ARE COLLECTIVELY REFERRED TO AS THE “PARTIES,” AND EACH INDIVIDUALLY AS A “PARTY.”
1.1 “The Software” or “Software” means the software program and related Documentation covered by this Agreement and known as Kinesis CI.
1.2 “You” or “you” or “your” means the individual or entity seeking to use the Software.
1.3 “Authorised User” means those individuals for whom the applicable license fees have been paid and are authorised by you to install and/or use the Software.
1.4 “Documentation” means the applicable documentation of the technical specifications and any product help provided by Licensor, published on Licensor website or any other domain and updated from time to time.
1.5 “Subscription Quote” means any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement.
2. SOFTWARE PLANS
Licensor makes available the Software through evaluation version (“Evaluation Version”) and paid plans (“Plan”). Your specific Plan will be identified in the Subscription Quote presented when you order or pay the Software. Your permitted scope of use, such as features available, and the number of Authorised Users depends on your selected Plan and will be specified on the applicable Subscription Quote.
3. GRANT OF LICENSE
Licensor hereby grants to you, and you accept, a non-exclusive, non-transferable, license to use the Software in object code form (and not in source code form) only as set forth in this Subscription Agreement.
Licenses are granted on an Authorized User basis and may be reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of a single license between multiple users. The total number of Authorised Users who can use the Software must not exceed the number of licenses purchased.
4. ELECTRONIC DELIVERY
Software shall be delivered by electronic means. Software shall be deemed delivered when it is made available for you to download.
5. PERMITTED USE
This Subscription Agreement authorises you to load the Software into and use it on a single computer which is under your control. If you wish to transfer the Software from one computer to another, you must erase the Software from the first hard drive before you install it onto a second hard drive.
This transaction is a license, not a sale. You receive no title to or ownership of the Software or of any copy, and receive no rights to the Software other than those specifically granted in this Section. Without limiting the generality of the foregoing, you will not:
(i) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software;
(ii) permit third parties to exploit the Software in any manner, for example, as in a service bureau;
(iii) enable access to the Software for a greater number of Authorised Users than the total quantity of licenses purchased or reassign license rights between Authorised Users so frequently as to enable a single license to be shared between multiple users;
(iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’ source code; or
(v) use the Software outside the Licensor license pool specified in the Subscription Quote.
You acknowledge and agree that the Software is proprietary to Licensor. You further acknowledge and agree that all right, title, and interest in and to the Software, including associated intellectual property rights, are and shall remain with Licensor.
7. EVALUATION VERSION
If you downloaded the Software from Licensor website and ordered a trial license (“Trial License”) to the Evaluation Version (“Evaluation Version”) of the Software, you may install and use one copy of the Evaluation Version Software solely for the purpose of evaluating the Software to determine whether to purchase a non-Evaluation Version copy of the Software. You may not use the Evaluation Version for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. You may only use the Evaluation Version for fifteen (15) days from the date you activate and/or register the Trial License. Unless you pay the applicable license fee for the Software, the Evaluation Version may become inoperable and, in any event, your right to use the Evaluation Version Software automatically expires at the end of the Evaluation Period. Notwithstanding any other provision of this Agreement, the Evaluation Version Software is provided “as is” without warranty or support of any kind, express or implied.
8. LICENSE FEE
There are no fees associated with the Evaluation License.
Subscription fees are based on the number of Authorised Users and on the size of your Tableau license pool on the date of the initial purchase order as specified in the original subscription price quotation (Quote). If your Tableau license pool increases in size, you are responsible for notifying Licensor or Authorized Reseller of the increase and accepting the terms of a modified Quote in order to remain in compliance with the terms of this Agreement. You shall pay Licensor or Authorized Reseller the fee(s) shown in the original or modified Quote, whichever is most recent, in accordance with all applicable terms and conditions. You shall pay, in addition to all other amounts owed to Licensor or Authorized Reseller, interest calculated at the rate of one and one-half percent (1.5%) per month, prorated for partial periods, on all amounts that are past due until paid. You hereby confirm acceptance of the value, terms, and conditions of the original or modified Quote, whichever is most recent.
If, for any reason, you elect to terminate or fail to renew the annual subscription contract, your access to the software and associated support services including, but not limited to, bug corrections, upgrades, major upgrades, custom support, and technical improvements will be suspended 30 (thirty) days after the end of the subscription period.
If, after terminating or failing to renew the annual subscription contract, you elect to renew the subscription contract within 90 days of the end of the subscription period, you will be subject to any and all fees that would have been due if coverage had continued without interruption in addition to subscription fees for the upcoming period. Renewals will not be allowed more than 90 days after the end of the subscription period, and former Customers will be required to purchase new subscriptions at the going rate.
After the first year of the Term, Licensor may increase subscription fees no more than once per year in an amount not to exceed the lesser of (i) three percent (3%) or (ii) the percentage increase in the Consumer Prices Index (CPI) for the immediately preceding calendar year.
9. INTELLECTUAL PROPERTY
GB & SMITH and 360Suite are trademarks of Licensor. The Software is protected by the U.S. Patent 8,955,148 and other patents pending, and under applicable trade secret and copyright law. No right, license, or interest in such trademarks, patents, trade secrets, copyrights are granted hereunder, and you agree not to assert any such right, license, or interest.
The Software includes software components which are licensed from third parties, including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Subscription Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
10. LIMITED WARRANTY
THE SOFTWARE IS LICENSED “AS IS,” AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT ERROR OR THAT IT WILL RUN WITHOUT IMMATERIAL INTERRUPTION. LICENSOR PROVIDES NO WARRANTY REGARDING, AND WILL HAVE NO RESPONSIBILITY FOR ANY CLAIM ARISING OUT OF: (I) A MODIFICATION OF THE SOFTWARE MADE BY ANYONE OTHER THAN LICENSOR, UNLESS LICENSOR APPROVES SUCH MODIFICATION IN WRITING; OR (II) USE OF THE SOFTWARE IN COMBINATION WITH ANY OPERATING SYSTEM NOT AUTHORIZED OR WITH UNAUTHORIZED HARDWARE OR SOFTWARE.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL LICENSOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE TO LICENSOR PURSUANT TO THIS AGREEMENT FOR THE PRIOR TWELVE MONTHS (INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SUBSECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF LICENSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Licensor shall be excused from responsibility for any delay, interruption, error, or malfunction resulting from natural disaster, transportation problems, defects, or malfunctions of third-party software, hardware, or communications; your acts or omissions or other persons not supervised by Licensor; and other acts, events, or circumstances beyond its reasonable control, whether or not foreseeable or identified. If applicable law limits the application of the provisions of this Section 8, Licensor’s liability will be limited to the maximum extent permissible.
12. TERM AND TERMINATION
(a) Term. The Subscription License will remain in effect for as many months as are specified in the Subscription Quote, commencing on the date you pay the fee listed in the Subscription Quote. At the end of the initial Term and each Renewal Term, the License will automatically renew for successive twelve (12) month periods in accordance with the terms of the Subscription Quote (each a “Renewal Term”), unless either party refuses such renewal by written notice to the other party, provided 90 or more days before the end of the then-current term.
(b) Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days unless the other party first cures such breach.
(c) Effects of Termination. Upon termination for cause of this Agreement set forth in section 12(b), the licenses granted herein will terminate and you must cease all use of the Software and delete all copies in its possession or control.
(a) Description of support services relating to the Software:
- HOTLINE. Licensor will provide a hotline associated with the Software, consisting of a website that permits you to open tickets online.
- ERRORS vs BUGS. Licensor will assess Errors and Bugs in the Software. Upon discovery of any Error, you shall promptly use the hotline website to open a ticket and provide Licensor with a comprehensive written description of the Error, as well as such additional information as Licensor may reasonably request to assist with the verification and resolution of the Error.
- An “Error” means a reported and verifiable failure of the Licensed Software that has a significant adverse effect on the Software’ functionality and on your operations.
- But, an Error does not include an effect:
- That does not meet the foregoing standard, or
- That results from changes or additions to the Software or to the operating environment not made or approved by Licensor, from issues caused by your personnel or contractors, or by malfunctions or defects of third-party software, hardware, or operating environment.
- An “Error” means a reported and verifiable failure of the Licensed Software that has a significant adverse effect on the Software’ functionality and on your operations.
- A “Bug” shall be anything that has an adverse effect on the Software’ functionality, but is not significantly adverse to be characterized as an Error.
- ERROR FIX. After you have supplied the foregoing information, if Licensor then verifies the existence of an Error, then Licensor will address the issue in a workmanlike manner, within reasonable industry standards to provide an Error Fix in such time and in such manner as is reasonable in light of the type of nonconformity, and its effect on your installation site operations. For example, if a work-around is available, Licensor will ask you to use that work-around pending any Error Fix.
- BUG FIX. If Licensor verifies the existence of a Bug, Licensor will add it to its list of Bugs that may be addressed with a Bug Fix by its next scheduled Revision or New Release. Also, if a work-around is available, Licensor will ask you to use that work-around pending any Bug Fix.
- REVISIONS AND NEW RELEASES THAT ARE NOT MAJOR UPGRADES. Licensor will supply Revisions and New Releases for the Software that do not constitute Major Upgrades. The timing and content of these is entirely within Licensor’s sole discretion. “Revisions” and “New Releases” mean any work that includes, derives from, or combines some or all of an existing work, including any revision, modification, translation, abridgement, condensation, expansion, or any other form in which such pre-existing work or any part thereof may be recast, transformed, or adapted .
- MAJOR UPGRADES. Licensor will supply New Releases for the Software that do constitute Major Upgrades. The timing and content of these is entirely within Licensor’s sole discretion.
- APPLICABILITY OF SUBSCRIPTION AGREEMENT. This Agreement shall continue to apply to all Error Fixes, Bug Fixes, Revisions, New Releases and Major Upgrades.
(b) Limitations on support:
- Support applies only to Software that has not been modified.
- You must use your support account to submit in writing to the Licensor’s support website (https://support.360suite.io/) all requests for enhancements, bug fixes or error fixes.
- Licensor reserves the right to decide whether or not to undertake development of “Enhancements”, meaning changes or additions to the Software requested by Licensee but outside the scope of this Subscription Agreement. If the Licensor agrees to undertake development of Enhancements, it will use reasonable efforts in the nature of professional services and under a separate written agreement providing for scope, fees, costs and other applicable elements. Enhancements will carry no warranty (other than title) unless expressly agreed in writing by Licensor.
- See also Sections 10 and 11.
Licensor shall provide you with two levels of software support, depending on the version of Tableau in use by you.
If you are using a version of Tableau that still qualifies for technical support (https://www.tableau.com/support/services section Supported Versions), then Software’ support will include:
- Responses to technical questions
- Troubleshooting of technical issues
- Bug fixes
If you are using a version of Tableau that no longer qualifies for technical support, then Software’ support will include:
- Response to technical questions
- Troubleshooting of technical issues, excluding issues caused by an unsupported version of Tableau
- Bug fixes, excluding bugs associated by an unsupported version of Tableau.
- A detailed Scope of Support presentation is available for download on the Licensor support website (https://support.360suite.io/). This presentation explains exactly what is included and what is not included.
14. CONFIDENTIAL INFORMATION
14.1 Parties agree that all any information, including but not limited to any kind of business, financial, commercial or technical information, know-how and data which has been or will be disclosed by the disclosing party (“Disclosing Party”) to the receiving party (“Receiving Party”) in connection with the Software, constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that at the time of disclosure the information has been identified as confidential by the Disclosing Party, or due to the nature of the information or the circumstances surrounding the disclosure, should be known as be confidential by the Receiving Party, acting reasonably. For the avoidance of doubt Confidential Information includes pricing, documentation or technical or performance information disclosed by Licensor, relating to the Software, and the terms of this Agreement.
14.2 Confidential Information may not be distributed, disclosed, or disseminated in any way or form by you to anyone.
14.3 The nondisclosure obligation shall not apply to information that
- was publicly available at the time it was disclosed to the Recipient or which, through no act or omission of the Recipient, becomes publicly available before the Recipient discloses it to a third-party;
- the Recipient already rightfully possessed, without obligation of confidentiality, before the Discloser disclosed it to the Recipient;
- the Recipient rightfully receives without obligation of confidentiality from any unrelated third-party;
- the Recipient develops independently without reliance upon or use of the Confidential Information;
- is disclosed with Discloser’s prior written approval;
- is independently developed by you without the benefit of any of the Confidential Information as evidenced by written documentation; or
- is required to be disclosed by law, regulation or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to Licensor).
Each Party acknowledges that the Confidential Information of the other constitutes the valuable trade secrets of that Party and that any use or disclosure by the Recipient of such Confidential Information in a manner not authorized by this Agreement may cause irreparable harm to the Discloser that could not be fully remedied by monetary damages. Each Party therefore agrees that the other Party may specifically enforce this Agreement and shall be entitled, in addition to any other remedies available to it at law or in equity, to seek such injunctive or other equitable relief as may be necessary or appropriate to prevent such unauthorized use or disclosure without the necessity of proving actual or irreparable damage by reason of any such unauthorized use or disclosure.
15. AUDIT RIGHTS
Licensor may audit your use of the Software on five (5) days’ advance written notice. You will cooperate with the audit, including by providing access to any books, computers, records, or other information that relates or may relate to use of the Software. Such an audit will not unreasonably interfere with your business activities. In the event that an audit reveals unauthorized use of the Software, you will reimburse Licensor for the reasonable cost of the audit, in addition to such other rights and remedies as Licensor may have.
Licensor may process personal data collected via the Licensor Software for the purposes of maintaining and improving the Licensor Software and providing support related to the Licensor Software. Processing may include measuring and analyzing Customer usage of the Licensor Software, and conducting surveys related to the Licensor Software.
17. GOVERNING LAW AND ARBITRATION
This Agreement shall be construed and governed in accordance with the laws of England & Wales without reference to conflict of laws principles. Any controversy, dispute or question between the parties or arising out of, in connection with, or in relation to this Agreement or its interpretation, performance or nonperformance, or any breach thereof shall be determined by arbitration conducted in England.
(a) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(b) Interpretation. In the event of any conflict between the terms of this Agreement and the Subscription Quote, the terms of this Agreement will govern. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(c) Survival after termination. The following provisions will survive termination of this Agreement: (i) any of your obligation to pay for services rendered before termination; (ii) Sections 9, 10, 11, and 15 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfil its essential purpose.
(d) Notices. Notices pursuant to this Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, or by certified mail return receipt requested.
(i) For Licensor:
GB and Smith LTD
Number 22, Mount Ephraim,
Tunbridge Wells, Kent TN4 8AS
(ii) For you: The address set forth in the Subscription Quote
(e) Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that (i) either party may assign this Agreement to the surviving party in a merger of that party into another entity and (ii) the Licensor may assign the Subscription Agreement to any Subsidiary. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
For the purposes of this article “Subsidiary” means a company held at least at 50% plus one share by the Licensor.
GB and SMITH Ltd.
Number 22, Mount Ephraim,
Tunbridge Wells, Kent TN4 8AS