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INTRODUCTION
PushFar has agreed to provide a licence of the Platform to Customer on the terms set out in an Order Form signed by the parties, subject to the terms and conditions of this Licence Agreement.
- Licence
1.1 PushFar grants Customer a limited, revocable, non-exclusive, non-transferable and non-sub-licensable licence to use the Platform in Territory from the Start Date to the termination of this Agreement.
1.2 Customer shall have the right to grant access to the Platform to the maximum number of Users stated on the Order Form.
1.3 The licence to use the Platform shall be limited to the Permitted Divisions.
1.4 All rights not expressly granted to Customer are reserved by PushFar.
2. Onboarding
PushFar shall provide a demonstration of the features of the Platform to key contacts within the Customer and provide training, webinars and other resources as reasonably required to encourage users to utilise the Platform.
3. Licence Fee
3.1 The Licence Fee shall be payable by Customer annually in advance on signature of this Agreement and on each anniversary. Payment for any additional users, if applicable, shall be invoiced monthly in arrears. The Licence Fee for any renewal terms shall be invoiced annually in advance.
3.2 All fees quoted in the Order Form are exclusive of sales taxes.
3.3 Customer shall pay all undisputed invoices within 30 days of receipt. All payments must be made without demand, deduction, withholding, set-off or counterclaim.
3.4 If Customer disputes an invoice it must notify PushFar within 10 Business Days of the date of receipt of the invoice.
3.5 Any undisputed amounts not paid when due will be subject to interest at a rate of 4% per annum above the Bank of England base rate, calculated on a daily basis.
3.6 After the Initial Term, Fees shall automatically increase in line with the average Consumer Price Index rate over the Initial Term or any Renewal Term on each anniversary of the Start Date.
3.7 PushFar reserves the right to increase the Fees on sixty (60) days’ written notice at any time after the expiry of the Initial Term. In the event that Customer does not accept any fee increase under this clause 3.8, it shall have the right to terminate this Agreement on 30 days’ written notice to PushFar.
4. Warranties and Disclaimer
4.1 PushFar warrants that the Platform will not infringe the Intellectual Property Rights of any third party.
4.2 Each party warrants to the other that:
4.2.1 will comply with all applicable laws including, but not limited to, the Data Protection Laws, in carrying out its obligations under this Agreement;
4.2.2 it has the full legal capacity, power and authority to enter into this Agreement;
4.2.3 this Agreement is legally binding on it and enforceable against it; and
4.2.4 its representatives are properly authorised to undertake the actions that they undertake.
4.3 Except as expressly warranted in this Agreement, and except to the extent prohibited by law, PushFar disclaims all implied representations and warranties regarding the Platform including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose. PushFar makes no representation that the Platform will be error-free, correct, accurate, complete, reliable, secure, current or up-to-date.
4.4 Customer acknowledges that it has not relied on any representation made by PushFar which has not been expressly stated in this Agreement (including any descriptions or specifications contained in any document made available by PushFar outside of this Agreement).
5. Data Protection and Security
5.1 The parties agree to be bound by the terms of the Data Processing Agreement.
5.2 Customer shall ensure (and will procure that each User shall ensure) that it will not:
5.2.1 introduce any publicly known malware to the Platform;
5.2.2 decompile, disassemble, translate, replicate or otherwise reverse engineer any portion of the Platform, including any source code, object code, algorithms, methods, processes or techniques used or embodied in them;
5.2.3 seek to circumvent or violate any data security measures employed by PushFar;
5.2.4 attempt to test the vulnerability of the Platform or otherwise attempt to breach PushFar’s security processes; or
5.2.5 share any login details to access the Platform with third parties.
6. Indemnity
6.1 PushFar shall indemnify Customer and its Affiliates and each of their respective directors, officers, contractors, authorised representatives, agents and employees against any claim or loss resulting from PushFar’s breach of clauses 4.1 and 10.
6.2 Customer shall indemnify PushFar and hold PushFar and its Affiliates and each of their respective directors, officers, contractors, authorised representatives, agents and employees against any claim or loss resulting from Customer’s breach of clauses 4.2 and 10.
6.3 The obligations under the foregoing indemnities are subject to the condition that the indemnified party gives the indemnifying party prompt written notice of any claim or action for which indemnity is sought, gives the indemnifying party control of the defence and provides all reasonable co-operation to the indemnifying party.
7. Limitation of Liability
7.1 Notwithstanding any other clause in this Agreement but subject to clause 7.3, each party’s maximum aggregate liability to the other party and its Affiliates for any claim or loss arising directly or indirectly in connection with this Agreement shall be capped at the amount of Licence Fees actually paid to PushFar by Customer in the 12 months preceding the date of the claim.
7.2 Notwithstanding any other clause in this Agreement but subject to clause 7.3, neither party shall be liable to the other party or its Affiliates for any consequential, special, incidental, or indirect damages or loss of profits arising from or related to this Agreement, under any cause of action or theory of liability and irrespective of whether the party has been advised of the possibility of any such loss or damage.
7.3 Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation or any matter which cannot be limited or excluded by law.
8. Term and termination
8.1 This Agreement shall continue in full force and effect for the Initial Term after which it shall automatically renew for additional periods of 12 months (each a “Renewal Term”) unless either party provides the other with at least ninety (90) days’ written notice prior to the commencement of a renewal term. On each renewal PushFar shall invoice the Customer for the subsequent Licence Fee annually in advance.
8.2 This Agreement may be terminated by either party immediately on written notice to the other if:
8.2.1 the other party materially breaches any of its obligations under this Agreement (including non-payment of Licence Fees) and such breach remains uncured for 30 days following receipt of written notice by the non-breaching party; or
8.2.2 the other party is insolvent or subject to a winding up petition.
8.3 Upon termination of this Agreement for any reason, the licence granted under this Agreement and Customer’s access to and use of the Platform shall immediately cease.
8.4 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
8.5 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
9. Suspension
9.1 PushFar may, in its sole discretion, suspend access to the Platform or provision of the Services without liability to Customer:
9.1.1 if Customer is in breach of this Agreement;
9.1.2 if an event of Force Majeure occurs; or
9.1.3 if it has any reasonable systems or security concerns; or
9.1.4 due to any scheduled or emergency maintenance, system updates or upgrades to the Platform (but will endeavour to undertake any scheduled outages outside of working hours).
9.2 PushFar will give as much notice to Customer of any suspension as it considers reasonable in the circumstances.
10. Confidentiality
The parties agree to treat all information that should reasonably be considered as confidential, including, without limitation, trade secrets, technology, information relating to business operations and strategies, and information relating to customers, pricing and marketing (“Confidential Information”) in the strictest confidence. Neither party shall disclose any Confidential Information unless they have received the prior written consent of the other party, it is required by law or an applicable regulator, or the information is already in the public domain.
11. Intellectual Property
11.1 Nothing in this Agreement assigns or transfers to the Customer any rights, title or interest (including any Intellectual Property Rights) in the Platform.
11.2 All Intellectual Property developed or created by PushFar during the Term in connection with this Agreement shall be owned by PushFar. Customer hereby assigns all right, title and interest in and to such Intellectual Property to PushFar with full title guarantee.
11.3If at any time all or any part of the Platform becomes subject to any infringement claim, PushFar may, at its own expense and option, elect to:
11.3.1 modify or replace the affected software so that it is non-infringing; or
11.3.2 obtain for Customer the right to continue using the Platform.
11.4 If neither of the options at clause 11.3 are, in PushFar’s opinion, commercially reasonable, PushFar shall have the right to terminate this Agreement on written notice.
12. Marketing Activities
During the Term, PushFar may refer to Customer in its marketing, promotional, and other communications, including placing a copy of Customer's logo or other trade marks on PushFar's website(s) to identify Customer as a customer and issuing a press release.
13. Miscellaneous
13.1 All notices shall be in writing and delivered by post or email to the address of the respective party on the Order Form. Any notice delivered by post must also have a copy sent via email.
13.2 This Agreement, including the Order Form, constitutes the entire agreement between the parties about its subject matter. In the event of any conflict between the Terms and Conditions and any Order Form, the Order Form shall take precedence.
13.3 PushFar may from time to time make updates to these terms and conditions. Pushfar shall notify Customer of any material updates before they come into effect.
13.4 Neither party may assign this Agreement without the other party’s prior written consent (not to be unreasonably withheld) provided that assignments incidental to a sale of all or substantially all assets by either party shall not require any such consent and, in the case of PushFar, assignment to an Affiliate shall not require any such consent. PushFar shall have the right to sub-contract any of its obligations under this Agreement provided that PushFar remains solely liable to Customer for the provision of any such obligations in accordance with this Agreement.
13.5 If any clause is held by a court to be unenforceable, that clause shall be deleted from this Agreement.
13.6 A party’s delay to pursue remedies for a default does not amount to a waiver of any obligation of the other party.
13.7 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Each party to this Agreement is an independent contractor and neither party has any authority to bind the other.
13.8 This Agreement is governed by English law and is subject to the exclusive jurisdiction of the courts of England.
14. Definitions
Affiliate means any company, corporation, partnership or other business organization or entity which, directly or indirectly, controls, is controlled by, or is under common control with another company, corporation, partnership or entity;
Agreement means these terms and conditions and the Order Form;
Applicable Data Protection Laws shall be as defined in the Data Processing Agreement;
Business Day means any day that is not a Saturday, a Sunday or other day on which banks are required or authorised by law to be closed in England and Wales;
Confidential Information shall be as defined in clause 10;
Consumer Price Index means the consumer price index published by the Office for National Statistics in the UK;
Data Processing Agreement means the terms available at https://support.pushfar.com/knowledge-base/data-processing-agreement
Force Majeure means any circumstances beyond a party's control including strikes or industrial disputes, acts of God, acts of government, refusal of licence, failures or outages of any utilities (including telecommunications and data communication equipment or services), denial of service attacks, fire, explosion, floods, cyclone, tsunami or other extreme weather events, aircraft unserviceability or unavailability, war, terrorism or civil disturbance, or impossibility of obtaining material and/or data;
Initial Term means the period of time from the Start Date as set out on the Order Form;
Intellectual Property means all intellectual property rights including patents, trade secrets, trade marks, service marks, trade or business names, copyright and other rights in works of authorship (including rights in computer software), rights in logos and get up, inventions, ideas, algorithms, processes, specifications, moral rights, design rights, domain names, know-how, database rights and semi-conductor topography rights, software, source and object code and all intangible rights and privileges of a similar nature analogous or allied to any of the above in every case whether or not registered or unregistered, the right to sue for passing off or unfair competition and all rights or forms of protections of a similar or equivalent form in any relevant jurisdiction and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Licence Fees means the fees as set out on the Order Form;
Order Form means the order form entered into between PushFar and Customer;
Permitted Brands shall be as specified on the Order Form;
Permitted Divisions shall be specified on the Order Form;
Personal Data shall be as defined in the Data Processing Agreement;
Renewal Term shall be as defined in clause 8.1;
Start Date means the date specified on the Order Form;
Term means the Initial Term plus any Renewal Terms;
Territory shall be specified on Order Form; and
User means an employee or contractor of Customer who has been granted a login to access the Platform by Customer.