This agreement (Agreement) between you (Licensee or you) and Techdept Limited of 1 -037 Electric Works Sheffield Digital Campus, Sheffield, South Yorkshire, UK, S1 2BJ
(Licensor, us or we) sets out the basis upon which we are granting you a licence to access and use the Tidybrand computer software (Software) through our website at
We are granting you a licence the access and use the Software on the basis of this Agreement. We do not sell the Software to you and we remain the owners of the Software at all times.
WE RESERVE THE RIGHT, AT ANY TIME, TO MODIFY THIS AGREEMENT OR THE SOFTWARE OR THE SERVICES THAT YOUR ARE ACCESSING VIA THE SITE. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD (AND AGREE TO BE BOUND BY) THIS AGREEMENT NOW AND EVERY TIME YOU ACCESS OR USE THE SOFTWARE. BY CONTINUING TO ACCESS OR USE THE SOFTWARE YOU ACCEPT ANY REVISED VERSION OF THIS AGREEMENT, THE SOFTWARE OR THE SERVICES.
- 1. USE OF THE SITE
- 1.1 The Site has been compiled to provide you with information on Tidybrand. While we have made all reasonable efforts to provide accurate information we do not warrant or represent its accuracy or completeness and we reserve the right to make changes to it at any time without notice.
- 1.2 Without prejudice to any other term of this Agreement we accept no responsibility or liability for any losses or damages of any kind arising out of the use of any information contained on the Site, to the extent permitted by law. The information is copyright to us. You are free to download it for your personal use but you may not reproduce it for any other purpose without our express consent.
- 2. GRANT AND SCOPE OF LICENCE
- 2.1 In consideration of the ongoing payment by you of the agreed licence fee (Licence Fee) in accordance with the terms of this Agreement and you agreeing to abide by the terms of this Agreement, we hereby grant to you a non-exclusive, non-transferable right and licence to access and use the Software on the terms of this Agreement.
- 2.2 You may:
- (a) access and use the Software for your normal business purposes; and
- (b) receive and use any free supplementary software code or updates of the Software incorporating "patches" and corrections of errors as may be provided by us from time to time.
- 2.3 You shall pay the Licence Fee monthly in advance, together with any other fees that we notify to you for services provided on or before the date on which they are stated to be due, in such manner as we may notify to you from time to time.
- 2.4 The Licence Fee may be subject to change at any time provided we give you at least 30 days notice of such change in accordance with the terms of this Agreement.
- 2.5 If you are being granted access to the Software on the basis of a free trial you agree to be bound by all of the terms and conditions of this Agreement other than the obligation to pay the Licence Fee during the free trial period. We will notify you at the end of the free trial period, following which you will be able to upgrade to a paying plan. If you do not upgrade your access to the Software will terminate at the end of such period and the relevant provisions of this Agreement shall apply accordingly.
- 2.6 Each package for accessing the Software enables you to use a certain amount of storage space and the cost is based upon the assumption that you will use the Software in a fair way. If you exceed the level applicable to your package or use the Software in a manner that we do not consider constitutes fair usage we will notify you and, if such use continues, may at our sole discretion, charge you for such excessive or unfair usage.
Except as expressly set out in this Agreement or as permitted by any local law, you undertake:
- (a) not to copy the Software;
- (b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
- (c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
- (d) not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
- (i) is used only for the purpose of achieving inter-operability of the Software with another software program; and
- (ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
- (iii) is not used to create any software which is substantially similar to the Software;
- (e) save as permitted in accordance with this Agreement not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person;
- (f) not to upload, post, host or transmit unsolicited email, SMS or other messages or illegal, offensive or illicit content;
- (g) not transmit or upload any worms, viruses, trojan horses or other destructive programs or code; or
- (h) not to act in any other way which we do not consider constitutes fair usage of the Software.
4. INTELLECTUAL PROPERTY RIGHTS
- 4.1 You acknowledge that all Intellectual Property Rights in the Software and in relation to the Site anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Site other than the right to use them in accordance with the terms of this Agreement.
- 4.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
- 4.3 For the purpose of this Agreement Intellectual Property Rights shall include all patents, copyrights, design rights, trade marks, logos, interface designs, service marks, trade secrets, know-how, database rights, domains names and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
5. DEFECTS OR FAULTS
- 5.1 If you notify us in writing of any defect or fault in the Software which in our opinion means that it fails to perform substantially in accordance with the purpose for which it was developed, we will, use reasonable endeavours to remedy such defect or fault.
- 5.2 Condition 5.1 shall not impose any obligation on us if the defect or fault in the Software:
- (a) results from you having amended the Software;
- (b) results from you having used the Software other than for the purposes for which it was developed or;
- (c) arises because the Software is not being used in accordance with the terms of this Agreement or otherwise as a result of any breach of this Agreement by you.
- 5.3 We do not warrant that:
- (a) access to or use of the Software or the Site will be uninterrupted, secure or error of bug-free or
- (b) we will be able to fix any defects or faults in the Software.
- 6. USER ACCESS
- 6.1 During the term of this Agreement you are entitled to grant access to third parties to enable them to access the Software for the purpose for which it was designed and is being licensed to you including, without limitation, uploading, reviewing and accessing digital material. You shall ensure that before accessing or using the Software each end-user enters into and accepts obligations on them no less onerous than those set out in the terms of this Agreement. You will be entitled to grant access to the number of third party users specified in the usage plan to which you have signed up.
- 6.2 You acknowledge that you are responsible for all acts and/or omissions of any person and all content and materials posted or uploaded by any person using your account or to whom you have granted access to the Software and any act or omission by any such person which, if carried out by you would amount to a breach of this Agreement, shall be deemed to be an equivalent breach of this Agreement by you. You shall indemnify us and keep us fully indemnified against all claims, demands, actions, losses, damages, costs, charges and expenses (including legal and other fees) or other liabilities whatsoever and howsoever arising that we may suffer or incur as a result of or in relation to any use or access by a third party.
- 7. LICENSEE UNDERTAKINGS
- 7.1 You hereby warrant, represent and undertake that you shall not:
- (a) allow access to or use of the Software by any person in any jurisdiction in contravention of the laws, regulations or other applicable legal requirements of such jurisdiction;
- (b) allow access to or use of the Software in any way which infringes or may infringe the Intellectual Property Rights of any third party;
- (c) export, directly or indirectly, any technical data acquired from us under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval;
- (d) transmit or allow the transmission of any computer viruses or any other disruptive or harmful contaminants through the Software;
- (e) use the Software or allow the use of the Software in a way that may cause it and/or any equipment used by us to provide the Software to be interrupted, damaged, rendered less efficient or impaired; or
- (f) display, upload, or transmit any materials which are defamatory, unlawful, threatening, libellous, pornographic, obscene or otherwise offensive or illegal.
- 7.2 You undertake to indemnify us and keep us fully indemnified against all claims, demands, actions, losses, damages, costs, charges and expenses (including legal and other fees) or other liabilities whatsoever and howsoever arising that we may suffer or incur as a result of or in relation to any breach by you of the terms of condition 6.1 or otherwise in relation to any user account that you may have with us.
- 7.3 You are responsible for ensuring that you have and maintain all the hardware and other software necessary to access and use the Software via the Site. In order to access and use the Software you must (a) obtain access to the internet and pay any service fees associated with such access; (b) provide all equipment necessary to make such connection to the internet, including a computer and modem or other necessary access device and (c) have all appropriate software (Third Party Software), including without limitation any necessary operating system installed on your equipment or appropriate software to interface with the Software. Your use of the Third Party Software is subject to the terms of the licence granted to you by the licensor of such software. We are not providing and are not responsible for the Third Party Software, or for any problems caused by the Third Party Software, computer hardware or computer operations systems.
- 7.4 Following your application for access to the Software we will send you a user name and password to the email provided at the time of your application. You must keep the password secure and not disclose it to any other person. If your password becomes known by a third party you should change it immediately using the available software tools. We are not liable for any loss or damage arising from your failure to comply with your obligation to keep your details secure. You accept that you are liable for any third party who may access the Software using your access details including, without limitation, any liability arising pursuant to the indemnity set out in condition 7.2.
- 7.5 Without prejudice to any other provision of this Agreement, your right to access and use the Software is subject to your fair usage in accordance with the terms and the spirit of this Agreement. You agree to use the Software in a fair manner and In particular, but without limitation, you will not make excessive use of or place unusual burdens on the Software or our network by uploading/downloading excessive numbers of files or excessively large files or by circumventing any authentification or security processes. If we consider that your use of the Software is not fair usage or may detrimentally affect us or other users then we may give you a written warning to that effect. Following such written warning, if we consider that your use of the Software has not altered sufficiently to render it fair we may suspend or terminate your access to the Software in accordance with the terms of this Agreement.
- 7.6 We may at any time suspend your access to the Software or remove any content or materials if we consider in our sole discretion that there may have been any breach of any provision of this Agreement. All files, metadata and other material uploaded to or accessible through you Software account shall be your property and responsibility and we will not access any such materials unless we consider that there may have been a breach of any of the terms of this Agreement.
8. LIMITATION OF LIABILITY
- 8.1 You acknowledge that the Software and the Site is provided on an “as is” basis and has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software and the Site meet your requirements.
- 8.2 We only supply access to the Software for use by you during the normal course of your business, and you agree not to use the Software for any re-sale purposes.
- 8.3 We shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
- (a) loss of profits, sales, business, or revenue;
- (b) business interruption;
- (c) loss of anticipated savings;
- (d) loss or corruption of data or information;
- (e) loss of business opportunity, goodwill or reputation; or
- (f) any indirect or consequential loss or damage whatever and howsoever arising.
- 8.4 Other than the losses set out in condition 8.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Licence Fee paid by you in the month in which such liability arises. This maximum cap does not apply to condition 8.6.
- 8.5 We shall have no liability whatsoever whether in contract, tort (including negligence), breach of statutory duty or otherwise to any person to whom you have granted any right to access and/or use the Software or access the Site.
- 8.6 You acknowledge that it is your responsibility to maintain back-up copies of all materials that are uploaded to or accessible via your Software account and we shall have no liability whatsoever as a result of the loss, unavailability or corruption of any such materials.
- 8.7 Nothing in this Agreement shall limit or exclude our liability for:
- (a) death or personal injury resulting from our negligence;
- (b) fraud or fraudulent misrepresentation;
- (c) any other liability that cannot be excluded or limited by English law.
- 8.8 This Agreement sets out the full extent of our obligations and liabilities in respect of the access to and use of the Software and the Site. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of or access to and use of the Software or the Site which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
- 9. AVAILABILITY OF THE SOFTWARE
- 9.1 We will use our reasonable endeavours to ensure that you are able to access the Software and the Site at all times. However, the Software and the Site are provided on an "as available" basis and we give no warranty that your ability to access the Software or the Site will be uninterrupted, timely, secure or error-free.
- 9.2 From time to time we will need to close access to the Software or the Site to carry out upgrades or maintenance. We will try to keep this to a minimum.
- 10. DURATION AND TERMINATION
- 10.1 In relation to your access to the Site this Agreement shall commence at the point at which you access the Site and apply thereafter each and every time you access the Site again in the form then applicable at such time.
- 10.2 In relation to your access to the Software this Agreement shall commence on the date (Commencement Date) upon which we approve your right to access the Software on a fee paying or free trial basis and shall continue unless terminated by either party giving to the other not less than one calendar month’s notice in writing, such notice to be given no later than a monthly anniversary of the Commencement Date to expire at the next monthly anniversary or immediately by either party giving notice to the other during any free trial period.
- 10.3 Without prejudice to any rights that have accrued under this Agreement or any of our rights or remedies, we may at any time terminate or suspend this Agreement and your right to access the Software with immediate effect by giving you written notice if:
- (a) you fail to pay any amount due to us under this Agreement on the due date for payment and remain in default not less than 7 days after being notified in writing to make such payment;
- (b) you commit a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fail to remedy that breach within a period of 30 days after being notified to do so;
- (c) you repeatedly breach any of the terms of this Agreement in such a manner that is in our opinion is inconsistent with you having the intention or ability to give effect to the terms of this Agreement;
- (d) you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986;
- (e) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
- (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of you, other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
- (g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you;
- (h) a floating charge holder over any of your assets has become entitled to appoint or has appointed an administrative receiver;
- (i) a person becomes entitled to appoint a receiver over any of your assets or a receiver is appointed over any of your assets;
- (j) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
- (k) any event occurs, or proceeding is taken, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.2(d) to condition 10.2(i) (inclusive); or
- (l) you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business.
- 10.4 Termination or suspension by us in accordance with the rights contained in this clause 9 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
- 10.5 Upon termination for any reason:
- (a) all rights granted to you under this Agreement including, without limitation, your right to access and use the Software shall cease;
- (b) you must immediately cease all activities authorised by this Agreement;
- (c) rights of access granted by to third parties you pursuant to this Agreement shall terminate immediately;
- (d) you must immediately pay to us any sums due to us under this Agreement; and
- (e) all content and material uploaded to or contained within your account shall be deleted and shall not be recoverable.
- 10.6 For the avoidance of doubt no amount of the Licence Fee shall be repayable by us, in full or in part, as a result of the termination of this Agreement otherwise that at the end of a payment month.
- 11. COMMUNICATIONS BETWEEN US
- 11.1 If we have to contact you or give you notice in writing, we will do so by posting such notice on the Site, by e-mail or by pre-paid post to the address you provide to us in your order for the Software or any other communication with us.
- 11.2 If you wish to give notice to us in writing you may do so by e-mail to firstname.lastname@example.org or by pre-paid post to our registered office.
- 11.3 Any notice given pursuant to this Agreement will be deemed received and properly served, if given by us, immediately when posted on the Site, or in either case 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
12. EVENTS OUTSIDE OUR CONTROL
- 12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement or for any inability of any person to access and use the Software or Site that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in condition 12.2.
- 12.2 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks and any failure of any third party hosting service or internet provider.
- 12.3 If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement:
- (a) our obligations under this Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
- (b) we will use our reasonable endeavours to find a solution by which our obligations under this Agreement may be performed despite the Event Outside Our Control.
- 13.1 Any personal data we collect from you, or that you provide to us, or that we otherwise obtain as a result of your use of the Software or access to the Site will
be processed and held by us in accordance with the terms of our Policy
14. OTHER IMPORTANT TERMS
- 14.1 We may transfer our rights and obligations under this Agreement to another organisation, but this will not affect your rights or our obligations under this Agreement.
- 14.2 You may only transfer your rights or your obligations under this Agreement to another person if we agree in writing.
- 14.3 This Agreement and any document expressly referred to in it constitute the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Agreement or any document expressly referred to in it.
- 14.4 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- 14.5 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement unless expressly stated.
- 14.6 If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
- 14.7 Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
- 14.8 If you are a business customer, this Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.