Effective Date: 2019-12-20
This customer agreement (“Agreement”) is a legal agreement between you and MARMOT SOLUTIONS LTD UTR 8050945 (“Company”, “our”, “we” or “us”), an United Kingdom company (together the “parties” and each a “party”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then a reference to “you” or “Customer” in this Agreement is a reference to the company, and the company will be bound by this Agreement. We may modify the terms of this Agreement from time to time subject to Section 17 (Changes to this Agreement) below.
By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order or when subscribing for one of our services, or by using or accessing our Data, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you must immediately delete and cease using our Data.
1. Grant and Scope of Agreement
This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. For the absence of doubt, this Agreement governs your use of or reliance on:
(a) our database rights, currently designated as (“Data
(b) our online services, currently designated as (“Services
(together with any related documentation, the Product), and
(c) any related support or maintenance services provided by us (“Support Services
You have no rights in, or to, any Product or Support Service other than the rights granted under this Agreement.
Your affiliates shall be entitled to make full use of the Products in accordance with the terms of this Agreement to the same extent as if they were you. For purposes of this Agreement, “Affiliate
” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
2. Accounts, Orders, Subscriptions, Data Sources, Payments, and Refunds
2.1. Account Registration.
You must register an Account with us at our website in order to place Orders, and manage access to the Services. Your account information must be kept accurate and complete. You must keep your account information current, so that we may send notices, statements, and other information to you by email or through your Account. You are responsible for all actions taken through your Account, including Orders and Subscriptions made.
2.2. Orders, Subscription Term & Renewals.
You create an Order by following the purchase or subscription flows on our website, or by requesting an invoice from us. All Orders are intent only and are not binding (on you or on us) until payment is received in full by us and processed or access to the corresponding Product is delivered. Your Order will name the Product you are purchasing, any limits on the number of Data Sources you will be able to manage, and the License Term or Subscription Term. Unless noted otherwise on your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription. If you cancel or decide to terminate your subscription, we will refund any remaining term on your subscription. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change, or if there has been a change in the applicable fees (for which, if applicable, you will be given at least 30 days’ notice before such change takes effect).
2.3. Data Source.
A “Data Source
” is external data source in the Data. A Data Source may be a exchange, broker, blockchain, ledger etc. You are solely responsible for any use of the external Data Sources which may be subject to restrictions of use and require additional license agreements with the third party.
2.4. Refund policy.
No refunds are provided.
3.1. Grant of License.
Under the terms of this Agreement, we grant you a worldwide, non-exclusive, non-transferable, revocable license to use the Product governed by Acceptable Usage Policy, during the applicable License Term.
3.2. License Term.
Your license to use the Product is granted for a specific time period (License Term or Subscription Term).
3.3. Support, Maintenance and New Releases.
During the License Term you will have access, free of charge, to all updates, upgrades, new releases and patches for the Product that we release during the License Term, along with technical support. You acknowledge and agree that we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason.
4. Acceptable Usage Policy
4.1. Legitimate Use.
The following is a exhaustive list of practices that would be considered "Legitimate Use
(a) access, view, store, process the Data in the Customer System, and
(b) respecting Third-Party Data Source terms or license agreements (if applicable), and
(c) respecting terms of this agreement
4.2. Permitted Use.
The following is a non-exhaustive list of practices that would not be considered "Legitimate Use
(a) Re-selling our Product or parts thereof to another party;
(b) Using our services in a manner we determine (in our sole discretion) could cause harm to our Product or another party;
(c) Unusual usage patterns inconsistent with those we reasonably consider as normal use when compared to other customers.
(d) Use the Product (wholly or in part) in its products or services
(e) Redistribute or resell the Data or the Services (wholly or in part).
Other practices may be relevant in determining Legitimate Use and Company reserves the right to take any unlawful, prohibited, abnormal, or unusual activity into account in making its determination.
If you use our services in any way which we reasonably determine (at our sole discretion) may be unlawful, prohibited, abnormal, unusual, or detrimental to our services or any of our other customers or other unrelated parties, we reserve the right to suspend or terminate your access without notice.
5. Your Data
5.1. Meaning of Your Data.
In this Agreement, “Your Data
” means any data, applications, configuration settings, content, code, images or material of any type that you upload, send, submit or otherwise provide us or to our Products for any purpose.
5.2. Ownership of Your Data.
You are responsible for Your Data. You will retain all right, title and interest in and to Your Data. Subject to the terms of this Agreement, you grant us a worldwide, non-exclusive, royalty-free right to collect, use, transfer and store Your Data solely for the purposes of providing any Product to you or to respond to your support requests.
5.3. Confidentiality of Your Data.
We may receive or have access to information (including but not limited to documents, data, technical information, methods and processes, computer programs and scripts, reports, manuals) owned or controlled by you which is proprietary or confidential (confidential information). This happens in various ways, not limited to: when you store them in the Products, or when you include them in a support request that is not marked “public” by you. We agree:
(a) that all such information shall be and shall remain your exclusive property;
(b) to limit access to such information to only our authorized employees, contractors, and agents, and including any of our Affiliates under Section 11 (Transfer of Ownership) (collectively, our “Staff”), who have a need to know such information in the performance of their work;
(c) to inform all of our Staff engaged in handling such information of the confidential character of such information;
(d) to keep, and have our Staff keep, such information confidential;
(e) not to copy, publish, or disclose such information to others or authorize others to copy, publish, disclose such information without your written approval;
(f) to return promptly any copies of such information to owner at your request;
(g) to use such information solely for purposes of fulfilling work or services performed hereunder and for other purposes only upon such terms as may be agreed upon between us in writing; and
(h) that, in the event any of the information is required to be produced pursuant to a subpoena, court order, valid legal or administrative process, or other operation of law, we shall notify you of such potential disclosure in order that you may take appropriate action at your own expense to limit or prevent such disclosure, and furnish only that portion of Your Data that has been legally compelled.
Confidential information shall not include information which:
(i) was known to us before disclosure as evidenced by bona fide written documents;
(j) is or becomes publicly known through no wrongful act of ours;
(k) is independently developed by us;
(l) is disclosed to us by a third party without breach of any obligations of confidentiality.
5.4. Nature of Your Data.
You must ensure that Your Data is at all times compliant with our Acceptable Usage Policy and all appropriate laws and regulations. You warrant that you have the rights and permissions to provide Your Data to us, and that your transfer of Your Data to use does not violate any laws, regulations or the rights of third parties.
5.5. Personally Identifiable Information.
You will not submit to us any personally identifiable information (except as necessary for your Authorized Users to use and access a Product). You will not submit to us any patient, medical or other protected health information regulated by any relevant laws in any country.
For the avoidance of all doubt, we assuming no responsibility or liability for Your Data other than described in this Section 5, and you shall be solely responsible for Your Data and the consequences of you using, storing, disclosing or transmitting it. We have no obligation to monitor any of Your Data uploaded to the service.
5.7. Deletion of Your Data.
We may remove or delete Your Data 90 days after the termination of your relevant Subscription Term, or upon your request.
5.8. Processing of Your Data.
We will perform processing actions as part of monitoring and running the Cloud Services and as part of the Support Services.
Except as otherwise permitted in this Agreement, or by us in writing, you will not:
(a) intentionally use any Product in any way that could damage our reputation; or
(b) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any Product, without our express written consent.
7. Termination of Agreement
Either party may terminate this Agreement (or an Order) without cause on ninety (90) days’ notice in writing. In addition, either party may terminate this Agreement or any Order if the other party breaches this Agreement in any material respect and fails to cure the breach, if capable of cure, within thirty (30) days after receiving written notice from the other party specifying the nature of the breach. Termination of an individual Order shall not operate to terminate any other then-outstanding Orders between the parties.
7.2. Obligations on Termination.
On termination of this Agreement, or on termination or expiry of any relevant Order (unless you retain a right to continue using a Product after the end of that Order, e.g., due to another valid Order for that Product, or having a license licensed under a prior “Perpetual” licensing model) you must immediately cease use of, and destroy, any and all copies of any Data, and you acknowledge that you will lose access to any Services.
The following Sections will survive any termination or expiration of this Agreement: 6 (Restrictions), 5.3 (Confidentiality of Your Data), 8.4 (Warranty Disclaimer), 10 (IP Indemnification) (but solely with respect to claims arising from your use of the Data during the License Term), and 12 (Export).
8.1. General Warranties.
We warrant that:
(a) we have the legal power and authority to enter into this agreement with you;
(b) during the License Term or Subscription Term as appropriate (“Warranty Period”), the Products will, when properly used, perform substantially as described, provided that the Product is:
(i) properly used on the computer and with the operating system and software environment for which it was designed; and,
(ii) is used in accordance with our documentation which we may provide you or publish on our website from time to time.
We do not warrant that the Products are error free, will operate in an uninterrupted manner, will not damage or interfere with your computer operating system and will not damage or interfere with your business or the business of third parties.
8.2. Virus Warranty.
We represent and warrant that we will take reasonable commercial efforts to ensure that the Products, in the form and when provided to you, will be free of any viruses, malware, trojans or other harmful code. For any breach of the foregoing warranty, your sole and exclusive remedy, and our sole obligation, is to fix or replace the Products promptly upon notice.
8.3. Remedies during Warranty Period.
If, within the Warranty Period, a Product fails to perform as described due to a defect or fault (that is not the result of you having modified the Product without our prior knowledge or authorization or used it in contravention of the terms of this Agreement or outside its ordinary operating requirements), we will, at our sole option, repair or replace the Product, provided that you:
(a) notify us in writing of the defect or fault in the Product within the Warranty Period; and
(b) make available all the information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable us to recreate the defect or fault.
8.4. Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 (GENERAL WARRANTIES) AND 8.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND COMPANY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COMPANY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, IN WHICH CASE: (F) THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW; (G) YOUR ENTITLEMENT TO RELIEF IS LIMITED TO THOSE FORMS OF RELIEF REQUIRED BY STATUTE; AND (H) TO THE EXTENT PERMITTED BY LAW, THE FORM OF ANY RELIEF SHALL BE AT OUR DISCRETION.
9.1. Exclusions to Liability.
Neither party (nor their suppliers or Affiliates) will have any liability (whether in contract, tort, strict liability or otherwise) arising out of or related to this agreement for:
(a) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue;
(b) any loss, or corruption, of software or data;
(c) any loss or use of hardware, software or data; or
(d) any other indirect, special or consequential loss or damage whatsoever, even if the party has been advised in advance of the possibility of such loss or damage.
9.2. Your Representations.
You acknowledge and agree that:
(a) the Products have not been developed to meet your individual requirements;
(b) it is your responsibility to ensure that the facilities and functions of the Products meets your requirements;
(c) you have made your own independent enquiries and have satisfied yourself of the nature and adequacy of our Products for the purpose for which you have obtained the Products.
(d) the existence of any minor errors shall not constitute a breach of this Agreement; and
(e) the provisions of Section 8 (Warranty), Section 9 (Liability) and Section 10 (IP Indemnification) are reasonable and reflected in the price, which would be much higher without those provisions, and you accept such risk.
9.3. Liability Cap.
Except to the extent that any law or regulation provides otherwise, our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence), or otherwise is limited to the purchase price you paid for the Product, and any renewal fees, received by Company in the twelve (12) months prior to the event giving rise to the liability.
10. IP Indemnification
If any claim is brought, or you reasonably anticipate that a claim may be brought, against you alleging that your use of the intellectual property associated with the Products infringes a patent right granted in the United States, United Kingdom, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “claim”):
(a) you shall promptly provide us written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice);
(b) the two of us shall consult together on an appropriate course of action and shall seek to minimize the effect of any claim on each other’s businesses;
(c) we shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim;
(d) we will pay any damages and costs awarded against you in connection with any claim, however we are not and you agree not to hold us responsible or liable for any damages, costs, or expenses suffered or incurred by or awarded against you:
(i) prior to your providing notice of the claim of under Section 10 (a);
(ii) arising out of any act or omission by you or any of your Affiliates in respect of the claim without our prior and express written consent, including any admission or concession; or
(iii) to the extent that any act or omission by you or any of your Affiliates in the course of your or their use of the Product caused or contributed to the infringement of the rights of the third party;
(e) we shall have the right, at our sole choice, either:
(i) to negotiate terms for continued use by you of the claimed infringing Product;
(ii) amend the Product to make it non-infringing; or
(iii) terminate this Agreement with immediate effect and in such event, we shall refund to you the purchase price that you paid and any renewal fees pro rated from the date of termination of this Agreement to the date which, had this Agreement not been terminated, would be the end of your License Term or Subscription Term,
(f) our indemnification obligations in Section 10 DO NOT APPLY if:
(i) the total aggregate fees received by Company from you, in the twelve (12) month period immediately preceding the claim, is less than USD $50,000; or
(ii) you settle or make any admissions with respect to a claim without our prior written consent.
THIS SECTION 10 STATES OUR SOLE LIABILITY AND OBLIGATIONS AND IS YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCTS SUPPLIED BY COMPANY UNDER THIS AGREEMENT.
11. Transfer of Rights and Obligations
You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement (including liability for past performance). Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void.
We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
You represent and warrant that you are not in violation of and will not violate any export control laws, regulations or directives in the United States, Australia, the United Kingdom, or in your own country or region (if applicable) by entering into or in the performance of your rights or obligations under this Agreement.
We may identify you as a customer in our promotional materials. We will promptly stop doing so upon your request via email sent to [email protected]
Any notice under this Agreement must be given in writing. We may provide notice to you via email. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by email to: [email protected]
with the title including "LEGAL NOTICE". Your notices to us will be deemed given upon our receipt.
Either party’s failure to insist upon strict performance of any obligations under this Agreement, or the failure to exercise any of the rights or remedies to which either party is entitled under this Agreement, does not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.
Our waiver of any default shall not constitute a waiver of any subsequent default.
A waiver of any of these terms and conditions shall not be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.
If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
17. Changes to this Agreement
17.1. Notice for changes.
We may modify the terms and conditions of this Agreement from time to time, without notice given to you.
17.2. Effective Date of Changes.
If we make modifications to this agreement, the modifications will take effect at the next renewal of your License Term or Subscription Term, and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 3.3 (License Term and Renewals). In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License or Subscription Term. If the effective date of such modifications is during your then-current License or Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Product for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us publishing the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
18. Entire Agreement
This Agreement constitutes the whole of the agreement between the parties. You agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Products or any other subject matter covered by this Agreement.
19. Force Majeure
Neither party is responsible or liable for any omission or delay under this Agreement where the omission or delay is caused by an event beyond the reasonable control of any party, including, but not limited to, act of God, natural disaster, war or invasion, terrorism or act of a public enemy, strikes and industrial disputes, embargo, prohibition, confiscation, act of government authority, or failure of telecommunications or data networks or services.
20. Law and Jurisdiction
Where either party may have a dispute or claim against the other party, each party:
(a) agrees that the Agreement shall be interpreted in accordance with the applicable laws of the England and Wales, without reference to its conflict of laws principles from time to time;
(b) submits to the exclusive jurisdiction and venue of England and Wales, and courts of appellate jurisdiction; and
(c) consents to the enforcement of any judgment of the courts of England and Wales (and appellate courts) in any other jurisdiction.
In this Agreement, unless the context otherwise requires:
A reference to the singular includes the plural and the plural includes the singular.
A reference to any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated.
A reference to a law includes subordinate legislation (including regulations) and other instruments under it and any amendment or replacement of any of them.
A reference to a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority.
A reference to a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns.
A reference to a day or a month means a calendar day or calendar month.
No party enters into this Agreement as agent for any other person (or otherwise on their behalf or for their benefit).
The meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”, “such as”, “for example” or similar words are not words of limitation.
Headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.
Where there are two or more persons in a party each are bound jointly and severally.