mporium Software Agreement

This is mporium Limited's Software Agreement referred to in the Order Form.  This Software Agreement governs the use of the Services by the Partner.

  1. Definitions

    In this Agreement:

    1. Agreement means the Order Form and this Software Agreement.
      Business Day means a day other than a Saturday, Sunday or a public holiday in England.
      Confidential Information shall have the meaning set out in Clause 11.1.
      Contract Year means a period of twelve (12) months commencing on: (a) the date of this Agreement; and (b) each anniversary of such date during the Term.Data Protection Legislation means the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the EU Data Protection Directive, the Regulation of Investigatory Powers Act 2000 and all other laws, regulations and codes of practice issues by a competent regulator applicable to the processing of personal data and privacy.

      End User means an individual who is authorised to access the Platform to utilise the Services pursuant to the Order Form.

      Fees means the amounts payable by the Partner to mporium for mporium providing the Services, as set out in the Order Form.

      Intellectual Property Rights means all intellectual property rights of any nature including (a) copyright, patents, trade marks, database rights, designs, format rights, inventions, know-how, trade secrets, techniques and confidential information, customer and supplier lists and other proprietary knowledge and information (whether registered or unregistered); (b) applications and the right to apply for registration for any of the foregoing; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world in each case for their full term and together with any renewals or extensions.

      Order Form means the order form setting out the Services, the Term, the Fees, the terms in relation to End Users, any additional terms, and which forms a part of this Agreement.

      Outputs means any and all outputs of the Services, including those which result in the receipt by you of analytical data, statistical data, and other data, information and materials, keyword advertising inventory, and other outputs generated from the use of the Services, including data about individuals the End Users.

      Partner means the partner identified in the Order Form.

      Platform means mporium's proprietary platform through which the Services can be accessed.

      Renewal Period shall have the meaning given to it in Clause 7.3.

      Services means the services to be provided by mporium to the Partner and set out in the Order Form.

      Services Commencement Date means the service commencement date specified in the Order Form.

      Term means the term of this Agreement as set out in the Order Form (subject to earlier termination in accordance with this Agreement), including any applicable Renewal Period.

      T&Cs means the terms and conditions for use of the Platform, the Services and the Outputs by an End User as provided by mporium (and as may varied from time-to-time by mporium).

    2. Any references, express or implied, to statutes or statutory provisions shall be construed as references to those statutes or provisions as respectively amended or re-enacted or as their application has been modified by other provisions (whether before or after the date hereof) and shall include any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision.
    3. References to Clauses and Schedules are to clauses in and schedules to these Terms and Conditions (unless the context otherwise requires).
    4. Headings are inserted for convenience only and shall not affect the construction of this Agreement.
    5. The terms include, includes and including shall be construed as illustrative, without limiting the sense or scope of the words preceding them.
  2. Provision of the Service

    1. Subject to the Partner paying the Fees and complying with its other obligations under this Agreement, mporium agrees to provide access to the Platform (if agreed in the Order Form) and the Services to the Partner (and its End Users) in accordance with this Agreement. mporium agrees to provide the Services from the Service Commencement Date (unless otherwise agreed), provided that the Partner gives such assistance in implementing the Services as mporium may reasonably request.
    2. mporium will use reasonable endeavours to provide the Services continuously. However, the Partner acknowledges that the Service may be unavailable from time to time to carry out necessary maintenance and/or upgrade work, temporary suspension due to breach of security, or for other similar reasons.
    3. mporium shall permit the Partner to access the Platform and to use the Services (and to permit its End Users to do so) provided that there will be neither abuse nor fraudulent use of them. Abuse and fraudulent use shall include:
      1. using the Services contrary to the T&Cs;
      2. attempting to, or actually obtaining, accessing, altering, or destroying the data files, programs, procedures and/or information;
      3. using the Services in such a manner as to interfere unreasonably with the use of mporium's services by any other user;
      4. sending any message or other communication which is in breach of any laws, codes or regulations;
      5. the wilful or negligent creation and/or introduction onto the Services or systems of mporium of any virus, worm, trojan horse, cancelbot or other destructive or contaminating program;
      6. carrying out of invisible processing when using the Services (including placing web bugs and other monitoring devices on computers accessing the Services);
      7. tampering with routing and domain name services in order to "spoof" other computer networks and users;
      8. attempting to gain access to or gaining access to any other user's information or use of mporium's services; or
      9. assisting another to perform the acts prohibited in this Clause 2.3.
    4. The Partner acknowledges that mporium shall be entitled to suspend as it sees fit and/or terminate any access to the Services if mporium observes or has reasonable grounds to suspect that the Partner (or any of its End Users) has committed or is intending to commit any abuse or fraudulent misuse as described above.
    5. Subject to the terms of this Agreement, mporium will facilitate End Users receiving the Services and accessing the Platform. The Partner shall be entitled to add to (or replace) the Services from time to time during the Term, subject in each case to the parties agreeing terms for the same in writing (including additional payment terms). The Partner acknowledges that if the parties agree to add to (or replace) any Services, mporium will in each case be entitled to a reasonable period in which to commence the additional services added to (or replacing) the Services.
    6. mporium will maintain reasonable records of information provided to End Users and/or the Partner in order to verify that the Services are operating correctly. mporium will keep such records for minimum rolling period of thirty (30) days and will provide all co-operation reasonably requested by the Partner if the Partner requires confirmation of the Services operation.
    7. The Partner acknowledges that the Services (including the Outputs) are provided on an "as is" basis. mporium makes no representation or warranty, whether express or implied, as to the accuracy, completeness, timeliness, merchantability or fitness for any particular purpose of the Services (including the Outputs). No manual verification, monitoring or screening has been or will be undertaken in respect of the Services (including the Outputs) and the Partner (and its End Users) will be solely responsible for any outcomes pursued by it (or on its behalf) in connection with the Services and/or the Outputs. mporium does not endorse or accept responsibility for any Outputs or any recommendations, views, opinions or advice expressed on or via the Services.
    8. Except as expressly set out in the Order Form, the Partner shall not resell, repackage or otherwise distribute the Services or any Outputs.
  3. Usage Requirements

    1. The Partner shall comply with, and shall procure that each End User complies with, the T&Cs in using the Services.
    2. The Partner shall be responsible for ensuring that all End Users complete all necessary registration processes (as applicable) in order to receive the Services.
  4. Suspension of Access

    1. Without prejudice to the other provisions of this Agreement, mporium reserves the right to suspend provision of the Services to the Partner (and its End Users) if:
      1. at any time mporium knows or suspects that the Partner is in breach of this Agreement; or
      2. any amount of the Fees is unpaid after more than sixty (60) days from the date of mporium's relevant invoice.
    2. mporium shall not be in breach of this Agreement if and to the extent that it is exercising its rights of suspension in accordance with this Clause 4 or as otherwise provided in this Agreement. Suspension in accordance with this Clause 4 shall be without prejudice to any other rights and remedies that mporium may have.
    3. The Partner shall remain liable for the Fees during any period of suspension pursuant to this Clause 4.1.
  5. Fees

    1. The Partner shall (subject to Clause 5.2 and Clause 5.3) pay the Fees identified in the Order Form within thirty (30) days of mporium's invoices. mporium shall be entitled to invoice the Partner for the Fees at the end of each month during the Term or as otherwise set out in the Order Form. mporium may also, at its discretion, issue invoices directly through the Platform from time-to-time and the Partner shall pay such invoices in accordance with the instructions attached.
    2. mporium shall be entitled in its discretion to apply an annual increase to the Fees having regard to market conditions, which shall in any event be capped at three per cent (3%) above the previous Contract Year's fees during the second and any subsequent Contract Year.
    3. Without prejudice to Clause 5.2, mporium may request a review at the end of each Contract Year in respect of whether the Fees should be increased. If mporium requests such a review the parties shall review and (if applicable) amend the Fees, at all times acting reasonably and in good faith.
    4. mporium shall be entitled to charge interest on any amount that is overdue for payment by the Partner at a rate of four (4) per cent above the base lending rate of Barclays Bank plc. Interest shall accrue on a daily basis but shall not compound.
    5. The Fees payable under this Agreement are quoted exclusive of value added tax (VAT).
  6. Support

    1. Without prejudice to Clause 2.2, in the event the Partner experiences any defects, downtime or other issue with the Services (or is notified of the same by its End Users) it shall notify mporium as soon as possible and mporium shall use its reasonable endeavours to remedy such issue as soon as practicable.
    2. Without prejudice to the other provisions of this Agreement, the Partner acknowledges that mporium shall be entitled to implement upgrades, amendments and/or enhancements to its Services from time-to-time during Term. Such enhancements, amendment and/or upgrades shall be provided to the Partner as soon as commercially available at no additional cost.
  7. Term and Termination

    1. This Agreement will be legally-binding once the Partner has provided a properly executed Order Form to mporium which mporium has then also properly executed.
    2. Subject to the Partner complying with its obligations under this Agreement (including paying the Fees and the Partner's obligations under Clause 3), mporium will provide the Services to the Partner with effect from the Service Commencement Date.
    3. At the end of the Term this Agreement will automatically renew for successive periods of twelve (12) months (each a Renewal Period) unless either party provides written notice to the other at least sixty (60) days prior to the expiry of the Term or any Renewal Period.
    4. Either party shall be entitled at any time to terminate this Agreement immediately by written notice to the other if:
      1. the other has committed a material or persistent breach of any of its warranties or material obligations under this Agreement that is not capable of remedy;
      2. the other has committed a material or persistent breach of one or more of its warranties or material obligations under this Agreement that is capable of remedy, but which is not remedied within fourteen (14) days of it being required by written notice to do so;
      3. the other goes into liquidation (whether compulsory or voluntary) otherwise than for the purposes of a bona fide amalgamation or reconstruction (or goes bankrupt), or if an administrator or receiver or similar officer is appointed over the whole or any part of the other's assets, or if the other enters into any arrangement for the benefit of or compounds with its creditors generally, or threatens to do any of these things, or any judgment is made against the other, or any similar occurrence under any jurisdiction affects the other; or
      4. the other ceases to carry on business.
  8. Consequences of Expiry or Termination

    1. Upon expiry or termination of this Agreement all rights of the Partner (and its End Users) to use the Services (or access the Platform if applicable) shall immediately and automatically terminate and all sums due to mporium from the Partner shall become due and payable immediately.
    2. Termination of this Agreement will not affect either party's rights or remedies under or in relation to this Agreement.
  9. Intellectual Property Rights

    1. The Partner acknowledges and agrees that as between mporium and the Partner, all rights (including all intellectual property rights) in and to Platform, the Services and any data forming part of the Outputs shall at all times be and remain the sole and exclusive property of mporium (or its licensors). The Partner hereby assigns to mporium absolutely with full title guarantee all its right, title and interest in and to any data that forms part of the Outputs (including database rights and other Intellectual Property Rights), and shall procure that any End User with any rights in any Outputs does the same. mporium hereby grants the Partner a non-exclusive, non-transferable licence to use any data forming part of the Outputs for its business purposes only.
    2. mporium warrants that it owns (or licenses) all rights in the Platform.
    3. mporium may use for its own marketing purposes any logos, trade names, marks, brands or other branding that the Partner (or its End Users) submit to mporium through use of the Services provided that the Partner has given written consent for such use (such consent not to be unreasonably withheld or delayed). The Partner warrants (and warrants on behalf of its End Users) that it has all necessary rights, consents and permission in respect of any consent given pursuant to this Clause 9.3.
    4. mporium grants to the Partner (and its End Users) a non-exclusive, non-transferable, royalty-free licence to use Platform to the extent necessary to obtain the benefit of the Services in accordance with this Agreement.
    5. The Partner agrees that mporium shall be entitled to make reasonable use of, and reference to, the Partner's name and trade or service marks in any promotional and marketing literature relating to mporium's services.
    6. Each party agrees to execute such documents and/or do such things as the other may reasonably require during or at any time after the Term to give effect to the provisions of this Clause 9.
  10. Data Protection

    Each party agrees that in performing its obligations under this Agreement it shall comply with all applicable Data Protection Legislation, including having appropriate technical and organisational measures to prevent the unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data (where personal data and processing shall have the meaning given to them in Section 1 of the Data Protection Act 1998).

  11. Confidential Information

    1. Each party agrees that both during and after the Term it shall treat as and keep confidential:
      1. any and all information of a confidential or sensitive nature (whether or not marked as such) which may come into its possession or into the possession of any of its employees or agents as a result of or in connection with this Agreement relating to the other party, including the terms of this Agreement (the Confidential Information); and
      2. any and all information which has been and which may be derived or obtained from any Confidential Information.
    2. The obligations of confidentiality in this Clause 11 shall not prevent disclosure of Confidential Information which: (a) is in or enters the public domain other than by breach of this Clause 11; (b) is obtained from a third party without breach of this Clause 11 or any other duty of confidence; (c) is authorised for release by written consent of the other party; or (d) is required to be disclosed by a government body or court of competent jurisdiction or relevant regulatory body or authority or by operation of law.
    3. Each party agrees to take all reasonable steps to ensure that all Confidential Information, passwords, access codes, software programming codes, personal data and other similar data and information relating or belonging to, or provided to it by, the other party is protected from unauthorised use or disclosure, theft, loss or damage (whether as a result of criminal damage, negligence, event of force majeure or otherwise).
  12. Liability

    THE PROVISIONS OF THIS CLAUSE ARE IMPORTANT. THEY AFFECT YOUR LIABILITY.

    1. Nothing in this Agreement will exclude or limit either party's liability in respect of: (a) death or personal injury caused by the negligence of that party; (b) fraud (including fraudulent misrepresentation); or (c) any liability which may not otherwise be lawfully excluded or limited.
    2. Subject always to Clauses 12.1 and 12.3, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for: (a) any loss of revenue, profit, business, anticipated savings, goodwill, reputation, contract, data, use of equipment or process or any wasted management time; or (b) any indirect or consequential loss whatsoever.
    3. Clause 12.2 shall not prevent mporium recovering (a) the Fees, or (b) damages calculated on the basis of amounts due but not paid by the Partner as a result of a breach of this Agreement by the Partner.
    4. Subject always to Clauses 12.1 and 12.3, the liability of mporium to the Partner in contract, tort (including negligence and breach of statutory duty) or otherwise shall not in any circumstances exceed the fees paid or payable by the Partner to mporium in the twelve (12) months prior to such liability arising (in the event the liability arises in the first twelve (12) months of the Term the Partner's liability shall be calculated on a pro-rata basis).
    5. Should any limitation or provision contained in this Clause 12 be held to be invalid under or contrary to any applicable statute or rule of law, it shall to that extent be deemed omitted and the parties shall negotiate in good faith an alternative provision which complies with the relevant statute or rule and which substantially gives effect to the parties' intentions as at the date of this Agreement.
    6. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement if and to the extent that such failure or delay is the result of any event or circumstance that is outside the reasonable control of the affected party (a Force Majeure Event). A party whose performance is or may be affected by a Force Majeure Event shall inform the other party as soon as reasonably practicable after becoming aware of the Force Majeure Event.
  13. General

    1. This Agreement and any documents referred to herein constitutes the whole agreement between the parties in relation to its subject matter.
    2. No variation of this Agreement shall be effective unless made in writing and signed by each of the parties.
    3. If any provision or part of a provision of this Agreement shall be, or be found by any authority or court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
    4. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law or otherwise.
    5. No breach by any party of any provision of this Agreement shall be waived or discharged except with the express written consent of the other party.
    6. No failure or delay by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of that right, power or privilege and no single or partial exercise by any party of any right, power or privilege shall preclude any further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
    7. The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
    8. This Agreement shall be binding on and enure for the benefit of each party’s successors in title. Neither party shall assign, or otherwise dispose of all or any part of its rights or benefits under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned).
  14. Notices

    1. Notices under this Agreement shall not be valid unless in writing and delivered personally, sent to a party by first class recorded delivery inland post or by facsimile marked for the attention of the relevant contact set out in the Order Form. Either party may change its notice details by serving notice on the other party of the change in accordance with this Clause 14.
    2. In the absence of earlier receipt, and save as provided below, any notice served under this Agreement shall be deemed to have been duly served as follows:
      1. if delivered personally, on delivery;
      2. if sent by first class recorded delivery inland post, at 9.30 am on the second Business Day after the date of posting;
      3. if sent by fax, on receipt of a report confirming complete transmission,
    3. PROVIDED THAT any notice served under this Agreement other than by post on a day which is not a Business Day or at any time after 5.30 pm on a Business Day shall be deemed to be served at 9.30 am on the next Business Day.
  15. Governing Law and Jurisdiction

    This Agreement shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts as regards any claim or matter arising in relation to this Agreement.

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