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MAYDAY CORPORATION LIMITED SOFTWARE
AS A SERVICE AGREEMENT IMPORTANT –
PLEASE READ CAREFULLY THE FOLLOWING IS A LEGAL AGREEMENT
AND CONSTITUTES THE TERMS AND CONDITIONS GOVERNING THE
PROVISION OF ONLINE AND OFFLINE SERVICES (AS DEFINED
BELOW) BY MAYDAY CORPORATION LIMITED (“nubie.com”).
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF
THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS
AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF
THE SERVICES AND AGREE TO BE BOUND BY THESE TERMS AND
CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT
THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE
TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR
"YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE
SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS
AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON
AND MAY NOT USE THE SERVICE.
1. DEFINITIONS "Agreement" means these terms of use, any
Order Forms, whether written or submitted online, and
any materials available on the nubie.com website
specifically incorporated by reference herein; "Content"
means the audio and visual information, documents,
software, products and services contained or made
available to you in the course of using the Service;
"Received Data" means any data, information or material
provided or submitted by the Licencee, or any End User
to nubie.com in the course of using the Service;
"Effective Date" means the date of acceptance of this
Agreement; “End Users” means any customer / client or
authorised end users of the Licensee who have been
authorized to use the Services by the Licensee and have
been supplied user identifications and passwords by you
(or by nubie.com at your request); “Fees” means the fees
payable by the Licensee for the provision of the
Services as set out in the Order Form. The Fees are
based on the nubie.com Standard Tariffs. The Fees
payable by a Licensee are generally variable and will
vary depending on the extent of the Licensee’s usage of
the Services. The basis upon which the Fees will be
charged will be set out in each Order Form.
"Intellectual Property Rights" means all intellectual
property rights including patents, trade marks, service
marks, design rights, copyright, database rights, moral
rights (whether or not any of these are registered and
including any applications for registration of any such
rights), inventions, know how, confidential information
and trade secrets, together with all goodwill attaching
or relating thereto, and all rights or forms of
protection of a similar nature or having similar effect
to any of these which may exist or come into existence
in the future anywhere in the world; “Licensee” means
the party that has accepted this Agreement; "License
Administrator(s)" means those Vendor Users designated by
you who are authorized to execute written Order Forms
and to create Vendor User accounts and otherwise
administer your use of the Service; “Nubie.com Standard
Tariffs” means the standard charges for the Services
which are set out in the website www.nubie.com; "Order
Form(s)" means the form evidencing the initial
subscription for the Service and any subsequent order
forms submitted, in written or email form, specifying,
among other things, the number of licenses and other
services contracted for, restrictions on users, the
applicable Fees, the billing period, and other charges
as agreed to between the parties, each such Order Form
to be incorporated into and to become a part of this
Agreement (in the event of any conflict between the
terms of this Agreement and the terms of any such Order
Form, the terms of this Agreement shall prevail). The
definition of “Order Form” shall include a Revised Order
Form or an Addendum Order Form where applicable;
"nubie.com Technology" means all of nubie.com’s
proprietary technology (including software, hardware,
products, processes, algorithms, user interfaces,
know-how, techniques, designs and other tangible or
intangible technical material or information) made
available to you by nubie.com in providing the Service;
"Service(s)" means the right to use of the specific
edition of nubie.com's current software and consultancy
services as identified in an Order Form as more
specifically described in the Services Schedule attached
to this Agreement and / or ancillary online or offline
products and services provided to you by nubie.com, to
which you are being granted access under this Agreement,
including the nubie.com Technology and the Content;
“Services Schedule” means the schedule attached to this
Agreement describing the Services to be provided to the
Licensee. “Term” means a period of months as specified
on each Order Form commencing on the Effective Date.
"Vendor User(s)" means your employees, representatives,
consultants, contractors or agents who are authorized to
use the Service and have been supplied user
identifications and passwords by you (or by nubie.com at
your request). “you" or "your" means the Licensee.
2. SCOPE OF AGREEMENT nubie.com will provide you with
use of the Service, including a browser interface and
data encryption, transmission, access and storage. Your
acceptance of this Agreement and / or registration for,
or use of, the Service shall be deemed to be your
agreement to abide by this Agreement including any
materials available on the www.nubie.com website
incorporated by reference herein, including but not
limited to nubie.com’s privacy and security policies.
3. LICENSE GRANT nubie.com hereby grants you a fee
paying, non-exclusive, worldwide, non-assignable license
to use the Services for the Term. You are restricted to
use of the Services for internal business purposes only.
Use of the Services for any other purpose is subject to
the prior written consent of nubie.com and you
acknowledge that additional fees may be payable for
additional Services on nubie.com’s approval of a change
of use. The rights granted by way of this clause are
restricted to the number of Vendor Users and End Users
as may be specified in the Services Schedule and / or
Order Form. In the event that the Licensee wishes to
increase the maximum permitted number of Vendor Users,
and / or End Users then it must inform nubie.com and a
revised Order Form will be agreed and will form part of
this Agreement.
4. LICENSE RESTRICTIONS You may not (i) license,
sublicense, sell, resell, transfer, assign, distribute
or otherwise commercially exploit or make available to
any third party the Service or the Content or the
nubie.com Technology in any way; (ii) modify or make
derivative works based upon the Service or the Content
or the nubie.com Technology; (iii) create Internet
"links" to the Service or "frame" or "mirror" any
Content on any other server or wireless or
Internet-based device; (iv) reverse engineer or access
the Service or the nubie.com Technology in order to (a)
build a competitive product or service, (b) build a
product using similar ideas, features, functions or
graphics of the Service, or (c) copy any ideas,
features, functions or graphics of the Service; (v) use
the Services for any number of Vendor Users or End Users
in excess of the maximum number of Vendor Users and End
Users as set out in the Services Schedule and / or Order
Form; or (vi) publish or distribute externally any
results of any use of the Services for any form of
benchmarking or software comparison purposes. You may
not: (i) send spam or otherwise duplicative or
unsolicited messages in violation of applicable laws;
(ii) send or store infringing, obscene, threatening,
libelous, or otherwise unlawful or tortious material,
including material harmful to children or violative of
third party privacy rights; (iii) send or store material
containing software viruses, worms, Trojan horses or
other harmful computer code, files, scripts, agents or
programs; (iv) interfere with or disrupt the integrity
or performance of the Service or the data contained
therein; or (v) attempt to gain unauthorized access to
the Service or its related systems or networks.
5. SERVICE AND NETWORK AVAILABILITY The Services may be
subject to limitations, delays, and other problems
inherent in the use of the internet and electronic
communications. nubie.com is not responsible for any
delays, delivery failures, or other damage resulting
from such problems however nubie.com will endeavour to
keep such delays to a minimum. Periodically nubie.com
may also need to schedule maintenance periods outside of
the weekly scheduled time and during such periods the
Services will not be available to the Licensee.
nubie.com will provide the Licensee with reasonable
notice of any downtime due to non routine maintenance
and will endeavour to ensure that any non routine
maintenance periods take place outside of the Licensee’s
normal business hours. nubie.com does not guarantee
network availability between the Licensee and the
nubie.com hosting servers as network availability can
involve numerous third parties and is beyond the control
of nubie.com. nubie.com will not be liable for any
downtime caused by its internet provider nor for any
downtime that you experience as a result of your own
network connectivity issues. If you experience a Service
outage and are unable to access the Services, you must
immediately contact nubie.com’s help desk and notify
nubie.com of the service outage, providing any/all
necessary information that may assist nubie.com’s
technical support in determining the cause of the
outage.
6. SUPPORT Support is provided via email at the
following email address:
support@nubie.com.
7. SERVICE FEES & BILLING The Fees for use of the
Services and billing and payment terms are as set out in
the Order Form and you agree to pay the Fees. All
payment obligations are noncancelable and all amounts
paid are nonrefundable. nubie.com reserves the right to
modify the nubie.com Standard Tariffs and to introduce
new charges at any time, upon at least 30 days prior
notice to you, which notice may be provided by Email.
Any changes to the nubie.com Standard Tariffs will lead
to consequential changes to the Fees payable by you for
the Services. In the event of any changes to the Fees
based on a change to the nubie.com Standard Tariffs you
will receive an email with a revised Order Form (each a
“Revised Order Form”) setting out the new Fees. If you
accept the Revised Order Form it will replace the
existing Order Form and will form part of this
Agreement. If you do not respond to the email with the
Revised Order Form within 2 business days of receipt
then you will be deemed to have accepted the Revised
Order Form and it will form part of this Agreement. If
you do not accept the Revised Order Form you may
terminate this Agreement in accordance with the
provisions of clause 14. The Fees will also increase in
the event that the Licensee requests any enhanced or
additional Services from nubie.com. The details and the
enhanced or additional Services and the revised fees
will be set out in a new Order Form (the “Addendum Order
Form”) which will be sent to you by email. If you accept
the Addendum Order Form it will replace the existing
Order Form and will form part of this Agreement. If you
do not respond to the email with the Addendum Order Form
within 2 business days of receipt then you will be
deemed to have accepted the Addendum Order Form and it
will form part of this Agreement. If you do not accept
the Addendum Order Form then the provisions of the
existing Order Form will remain in place. All pricing
terms are confidential, and you agree not to disclose
them to any third party. You agree to provide nubie.com
with complete and accurate billing and contact
information. This information includes your legal
company name, street address, Email address, and name
and telephone number of an authorized billing contact
and License Administrator. You agree to update this
information within 30 days of any change to it. If the
contact information you have provided is false or
fraudulent, nubie.com reserves the right to terminate
your access to the Services in addition to any other
legal remedies.
8. ACCOUNT INFORMATION & DATA nubie.com does not own any
data, information or material that you submit to the
Service in the course of using the Service ("Received
Data"). You, not nubie.com, shall have sole
responsibility for the accuracy, quality, integrity,
legality, reliability, appropriateness, and intellectual
property ownership or right to use of all Received Data,
and nubie.com shall not be responsible or liable for the
deletion, correction, destruction, damage, loss or
failure to store any Received Data. In the event this
Agreement is terminated (other than by reason of your
breach), nubie.com will make available to you a file of
the Received Data within 30 days of termination if you
so request at the time of termination. In the event
that, within 30 days of termination of this Agreement,
the Licensee does not make a request for the return of
any Received Date, or does not make arrangements for the
retrieval of such Received Date then nubie.com reserves
the right to remove and/or discard Received Data without
notice to the Licensee. In the event of any breach of
this Agreement by the Licensee, including, without
limitation, your non-payment then nubie.com reserves the
right to withhold any Received Date until the breach has
been remedied.. As an essential part of the delivery of
our service it is necessary for us to periodically email
our subscribers at the address provided at registration.
By accepting these terms and conditions you accept that
nubie.com can contact you by email on an ongoing basis.
9. INTELLECTUAL PROPERTY & INFRINGEMENT CLAIMS You
acknowledge that all Intellectual Property Rights in the
Services, Content and nubie.com Technology belong and
shall belong to nubie.com. You have no rights in or to
the Services, Content and nubie.com Technology other
than the right to use it in accordance with the terms of
this Agreement. At nubie.com’s sole expense, nubie.com
shall defend you or, at its option, settle any
Infringement Claim or action brought against you
alleging that the use of the Services, Content and
nubie.com Technology in accordance with the terms of
this Agreement infringes the Intellectual Property
Rights of a third party (an “Infringement Claim”) and
shall be responsible for any reasonable losses, damages,
costs (including legal fees) and expenses incurred by or
awarded against as a result of or in connection with any
such Infringement Claim. For the avoidance of doubt,
this clause shall not apply where the Infringement Claim
in question arises from the use of the Services, Content
or nubie.com Technology other than in accordance with
the terms of this Agreement. As a condition of obtaining
an indemnity in the circumstances set out above you
agree to immediately: a) fully and promptly notify
nubie.com of any Infringement Claim, or threatened
Infringement Claim,; b) not make any admission as to
liability or compromise or agree to any settlement of
any Infringement Claim without the prior written consent
of nubie.com, which consent shall not be unreasonably
withheld or delayed; c) permit nubie.com to take full
control of such Infringement Claim, including settling
it at nubie.com’s expense; and d) give reasonable
assistance in the investigation and defense of such
Infringement Claim. If any Infringement Claim is made,
or in nubie.com's reasonable opinion is likely to be
made, against you, nubie.com may at its sole option and
expense: a) procure for you the right to continue using
the Services in accordance with the terms of this
Agreement; b) modify the Services so that they ceases to
be infringing; or c) replace the Services. d) terminate
this agreement on 7 days notice.
10. LIMITED WARRANTY Each party represents and warrants
that it has the legal power and authority to enter into
this Agreement.
11. DISCLAIMER OF WARRANTIES NUBIE.COM AND ITS LICENSORS
MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE
RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR
ANY CONTENT. NUBIE.COM AND ITS LICENSORS DO NOT
REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE
WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR
OPERATE IN COMBINATION WITH ANY OTHER HARDWARE,
SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR
REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL
BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL
MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR
DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE
SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL
CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS.
ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY
DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW BY nubie.com AND ITS LICENSORS. 12. LIMITATION OF
LIABILITY THE TOTAL LIABILITY OF NUBIE.COM, WHETHER IN
CONTRACT, TORT OR OTHERWISE AND WHETHER IN CONNECTION
WITH THIS AGREEMENT OR ANY COLLATERAL CONTRACT, SHALL IN
NO CIRCUMSTANCES EXCEED A SUM EQUAL TO THE FEES RECEIVED
BY NUBIE.COM FROM THE LICENSEE IN THE 12 MONTH PERIOD
PRIOR TO THE DATE OF ANY CLAIM BY THE LICENSEE . IN NO
EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE
TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL,
EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF
ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE,
PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT
OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING
BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE
SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE
SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR
OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF
THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH
PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. 13. LICENSEE INDEMNITY You
shall indemnify and hold nubie.com, its licensors and
each such party's parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys
and agents harmless from and against any and all claims,
costs, damages, losses, liabilities and expenses
(including attorneys' fees and costs) arising out of or
in connection with: (i) a claim alleging that use of the
Received Data infringes the rights of, or has caused
harm to, the party that supplied the Received Data or a
third party; (ii) a claim, which if true, would
constitute a violation by you of your representations
and warranties; or (iii) a claim arising from the breach
by you or any Vendor User or any End User of this
Agreement, provided in any such case that nubie.com (a)
gives written notice of the claim promptly to you; (b)
gives you sole control of the defense and settlement of
the claim (provided that you may not settle or defend
any claim unless you unconditionally release nubie.com
of all liability and such settlement does not affect
nubie.com 's business or Service); (c) provides to you
all available information and assistance; and (d) has
not compromised or settled such claim;(iv) any claim
made by users of any payment services provided by the
licensee using supporting technology provided by
nubie.com. The licensee agrees to indemnify nubie.com
from any liability, covering fraud, refunds, or any
other deliberate or negligent act arising from accepting
or processing payments that may occur whilst using
underlying technology, infrastructure and processes
provided in good faith by nubie.com to the licensee. (v)
the licensee confirms that no fraudulent, illegal or
inappropriate activity is conducted either by itself,
employees, associates, customers and suppliers and
indemnifies nubie.com from any related liability should
this subsequently be proved to be the case
14. TERMINATION Either party may terminate this License
at any time on written notice to the other if: 1) the
other is in material or persistent breach of any of the
terms of this Agreement and either that breach is
incapable of remedy, or the other party fails to remedy
that breach within 30 days after receiving written
notice requiring it to remedy that breach; 2) the other
is deemed to be unable to pay its debts within the
meaning of section 214 of the Companies Act 1963, is
unable to pay its debts as they fall due, commences
negotiations with any one or more of its creditors with
a view to the general readjustment or rescheduling of
its indebtedness or makes a general assignment for the
benefit of or composition with its creditors; 3) the
other ceases carrying on, threatens to cease carrying
on, or disposes of its business or a material part of
its business; 4) the other takes any corporate action or
other steps are taken or legal proceedings are started
for its winding up, dissolution, examinership or
re-organisation or for the appointment of a liquidator,
receiver, examiner, conservator, custodian, trustee or
similar officer of it or of any or all of its revenues
and assets; or 5) any execution or distress is levied
against, or an encumbrancer takes possession of, the
whole or any part of, the property, undertakings or
assets of the other or any event occurs which under the
laws of any jurisdiction has a similar or analogous
effect. nubie.com may suspend or terminate this
Agreement and your access to the Service immediately if
you fail to pay any Fees when due.. Overdue Fees are
subject to interest of 3.0% per month on any outstanding
balance, or the maximum permitted by law, whichever is
less, plus all expenses of collection. Either party may
terminate this Agreement on 30 days written notice to
the other. On termination of this Agreement for any
reason: 1) all licences granted to you under this
Agreement shall cease; 2) you shall cease all activities
authorised by this Agreement; 3) you shall immediately
pay to Nubie.com any sums due under this Agreement.
15. MISCELLANEOUS PROVISIONS
Confidentiality. During the term of this Agreement, and
for a period of 5 years after its expiry or termination,
each party shall keep confidential, and not use for its
own purposes nor without the prior written consent of
the other disclose to any third party any, all and any
information of a confidential nature, including trade
secrets and information of commercial value, which may
become known to such party from the other party and
which relates to the other party or any of its
affiliates, unless such information is public knowledge
or already known to such party at the time of
disclosure, or subsequently becomes public knowledge
other than by breach of this Licence, or subsequently
comes lawfully into the possession of such party from a
third party. Without prejudice to the provisions of this
clause, for marketing purpose the Licensee hereby grants
nubie.com the right to identify the Licensee as a
customer of nubie.com
Assignment: This Agreement may not be assigned by you
without the prior written approval of nubie.com but may
be assigned without your consent by nubie.com to (i) a
parent or subsidiary, (ii) an acquirer of assets, or
(iii) a successor by merger. Any purported assignment in
violation of this section shall be void. Any actual or
proposed change in control of you that results or would
result in a direct competitor of nubie.com directly or
indirectly owning or controlling 50% or more of you
shall entitle nubie.com to terminate this Agreement for
cause immediately upon written notice. Force Majeure.
Neither party shall be liable for failure or delay in
the performance of any of its obligations under this
Agreement if such failure or delay results from Force
Majeure, but any such failure or delay shall be remedied
as soon as practicable.
Notices. Any notice or other communication whether
required or permitted to be given under this Agreement
shall be given in writing or by email and shall be
deemed to have been duly given if delivered by hand to
the addressee or sent by registered post to the
addressee at the address set out for such party in this
Agreement or sent by email to the addressee's email
address, as provided when agreeing to this contract at
the outset, (or such other address as that party may
from time to time designate in writing to the other
parties in accordance with the provisions of this
Clause). Any such notice shall be deemed to have been
duly given if delivered, at the time of delivery, if
sent by registered post, forty eight hours after posting
or if delivered by email when confirmation of its
transmission to the above referenced email address has
been recorded by the sender’s computer / server.
Severability. If any provision in this Agreement is
deemed to be, or becomes invalid, illegal, void or
unenforceable under applicable laws, such provision will
be deemed amended to conform to applicable laws so as to
be valid and enforceable, or if it cannot be so amended
without materially altering the intention of the
parties, it will be deleted, but the validity, legality
and enforceability of the remaining provisions of this
Agreement shall not be impaired or affected in any way.
Parties Bound. This Agreement shall be binding upon and
run for the benefit of the parties, their successors and
permitted assigns. Entire Agreement. This Agreement
constitutes the entire agreement and understanding
between the parties with respect to their subject
matter, and except as expressly provided, supersede all
prior representations, writings, negotiations or
understandings with respect to that subject matter.
Further Assurance. Each party shall do and execute, or
arrange for the doing and executing of, each necessary
act, document and thing reasonably within its power to
implement this Agreement. Counterparts. This Agreement
may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original
and all of which when taken together shall constitute
this Agreement.
Waivers and Variations. A failure to exercise or delay
in exercising a right or remedy provided by this
Agreement or by law does not constitute a waiver of the
right or remedy or a waiver of other rights or remedies.
No single or partial exercise of a right or remedy
provided by this Agreement or by law prevents further
exercise of the right or remedy or the exercise of
another right or remedy. No variation of this Agreement
shall be effective unless it is made in writing and
signed by each of the parties.
Governing Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of
Ireland, and shall be subject to the exclusive
jurisdiction of the Irish courts. |
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