Licence Agreement between WE THRIVE LIMITED (registration no. 08265292) whose principal place of business is at 44-46 Old Steine, Brighton, East Sussex, BN1 1NH (“We“ / “Our”) and the customer (“you” “your”) who will access Our hosted software and services, features, content or applications known as WeThrive (collectively “Software”).
In addition, if you are using a particular service hosted on or accessed via this web site, you will be subject to any rules or guidelines applicable to the said services. Links to third-party sites are provided as a convenience to you only and do not imply an endorsement by WeThrive of any such linked site. WeThrive cannot be held responsible for information and materials found on sites controlled or operated outside of its domain, including any assurance of the accuracy of such information.
1.1 This Licence Agreement contains the terms relating to your access, use and Support of the Software.
1.2 We hereby grant you a revocable, non-exclusive, non-transferable license to use the Software upon the terms and conditions of this Licence Agreement during the subscription Term (as set out in the Pricing page or in the Order) for internal business purposes only (“Purpose”). This Licence Agreement supersedes any other agreement between you and Us.
1.3 In the event you make use of Our free trial offer such use shall be subject to the terms of this Agreement or website terms and conditions.
1.4 Subject to adherence of the payment terms set out in clause 8 We will continue to grant you access to and use of the Software during the subscription term and such licence is granted on a revocable, non-exclusive and non-transferable basis (“the Licence”).
1.5 You accept full responsibility and liability for the acts or omissions of any of such persons given access to the Software as if you had performed such acts or omissions yourself.
1.6 You will comply with any additional restrictions or terms stipulated in the Licence Agreement or through any future communication from us to you. We reserve the right to update our Licence Agreement and such updates will be located on our website located at www.wethrive.net.
1.7 Your use of the Software may be disrupted due to necessary Software upgrades and/or modifications to the Software but may also result from necessary server downtime and general maintenance of our system. We will notify you of such intended disruptions either in writing or via our web site notification alerts contained within our help desk on our website.
1.8 The Licence granted to you by clause 1.4 will last until this Licence Agreement is terminated in accordance with clause 10.
2.1 You will be provided with a user name and password for your account in order to access and use the Software (“User”) and associated support functions as set out in clause 2.3 (“Support”). Authorised staff who you wish to survey will be provided secure access via email.
2.2 You must keep your username and password strictly confidential and not disclose it to any third party (including, if you are in a group of companies, other companies within that group or to whom you are associated) without the prior written consent of us. In the event you breach this clause 2.2 you will invalidate your warranties under clause 5 and any representations on our part as to the security of your data and systems.
2.3 We provide the following Support during normal working hours being 9am to 5pm (excluding weekend and bank holidays):
2.3.1 Email support only via the online help desk.
2.3.2 We aim to respond to any urgent business critical support tickets within 24 hours. Non-urgent, non-business critical support tickets within 48 hours.
3. Intellectual Property Rights
3.1 You agree and acknowledge that title to all the intellectual property rights, which includes but is not limited to, all design rights, utility models, inventions, service marks, logos, business names, database rights (including extraction and re-utilization rights, trademarks (whether registered or unregistered), moral rights, industrial property rights, Internet domain names, applications for any of the foregoing, copyright, rights in databases, interface information, system generated data, system output data (excluding your confidential data or information protected by the Data Protection Act 1998), source codes, reports, specifications, know-how, trade secrets, confidential information, software designs and/or other materials in the Software and/0r documentation provided to you (“Intellectual Property Rights”) are and remain the absolute and exclusive property of and vest and remain vested in us, our nominees or licensor(s).
3.2 Title in any Intellectual Property Rights developed by Us pursuant to this Licence Agreement shall vest in Us or Our nominee. You have no right, title or interest in or to such developed Intellectual Property Rights other than such as may be granted or confirmed to you under this Licence Agreement.
4. Restrictions of use of the Software
4.1 You are allowed to use the Software only for the Purpose and you hereby agree not to use the Software for any other purpose.
4.2 You may not:
4.2.1 loan, rent, lease, or license the Software or Documents or any copy thereof;
4.2.2 breach the Data Protection Act 1998;
4.2.3 use, copy, alter, reverse engineer or decompile the Software or Documents except to the extent set out in this Licence Agreement;
4.2.4 use the Software for fraudulent purposes, or in connection with a criminal offence or other unlawful activity; or
4.2.5 use the Software to send, use or reuse any material that is illegal, offensive, abusive, , defamatory, or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or which consists of or contains software viruses.
4.3 Any other right which is not expressly imparted under this Licence Agreement is reserved with us.
5. Warranty and Disclaimer
5.1 We warrant (subject to the other provisions of this Licence Agreement) to you that we have the full capacity and authority to enter into and to perform this Licence Agreement including the authority to grant the License under this Licence Agreement to you.
5.2 We warrant only that the Software shall perform substantially in accordance with the descriptions of the Software contained in printed materials produced by Us.
5.3 Notwithstanding clause 5.2 you acknowledge that software in general is not error-free, and agree that the existence of such errors shall not constitute a breach of this Licence Agreement when those errors are corrected and do not fundamentally prevent the use of the Software.
5.4 You warrant to us that you have the full capacity and authority to enter into and perform this Licence Agreement and that this Licence Agreement is executed by a duly authorised representative of the Company and that you will comply with all your obligations contained in this Licence Agreement.
5.5 We will not be liable for breach of any warranties or other terms in this Licence Agreement to the extent the breach arises from
5.5.1 use of the Software in violation to the terms of this Licence Agreement or not in accordance with normal operating procedures or as otherwise notified to you by us;
5.5.2 use of the Software in violation of any UK or EU law or regulation;
5.5.3 any alterations to the Software made by anyone other than us or someone authorised in writing by us;
5.5.4 any abnormal or incorrect operating conditions;
5.5.6 any breach by you of clause 2.
5.6 No condition, warranty, representation or other term is given or entered into to the effect that the Software or advice or guidance provided by Us will be of satisfactory (or any other) quality or that it will be fit for any particular purpose (whether that purpose is made known to us or not). Save as expressly provided in this Licence Agreement, no other warranties, undertakings, conditions or terms of any kind, express or implied, statutory or otherwise shall apply and all warranties, conditions, terms or other undertakings implied at law or by custom as to the condition, quality, performance, satisfactory quality or fitness for purpose of the Software or any part thereof are hereby excluded.
6 Intellectual Property Rights Indemnity
6.1 Subject to the terms of this Licence Agreement and you complying with your obligations we shall indemnify you against any direct loss, claims, damages or expenses (including reasonable legal costs) that may be awarded or agreed to be paid by us to any third party in respect of any claim or action that the normal operation, possession or use of the Software by you infringes the Intellectual Property Rights of any third party in the United Kingdom (an “Intellectual Property Infringement”) provided that:
6.1.1 You notify us immediately you become aware of any such claim;
6.1.2 You make no admissions or other prejudicial statement in respect of such claim and comply with all reasonable instructions relating to the claim given by us;
6.1.3 You give us the complete conduct of the defence to and any settlement negotiations in relation to any claim or action in respect of any Intellectual Property Infringement and do not at any time admit liability or attempt to settle or compromise the said claim or action without prior consultation with and written consent of us.
6.2 In the event of an Intellectual Property Infringement, we shall be entitled at our own expense and option either to:
6.2.1 procure the right for you to continue using the Software in accordance with this Licence Agreement; or
6.2.2 make such alterations modifications or adjustments to the Software so that they become non-infringing without incurring a material diminution in performance or function; or
6.2.3 replace the Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function (and the provisions of this indemnity shall equally apply to any such substitutes).
6.3 If we are unable to exercise any of the options set out in clause 6.2, then you, without prejudice to any other rights and remedies you have in law, shall be entitled to terminate this Licence Agreement by providing us with seven (7) days’ notice and we will refund to you an equitable proportion of the monthly access fees, as set out in the Order Form.
6.4 This clause 6 states your entire remedy in relation to Intellectual Property Infringements and claims and actions relating to them.
6.5 We shall have no liability to indemnify you under this clause 6 if the claim in respect of which indemnity is sought results from:
6.5.1 any breach of your obligations under this Licence Agreement;
6.5.2 your alteration, adaptation, disassembly or reverse engineering of the Software whether in accordance with this Licence Agreement or otherwise;
6.5.3 us following your instructions or an instruction of a third party acting on your behalf; or
6.5.3 the combination or use of the Software with any other software, hardware or goods not supplied, recommended or approved by us in writing.
7.1 The Parties liability for:
7.1.1 Death or personal injury caused by our negligence or the negligence of our employees or agents;
7.1.2 under Part I of the Consumer Protection Act 1987;
7.1.3 breach of any condition as to title or quiet enjoyment implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982;
7.1.5 breach of clause 3, 4, 6, and 9 is not excluded or limited by this Licence Agreement, even if any other term of this Licence Agreement would otherwise suggest that this might be the case.
7.2 Neither party accept any liability under or in relation to this Licence Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any (i) loss of profits; (ii) indirect, consequential or special loss; (iii) loss of sales; (iv) loss of revenue, loss of contracts or loss of opportunity; (v) loss of any data; (vi) loss arising from business interruption; (vii) loss arising from advice or guidance offered or produced by Us and presented to you or (viii) loss or damage incurred by the Company as a result of third party claims .
7.3 For the purposes of this clause 7 the term “loss” includes a partial loss or reduction in value as well as complete or total loss.
7.4 If for any reason the exclusion of liability in clause 7.2 above is void or unenforceable, in whole or in part our total liability for all loss or damage under this Licence Agreement shall be as provided in clause 7.5.
7.5 Our total aggregate liability under this Licence Agreement and in relation to anything which we have done or not done in connection with this Licence Agreement (and whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to an amount equal to one hundred percent of the total Charges paid by You under this Licence Agreement in any twelve (12) month period immediately preceding the matter, or circumstance giving rise to the claim.
7.6 You acknowledge that the limitations of liability contained in clause 7.5 are a fair and reasonable allocation of the commercial risk between us. The provisions of this clause 7.6 will continue to apply after termination or expiry of this Licence Agreement.
8. Licence Term, Charges and Payments
8.1 You may subscribe to an annual (twelve (12) calendar months) Licence or to a rolling monthly Licence term each with its own cancellations provisions and associated pro rate refunds, as set out on the Pricing page.
8.2 You will be billed monthly or annually depending on the pricing plan (“Pricing Plan”) you select on the Pricing page (http://www.wethrive.net/pricing). At the beginning of each billing period you will receive an invoice via email (and fees will be charged to the credit card provided; which will include both Licence and Support (“Charges”). A full log of purchases can be accessed in your profile area of the Software.
8.3 If you are late in paying any invoices we may (at our sole discretion) either (i) suspend your access to and use of the Software until you have settled such invoices in full or charge interest on all unpaid amounts. Interest will be payable from the date of the invoice is due until the date of payment and will continue to be payable even if we obtain a judgment from a court in relation to any claim for payment of the invoice. The rate of interest will be 4% per month above the base rate for the time being of HSBC Bank Plc.
8.4 All Charges and other sums payable under this Licence Agreement are exclusive of UK Value Added Tax and/or equivalent taxes in other countries which will be added and payable by you at the applicable rate and all sums due shall be paid in full without set-off, counter claim or deduction.
8.5 The plans are set out in bands on Our website. We reserve the right to change the pricing and bands from time to time and this will be displayed on our website.
9 Confidentiality and Data Protection Legislation
9.1 Each Party to this Licence Agreement undertakes that any confidential information of the other will be kept secret and will be disclosed to any third party only to such extent as is necessary for the purposes of this Licence Agreement.
9.2 In this Licence Agreement “Data Protection Legislation” shall have the following meaning: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
9.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.4 Without prejudice to the generality of clause 9.3, We will ensure that We have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined by the Data Protection Act 1998).
9.5 We shall:
(i) ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
(ii) ensure that all Our personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(iii) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of You; and
(iv) maintain complete and accurate records and information to demonstrate Our compliance with this clause 9.
10.1 The Licence Agreement becomes immediately effective and binding on you on the date that you agree to this Agreement, sign an Order and/or commence use of the Software.
10.2 The Licence you have selected on the Pricing Plan will provide you with termination options.
10.3 Unless you terminate your Licence it will automatically renew until you cancel the Licence pursuant to the Licence cancellation terms.
10.4 We may immediately terminate this Licence Agreement (and your Licence to use the Software) if You breach any term of the Licence Agreement and you are unable to remedy that breach.
11 Consequences of Termination
11.1 On expiry of the Licence Agreement or the termination of this Licence Agreement for whatever reason your access will automatically be terminated.
11.2 Upon termination of the Licence Agreement your data will be permanently deleted from our systems and we will not be liable to refund you for any unused licence or services. In the event your data is stored post termination of the Licence Agreement such storage may be subject to a fee to be determined and communicated by us to you.
11.3 Termination of this Licence Agreement will not affect any accrued rights or liabilities that either we or you may have by the time termination takes effect.
12.1 You may not sub-licence the use of Software..
12.2 You may not assign any of your rights or obligations under this Licence Agreement without our prior approval in writing. We reserve the right to assign this Licence Agreement or any of our rights or obligations under it to any third party.
12.3 We will not be liable to you for any breach of this Licence Agreement which arises because of any circumstances which we cannot reasonably be expected to control.
12.4 The headings in this Licence Agreement are for reference only.
12.5 Any dispute or other action arising out of this Licence Agreement must be brought within one year of the date the cause of action accrued. An action for non-payment may be brought within two years of the date of last payment.
12.6 In the event of a dispute arising out of or in connection with this Licence Agreement or any contract between you and us, then you agree to use your best efforts to settle the dispute by engaging in good faith with us before commencing mediation, arbitration or litigation.
12.7 No term of this Licence Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Licence Agreement.
12.8 If any provision of this Licence Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this Licence Agreement, or this Licence Agreement as a whole.
12.9 The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Licence Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Licence Agreement.
12.10 This Licence Agreement may be executed via an online acceptance system or may be executed by exchange of signature pages in any number of counterparts, each of which shall be an original as against the Party whose signature appears thereon and all of which constitute one and the same instrument. A signature received via facsimile or via scanned document attached in an email shall be as legally binding for all purposes as an original signature.
12.11 This Licence Agreement is governed by English law and both parties submit to the exclusive jurisdiction of the English Court, but we may apply to any court of competent jurisdiction for emergency or interim relief, or for the purpose of recovering any debt owed by you to us and f you hereby agree to submit in such event to such court.
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