This agreement (the “Agreement”) is a legal agreement between the Customer and Bunting Software Ltd (a company registered in England and Wales with company number 08712116) whose registered office is The Media Centre, 07 Northumberland Street, Huddersfield, West Yorkshire, England, HD1 1RL (“Bunting”).
Bunting permits use of the Bunting Basic Software Services and Documentation by the Customer on the basis of this Agreement. By checking the box confirming the Customer’s acceptance of this Agreement, the Customer agrees to be bound by the terms of this Agreement.
Bunting and the Customer now agree as follows:
In this Agreement the following terms shall have the meanings assigned to them below:
“Account” an instance of the Software made exclusively available to the Customer;
“Bunting Basic Software Services” the services provided by Bunting to the Customer under this Agreement using the Software, as more particularly described in the Documentation;
“Customer” the person, firm, company or other body specified in Bunting’s account opening form;
“Customer Website” the Customer’s website(s) on which the Software is installed;
“Documentation” the documents made available to the Customer by Bunting online via https://getbunting.com/ or such other web address notified by Bunting to the Customer from time to time which sets out a description of the Bunting Basic Software Services and the User instructions for the Services;
“Effective Date” the date on which the Customer checks the box confirming its acceptance of the terms of this Agreement;
“Information” any and all documentation, materials, software, code and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, customers, pricing, transactions, software, suppliers or methods of one Party and disclosed to or otherwise obtained by the other Party in connection with this Agreement;
“Intellectual Property” any and all intellectual property rights including patents, trademarks, design rights, copyright, rights in data and databases, domain names, topography rights, and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with any and all goodwill relating or attached thereto, the right to apply for registration of and/or register such rights and all extensions and renewals thereof;
“Normal Business Hours” 9:00 am to 5.30 pm, GMT on any Working Day;
“Parties” the Customer and Bunting and “Party” shall be construed accordingly;
“Software” Bunting’s software provided as part of the Bunting Basic Software Services, including any updates and modifications made available from time to time by Bunting;
“Term” has the meaning set out in clause 8.1;
“Users” the employees, contractors and agents of the Customer who from time to time access the Bunting Basic Software Services;
“Working Day” any day falling on or between Monday to Friday, excluding all public and bank holidays in England and Wales; and
“Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.1. Clause headings shall not affect the interpretation of this Agreement.
1.2. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.4. A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.5. Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders.
1.6. The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context and reference to the whole includes reference to part.
2. LICENCE TO USE THE BUNTING BASIC SOFTWARE SERVICES
2.1. Subject to the restrictions and Customer obligations set out in this Agreement, and in consideration of the Customer paying Bunting £1(the receipt and sufficiency of which Bunting acknowledges) Bunting hereby grants to the Customer a non-exclusive, non-transferable right to permit the Users to use the Bunting Basic Software Services and the Documentation commencing on the Effective Date during the Term in accordance with the terms of this Agreement.
2.2. Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, the Customer may not nor permit others to:
2.2.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
2.2.2. rent, lease, sublicense, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis;
2.2.3. translate, reverse engineer, decompile, disassemble, unbundle, modify or create derivative works based on the Software, except as expressly permitted by law;
2.2.4. vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Software; or
2.2.5. access all or any part of the Bunting Basic Software Services and Documentation in order to build a product or service which competes with the Bunting Basic Software Services and/or the Documentation.
2.3. The Customer undertakes to use all reasonable endeavours to prevent any unauthorised access to, or use of, the Bunting Basic Software Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Bunting.
2.4. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Bunting Basic Software Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property, and Bunting reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.5. The integrity of the Software is protected by technical protection measures so that the Intellectual Property rights in the Software are not misappropriated. The Customer must not attempt in any way to remove or circumvent such technical protection measures, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in its possession for private or commercial purposes, any means whose sole purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.
2.6. The Customer may use the tools within its Account to export non-anonymous profile data from its Account at any time during the Term, such as, visitor names, email addresses and visit history.
2.7. For security reasons it is necessary to protect the proprietary nature of the structure of Bunting’s database architecture, accordingly the Customer acknowledges and agrees that Bunting shall not disclose or otherwise provide the Customer with data collected through the use of the Bunting Basic Software Services, except as provided in clause 2.6.
2.8. All rights that are not expressly or specifically granted in this Agreement to the Customer are reserved to Bunting.
3. PROVISION OF THE BUNTING BASIC SOFTWARE SERVICES
3.1. Bunting shall use its reasonable endeavours to make the Bunting Basic Software Services available 24 hours a day, seven days a week, except for:
3.1.1. planned maintenance carried out during the maintenance window of 4.00 am to 8.00 am UK time;
3.1.2. unscheduled maintenance performed outside Normal Business Hours, provided that Bunting has used reasonable endeavours to give the Customer at least 1 Normal Business Hours’ notice in advance.
3.2. Bunting reserves the right at any time to make any modification, change or addition to, or replacement of, the Bunting Basic Software Services where this is required to conform with any applicable statutory requirements. Bunting shall give the Customer as much notice as reasonably practicable of any proposed modification.
3.3. Bunting shall not be liable for any failure to provide the Bunting Basic Software Services in accordance with this Agreement to the extent that such failure is caused directly or indirectly by the Customer’s negligence or breach of any term of this Agreement.
3.4. Each party shall comply with and agrees to the terms of Bunting’s Data Privacy and Security Policy available at https://getbunting.com/docs/data-security or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Bunting in its sole discretion.
3.5. The Customer acknowledges and agrees Bunting and its representatives shall be entitled to access the Account for maintenance of the Bunting Basic Software Services and otherwise as necessary to provide the Bunting Basic Software Services.
3.6. The Customer acknowledges and accepts it shall be responsible for installing the Software with the Customer Website.
4. CUSTOMER OBLIGATIONS
4.1. The Customer shall:
4.1.1. only use the Bunting Basic Software Services in accordance with the terms of the Agreement for its own internal purposes;
4.1.2. use the Bunting Basic Software Services in accordance with Bunting’s reasonable instructions and any laws, regulations and licenses which may apply to the Customer’s use of the Bunting Basic Software Services from time to time;
4.1.3. carry out all Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Bunting may adjust any agreed timetable or delivery schedule as reasonably necessary;
4.1.4. ensure that the Users use the Bunting Basic Software Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
4.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Bunting, its contractors and agents to perform their obligations under this Agreement;
4.1.6. ensure that its network and systems comply with the relevant specifications provided by Bunting from time to time;
4.1.7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Bunting’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
4.1.8. provide Bunting with up-to-date information, co-operation and support as Bunting shall reasonably require pursuant to this Agreement.
4.2. The individual acting on behalf of the Customer in entering into the Agreement warrants and undertakes that it has the requisite power and authority to act on behalf of the Customer to enter into the Agreement and bind the Customer.
5. INTELLECTUAL PROPERTY
5.1. All Information of Bunting and all Intellectual Property and any other rights in the Software and in or arising from the Bunting Basic Software Services and/or any other services provided under or in connection with this Agreement shall be and shall remain at all times the exclusive property of Bunting or relevant third party and the Customer shall acquire no right, title or interest in or to the same and shall use such items solely as permitted by the terms of this Agreement.
6.1. Subject to the remainder of this Clause 6, neither the Customer nor Bunting shall, without the other Party’s prior written consent, disclose to any third party Information (other than the business name of the other Party) which comes to that Party’s attention pursuant to this Agreement. Each Party shall only use the Information of the other Party to exercise its rights and/or perform its obligations under this Agreement.
6.2. The Customer agrees that Bunting may disclose the Information of the Customer to any relevant third party to the extent reasonably required by such third party in order to allow provision of the Bunting Basic Software Services and/or any other services provided under or in connection with this Agreement.
6.3. The provisions of Clause 6.1 shall not apply to information which:
6.3.1. is in or comes into the public domain otherwise than by breach of this Agreement, except that any compilation of otherwise public information in a form not publically known shall nevertheless be treated as confidential Information;
6.3.2. is in the other Party’s possession prior to the commencement of negotiations for this Agreement as shown by written evidence that predates the date of such negotiations;
6.3.3. is or was lawfully received from a third party not under an obligation of confidentiality in respect of the same as shown by written evidence that predates the date of this Agreement;
6.3.4. was developed independently of and without reference to the other Party’s Information; or
6.3.5. is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required), in which case each Party shall promptly notify the other Party of any such disclosure requirement.
6.4. Unless the Customer informs Bunting in writing that it is not permitted to do so, Bunting shall be entitled to publicise that the Customer has licensed the Software and purchased the Bunting Basic Software Services from Bunting in its advertising or promotional materials (including in case studies), press releases, tenders, proposal, speeches, articles and other similar materials.
6.5. Each Party shall be entitled to divulge the other Party’s Information to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with this Agreement provided that the receiving Party shall ensure that such persons are aware of and, shall procure that such persons comply with, these confidentiality obligations.
6.6. The restrictions contained in this Clause 6 shall continue to apply after termination or expiry of this Agreement without limit in time.
7.1. This clause 7 sets out the entire financial liability of Bunting (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
7.1.1. arising under or in connection with this Agreement;
7.1.2. in respect of any use made by the Customer of the Bunting Basic Software Services, Documentation and/or any other services provided under or in connection with this Agreement or any part of them; and
7.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.2. Except as expressly and specifically provided in this Agreement:
7.2.1. the Customer assumes sole responsibility for results obtained from the use of the Bunting Basic Software Services and the Documentation by the Customer, and for conclusions drawn from such use. Bunting shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Bunting by the Customer in connection with the Bunting Basic Software Services, or any actions taken by Bunting at the Customer’s direction;
7.2.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
7.2.3. the Bunting Basic Software Services and the Documentation are provided to the Customer on an “as is” basis.
7.3. Notwithstanding the foregoing, Bunting:
7.3.1. does not warrant that the Customer’s use of the Bunting Basic Software Services will be uninterrupted or error-free; or that the Bunting Basic Software Services, Documentation and/or the information obtained by the Customer through the Bunting Basic Software Services will meet the Customer’s requirements; and
7.3.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Bunting Basic Software Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4. This Agreement shall not prevent Bunting from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.5. Bunting warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7.6. Nothing in this Agreement shall exclude or limit Bunting’s liability for:
7.6.1. death or personal injury caused by its (or its employees’, agents’ or contractors’) negligence; and
7.6.2. fraud or fraudulent misrepresentation; and
7.6.3. any other liability the exclusion or limitation of which is not permitted by English law.
7.7. Subject to clause 7.2, clause 7.3 and clause 7.6:
7.7.1. Bunting shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: loss of profits; loss of business; depletion of goodwill and/or similar losses; or loss or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
7.7.2. Bunting’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to five thousand pounds sterling (£5,000).
8. TERM AND TERMINATION
8.1. This Agreement shall commence on the Effective Date and shall continue thereafter unless terminated in accordance with this Agreement.
8.2. A Party shall have the right to terminate this Agreement at any time on immediate notice to the other Party in the event that the other Party:
8.2.1. fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
8.2.2. commits an irremediable material breach of this Agreement, persistently repeats a remediable material breach or commits any remediable material breach and fails to remedy it within fourteen (14) days of receipt of the notice of the breach requiring remedy of the same; or
8.2.3. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.2.4. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
8.2.5. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.
8.3. Bunting may terminate this Agreement (or any part of it) and/or the Bunting Basic Software Services (or any part of them):
8.3.1. by serving written notice on the Customer with immediate effect, if termination is required for legal or regulatory reasons;
8.3.2. by serving written notice on the Customer if Bunting or its third party suppliers no longer operates or provides any or all of the products or services used in relation to the Bunting Basic Software Services or intends to cease operating or providing any or all of such products or services in the immediate future.
8.4. Either Party may terminate this Agreement, without cause, on giving the other Party not less than fourteen (14) days’ prior written notice.
8.5. The termination of this Agreement shall be without prejudice to the accrued rights and liabilities of either Party subsisting under this Agreement prior to termination.
8.6. Bunting may at its sole discretion suspend immediately the provision of the Bunting Basic Software Services and/or any other services provided under this Agreement (or any part of them) until further notice on notifying the Customer either orally (confirming such notification in writing) or in writing if Bunting is entitled to terminate this Agreement. Any suspension of the Services shall not exclude Bunting’s right subsequently to terminate this Agreement.
9. CONSEQUENCES OF TERMINATION
9.1. Upon termination of this Agreement for any reason, the Customer shall:
9.1.1. immediately cease to make use of the Bunting Basic Software Services; and
9.1.2. either return or destroy all of Bunting’s Information or any document containing part thereof, together with all copies of such Information (including, to the extent reasonably possible, all electronic copies) and shall on reasonable request provide written confirmation that such steps have been taken.
9.2. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
9.3. Any terms and conditions forming part of this Agreement which are agreed by the Parties to survive termination or which by their nature are to survive termination, shall survive and continue in full force and effect.
10. FORCE MAJEURE
10.1. Bunting shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Bunting or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
11.1. Notices sent in respect of any matter arising in respect of this Agreement shall be in writing and must be sent either by:
11.1.1. pre-paid first class post; or
11.1.2. delivered by hand; or
11.1.3. airmail; or
11.2. A notice shall be sent or delivered to the address specified in this Agreement (as updated by notice in accordance with this section) or email notified by each party to the other from time to time.
11.3. Notice is deemed given:
11.3.1. in the case of hand delivery – at the time the delivery is made;
11.3.2. in the case of posting– two (2) Working Days after the notice is posted;
11.3.3. in the case of airmail – five (5) Working Days after the notice is posted; and
11.3.4. in the case of email – at the time when the sender receives either a read receipt or a telephone call from the recipient confirming receipt of the email, whichever is earlier.
12.1. The Customer shall not assign, purport to assign or otherwise transfer this Agreement and/or any of its obligations thereunder, in whole or in part, without Bunting’s prior written consent.
12.2. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.3. Unless otherwise stated herein, this Agreement can only be modified by the written and signed agreement of the Parties.
12.4. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5. Bunting may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12.6. If any part of this Agreement is held unlawful, invalid or unenforceable, that part shall be considered struck out and the remainder of this Agreement shall remain in full force and effect. Bunting and the Customer shall work together in good faith to agree an enforceable replacement provision capturing the spirit of the original.
12.7. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
12.8. The Parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it unless specifically provided for this Agreement.
12.9. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
12.10. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Last Updated: 26/08/2016