THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorising or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to PureClarity that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer”, “You”, “Your” or a related capitalised term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
1.1 The definitions and rules of interpretation in this clause apply in these Terms.
Active SKUs: set of unique product variants each with a single price and currency or Stock Keeping Units (SKUs) each with a single price and currency that are live and available to view on the Customer’s Property.
Analytics: set of Raw Data and Meta Data used by the PureClarity Software to determine relevance and personalized results.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3.
Base Tier: the starting Tier within the Subscription Model allocated to the Customer.
Behavioural Merchandising Zone (BMZ): means a placeholder on the Customer’s Property for the purposes of rendering personalised site search and personalised merchandising results generated by the PureClarity Software.
Billing Date: the first day of each month.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Campaign Email: an email campaign which the Customer broadcasts through a 3rd party email broadcast system that embeds a call to the PureClarity Software to render Behavioural Merchandising Zones.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.
Customer Segment: a group of similar Visitors identifiable by past and current behavioural activity for the purpose of providing personalised results.
Content: the data inputted by the Customer, Authorised Users, or PureClarity on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, including but not limited to campaigns, product information, Visitor’s personal details, searchandising terms and merchandising graphics.
Data: Collectively the Raw Data, Content and the Meta Data.
Data Feed: product, brand, category and user data transmitted to the PureClarity Software.
Data Storage: the storage of the Data and storage to hold a single image backup of such Data.
Documentation: the document made available to the Customer by PureClarity online via the Support Center or such other web address notified by PureClarity to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date upon which the Customer installs or otherwise accesses the PureClarity Software and/or PureClarity Services
Free Trial: a period of time for the Customer to evaluate the PureClarity Software and PureClarity Services, free of charge, within the limits as set out on the PureClarity Website.
Language: means one of the languages on the list of available languages provided by the PureClarity Software.
Meta Data: the aggregated data derived from analysing the Visitors’ behaviour.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Online Quotation: the quotation, issued by PureClarity to the Customer, which details the Services to be provided, the limit allowances and the Subscription Fees, as amended from time to time in accordance with these Terms.
Personalized Campaign: a merchandising campaign that is personalised for an individual and/or Customer Segment.
Platform Provisions: defined upper monthly limit allowances as detailed in the Online Quotation for number of Sites, Store Views, Languages, Authorised Users, Active SKUs, Customer Segments, Personalized Campaigns, Data Storage, Product Deltas, Analytics storage, Campaign Emails, Staging Environment and Site impressions per month.
Product Delta: a feed of product data transmitted to the PureClarity Software that contains one or more product changes and represents a small percentage of a whole product data feed.
Property: means any web page, app, or other online information technology property under the Customer’s control that sends data to the PureClarity Software.
PureClarity: PureClarity Technologies Limited, a company incorporated and registered in England and Wales with company number 8872063 and whose registered office is at Unit 8, 10 Great North Way, York Business Park, York, YO26 6RB.
PureClarity Software: the online PureClarity Software applications and products provided by PureClarity as part of the Services, known as PureClarity.
PureClarity Website: means www.pureclarity.com and support.pureclarity.com.
Raw Data: the initial tracked data collected by the PCJS.
Services: the subscription services provided by PureClarity to the Customer under these Terms via “www.pureclarity.com” or any other website notified to the Customer by PureClarity from time to time, as more particularly described in the Documentation, including the Support Services and Platform Provisions.
Site: means a single instance of a Customer’s website running under one domain name.
Site Impression: the display of a web page on the site that contains the PCJS.
Staging Environment: an environment made available to the Customer for the purpose of developing and testing the integration of the PureClarity Software with the Customer’s Property limited to 5,000 Site Impressions per month and restricted to Customer’s IP address.
Store View: A single view of a Site restricted to one international language but capable of supporting multiple currencies.
Subscription Fees: the subscription fees payable by the Customer to PureClarity for the PureClarity Software at the Platform Provisions and Support Services, as set out in the Online Quotation.
Subscription Model: the collection of Tiers based on upper monthly Site Impressions with associated Subscription Fees along with other Platform Provisions.
Subscription Term: has the meaning given in clause 14.2 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Success Manager: appointed representative of PureClarity to the Customer to handle all account enquires.
Support Center: support documentation made available online at “support.pureclarity.com”.
Support Services: services relating to the hosting and user support of the PureClarity Software as outlined in the Support Policy.
Support Policy: PureClarity’s policy for providing support in relation to the Services as made available in the Support Center or such other website address as may be notified to the Customer from time to time.
Terms: these terms and conditions, as amended from time to time in accordance with clause 17.
Tier: one in a series of successive levels that define the maximum Site Impressions allowable within a month, each tier having a subscription fee associated with it based on the prevailing Subscription Model.
Visitor: a person who visits the Customer’s Property.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
1.3 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.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 Save where expressly stated otherwise within these Terms, a reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
1.8 Save where expressly stated otherwise within these Terms, 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.
1.9 A reference to writing or written includes faxes and e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.
Subject to these Terms and Conditions, during the term of this Agreement, PureClarity grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the PureClarity Software and PureClarity Services solely for Customer’s internal business purposes, solely in accordance with the Documentation and solely for the scope for which Customer pays the applicable fees and subject to the limitations on PureClarity’s website.
3. Authorised User
3.1 In relation to the Authorised Users, the Customer undertakes that: (a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the maximum allocation it has purchased from time to time, as detailed in the Online Quotation; (b) it will not allow or suffer any user account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation; and (c) each Authorised User shall keep a secure password for his use of the Services and Documentation, the safekeeping and security of which are the sole responsibility of the Authorised User.
3.2 The Customer shall not upload any Content during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; € is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and (g) PureClarity reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to, and to remove any material that breaches the provisions of this clause.
3.3 The Customer shall not, subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users.
3.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify PureClarity.
4.1 In the event that the Site Impressions exceed the Base Tier, as detailed in the Online Quotation, in any one month, PureClarity will automatically upgrade the Customer to a Tier within Subscription Model that does not exceed the used Site Impressions. This upgrade or any subsequent update made during the month will last for the duration of that month and will then revert to the Base Tier as detailed in the Online Quotation on the following month and be subject to this clause 4.1.
4.2 In the event that the number of Personalized Campaigns, Customer Segments or Data Feeds exceeds the Platform Provisions as detailed in the Online Quotation, PureClarity will charge the Customer the upgrade fees as detailed in the Online Quotation.
4.3 The Customer may, from time to time during any Subscription Term, purchase additional Sites, Languages, Authorised Users, Personalized Campaigns, Customer Segments, Data Feeds and Data Storage in excess of the allocated Platform Provisions as set out in the Online Quotation and/or additional add-on products and PureClarity shall grant access to the Services in accordance with the provisions of these Terms.
5.1 PureClarity shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Terms.
5.2 PureClarity shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: (a) planned maintenance; and (b) unscheduled maintenance, the procedure for which is set out in the Support Service Policy.
5.3 PureClarity will, as part of the Services and at no additional cost to the Customer, provide the Customer with PureClarity’s standard customer Support Services during Normal Business Hours in accordance with PureClarity’s Support Policy in effect at the time that the Services are provided. PureClarity may amend the Support Policy in its sole and absolute discretion from time to time.
5.4 the PureClarity Software is hosted in a multi-tenanted cloud environment; PureClarity reserves the right, at its sole discretion, to move this architecture to a similar environment at any point, and shall use its reasonable endeavours to provide the Customer with 30 days’ notice of such change.
6.1 The Customer shall own all right, title and interest in and to all of the Raw Data and Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Raw Data and Content.
6.2 PureClarity shall own all right, title and interest in and to all the Meta Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Meta Data.
6.3 PureClarity shall follow its archiving procedures for the Data as set out in its “Backup and Recovery Policy” available at the Support Center or such other website address as may be notified to the Customer from time to time, as such document may be amended by PureClarity in its sole discretion from time to time. In the event of any loss or damage to Data, the Customer’s sole and exclusive remedy shall be for PureClarity to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by PureClarity in accordance with the archiving procedure described in its “Backup & Recovery Policy”. PureClarity shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (except those third parties sub-contracted by PureClarity to perform services related to Customer Data maintenance and back-up).
6.4 PureClarity shall, in providing the Services, comply with its “Privacy and Security Policy” relating to the privacy and security of the Data available at the Support Center.
6.5 If PureClarity processes any personal data on the Customer’s behalf when performing its obligations under these Terms, the parties intend that the Customer shall be the data controller and PureClarity shall be a data processor and in any such case: (a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to PureClarity so that PureClarity may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer’s behalf; (b) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (c) PureClarity shall process the personal data only in accordance with these Terms and any lawful instructions reasonably given by the Customer from time to time; and (d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
6.6 The Customer or its agents must ensure that the PCJS is correctly installed in accordance with the instructions provided by PureClarity in order to allow Raw Data to be collected by the PureClarity Software. PureClarity shall not be responsible for any failure in the provision of the Services as a result of failure to comply with this clause.
7. PureClarity’s Obligations
7.1 PureClarity undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to PureClarity’s instructions, or modification or alteration of the Services by any party other than PureClarity or PureClarity’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, PureClarity will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or use its reasonable endeavours to provide the Customer with an alternative means of accomplishing a similar result. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, PureClarity: (a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and (b) 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This agreement shall not prevent PureClarity 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 by PureClarity under these Terms.
7.4 PureClarity warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
8. Customer’s Obligations
The Customer shall: (a) provide PureClarity with: (i) all necessary co-operation in relation to these Terms; and (ii) all necessary access to such information as may be required by PureClarity; in order to provide the Services, including but not limited to Raw Data, Content, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under these Terms; (c) carry out all other Customer responsibilities set out in these Terms 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, PureClarity may adjust any agreed timetable or delivery schedule as reasonably necessary; and (d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any Authorised User’s breach of these Terms;
9. Charges and Payments
9.1 The Customer shall pay the Subscription Fees to PureClarity for the Services in accordance with this clause 9 and the Online Quotation.
9.2 If PureClarity has not received payment within 14 days of each Billing Date, and without prejudice to any other rights and remedies of PureClarity: (a) PureClarity may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and PureClarity shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) compensatory sums shall be charged and interest shall accrue on a daily basis on such due amounts in the sums and at the rates specified by the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time), commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3 All amounts and fees stated or referred to in these Terms: (a) shall be payable in the stated currency as set out in the Online Quotation; (b) are, subject to clause 13.4(b), non-cancellable and non-refundable; and (c) are exclusive of any and all taxes, fees and duties or other amounts, including sales, use, withholding and value added taxes, which are levied or based upon these Terms.
9.4 If, at any time whilst using the Services, the Customer exceeds the allocated Platform Provisions, PureClarity shall charge the Customer, and the Customer shall pay, PureClarity’s additional charges as set out in the Online Quotation and the prevailing Subscription Model.
9.5 For the avoidance of doubt, the Subscription Fees do not include training courses in respect of the Customer’s utilisation of the Services or any product of the Services, other than those available on PureClarity website. Training courses are available on a charged basis, the details and cost of which are available on request from the Success Manager. Subscription Fees also do not include onboarding services, the details and cost of which are available on request from the Success Manager.
9.6 The Subscriptions Fees may increase by up to the Retail Price Index published by The Office of National Statistics for the UK. Any such increase shall be limited to once in any 12-month period, for which PureClarity shall give the Customer not less than 28 days written notice of the change.
10. Proprietary Rights
10.1 The Customer acknowledges and agrees that PureClarity and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 PureClarity confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of these Terms.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute PureClarity’s Confidential Information.
11.6 PureClarity acknowledges that the Raw Data and the Content is the Confidential Information of the Customer.
11.7 PureClarity can use the Meta Data for other commercial purposes, insofar as such Meta Data is suitably anonymised so as to retain the anonymity of the Customer, and any customer or potential customer of the Customer.
11.8 This clause 11 shall survive termination of these Terms, however arising.
11.9 No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.1 The Customer shall defend, indemnify and hold harmless PureClarity against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that: (a) the Customer is given prompt notice of any such claim; (b) PureClarity provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (c) the Customer is given sole authority to defend or settle the claim.
12.2 PureClarity shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) PureClarity is given prompt notice of any such claim; (b) the Customer provides reasonable co-operation to PureClarity in the defence and settlement of such claim, at PureClarity’s expense; and (c) PureClarity is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, PureClarity may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall PureClarity, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services or Documentation by anyone other than PureClarity; or (b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by PureClarity; or (c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from PureClarity or any appropriate authority.
12.5 The foregoing and clause 13.4(b) state the Customer’s sole and exclusive rights and remedies, and PureClarity’s (including PureClarity’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. Limitation Of Liability
13.1 This clause 13 sets out the entire financial liability of PureClarity (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer: (a) arising under or in connection with these Terms; (b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
13.2 Except as expressly and specifically provided in these Terms: (a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. PureClarity shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to PureClarity by the Customer in connection with the Services, or any actions taken by PureClarity at the Customer’s direction; (b) 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 these Terms; and (c) the Services and the Documentation are provided to the Customer on an “as is” basis.
13.3 Nothing in these Terms excludes the liability of PureClarity: (a) for death or personal injury caused by PureClarity’s negligence; or (b) for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3: (a) PureClarity 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 these Terms; and (b) PureClarity’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid, and actually received in cleared funds by PureClarity, for the Services during the 12 months immediately preceding the date on which the claim arose.
14. Term And Termination
These Terms and Conditions will commence on the earlier of the date these Terms and Conditions are accepted by the Customer or the date Customer installs or otherwise accesses PureClarity Software and/or PureClarity Services (the “Effective Date”).
14.1 Fourteen Day Trial. Upon Customer’s initial sign-up for a Free Trial, the Customer will have a free, fourteen (14) day evaluation period (the “Trial Period”) for PureClarity Services commencing on the Effective Date, subject to the limitations on PureClarity’s website. If, at the end of the Trial Period, Customer fails to sign up for a longer-term plan, the Terms and Conditions will automatically terminate unless PureClarity agrees, in its sole discretion, to extend the Trial Period.
14.2 After The Expiration Of The Trial Period. After the expiration of the Trial Period, the term of these Terms and Conditions shall continue for a three (3) month term (the “Initial Subscription Term”), unless Customer signs up for a longer term through PureClarity website, subject to termination as set forth in this clause 14. Upon the expiration of each term, these Terms and Conditions shall automatically renew for successive periods of one (1) month (the “Renewal Period”) unless either party provides thirty (30) days’ notice prior to the end of the then-current term. The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.3 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if: (a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; (b) the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; (c) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms; (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; (h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; (i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3 (d) to clause 14.3 (h) (inclusive); (l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; (m) any warranty given by PureClarity in clause 7.4 of these Terms is found to be untrue or misleading; or (n) in accordance with clause 17.
14.4 On termination of these Terms for any reason: (a) all licences granted under these Terms shall immediately terminate; (b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; (c) 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; and (d) delete all copies of the PCJS and Behavioural Merchandising Zones from all Properties and certify in writing to PureClarity within 3 business days of such deletion that the provisions of this clause 14.3(d) have been complied with.
15. Force Majeure
PureClarity shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, 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 PureClarity 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 PureClaritys or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of these Terms and the Online Quotation, the provisions in the main body of these Terms shall prevail.
These Terms and Conditions may be amended by PureClarity upon thirty (30) days’ notice by posting notice on the PureClarity website and Customer may terminate this Agreement without penalty upon notice to PureClarity within ten (10) days of the amendment. Notwithstanding the foregoing, in the event the parties enter into, or have entered into a formal written agreement, including, without limitation an agreement which the parties have electronically signed, the terms of that agreement shall control over the terms of these Terms and Conditions.
No failure or delay by a party to exercise any right or remedy provided under these Terms 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.
19. Rights And Remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21. Entire Agreement
21.1 These Terms, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
21.2 Each of the parties acknowledges and agrees that in entering into these Terms 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 these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
22.1 The Customer shall not, without the prior written consent of PureClarity, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
22.2 PureClarity 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 these Terms.
23. No Partnership Or Agency
Nothing in these Terms 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).
24. Third Party Rights
These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25.1 Any notice required to be given under these Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address notified by that party for such purposes, or sent by fax to the other party’s fax number as notified in writing by one party to the other.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
26. Governing Law
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) is governed by and must be construed in accordance with the law of England and Wales.
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 these Terms or its subject matter or formation (including non-contractual disputes or claims).
Version 1.0 – 21st April 2018