1. Definitions and Interpretation
1.1 This Agreement is made between the Customer and Kaldor. This Agreement comprises:
(a) the Order Form;
(b) any Supplementary Order Forms;
(c) these Terms & Conditions;
(d) the Pugpig Acceptable Use Policy;
(e) the Pugpig Support Policy; and
(f) the Third Party Service Provider Policies.
In the event of any conflict between the elements of the Agreement, they shall prevail in accordance with the order set out above.
1.2 Schedule 1 (Definitions and Interpretation) lists the defined terms used in this Agreement and also explains how to interpret this Agreement.
2. Licence and Subscription
2.1 Subject to the Customer paying the Charges and complying with the other terms and conditions of this Agreement, Kaldor hereby grants to the Customer:
2.1.1 a non-exclusive, non-transferable right to use and copy the Pugpig Software and the Documentation; and/or
2.1.2 a non-exclusive, non-transferable right to access and use the Pugpig Service;
in accordance with the terms of this Agreement and the Subscription(s) purchased by the Customer during the Term for the purpose only of creating, managing and publishing the Licensed Titles.
2.2 In respect of its use of the Pugpig Service, the Customer undertakes to comply with the Pugpig Acceptable Use Policy and to be liable for any breach of the Pugpig Acceptable Use Policy by Authorised Users (including for unauthorised acts by Authorised Users). The Customer will indemnify Kaldor against any loss or damage suffered or incurred by Kaldor as a result of the breach of the usage restrictions set out in this clause 2.2 by or on behalf of the Customer or any Authorised User.
2.3 Except as expressly set out in this Agreement or as permitted by any local law, the Customer undertakes:
2.3.1 not to use the Pugpig Software, the Pugpig Service or the Documentation except in accordance with the Subscription purchased by the Customer and the terms and conditions of this Agreement;
2.3.2 not to copy the Pugpig Service, the Pugpig Software or Documentation except where such copying is incidental to normal use of the Pugpig Service or the Pugpig Software or where it is necessary for the purpose of back-up or operational security;
2.3.3 not to reproduce, dispose of, deal with, rent, lease, sub-license, loan, modify or adapt the whole or any part of the Pugpig Service, the Pugpig Software or the Documentation;
2.3.4 not to change, remove or obscure any labels, notices, insignia, lettering or other markings which are on or embodied in the Pugpig Service, the Pugpig Software or the Documentation at the time of delivery thereof to the Customer;
2.3.5 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Pugpig Service or the Pugpig Software nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter- operability of the Pugpig Service or the Pugpig Software with another software program, and provided that the information obtained by the Customer during such activities:
(a) is used only for the purpose of achieving inter-operability of the Pugpig Service or the Pugpig Software with another software program;
(b) is not disclosed or communicated without Kaldor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(c) is not used to create any software which is substantially similar to or competes with the Pugpig Service or the Pugpig Software;
2.3.6 to the extent that the Customer is permitted to make copies of the Pugpig Software, to keep any copies of the Pugpig Software secure and to maintain accurate and up-to-date records of the number and locations of any copies of the Pugpig Software; and
2.3.7 not to provide, or otherwise make available, the Pugpig Service or the Pugpig Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than the Authorised Users without prior written consent from Kaldor;
2.3.8 that it will keep a written, up to date list of current Authorised Users and provide such list to Kaldor within 5 Business Days of Kaldor’s written request at any time.
The Customer will indemnify Kaldor against any loss or damage suffered or incurred by Kaldor as a result of the breach of the usage restrictions set out in this clause 2.3 by or on behalf of the Customer or any Authorised User.
2.4 In relation to the Pugpig Software, and to the extent that the Customer’s Subscription permits the use of the Pugpig Software on the Customer’s own servers, the Customer may:
2.4.1 make such copies of the Pugpig Software as may be necessary to ensure the satisfactory secure operation of the Customer’s activities in connection with the Pugpig Software including for back-up purposes. Any copy made in accordance with this clause shall in all respects be subject to these Terms & Conditions; and
2.4.2 allow the use of the Pugpig Software and the Documentation by a third party supplier only as part of an outsourcing and/or disaster recovery contract, and subject to Kaldor’s written consent, such consent not to be unreasonably withheld, subject to the appropriate protections of Kaldor’s rights under this Agreement being included in any such contract.
2.5 The Customer is responsible for obtaining any required licences, upgrades and support in respect of any Third Party Software.
2.6 The Pugpig Service, Pugpig Software, the Additional Services and Documentation, and all Intellectual Property Rights therein or associated therewith, are and shall remain the exclusive property of Kaldor. Except for the rights expressly granted to the Customer under this Agreement, the Customer shall have no other right or interest in or to the Pugpig Service, Pugpig Software, the Additional Services or Documentation or such Intellectual Property Rights.
3 Kaldor Obligations
3.1 Kaldor shall, during the Term, provide the Pugpig Service to the Customer on and subject to the terms of this Agreement and the Subscription(s) purchased by the Customer during the Term and in accordance with the best industry standards using appropriately qualified staff.
3.2 Kaldor will, at no additional cost to the Customer, provide the Customer with Kaldor's standard service levels and support service in accordance with the Pugpig Support Policy in effect from time to time.
3.3 Kaldor shall be under no obligation to provide support under this Agreement for:
3.3.1 defects in any Third Party Software (although support will be provided in relation to the integration of Incorporated Third Party Software with the Pugpig Software);
3.3.2 Releases of the Pugpig Software that are older than the two latest Releases; or
3.3.3 defects in any Third Party Services.
However where any defects under clauses 3.3.1.or 3.3.3 materially impact the provision of the Pugpig Service to the Customer, Kaldor shall use all reasonable endeavours to provide a workaround to such defect.
3.4 In addition to the support provided under the Pugpig Support Policy, Kaldor will provide the Additional Services comprised in any Service Packs purchased by the Customer.
4. Customer Data
4.1 The Customer shall own all right, title and interest in and to the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 Kaldor shall follow its back-up procedures for Customer Data as set out in the Pugpig Support Policy. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy (except in relation to the Customer Personal Data) shall be for Kaldor to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Kaldor in accordance with the back-up procedure described in the Pugpig Support Policy. Save as otherwise set out in this clause 4, Kaldor shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data. In the event that the Customer Data is not recoverable (but excluding Customer Personal Data), the Customer may resupply the relevant Customer Data to Kaldor.
4.3 Kaldor does not guarantee the integrity of data stored or transmitted via the Customer’s system/hardware or via the Internet, including, but not limited to data stored or transmitted by Kaldor’s Third Party Service Providers. Except in relation to the Customer Personal Data, Kaldor shall not be liable for the inadvertent disclosure of, or corruption or erasure of data transmitted or received or stored via Kaldor’s Third Party Service Providers.
4.4 If Kaldor processes any personal data (within the meaning set forth in the Data Protection Act 2018) on the Customer's behalf (the “Customer Personal Data”) when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Kaldor shall be a data processor and in any such case:
(a) each party warrants to the other that it will process the Customer Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments;
(b) Kaldor shall process the Customer Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Customer Personal Data for any purpose other than those expressly authorised by the Customer;
(c) Kaldor shall take reasonable steps to ensure the reliability of all its employees who have access to the Customer Personal Data;
(d) Kaldor warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(i) Take appropriate technical and organizational measures against the unauthorised or unlawful processing of Customer Personal Data and against the accidental loss or destruction of, or damage to, Customer Personal Data to ensure a level of security appropriate to:
A. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
B. the nature of the data to be protected; and
(ii) take reasonable steps to ensure compliance with those measures.
(e) the Customer shall ensure that the Customer is entitled to transfer the Customer Personal Data to Kaldor so that Kaldor may lawfully use, process and transfer the Customer Personal Data in accordance with this agreement on the Customer's behalf;
(f) 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; and
(g) the Customer agrees and acknowledges that Kaldor may transfer the Customer Personal Data to its Third Party Service Providers based in the EEA for use, processing and transfer strictly for the purposes of providing the Pugpig Service under this Agreement, provided that Kaldor shall obtain the prior written consent from the Customer for any transfer of Personal Data outside the EEA.
4.5 Nothing in this Agreement shall preclude Kaldor from collecting and using, processing, sharing or transferring in its sole discretion any anonymised aggregated usage data in respect of the Pugpig Service and the Licensed Titles, provided that:
(a) it complies with applicable data protection laws in relation to the Customer Personal Data when carrying out such activities; and
(b) it shall not share or transfer any usage data attributed to the Licensed Titles without the prior consent of the Customer.
5. Customer’s Obligations
The Customer shall:
(a) provide Kaldor with:
(i) all necessary co-operation as may be reasonably be required in relation to this agreement; and
(ii) all necessary access to such information as may reasonably be required by Kaldor; in order to provide the Pugpig Service to the Customer;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner, as agreed between the parties. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Kaldor may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Pugpig Software and Pugpig Service (as applicable) and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(e) as between the Customer and Kaldor, be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Kaldor's data centres, and be responsible for 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
(f) provide reasonable access to, and reasonable co-operation by, the Customer’s staff, and any information which Kaldor may reasonably request in order to provide the Additional Services.
6. Third Party Service Providers
6.1 Any and all hosting services facilitated by Kaldor as part of the Pugpig Service shall be handled by Kaldor’s current Third Party Service Providers and as such shall be subject to such Third Party Service Providers’ terms and conditions. Kaldor makes no warranties or representations as to Third Party Services.
6.2 In addition to its obligations under this Agreement, the Customer agrees to comply with the Third Party Service Provider Policies to the extent that they apply to end users of the Third Party Services.
6.3 The Customer acknowledges that the Third Party Service Provider Policies are legal obligations of both Kaldor and the Customer, that the Third Party Service Provider Policies are subject to change without notice, and that violations of the Third Party Service Provider Policies may result in the Customer’s access to the Pugpig Service being suspended as a result of the actions of the Customer or third parties.
6.4 Kaldor shall not be liable for the acts or omissions of any third party individuals or companies with which Kaldor is required by the Customer to work in the course of providing the Additional Services other than Kaldor’s sub-contractors, even in the event that the relevant third party was introduced to the Customer by Kaldor.
7.1 The Customer shall pay Kaldor the Charges applicable to the Subscriptions granted and the Additional Services provided under this Agreement in accordance with the Order Form or Supplementary Order Form and these Terms & Conditions.
7.2 Kaldor will invoice the Customer for each Subscription:
(a) for the first Subscription Year, on the earlier of:
(i) the signature of the applicable Order Form or Supplementary Order Form; or
(ii) the Activation Date,
(b) thereafter, annually in advance during the month preceding each anniversary of the Activation Date.
7.3 Unless otherwise agreed, Kaldor will invoice the Customer in advance for any Additional Services.
7.4 The Customer shall pay all invoices within 30 days from date of invoice. Without prejudice to any other right or remedy that it may have, Kaldor may charge interest on any overdue Charges from the due date until payment is received at a rate to be determined by Kaldor not exceeding 2% above HSBC Bank plc annual base rate for the time being, such interest to be calculated on a daily basis.
7.5 During the term of this Agreement, the Customer may change the Subscription in accordance with the rules set out below, by giving 5 Business Days’ notice to Kaldor via the email address set out in the Pugpig Support Policy from time to time. Kaldor will issue a Supplementary Order Form and will calculate the Charges applicable for the new Subscription as follows:
(a) If the Customer wishes to increase its Monthly Distribution, the Customer shall pay additional Charges calculated as the difference in the Charges applicable to the new Subscription less the Charges applicable to the old Subscription, pro-rated for the remaining months in the Term;
(b) No decreases to its Monthly Distribution will take effect until the anniversary of the Activation Date of the relevant Subscription which follows the expiry of the required 5 Business Days’ notice.
7.6 In the event that the Customer exceeds the Monthly Distribution in a calendar month, the Customer will pay Kaldor’s then- current monthly burst fees per gigabyte of Data Over Usage as per the Applicable Rate Card, monthly in arrears.
7.7 If, at any time whilst using the Pugpig Service, the Customer exceeds the amount of Data Storage space specified in the Pugpig Support Policy, Kaldor reserves the right to invoice the Customer, and the Customer shall pay, a reasonable charge for the excess DataStorage.
7.8 The Charges for existing Subscriptions and Additional Services (if any) (including the Applicable Rate Card) will increase by 5% after the relevant renewal date (as set out in the Order Form), and will continue to increase by 5% annually thereafter.
7.9 The Charges applicable to new Subscriptions or Additional Services shall be based on Kaldor’s then-current Standard Rate Card which, if different to the Applicable Rate Card attached to the Order Form, shall be attached to the relevant Supplementary Order Form as a new Applicable Rate Card.
7.10 All sums payable under this Agreement are exclusive of any relevant local sales tax, for which the Customer shall be responsible.
8.1 From time to time, Kaldor may issue new Releases of the Pugpig Service and/or the Pugpig Software to the Customer at no extra charge to the Customer. Kaldor will offer the Customer all new Releases that are offered to all of its other customers. Kaldor makes no guarantee as to backwards compatibility of Releases with any Third Party Software.
8.2 The Customer is recommended to upgrade the Pugpig Software and any Pugpig Apps to within no more than two Releases of the latest Release of the Software. Kaldor’s obligations under this Agreement shall not extend to Releases that are older than the two latest Releases. Any support or maintenance required by the Customer in respect of Releases that are older than the two latest Releases may be provided outside this Agreement on Kaldor’s standard time and materials basis subject to agreement between the parties.
9.1 Kaldor warrants that:
(a) it has the right to enter into this Agreement and perform all of its obligations herein;
(b) it will make commercially reasonable efforts to ensure the Pugpig Software and the Pugpig Service is free from viruses and other malicious code (provided that such warranty does not extend to any Third Party Software); and
(c) the use by the Customer of the Pugpig Software, the Pugpig Service and the Documentation in accordance with the terms of this Agreement shall not infringe the Intellectual Property Rights of any third party.
9.2 Except as expressly set out in this Agreement, no conditions, warranties or other terms apply to the Pugpig Service, Pugpig Software, the Documentation, any Additional Services or to anything else supplied under this Agreement. In particular, to the maximum extent permitted by law, no implied conditions, warranties or other terms relating to satisfactory quality or fitness for any particular purpose will apply to anything supplied under this Agreement.
9.3 It is not a term of this Agreement that the Pugpig Service, the Pugpig Software or Documentation, or any Additional Services or the use of any such services or deliverables will be entirely uninterrupted or entirely error-free or that Kaldor will succeed in fully resolving all defects.
9.4 Notwithstanding clause 9.1, Kaldor makes no warranty under this Agreement in relation to any Third Party Software or in relation to any Third Party Services.
10.1 Subject to clauses 10.2 and 10.3, Kaldor will indemnify the Customer against any direct loss or damage suffered or incurred by the Customer as a result of any third party claim arising out of a breach by Kaldor of the warranty at clause 9.1(c) (in respect of Intellectual Property Rights), provided that the Customer:
(a) promptly notifies Kaldor in writing of the third party claim;
(b) makes no admissions or settlements without Kaldor’s prior written consent;
(c) allows Kaldor complete control over any negotiations or litigation and/or the defence or settlement of the third party claim;
(d) subject to (b) and (c) above, takes all reasonable steps to mitigate all damages, liabilities and expenses; and
(e) gives Kaldor all information and assistance as it may reasonably require.
10.2 If in Kaldor’s reasonable opinion, the use by the Customer of the Pugpig Service, the Pugpig Software or the Documentation is likely to infringe the Intellectual Property Rights of a third party, Kaldor may at its sole option and expense:
(a) procure for the Customer the right to continue using the Pugpig Service, the Pugpig Software or Documentation (or any part thereof) in accordance with the terms of this Agreement;
(b) modify the Pugpig Service or the Pugpig Software so that it ceases to be infringing;
(c) replace the Pugpig Software with non-infringing software; or
(d) terminate this Agreement immediately by notice in writing to the Customer and refund any of the Charges paid by the Customer as at the date of termination (less a pro rata sum in respect of the Customer’s use of the Pugpig Service and/or Pugpig Software to the date of termination).
10.3 Kaldor shall not be liable (under the indemnity in clause 10.1 or otherwise) for any loss or damage arising from a breach by Kaldor of the warranty at clause 9.1(c) to the extent that the loss or damage results from:
(a) any possession, use, development, modification or maintenance of any Third Party Software (or any part thereof) whether by Kaldor, the Customer or any third party;
(b) a Release of the Pugpig Software or the Pugpig Service that is older than the two latest Releases; or
(c) the continued use by the Customer of any Pugpig Software or Documentation or any part thereof that has been modified or replaced by Kaldor in accordance with clause 10.2(b) or (c) above.
11. Limitations and Exclusions of Liability
11.1 Subject to clauses 11.2, 11.3, 11.4 and 11.5, Kaldor’s liability for any claims arising in connection with this Agreement, the Pugpig Service, the Pugpig Software, the Additional Services or the Documentation (whether in contract, negligence, breach of statutory duty or howsoever arising) will be limited, in relation to all events or series of connected events occurring in any given Year (and provided that if a series of connected events spans more than one Year, for the purposes of this clause they will all be treated as having occurred in the Year in which the first of the series occurred), an amount equal to 125% of the total amount paid or payable under this Agreement by the Customer to Kaldor in respect of that Year.
11.2 In no event shall either party be liable to the other party under this Agreement or in relation to the Pugpig Service, the Pugpig Software, the Additional Services or the Documentation, even if the other party has been advised of the possibility of such damages (whether in contract, negligence, breach of statutory duty or howsoever arising) for any:
(a) loss of profits;
(b) loss of sales;
(c) loss of revenue;
(d) loss of any software or data;
(e) loss of use of hardware, software or data; or
(f) indirect, consequential or special loss;
provided that (A) this exclusion will not apply to loss of any revenue or profit that would have been obtained by or due to Kaldor from the Customer under this Agreement but for the Customer’s breach of contract; and (B) the exclusions in (d) and (e) above shall not apply to any loss of Customer Personal Data resulting from any breach by Kaldor of its obligations under clause 4.4.
11.3 The parties agree that any claim or action arising out of or connected with this Agreement or in relation to the Pugpig Service, the Pugpig Software, the Additional Services or the Documentation that one party wishes to bring against the other must be notified to the other party within two years of the date when it became known to the party making the claim.
11.4 Kaldor’s maximum liability i) under the indemnity given in clause 10.1 or ii) in the event of a loss of Customer Personal Data resulting from a breach by Kaldor of clause 4.4 shall be limited to an amount of £500,000 (five hundred thousand pounds sterling) in relation to each claim (provided that all claims arising from the same or substantially the same circumstances will be treated as one).
11.5 Nothing in the Agreement excludes or limits either party’s liability to the other:
(a) for death or personal injury caused by its negligence or that of its employees or
(b) for fraud or fraudulent misrepresentation;
(c) for payment of any sums properly due in the normal course of performance of
this Agreement; or
(d) in relation to any other liability which cannot be excluded or limited by law.
11.6 If any one or more of the exclusions or limitations of liability should be held invalid by a court of law or other competent tribunal, any other exclusions or limitations of liability shall continue to apply provided that they are capable of so doing.
12. Term, Termination and Suspension
12.1 This Agreement will commence on the Commencement Date and continue until terminated in accordance with this clause 12.
12.2 At the end of each Subscription Year, each Subscription will continue for the following Subscription Year unless terminated by either party giving the other not less than 60 days’ prior written notice, such notice to have effect at the end of a Subscription Year (subject to earlier termination of this Agreement in accordance with its terms).
12.3 This Agreement shall terminate automatically upon the effective termination of the last Subscription purchased hereunder.
12.4 This Agreement may be terminated immediately by either party giving notice to the other if the other commits a material breach of this Agreement and, if such breach is remediable, it is not remedied within 21 days of receipt of notice requiring remedy. For the avoidance of doubt, late payment of an invoice shall be a material breach capable of remedy. Termination of this Agreement shall not limit either party from pursuing any other available remedies, including injunctive or emergency relief.
12.5 Kaldor may suspend Customer’s access to the Pugpig Service or licence to use the Pugpig Software without liability if:
(a) Kaldor reasonably believes in good faith that the Pugpig Service or Pugpig Software is being used (or has been or will be used) by the Customer or any End User in contravention of this Agreement, any Third Party Service Provider Policies or any applicable law, court order, rule or regulation in any jurisdiction;
(b) Kaldor receives notice from any Third Party Service Provider of such a violation by virtue of the Customer’s use of the Pugpig Service;
(c) if the Customer is in breach of its payment obligations under this Agreement (provided that in this case Kaldor shall first give 21 days’ notice requiring payment before effecting the suspension) (and Kaldor may also suspend the provision of the Additional Services if payment is not received in respect of such Additional Services); or
(d) Kaldor’s use of the Third Party Services is suspended or terminated by its Third Party Service Providers. In the event of this, Kaldor shall use all reasonable endeavours to seek alternative Third Party Service Providers or Third Party Services to reinstate the Customer’s access to the Pugpig Services as soon as reasonably possible.
Kaldor will make commercially reasonable efforts to give the Customer reasonable advance written notice of a suspension under this clause and a chance to cure the grounds on which the suspension is based, unless Kaldor determines, in Kaldor’s reasonable judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Kaldor or its other customers from operational, security, or other risk or the suspension is ordered by a court or other judicial or governmental body or required by law, statute, regulation, rule, legal proceeding or other governmental request, in which case Kaldor may suspend the Pugpig Service immediately. Kaldor shall have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that the Customer may incur as a result of any such suspension.
12.6 If Kaldor suspends the Customer’s right to access or use any or all of the Pugpig Service or Pugpig Software:
(a) the Customer remains responsible for all fees and charges the Customer has incurred up to the date of suspension and such fees and charges shall once again commence upon the conclusion, if any, of any period of suspension;
(b) the Customer remains responsible for any applicable fees and charges for any part of the Pugpig Service which the Customer continues to have access to, as well as applicable Data Storage fees and charges, and fees and charges for in- process tasks completed after the date of suspension; and
(c) Kaldor may terminate the Customer’s access to Customer Data stored in the Pugpig Service during a suspension, and Kaldor shall not be liable to the Customer for any damages or losses the Customer may incur as a result of such suspension.
Kaldor will act in good faith to keep periods of suspension to a minimum and to reinstate the Customer’s access to the Pugpig Service or Pugpig Software as soon as reasonably possible. Where Kaldor has suspended access in accordance with Clause 12.5(c), access will be reinstated immediately on receipt of such overdue sums.
13. Consequences of Termination.
13.1 In the event of termination of this Agreement, all rights granted hereunder shall terminate with immediate effect.
13.2 Upon termination, the Customer shall:
(a) immediately cease using the Pugpig Service, the Pugpig Software and Documentation to create, manage or publish Apps;
(b) immediately turn off any feed of content to any Pugpig App;
(c) immediately delete all Pugpig Apps from any app stores (including iTunes, Google Play, Windows Store, etc) on which they are made available to End Users;
(d) as soon as reasonably practicable and in any event within 5 Business Days after termination, ensure to the satisfaction of Kaldor that all copies held by the Customer of the whole or any part of the Pugpig Service, the Pugpig Software or the Documentation are deleted and erased from all servers controlled by the Customer; and
(e) at Kaldor’s request which may be notified to the Customer at any time after 5 Business Days after termination, provide written certification of the Customer’s compliance with this clause 13.2.
Nothing in this clause shall restrict or prevent the Customer from replacing a Pugpig App with a similar App created, managed and published using different software. An update of a Pugpig App in an app store to a version using different software shall constitute a removal of the App for the purposes of this clause.
13.3 Upon termination, Kaldor shall destroy or otherwise dispose of any of the Customer Data in its possession (including any Customer Personal Data), unless Kaldor receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Kaldor shall use all reasonable endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request.
13.4 Termination of this Agreement will be without prejudice to any rights or liabilities of either party which have accrued prior to such termination, including the Customer’s liability to pay any Charges which accrued prior to termination.
13.5 Termination of this Agreement shall not affect the continuation of any provision expressly stated to survive or implicitly surviving termination, including clauses 2.6, 11, 13, 14, 17 and 18.
Each party shall keep confidential, shall not use for its own purposes (except for the purposes of exercising its rights or performing its obligations under this Agreement) and shall not disclose to any third party any Confidential Information which the other party
supplies to it in connection with this Agreement. The obligations as to confidentiality in this agreement will not apply to any information which:
(a) is available to the public other than because of any breach of this agreement;
(b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or
(c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
or to any disclosure required by law or by any court or tribunal with proper authority to order such disclosure.
15.1 Except to the extent set out in this clause 15, neither party shall be entitled to assign, novate, pledge or otherwise transfer this Agreement in whole or in part without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
15.2 Kaldor may assign or transfer the Agreement to a third party without the Customer’s consent provided that (a) the assignee is an Affiliate of Kaldor, a purchaser of all or substantially all of Kaldor’s assets or equity, or a company into which Kaldor is merged or with which Kaldor is consolidated, and (b) the assignee or successor is of substance capable of performing all obligations and assumes all responsibilities of Kaldor as specified in this Agreement.
All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out in the Order Form or to such other address as the recipient may designate by notice given in accordance with the provisions of this clause 10. In the absence of evidence of earlier receipt, any notice given under this Agreement shall be deemed to have been duly given as follows:
(a) if delivered personally, on delivery;
(b) if sent by email, at the expiration of 24 hours after the email was sent;
(c) if sent by first class inland post, at 9.30 am on the second Business Day after the date of posting; and
(d) if sent by airmail, at 9.30 am on the fifth Business Day after the date of posting.
17.1 Kaldor and the Customer will attempt to settle all disputes, claims, or disagreements arising under or in connection with this Agreement through consultation and negotiation in good faith. If those attempts fail, the parties may also agree to consider forms of alternative dispute resolution (“ADR”) such as neutral fact-finding, mediation, arbitration or a mini-trial; provided, however, should the parties not be able to resolve any dispute within three (3) months following agreement to use ADR procedures, then either party may submit the dispute to the courts for resolution. Nothing in this clause 17.1 will prevent either party from resorting to judicial proceedings if: (i) good faith efforts to resolve the dispute under these procedures have been unsuccessful; or (ii) interim, emergency or injunctive relief from a court is necessary to prevent material or irreparable injury to such party or to third parties.
17.2 Neither party shall be in default for delay or failure of performance to the extent it is caused by circumstances reasonably beyond its control, including the acts and omissions of the other party and/or of Third Party Service Providers.
17.3 This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement. Each party acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) made by any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.
17.4 These Terms & Conditions are subject to review by Kaldor on an annual basis. Any amendments that are notified to the Customer not later than 90 days before the end of a Year will take effect on the anniversary of the Commencement Date which immediately follows the date of such notification. If the Customer does not wish to accept the amendments, the Customer should give notice to terminate the Agreement in accordance with clause 12 (Term, Termination & Suspension) of these Terms & Conditions. No other amendments to this Agreement shall be effective unless in writing and signed by an authorised signatory on behalf of both parties.
17.5 In performing its obligations under this Agreement, Kaldor shall comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force including the Modern Slavery Act 2015. Further Kaldor shall not, and shall procure that its directors and employees shall not, engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and anti-corruption laws, regulations and codes, including but not limited to the Bribery Act 2010.
17.6 The failure or delay by either party to enforce at any time any one or more of the terms or conditions of this Agreement shall not be a waiver of such rights or any other rights.
17.7 The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement.
17.8 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between either of the parties or as constituting either party as the agent of the other for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
17.9 The parties shall execute and perform all such further deeds, documents, assurances, acts and things as any of the parties may reasonably require, by notice in writing to the other to carry the provisions of this Agreement into effect.
17.10 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.
18. Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Any dispute which may arise between the parties concerning this Agreement shall be determined by the exclusive jurisdiction of the English Courts save that Kaldor shall be entitled to seek interim, emergency or injunctive relief from any court if necessary to prevent material or irreparable injury to Kaldor or to third parties.
Definitions and Interpretation
In this Agreement:
Activation Date means, in respect of a Subscription, the earliest of:
(a) the date set out in the Order Form or relevant Supplementary Order Form;
(b) the date on which the Pugpig Service or the Pugpig Software is first used by the Customer or its Authorised Users other than under a separate evaluation licence; or
(c) the date on which any relevant Licence Key is provided.
Additional Services means:
(a) the services comprised in any Service Pack purchased by the Customer from time to time as specified in the Order Form or any Supplementary Order Form; or
(b) any other services specified as “Additional Services” in the Order Form or any Supplementary Order Form. These Additional Services shall be supplied in accordance with the terms and conditions set out in this Agreement and additionally, the terms and conditions set out in Schedule 2.
Affiliate means, in relation to a company, any other company that directly or indirectly controls, is controlled by, or is under common control with such company, where control for the purpose of this definition means (i) the power, by ownership of voting equity, contract or otherwise, to elect a majority of the board of directors or other governing body of the company or to otherwise operate or direct the management and policies of the company, or (ii) having sole operational responsibility therefor or the right to vote, directly or indirectly, at least 50% of the voting shares thereof.
App means a specialised program with an interface enabling Consumers to use a Device as a tool to accomplish a particular task, and which is designed to be accessed and used by Consumers.
Applicable Rate Card means, in respect of a particular Subscription, Kaldor’s then-current rate card which is appended to the Order Form or Supplementary Order Form (as applicable) for that Subscription. If no rate card is appended to a Supplementary Order Form, the rate card appended to the Order Form will apply.
Authorised User means each employee, agent or independent contractor of the Customer permitted by the Customer to use the Pugpig Service and/or Pugpig Software according to the terms of this Agreement.
Bespoke Software means any software developed solely for and delivered to the Customer, as part of any Additional Services.
Business Day is a weekday that is not a public holiday in England and Wales.
Charges means all charges payable by the Customer in accordance with the charging structure set out in the Order Form.
Commencement Date has the meaning given in the Order Form.
Confidential Information means all tangible and intangible knowledge, material, data, systems and other information, of a technical nature or concerning the operation, projections, market goals, financial affairs, know-how, products, clients, advertisers or business affairs of the parties (including any subsidiary or affiliated entity thereof), including the terms (but not the fact) of this Agreement.
Consumer means the user of a Device.
Customer means the party named as such in the Order Form.
Customer Data means the data inputted by the Customer, End Users or Kaldor on the Customer’s behalf for the purpose of using the Pugpig Service or facilitating the Customer’s use of the Pugpig Service, which may include, if applicable, the Customer Personal Data.
Customer Personal Data has the meaning given in clause 4.4 of these Terms & Conditions.
Data Usage means the size of the actual downloads in a calendar month in respect of a particular Licensed Title.
Data Over Usage means the difference between Monthly Distribution and Data Usage in a calendar month for a particular Licensed Title, where Data Usage exceeds Monthly Distribution.
Data Storage means the total size of the data / content which the Customer has stored, at any point in time, as part of the Pugpig Service, which is calculated as the cumulative size of the data and content created by the Customer for the Licensed Titles.
Device means any electronic device which runs on a specific Platform and enables the execution of application code.
Documentation means all documentation created by Kaldor and supplied to Customer in relation to the Pugpig Software or the Pugpig Service including the Pugpig Developer Site and any specifications, operational guides and training materials which may be supplied by Kaldor from time to time.
End User means any person, including without limitation Authorised Users and/or Consumers, who directly or indirectly interfaces with, accesses or uses the Pugpig Software or the Pugpig Service via or in connection with the Licensed Titles.
Incorporated Third Party Software means any third party software incorporated within the Pugpig Software or the Pugpig Service by Kaldor at the Customer’s request for the purpose of integration with any separate third party proprietary software the use of which by the Customer requires the Customer to obtain a licence (whether such integration is implemented by Kaldor, the Customer or any third party).
Intellectual Property Rights means all copyright, patent rights, trade or service marks, design rights in or relating to databases, rights in or relating to confidential information, and any other intellectual property rights (registered or unregistered) throughout the world including all rights of reversion and rights to any applications and pending registrations and the right to sue for and recover damages for past infringements.
Kaldor means the party named as such in the Order Form.
Licensed Title means any Title for which a Subscription has been purchased by the Customer as specified in the Order Form or Supplementary Order Form.
Monthly Distribution means the maximum amount of data to be downloaded per calendar month which is included in the “tier” purchased by the Customer in respect of a particular Licensed Title and specified in the Applicable Rate Card.
Normal Business Hours means between the hours of 09.00 and 18.00 on a Business Day.
Order Form means the order form which identifies the Customer and the commercial terms of the Subscriptions and/or Additional Services purchased in accordance with these Terms & Conditions.
Platform means the operating system and associated software that runs on a Device and provides for the execution of application code, for example iOS, Android, web.
Pugpig Acceptable Use Policy means the Pugpig acceptable use policy located at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003966518-Pugpig-Acceptable-Use-Policy, as amended from time to time by Kaldor in its sole discretion together with any acceptable use policies of Third Party Service Providers included in the Third Party Service Provider Policies.
Pugpig App means an App created by the Customer using the Pugpig Software or the Pugpig Service.
Pugpig App Update Pack means the service pack described at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003964517-Pugpig-App-Update-Pack, as amended from time to time by Kaldor in its sole discretion.
Pugpig Authentication Setup Pack means the service pack described at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003980897, as amended from time to time by Kaldor in its sole discretion.
Pugpig Connect Setup Pack means the service pack described at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003961918-Pugpig-Connect-Setup-Pack, as amended from time to time by Kaldor in its sole discretion.
Pugpig Developer Site means the developer support pages made available by Kaldor from time to time.
Pugpig Feed Handler Pack means the service pack described at the URL https://pugpig.zendesk.com/hc/en-us/articles/115000694226-Pugpig-Feed-Handler-Pack, as amended from time to time by Kaldor in its sole discretion.
Pugpig Service means any subscription service provided by Kaldor to the Customer under this Agreement from time to time, as more particularly described in the Order Form or any Supplementary Order Form(s) and the Documentation.
Pugpig Software means:
(a) the Pugpig app containers;
(b) the Pugpig SDK; and
(c) any Bespoke Software
that may be delivered to the Customer under this Agreement, together with any Releases accepted by the Customer during the Term, but excluding the Incorporated Third Party Software.
Pugpig Starter Pack means the service pack described at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003964518-Pugpig-Starter-Pack, as amended from time to time by Kaldor in its sole discretion.
Pugpig Support Policy means Kaldor’s policy for providing support in relation to the Pugpig Service and Pugpig Software as made available at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003965318, as amended from time to time by Kaldor in its sole discretion.
Release means a major version of the Pugpig Service or of the Pugpig app containers or Pugpig SDK where fixes for defects, enhancements and modifications have been introduced.
Renewal Date means, in respect of any Subscription purchased by the Customer, the date specified as such on the Order Form or Supplementary Order Form.
Service Pack means any of the Pugpig Starter Pack, the Pugpig Connect Setup Pack, the Pugpig App Update Pack, the Pugpig Authentication Setup Pack, the Pugpig Feed Handler Pack and any other service pack agreed between the parties from time to time.
Standard Rate Card means Kaldor’s then-current standard rates for its services which Kaldor may amend from time to time in its sole discretion.
Subscription means any combination of the Pugpig Service and the Monthly Distribution option which is purchased by the Customer as specified in the Order Form or any Supplementary Order Form(s).
Subscription Year means, in respect of any Subscription purchased by the Customer, (a) the period from the Activation Date to the Renewal Date and (b) thereafter, each period of 12 months from the Subscription’s Renewal Date or its anniversary.
Supplementary Order Form means any supplementary order form which identifies the Customer and the commercial terms of any additional or replacement Subscriptions and/or Additional Services purchased in accordance with these Terms & Conditions
Term means the period from the Commencement Date until this Agreement is terminated in accordance with clause 12 (Termination) of these Terms & Conditions.
Terms & Conditions means these terms and conditions.
Third Party Service means any third party service used by Kaldor to provide the Pugpig Service.
Third Party Service Provider means the providers of a Third Party Service listed at the URLhttps://pugpig.zendesk.com/hc/en-us/articles/360003965378-Third-Party-Service-Providers-and-their-Policies, as amended from time to time by Kaldor in its sole discretion.
Third Party Service Provider Policies means any terms and conditions, privacy policies, acceptable use policies or other policies imposed by Third Party Service Providers on users of their services including those made available at the URL https://pugpig.zendesk.com/hc/en-us/articles/360003965378-Third-Party-Service-Providers-and-their-Policies, as amended from time to time by Kaldor in its sole discretion.
Third Party Software means any software other than the Pugpig Software licensed under this Agreement, including (a) any custom code written on top of the Pugpig Software (whether by the Customer or third parties); (b) any third party software which the Customer in its sole discretion may choose to use with the Pugpig Software; and (c) the Incorporated Third Party Software.
Title means one or more Apps sharing the same title and branding and which differ only in being adapted for different Platforms.
Year means a period of one year from the Commencement Date or any anniversary thereof.
In this Agreement:
2.1 where the context permits, words denoting the singular shall include the plural and vice versa, words denoting any gender shall include all genders and references to persons shall include bodies corporate, unincorporated associations and partnerships;
2.2 any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as replaced, amended or re-enacted at the relevant time and shall include any subordinate legislation or regulations made under any of the foregoing;
2.3 any reference to a clause shall be construed as the relevant clause of this Agreement;
2.4 the headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement; and
2.5 any reference to "including" in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words.
Where Kaldor is providing Additional Services, the additional terms outlined below shall apply in addition to the terms and conditions of the agreement. In the event of any conflict, these additional terms shall prevail over the terms and conditions of the agreement:
All Additional Services (including any support for such Additional Services) shall be provided on a time and materials basis.
Kaldor warrants that the Additional Services will be performed with reasonable skill and care and by means of appropriately skilled personnel. It is not a term of this Agreement or any Order Form that any Additional Services including Bespoke Software will be entirely uninterrupted or entirely error-free or that Kaldor will succeed in fully resolving all defects in any such deliverables.
All Intellectual Property Rights in and relating to the Bespoke Software shall belong to the Customer. Kaldor hereby assigns all such Intellectual Property Rights in the Bespoke Software to the Customer. The Customer grants to Kaldor a licence to copy, adapt and use any of the Bespoke Software for the purposes of providing the Services and otherwise as reasonably necessary in order to perform any of Kaldor’s other obligations under this Agreement. However in no event shall Kaldor be precluded from independently developing for itself or for others anything, whether in tangible or non-tangible form, which is competitive with, or similar to, the Bespoke Software. In addition, Kaldor will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Services, subject always to the obligations of confidentiality in clause 14 (Confidentiality).
In no event shall Kaldor be liable to the Client for any breach of warranty in respect of the Bespoke Software which is reported to Kaldor more than [90 days] after the Client becomes aware of the breach.
Unless otherwise agreed in any Order Form, the Customer may terminate any Additional Services at any time for any reason by providing Kaldor no less than thirty (30) days’ prior written notice. If the Customer terminates in accordance with this paragraph, Kaldor may immediately invoice the Customer for any work that has been properly performed in accordance with the relevant Order Form prior to the effective date of termination (which shall include Kaldor’s unrecovered third party fee commitments entered into for the purposes of providing the relevant Additional Services and which cannot be re-allocated or otherwise mitigated).