ZENPULSAR Terms of Service
COMMODITY PACKAGE SUBSCRIPTION TERMS
These commodity package subscription terms set out the terms of the relationship between you, the Subscriber and us, Zenpulsar Ltd (“Zenpulsar”, “we” or "us").
Through its SaaS and API platforms, Zenpulsar provides to users the access to data about the popularity of monitored assets from different classes like Commodities, Equities, Crypto, FX and Fixed Income in social media platforms.
We may also provide certain consultancy/professional and data analysis services and other additional services on an ad-hoc basis, for which additional terms will apply. For more information, please contact us at contact@zenpulsar.com.
Separate end-user terms will apply between us and the individual Authorised End Users who use the Zenpulsar Platforms.
We have agreed to grant you a non-exclusive licence, on the terms set out below, to use our Zenpulsar platforms, namely:
These terms should be read in conjunction with the Order Form (which sets out the basic terms of your subscription to the Zenpulsar Platforms) and any Schedules which together with these terms, comprise the contract between you and us for use of the Zenpulsar Platforms.
“Access Key” - means an access key, provided to you by us enables you to submit requests for Zenpulsar Data;
“Administrator” - means an individual employee of yours who is entitled to administer the Zenpulsar Platforms on your behalf and receive information in relation to your dataset;
“Account” - means a unique account created for You to access our Service or parts of our Service;
“Agreement” - means the subscription terms set out here including the Order Form and any Schedules;
“Authorised End User” - means any staff or employee who is authorised by you to access the Zenpulsar Platforms whether as a user or Administrator;
“Business Day” - means Monday to Friday excluding any weekends and any public or bank holiday in England;
“Combined Products”- means products or services, provided by you, which incorporate and add value to Zenpulsar Data;
“Data Protection Legislation” - means all applicable laws and regulations relating to the processing of personal data and privacy as may be applicable from time to time, which at the date of this Agreement means the GDPR (EU General Data Protection Regulation 2016/679), Data Protection Act 2018 and any successor legislation or as may be updated or amended from time to time;
“Fees” - means the fees payable to access or use the Zenpulsar Platforms, including Subscriptions Fees as set out in the Order Form;
“Order Form” - means the form attached to these terms or otherwise agreed between the Parties from time to time which sets out the basic terms of your subscription to the Zenpulsar Platforms including the number of user licences subscribed to;
“Initial Subscription Term” - means the initial term of your subscription as specified in the Order Form;
“Intellectual Property Rights” - means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
“Normal Business Hours” - means 9.00 to 17.30 on any Business Day;
“Party” - means Zenpulsar or the Subscriber (as the case may be) and collectively they are the “Parties”;
"Software" - refers to software integral to the operation of the Zenpulsar Platforms and any background software which we use in providing the Zenpulsar Platforms;
“Start Date” - the date on which access to the Zenpulsar Platforms commences as set out in the Order Form;
“Subscriber’s Group” - shall be the Subscriber, Subscriber’s parent company holding a majority interest in the Subscriber, any such parent company’s majority owned subsidiaries, and the Subscriber’s majority owned subsidiaries;
“Subscription”- means the subscription to the Zenpulsar Platforms on the terms of this Agreement;
“Subscription Term” - means the term of your subscription to the Zenpulsar Platforms;
“Third Party” or “third party” - means each person or entity which is not a party to this Agreement;
“Use” - the use, copying or transmission of the Zenpulsar Platforms in any manner whatsoever;
“Zenpulsar API” - means the software interface and associated materials to facilitate access to Zenpulsar Data;
“Zenpulsar Data” - means any data delivered or provided to you by us including via the Zenpulsar API;
“Zenpulsar Platforms” - means the services (SaaS and API) to which you have subscribed as described in the Order Form and the associated interface for Administrator access.
2. The Zenpulsar Platforms
2.1 - The Zenpulsar Platforms are accessible on an individual basis and may only be used to the extent that the user is a Subscriber.
2.2 - In order to subscribe to our Zenpulsar Platforms (SaaS and API), you must be a “Subscriber” as defined above and comply with these terms.
2.3 - You accept sole responsibility for obtaining appropriate local or national accreditations, memberships, affiliations, insurances (or other relevant requirements) for conducting your business as a Subscriber but in any event, you are strictly prohibited from registering for the Zenpulsar Platforms if you are engaged in any business which is illegal, unethical or otherwise does not align with our values.
2.4 - You will be required to register an administration account with us for your Administrator to access our services. The Administrator must be an Authorised End User. The Administrator will be responsible for certain configuration options and will be our point of contact for support. Your administration account is strictly for your organisation’s use and you are not authorised to share or otherwise permit any other individual outside of your organisation to have access to or use your administration account, including members of the Subscriber’s Group (unless authorised by us in writing).
These commodity package subscription terms set out the terms of the relationship between you, the Subscriber and us, Zenpulsar Ltd (“Zenpulsar”, “we” or "us").
Through its SaaS and API platforms, Zenpulsar provides to users the access to data about the popularity of monitored assets from different classes like Commodities, Equities, Crypto, FX and Fixed Income in social media platforms.
We may also provide certain consultancy/professional and data analysis services and other additional services on an ad-hoc basis, for which additional terms will apply. For more information, please contact us at contact@zenpulsar.com.
Separate end-user terms will apply between us and the individual Authorised End Users who use the Zenpulsar Platforms.
We have agreed to grant you a non-exclusive licence, on the terms set out below, to use our Zenpulsar platforms, namely:
- To access our SaaS PUMP on commodities
- To receive the Zenpulsar commodity dataset.
These terms should be read in conjunction with the Order Form (which sets out the basic terms of your subscription to the Zenpulsar Platforms) and any Schedules which together with these terms, comprise the contract between you and us for use of the Zenpulsar Platforms.
- Definitions
“Access Key” - means an access key, provided to you by us enables you to submit requests for Zenpulsar Data;
“Administrator” - means an individual employee of yours who is entitled to administer the Zenpulsar Platforms on your behalf and receive information in relation to your dataset;
“Account” - means a unique account created for You to access our Service or parts of our Service;
“Agreement” - means the subscription terms set out here including the Order Form and any Schedules;
“Authorised End User” - means any staff or employee who is authorised by you to access the Zenpulsar Platforms whether as a user or Administrator;
“Business Day” - means Monday to Friday excluding any weekends and any public or bank holiday in England;
“Combined Products”- means products or services, provided by you, which incorporate and add value to Zenpulsar Data;
“Data Protection Legislation” - means all applicable laws and regulations relating to the processing of personal data and privacy as may be applicable from time to time, which at the date of this Agreement means the GDPR (EU General Data Protection Regulation 2016/679), Data Protection Act 2018 and any successor legislation or as may be updated or amended from time to time;
“Fees” - means the fees payable to access or use the Zenpulsar Platforms, including Subscriptions Fees as set out in the Order Form;
“Order Form” - means the form attached to these terms or otherwise agreed between the Parties from time to time which sets out the basic terms of your subscription to the Zenpulsar Platforms including the number of user licences subscribed to;
“Initial Subscription Term” - means the initial term of your subscription as specified in the Order Form;
“Intellectual Property Rights” - means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
“Normal Business Hours” - means 9.00 to 17.30 on any Business Day;
“Party” - means Zenpulsar or the Subscriber (as the case may be) and collectively they are the “Parties”;
"Software" - refers to software integral to the operation of the Zenpulsar Platforms and any background software which we use in providing the Zenpulsar Platforms;
“Start Date” - the date on which access to the Zenpulsar Platforms commences as set out in the Order Form;
“Subscriber’s Group” - shall be the Subscriber, Subscriber’s parent company holding a majority interest in the Subscriber, any such parent company’s majority owned subsidiaries, and the Subscriber’s majority owned subsidiaries;
“Subscription”- means the subscription to the Zenpulsar Platforms on the terms of this Agreement;
“Subscription Term” - means the term of your subscription to the Zenpulsar Platforms;
“Third Party” or “third party” - means each person or entity which is not a party to this Agreement;
“Use” - the use, copying or transmission of the Zenpulsar Platforms in any manner whatsoever;
“Zenpulsar API” - means the software interface and associated materials to facilitate access to Zenpulsar Data;
“Zenpulsar Data” - means any data delivered or provided to you by us including via the Zenpulsar API;
“Zenpulsar Platforms” - means the services (SaaS and API) to which you have subscribed as described in the Order Form and the associated interface for Administrator access.
2. The Zenpulsar Platforms
2.1 - The Zenpulsar Platforms are accessible on an individual basis and may only be used to the extent that the user is a Subscriber.
2.2 - In order to subscribe to our Zenpulsar Platforms (SaaS and API), you must be a “Subscriber” as defined above and comply with these terms.
2.3 - You accept sole responsibility for obtaining appropriate local or national accreditations, memberships, affiliations, insurances (or other relevant requirements) for conducting your business as a Subscriber but in any event, you are strictly prohibited from registering for the Zenpulsar Platforms if you are engaged in any business which is illegal, unethical or otherwise does not align with our values.
2.4 - You will be required to register an administration account with us for your Administrator to access our services. The Administrator must be an Authorised End User. The Administrator will be responsible for certain configuration options and will be our point of contact for support. Your administration account is strictly for your organisation’s use and you are not authorised to share or otherwise permit any other individual outside of your organisation to have access to or use your administration account, including members of the Subscriber’s Group (unless authorised by us in writing).
2.5 - Notwithstanding the above, once the applicable Fees have been paid in full by you in accordance with the Agreement, we will provide you with means to grant your Authorised End User Administrator access to the Zenpulsar Platforms. Each Authorised End User will be required to comply with the End User Terms (https://zenpulsar.com/end-user-license-agreement) in order to have access to and use the Zenpulsar Platforms.
2.6 - You acknowledge and agree that in the event an Authorised End User should leave employment or otherwise cease to be engaged by you at any time prior to the end of the relevant Subscription Term, you shall notify us immediately upon which their access to the Zenpulsar Platforms shall be deactivated and access to the data, information or other material contained in it shall also cease. Notwithstanding this, the Subscription Fees shall still be payable in full and you will not be entitled to any refund although you may with our prior consent (such consent not to be unreasonably withheld or delayed) be permitted to transfer the Zenpulsar Platforms licence to another Authorised End User for the remaining duration of the relevant Subscription Term (as the case may be).
2.7 - In relation to the Authorised End Users, you undertake that:
2.7.1 - the maximum number of Authorised End Users you will authorise to access and use the Zenpulsar Platforms as an Administrator shall not exceed the number of permitted user licences as agreed by us from time to time (usually a single Administrator for API access unless otherwise agreed by us); and
2.7.2 - you will not allow any individual licence to be used by more than one individual Authorised End User.
2.8 - We may offer differing levels of subscription with access to different levels of functionality or services. Accordingly access to certain features may be restricted or limited, depending on your subscription type. In addition, we reserve the right to add or remove services and functionality from any subscription type or to add or remove subscription types.
2.9 - Authorised End Users may be subject to differing permission or access levels depending on the subscription you have taken out and which we will specify. We reserve the right to change the level of access or permissions applicable.
2.10 - You agree to use commercially reasonable efforts to prevent unauthorised access to, or use of, the Zenpulsar Platforms and will notify us as soon as possible if you become aware of any unauthorised access or use. You agree to only use the Zenpulsar Platforms for lawful purposes and not to violate any law of any country or the intellectual property rights of any third party.
2.11 - If you have subscribed only to Zenpulsar API you and your Authorised End Users shall not be entitled to access to our general user interface, other than as agreed by us.
3. Restrictions
3.1 - You agree that you will not, except as may be allowed by any applicable law which is incapable of exclusion by this Agreement between the Parties or except to the extent expressly permitted under these terms or agreed between us in writing:
3.1.1 - attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Zenpulsar Platforms, Software or any outputs from the Zenpulsar Platforms in any form or media or by any means;
3.1.2 - attempt to reverse compile, disassemble, extract training data beyond our machine learning models, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Zenpulsar Platforms or Software;
3.1.3 - access all or any part of Zenpulsar Platforms or Software or any of their outputs in order to supply similar services to any third party or in order to build a product or service which competes with the Zenpulsar Platforms;
3.1.4 - provide the Zenpulsar Platforms or any of its outputs to third parties other than in the context of allowing use by the Authorised End Users;
3.1.5 - license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the Zenpulsar Platforms, Software or any outputs from the Zenpulsar Platforms available to any third party except the Authorised End Users in accordance with this Agreement;
3.1.6 - make available in any way for the use or benefit of any unauthorised party, any information, materials, software, or other proprietary information received from us, in whole or in part, unless we agree in writing;
3.1.7 - unless we otherwise agree, remove, deface, obscure, or alter our or any third party's copyright notices, trademarks or other proprietary rights notices affixed to or provided as part of the Zenpulsar Platforms;
3.1.8 - input, upload or otherwise store any documentation, materials, information or other content to the Zenpulsar Platforms which is illegal, defamatory, fraudulent, offensive or infringing on any party;
3.1.9 - not to upload any files or content that contain viruses, corrupted files, or malicious code or any other similar software or programs that may damage the operation of the Software or Zenpulsar Platforms;
3.1.10 - modify, incorporate into or use the Zenpulsar Platforms or Software with other software, or create a derivative work;
3.1.11 - use any robot, spider, scraper, or other automated means to access the Zenpulsar Platforms or Software for any purpose without our written consent; or
3.1.12 - attempt to obtain, or assist third parties in obtaining, access to the Zenpulsar Platforms other than in accordance with these terms.
3.2 - We will not be responsible for your integration of the Zenpulsar Platforms within your systems and are not liable for any loss, damage or liability that may arise as a result of this.
4. API Terms
4.1 - The following terms apply to access to Zenpulsar API.
4.2 - We agree to provide you with an Access Key to access the Zenpulsar API, and agree to grant access to the Zenpulsar API and receive Zenpulsar Data, subject to the terms of this Agreement.
4.3 - We will provide reasonable assistance to you in accessing the Zenpulsar API but we will not be required to provide professional services to you, unless otherwise agreed (and we will be entitled to charge for any such professional services).
2.6 - You acknowledge and agree that in the event an Authorised End User should leave employment or otherwise cease to be engaged by you at any time prior to the end of the relevant Subscription Term, you shall notify us immediately upon which their access to the Zenpulsar Platforms shall be deactivated and access to the data, information or other material contained in it shall also cease. Notwithstanding this, the Subscription Fees shall still be payable in full and you will not be entitled to any refund although you may with our prior consent (such consent not to be unreasonably withheld or delayed) be permitted to transfer the Zenpulsar Platforms licence to another Authorised End User for the remaining duration of the relevant Subscription Term (as the case may be).
2.7 - In relation to the Authorised End Users, you undertake that:
2.7.1 - the maximum number of Authorised End Users you will authorise to access and use the Zenpulsar Platforms as an Administrator shall not exceed the number of permitted user licences as agreed by us from time to time (usually a single Administrator for API access unless otherwise agreed by us); and
2.7.2 - you will not allow any individual licence to be used by more than one individual Authorised End User.
2.8 - We may offer differing levels of subscription with access to different levels of functionality or services. Accordingly access to certain features may be restricted or limited, depending on your subscription type. In addition, we reserve the right to add or remove services and functionality from any subscription type or to add or remove subscription types.
2.9 - Authorised End Users may be subject to differing permission or access levels depending on the subscription you have taken out and which we will specify. We reserve the right to change the level of access or permissions applicable.
2.10 - You agree to use commercially reasonable efforts to prevent unauthorised access to, or use of, the Zenpulsar Platforms and will notify us as soon as possible if you become aware of any unauthorised access or use. You agree to only use the Zenpulsar Platforms for lawful purposes and not to violate any law of any country or the intellectual property rights of any third party.
2.11 - If you have subscribed only to Zenpulsar API you and your Authorised End Users shall not be entitled to access to our general user interface, other than as agreed by us.
3. Restrictions
3.1 - You agree that you will not, except as may be allowed by any applicable law which is incapable of exclusion by this Agreement between the Parties or except to the extent expressly permitted under these terms or agreed between us in writing:
3.1.1 - attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Zenpulsar Platforms, Software or any outputs from the Zenpulsar Platforms in any form or media or by any means;
3.1.2 - attempt to reverse compile, disassemble, extract training data beyond our machine learning models, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Zenpulsar Platforms or Software;
3.1.3 - access all or any part of Zenpulsar Platforms or Software or any of their outputs in order to supply similar services to any third party or in order to build a product or service which competes with the Zenpulsar Platforms;
3.1.4 - provide the Zenpulsar Platforms or any of its outputs to third parties other than in the context of allowing use by the Authorised End Users;
3.1.5 - license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the Zenpulsar Platforms, Software or any outputs from the Zenpulsar Platforms available to any third party except the Authorised End Users in accordance with this Agreement;
3.1.6 - make available in any way for the use or benefit of any unauthorised party, any information, materials, software, or other proprietary information received from us, in whole or in part, unless we agree in writing;
3.1.7 - unless we otherwise agree, remove, deface, obscure, or alter our or any third party's copyright notices, trademarks or other proprietary rights notices affixed to or provided as part of the Zenpulsar Platforms;
3.1.8 - input, upload or otherwise store any documentation, materials, information or other content to the Zenpulsar Platforms which is illegal, defamatory, fraudulent, offensive or infringing on any party;
3.1.9 - not to upload any files or content that contain viruses, corrupted files, or malicious code or any other similar software or programs that may damage the operation of the Software or Zenpulsar Platforms;
3.1.10 - modify, incorporate into or use the Zenpulsar Platforms or Software with other software, or create a derivative work;
3.1.11 - use any robot, spider, scraper, or other automated means to access the Zenpulsar Platforms or Software for any purpose without our written consent; or
3.1.12 - attempt to obtain, or assist third parties in obtaining, access to the Zenpulsar Platforms other than in accordance with these terms.
3.2 - We will not be responsible for your integration of the Zenpulsar Platforms within your systems and are not liable for any loss, damage or liability that may arise as a result of this.
4. API Terms
4.1 - The following terms apply to access to Zenpulsar API.
4.2 - We agree to provide you with an Access Key to access the Zenpulsar API, and agree to grant access to the Zenpulsar API and receive Zenpulsar Data, subject to the terms of this Agreement.
4.3 - We will provide reasonable assistance to you in accessing the Zenpulsar API but we will not be required to provide professional services to you, unless otherwise agreed (and we will be entitled to charge for any such professional services).
4.4 - It is your responsibility to write and develop any tools or software code which may be necessary in order to: a) integrate the Zenpulsar API within your own systems or software; b) submit calls to access Zenpulsar Data; or c) analyse or present Zenpulsar Data within your own systems and products.
4.5 - Your licence to access the Zenpulsar API and receive Zenpulsar Data is subject to such data limits as we may from time to time reasonably impose and we reserve the right to reduce or increase data limits at any time, for any reason. We may limit or restrict your access to Zenpulsar Data once you have reached the applicable data limits.
4.6 - You agree that you will not except to the extent expressly permitted under these terms or agreed between the parties in writing licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make available any Zenpulsar Data to any third party other than as part of Combined Products.
4.7 - You may not access all or any part of the Zenpulsar API or Zenpulsar Data in order to populate any database or re-post or publish the Zenpulsar Data other than as part of a Combined Product.
5. Fees & Payment
5.1 - You agree to pay all applicable Fees (including the Subscription Fee) in accordance with these terms and the Order Form. Unless the Order Form sets out otherwise, the initial Subscription Fee shall be payable in advance of the Start Date. In the event the Subscriber purchases additional user licences following the Start Date, the relevant additional fees shall be invoiced to you and shall be payable no less than thirty (30) days from the relevant invoice date. You acknowledge and agree that only once the Subscription Fees have been paid in accordance with this Agreement will we provide such Authorised End Users with access to the Zenpulsar Platforms.
5.2 - We will invoice you in accordance with the frequency set out in the Order Form.
5.3 - We reserve the right to charge you interest in respect of the late payment of any sum due under this Agreement (after as well as before judgement) at the rate of 4 per cent per annum above the base rate from time to time of the Bank of England from the due date until payment.
5.4 - Notwithstanding clause 5.1 above, to the extent we have provided the Zenpulsar Platforms but there remain Fees due from you which are outstanding for 30 days or more from the payment due date, we may at our discretion suspend access to the Zenpulsar Platforms immediately and, we may delete your and the Authorised End Users’ accounts with Zenpulsar including any information uploaded or otherwise inputted into the Zenpulsar Platforms.
5.5 - In the event this Agreement is terminated by you under clause 13.4 or by us except then under clause 13.4, we will refund a pro rata proportion of any Subscription Fees paid in advance by you. In the event we terminate this Agreement under clause 13.4 or you terminate other than under clause 13.4 then no Subscription Fees paid in advance by you will be refundable to you. However other than as set out in this clause or elsewhere in this Agreement, Fees will only be refundable at our sole discretion, and we are unlikely to provide you with refund in the event that the Zenpulsar Platforms is unused, an Authorised End User ceases to be engaged by you or in the event that you terminate, or change your subscription with us.
5.6 - We may at our sole discretion offer a free trial to help you determine whether our Zenpulsar Platforms is right for you. At the end of this period, you will automatically roll-over onto the payment plan for the agreed subscription term unless you tell us in writing at least 7 days before the trial end date that you do not wish to continue using the Zenpulsar Platforms. If you do not wish to continue using Zenpulsar Platforms, we recommend that you terminate your account before or upon completion of the free trial period in order to avoid automatically rolling-over onto the payment plan for the agreed Subscription Term. Please contact contact@zenpulsar.com should you require assistance terminating your account or free trial.
5.7 - We reserve the right to change or amend our Subscription Fees at any time however such changes shall only take effect upon a renewal of a subscription term and in all circumstances, you will receive no less than 30 days’ prior written notice of such change in fees, such notice expiring on the relevant renewal date. In the event the Subscription Fees are increased, and you do not wish to continue your Subscription at the increased revised fees, you must terminate your account prior to these changes taking effect and in such event, we will refund a pro rata proportion of any Subscription Fees paid in advance by you. Failure to terminate your account in time will result in you being billed in full for the relevant subscription you signed up to, in agreement with these terms and such Fees will be non-refundable.
6. Support and Maintenance Services
6.1 - We conduct comprehensive data security audits on a regular basis to ensure that any data held by us is secure. In addition, we will provide you with certain support and maintenance services during the term of this Agreement, as set out in Schedule 1 (“SLA”). Notwithstanding this, we may from time to time and at our discretion, vary our support services. If you require enhanced support please contact us at contact@zenpulsar.com.
6.2 - Where possible we will give you prior written notice of scheduled maintenance services that are likely to affect the availability of the Zenpulsar Platforms or are likely to have a material negative impact upon the Zenpulsar Platforms. We will endeavor to provide advance notice of the provision of any major upgrade.
6.3 - We may suspend the provision of the support and maintenance services if any amount due to be paid by you to us under this Agreement is overdue, and we have given you at least 30 days' written notice, following the amount becoming overdue, of our intention to suspend the support and maintenance services on this basis.
6.4 - You acknowledge that the Zenpulsar Platforms may be unavailable during planned maintenance carried out during our planned maintenance windows as well as unscheduled maintenance (if we have used reasonable endeavours to give you notice in advance).
6.5 - We may from time to time, and by agreement in writing between us, carry out additional professional or consultancy services (“Professional Services”), including without limitation bespoke integrations of onsite systems and co-branding services. We warrant that any such Professional Services will be subject to any terms agreed between us in writing including applicable fees and charges. Professional Services will be carried out with reasonable skill and care in accordance with good industry practice. Please note that the limitations on liability set out in this Agreement will apply to Professional Services unless otherwise agreed in writing.
7. Data Protection
7.1 - Zenpulsar and the Subscriber agree to comply with their respective obligations under the Data Protection Legislation in the processing of personal data. This clause does not relieve, remove, or replace an either party’s obligations under the Data Protection Legislation.
7.2 - The parties acknowledge that for the purposes of this Agreement and the Data Protection Legislation, Zenpulsar and the Subscriber are controllers-in-common of the details of Authorised End Users which we use to facilitate access to the Zenpulsar Platforms.
7.3 - Without prejudice to the foregoing provisions in this clause, Zenpulsar agrees to process the personal data for which it is a controller in accordance with its Privacy Notice (available here: https://zenpulsar.com/privacy-policy).
4.5 - Your licence to access the Zenpulsar API and receive Zenpulsar Data is subject to such data limits as we may from time to time reasonably impose and we reserve the right to reduce or increase data limits at any time, for any reason. We may limit or restrict your access to Zenpulsar Data once you have reached the applicable data limits.
4.6 - You agree that you will not except to the extent expressly permitted under these terms or agreed between the parties in writing licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make available any Zenpulsar Data to any third party other than as part of Combined Products.
4.7 - You may not access all or any part of the Zenpulsar API or Zenpulsar Data in order to populate any database or re-post or publish the Zenpulsar Data other than as part of a Combined Product.
5. Fees & Payment
5.1 - You agree to pay all applicable Fees (including the Subscription Fee) in accordance with these terms and the Order Form. Unless the Order Form sets out otherwise, the initial Subscription Fee shall be payable in advance of the Start Date. In the event the Subscriber purchases additional user licences following the Start Date, the relevant additional fees shall be invoiced to you and shall be payable no less than thirty (30) days from the relevant invoice date. You acknowledge and agree that only once the Subscription Fees have been paid in accordance with this Agreement will we provide such Authorised End Users with access to the Zenpulsar Platforms.
5.2 - We will invoice you in accordance with the frequency set out in the Order Form.
5.3 - We reserve the right to charge you interest in respect of the late payment of any sum due under this Agreement (after as well as before judgement) at the rate of 4 per cent per annum above the base rate from time to time of the Bank of England from the due date until payment.
5.4 - Notwithstanding clause 5.1 above, to the extent we have provided the Zenpulsar Platforms but there remain Fees due from you which are outstanding for 30 days or more from the payment due date, we may at our discretion suspend access to the Zenpulsar Platforms immediately and, we may delete your and the Authorised End Users’ accounts with Zenpulsar including any information uploaded or otherwise inputted into the Zenpulsar Platforms.
5.5 - In the event this Agreement is terminated by you under clause 13.4 or by us except then under clause 13.4, we will refund a pro rata proportion of any Subscription Fees paid in advance by you. In the event we terminate this Agreement under clause 13.4 or you terminate other than under clause 13.4 then no Subscription Fees paid in advance by you will be refundable to you. However other than as set out in this clause or elsewhere in this Agreement, Fees will only be refundable at our sole discretion, and we are unlikely to provide you with refund in the event that the Zenpulsar Platforms is unused, an Authorised End User ceases to be engaged by you or in the event that you terminate, or change your subscription with us.
5.6 - We may at our sole discretion offer a free trial to help you determine whether our Zenpulsar Platforms is right for you. At the end of this period, you will automatically roll-over onto the payment plan for the agreed subscription term unless you tell us in writing at least 7 days before the trial end date that you do not wish to continue using the Zenpulsar Platforms. If you do not wish to continue using Zenpulsar Platforms, we recommend that you terminate your account before or upon completion of the free trial period in order to avoid automatically rolling-over onto the payment plan for the agreed Subscription Term. Please contact contact@zenpulsar.com should you require assistance terminating your account or free trial.
5.7 - We reserve the right to change or amend our Subscription Fees at any time however such changes shall only take effect upon a renewal of a subscription term and in all circumstances, you will receive no less than 30 days’ prior written notice of such change in fees, such notice expiring on the relevant renewal date. In the event the Subscription Fees are increased, and you do not wish to continue your Subscription at the increased revised fees, you must terminate your account prior to these changes taking effect and in such event, we will refund a pro rata proportion of any Subscription Fees paid in advance by you. Failure to terminate your account in time will result in you being billed in full for the relevant subscription you signed up to, in agreement with these terms and such Fees will be non-refundable.
6. Support and Maintenance Services
6.1 - We conduct comprehensive data security audits on a regular basis to ensure that any data held by us is secure. In addition, we will provide you with certain support and maintenance services during the term of this Agreement, as set out in Schedule 1 (“SLA”). Notwithstanding this, we may from time to time and at our discretion, vary our support services. If you require enhanced support please contact us at contact@zenpulsar.com.
6.2 - Where possible we will give you prior written notice of scheduled maintenance services that are likely to affect the availability of the Zenpulsar Platforms or are likely to have a material negative impact upon the Zenpulsar Platforms. We will endeavor to provide advance notice of the provision of any major upgrade.
6.3 - We may suspend the provision of the support and maintenance services if any amount due to be paid by you to us under this Agreement is overdue, and we have given you at least 30 days' written notice, following the amount becoming overdue, of our intention to suspend the support and maintenance services on this basis.
6.4 - You acknowledge that the Zenpulsar Platforms may be unavailable during planned maintenance carried out during our planned maintenance windows as well as unscheduled maintenance (if we have used reasonable endeavours to give you notice in advance).
6.5 - We may from time to time, and by agreement in writing between us, carry out additional professional or consultancy services (“Professional Services”), including without limitation bespoke integrations of onsite systems and co-branding services. We warrant that any such Professional Services will be subject to any terms agreed between us in writing including applicable fees and charges. Professional Services will be carried out with reasonable skill and care in accordance with good industry practice. Please note that the limitations on liability set out in this Agreement will apply to Professional Services unless otherwise agreed in writing.
7. Data Protection
7.1 - Zenpulsar and the Subscriber agree to comply with their respective obligations under the Data Protection Legislation in the processing of personal data. This clause does not relieve, remove, or replace an either party’s obligations under the Data Protection Legislation.
7.2 - The parties acknowledge that for the purposes of this Agreement and the Data Protection Legislation, Zenpulsar and the Subscriber are controllers-in-common of the details of Authorised End Users which we use to facilitate access to the Zenpulsar Platforms.
7.3 - Without prejudice to the foregoing provisions in this clause, Zenpulsar agrees to process the personal data for which it is a controller in accordance with its Privacy Notice (available here: https://zenpulsar.com/privacy-policy).
8. Intellectual Property and Third-Party Licence
8.1 - You acknowledge that all Intellectual Property Rights in the Access Key, Software and Zenpulsar Platforms belong and shall belong to us or our licensors (as the case may be), and you shall have no rights in or to the Software or Zenpulsar Platforms other than the right to access the Zenpulsar Platforms in accordance with the terms of this Agreement.
8.2 - You agree to comply with the terms of any third-party end-user licence agreement to the extent that we incorporate third party elements into the Zenpulsar Platforms and communicate these terms to you prior to the commencement of your subscription.
8.3 - You acknowledge and agree the Zenpulsar Platforms may include links to other external websites or materials. We are not responsible for content on any site outside the Zenpulsar Platforms so if you do follow a link to any of these websites, you acknowledge you do so at your own risk, and we will not be liable or otherwise be responsible in any way in relation to this.
9. Warranty
9.1 - Subject to the exceptions set out below and the limitations on our liability, we warrant that we have the right power and authority to authorise access to the Zenpulsar Platforms upon the terms and conditions of this Agreement and, if you have a paid subscription, that the Zenpulsar Platforms will comply in material respects with the functionality described in the Order Form or to the extent applicable on our website or our other marketing materials when you subscribe to it.
9.2 - The Zenpulsar Platforms is provided “as is” and we do not warrant that the use of the Zenpulsar Platforms will be uninterrupted, error-free or 100% accurate.
9.3 - You accept responsibility for the selection of the Zenpulsar Platforms to achieve your intended results and acknowledge that the Zenpulsar Platforms has not been developed to your specific requirements and we do not guarantee any particular level of engagement or outcome.
9.4 - We will have no liability to remedy a breach of warranty where such breach arises as a result of any breach by you of the terms of this Agreement.
9.5 - All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to including but not limited to the warranties of satisfactory quality, merchantability, fitness for a particular purpose and non-infringement.
9.6 - We may, at our discretion, remedy any breach of warranty by the provision of technical support free of charge.
10. Reports and Information
10.1 - The Zenpulsar Platforms may provide you with reports, information and outputs (“Outputs”) which derive from or are based on various data sources.
10.2 - The Outputs we provide to you are intended for general information only. Our Outputs are not intended to form the basis of any given technical, business, commercial or investment decisions (together referred to as a “Business Decision”). You should not rely on our Outputs alone in making any specific Business Decision
10.3 - Any Business Decisions made by you once you have received, read or reviewed our Outputs are commercial decisions for you and we will not make, or be deemed to make, any technical, business, commercial or investment decisions on your behalf.
10.4 - You are strongly advised to take into account, when making any Business Decision, to take into account any information and advice other than our Outputs which you are, or should be aware.
10.5 - Reasonable efforts will be made to ensure that Outputs are accurate and up-to-date but we cannot guarantee that the Report will be error-free.
10.6 - Our Outputs should not be regarded as or relied upon as being comprehensive opinions concerning the matters discussed and the information, data, conclusions, opinions and judgements set out in the Outputs may relate to certain contexts and may not be suitable in other contexts. It is your responsibility to ensure that you do not use the information we provide in the wrong context.
11. Limitation of Liability
11.1 - Except as expressly stated in this clause 11:
11.1.1 - Neither party shall in any circumstances have any liability for any losses or damages which may be suffered by the other party (or any person claiming under or through you), whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, and which fall within any of the following categories:
a. loss of profits;
b. loss of revenue;
c. loss of anticipated savings;
d. loss of business opportunity, goodwill or reputation;
e. loss or corruption of data or information;
f. indirect or consequential losses.
11.2 - While we take reasonable technical steps to verify and authenticate Authorised End Users, we do not offer any guarantee that each purported user is the person they purport to be and we cannot guarantee that the Zenpulsar Platforms will not be fraudulently used by purported end users. We will therefore not be liable for fraudulent use of the Zenpulsar Platforms by third parties (including supposedly Authorised End Users) save in circumstances arising directly from our negligence.
11.3 - We will use reasonable endeavours to ensure that the Zenpulsar Platforms operates within applicable regulatory requirements as reported to us, but we will not be responsible for or liable for any regulatory requirements or obligations. We are not in a position to evaluate risks associated with your use of the Zenpulsar Platforms for regulatory compliance. Accordingly if you propose to use the Zenpulsar Platforms to comply with your regulatory obligations it is your responsibility to ensure that it meets such requirements.
11.4 - We will not be liable for any losses arising from the integration of the Zenpulsar Platforms with any other software or systems used by you.
11.5 - All dates supplied by us for the commencement of the Zenpulsar Platforms shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
8.1 - You acknowledge that all Intellectual Property Rights in the Access Key, Software and Zenpulsar Platforms belong and shall belong to us or our licensors (as the case may be), and you shall have no rights in or to the Software or Zenpulsar Platforms other than the right to access the Zenpulsar Platforms in accordance with the terms of this Agreement.
8.2 - You agree to comply with the terms of any third-party end-user licence agreement to the extent that we incorporate third party elements into the Zenpulsar Platforms and communicate these terms to you prior to the commencement of your subscription.
8.3 - You acknowledge and agree the Zenpulsar Platforms may include links to other external websites or materials. We are not responsible for content on any site outside the Zenpulsar Platforms so if you do follow a link to any of these websites, you acknowledge you do so at your own risk, and we will not be liable or otherwise be responsible in any way in relation to this.
9. Warranty
9.1 - Subject to the exceptions set out below and the limitations on our liability, we warrant that we have the right power and authority to authorise access to the Zenpulsar Platforms upon the terms and conditions of this Agreement and, if you have a paid subscription, that the Zenpulsar Platforms will comply in material respects with the functionality described in the Order Form or to the extent applicable on our website or our other marketing materials when you subscribe to it.
9.2 - The Zenpulsar Platforms is provided “as is” and we do not warrant that the use of the Zenpulsar Platforms will be uninterrupted, error-free or 100% accurate.
9.3 - You accept responsibility for the selection of the Zenpulsar Platforms to achieve your intended results and acknowledge that the Zenpulsar Platforms has not been developed to your specific requirements and we do not guarantee any particular level of engagement or outcome.
9.4 - We will have no liability to remedy a breach of warranty where such breach arises as a result of any breach by you of the terms of this Agreement.
9.5 - All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to including but not limited to the warranties of satisfactory quality, merchantability, fitness for a particular purpose and non-infringement.
9.6 - We may, at our discretion, remedy any breach of warranty by the provision of technical support free of charge.
10. Reports and Information
10.1 - The Zenpulsar Platforms may provide you with reports, information and outputs (“Outputs”) which derive from or are based on various data sources.
10.2 - The Outputs we provide to you are intended for general information only. Our Outputs are not intended to form the basis of any given technical, business, commercial or investment decisions (together referred to as a “Business Decision”). You should not rely on our Outputs alone in making any specific Business Decision
10.3 - Any Business Decisions made by you once you have received, read or reviewed our Outputs are commercial decisions for you and we will not make, or be deemed to make, any technical, business, commercial or investment decisions on your behalf.
10.4 - You are strongly advised to take into account, when making any Business Decision, to take into account any information and advice other than our Outputs which you are, or should be aware.
10.5 - Reasonable efforts will be made to ensure that Outputs are accurate and up-to-date but we cannot guarantee that the Report will be error-free.
10.6 - Our Outputs should not be regarded as or relied upon as being comprehensive opinions concerning the matters discussed and the information, data, conclusions, opinions and judgements set out in the Outputs may relate to certain contexts and may not be suitable in other contexts. It is your responsibility to ensure that you do not use the information we provide in the wrong context.
11. Limitation of Liability
11.1 - Except as expressly stated in this clause 11:
11.1.1 - Neither party shall in any circumstances have any liability for any losses or damages which may be suffered by the other party (or any person claiming under or through you), whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, and which fall within any of the following categories:
a. loss of profits;
b. loss of revenue;
c. loss of anticipated savings;
d. loss of business opportunity, goodwill or reputation;
e. loss or corruption of data or information;
f. indirect or consequential losses.
11.2 - While we take reasonable technical steps to verify and authenticate Authorised End Users, we do not offer any guarantee that each purported user is the person they purport to be and we cannot guarantee that the Zenpulsar Platforms will not be fraudulently used by purported end users. We will therefore not be liable for fraudulent use of the Zenpulsar Platforms by third parties (including supposedly Authorised End Users) save in circumstances arising directly from our negligence.
11.3 - We will use reasonable endeavours to ensure that the Zenpulsar Platforms operates within applicable regulatory requirements as reported to us, but we will not be responsible for or liable for any regulatory requirements or obligations. We are not in a position to evaluate risks associated with your use of the Zenpulsar Platforms for regulatory compliance. Accordingly if you propose to use the Zenpulsar Platforms to comply with your regulatory obligations it is your responsibility to ensure that it meets such requirements.
11.4 - We will not be liable for any losses arising from the integration of the Zenpulsar Platforms with any other software or systems used by you.
11.5 - All dates supplied by us for the commencement of the Zenpulsar Platforms shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
11.6 - Subject to clause 11.8, our total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances [a sum equal to 100% of the Subscription Fees paid by you in the 12-month period leading up to the claim].
11.7 - The limitations in this clause 11 shall apply to the fullest extent permissible at law, but we do not exclude liability for:
11.7.1 - death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;
11.7.2 - fraud or fraudulent misrepresentation; or
11.7.3 - any other liability which may not be limited or excluded by law.
12. Confidentiality
12.1 - The Parties will keep confidential all information (whether written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:
12.1.1 - trivial or obvious;
12.1.2 - already in its possession other than as a result of a breach of this clause; or
12.1.3 - already in or subsequently enters the public domain other than as a result of a breach of this clause.
12.2 - It is agreed that a Party may disclose such confidential information to its employees, professional advisers, insurers, agents and subcontractors, as required by (i) law, regulation, judicial or administrative process, (ii) in accordance with applicable professional standards, or (iii) (in the case of Zenpulsar) as deemed necessary in the performance of the services pursuant to this Agreement.
12.3 - Each of the Parties will take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, agents and subcontractors.
12.4 - You agree that we are authorised to collect and process data relating to your use of the Zenpulsar Platforms and to aggregate and combine that data with other data we hold for the purposes of analysing the Zenpulsar Platforms and providing information and reports to our subscribers. We undertake that any such information will not contain any personal data and will not relate to any identified individual and will only be provided to third parties on an aggregated, anonymised basis.
12.5 - For the avoidance of doubt, these terms apply throughout the Subscription Term and shall continue following termination of this Agreement. In addition, any information relating to the running of Zenpulsar, such as processes relating to technology, methodologies, machine learning and/or other items relating to our Software and Zenpulsar Platforms will also remain confidential beyond the Subscription Term.
13. Term, Renewals & Termination
13.1 - The Agreement shall, unless otherwise terminated as provided in this clause or agreed between the Parties in writing, commence on the Start Date and shall continue for the minimum subscription term as specified in the Order Form (“Initial Subscription Term”) and thereafter automatically renew for successive periods of 12 months (each a “Renewal Period”) unless:
13.1.1 - either Party gives prior written notice at least 1 month before the expiry of the Initial Subscription Term of its intent to terminate the Agreement in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term; or
13.1.2 - at any point during a Renewal Period, either Party gives prior written notice of at least 1 month of its intent to terminate the Agreement in which case this Agreement shall terminate upon the expiry of the applicable Renewal Period.
13.2 - Notwithstanding clause 13.1.1 above or anything to the contrary in these terms, you are free to cancel your Subscription at any time during the Initial Subscription Term. Upon cancelling your Subscription, you and the Authorised End Users will have access to the Zenpulsar Platforms for the remainder of the Initial Subscription Term however all Fees will still be due and payable by you for the full Initial Subscription Term and no refunds will be made.
13.3 - The Subscriber acknowledges and agrees that the end of the applicable Subscription Term or upon an Authorised End User ceasing to be engaged, you and the Authorised End Users will not be able to use the Zenpulsar Platforms and access to any documentation, materials, information or other content in the Zenpulsar Platforms will also cease.
13.4 - In addition to, but without prejudice to the other rights and remedies of each Party under this Agreement, in the event that:
13.4.1 - either Party fails to perform or comply with any of its material obligations under this Agreement and such failure is not remedied within 30 days of written notification; or
13.4.2 - either Party enters into insolvency;
then the other Party may terminate this Agreement immediately by written notice.
13.5 - For the purposes of clause 13.4, a Party shall be regarded as entering into insolvency if:
13.5.1 - it suspends or ceases or threatens to suspend or cease all or a substantial part of its operations;
13.5.2 - a meeting is convened, an order made or a resolution passed for its winding-up (except for the purposes of a reconstruction or amalgamation whilst solvent);
13.5.3 - a petition is presented for its winding up and not stayed, dismissed or withdrawn within 10 days (unless it is demonstrated to the other party’s satisfaction that the petition is frivolous or vexatious and it is dismissed before the petition is advertised and in any event within 14 days of presentation);
13.5.4 - a petition is presented for the appointment of an administrator in relation to it and is not dismissed within two days or in the case of a petition presented by a creditor, within two days of actual service by that creditor on it;
13.5.5 - a distress, execution or other legal process is levied against any of its assets and is not discharged or paid out in full within three days;
13.5.6 - an encumbrancer takes possession of or a receiver or an administrator or similar official is appointed in respect of the whole or any part of its assets or undertaking;
11.7 - The limitations in this clause 11 shall apply to the fullest extent permissible at law, but we do not exclude liability for:
11.7.1 - death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;
11.7.2 - fraud or fraudulent misrepresentation; or
11.7.3 - any other liability which may not be limited or excluded by law.
12. Confidentiality
12.1 - The Parties will keep confidential all information (whether written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:
12.1.1 - trivial or obvious;
12.1.2 - already in its possession other than as a result of a breach of this clause; or
12.1.3 - already in or subsequently enters the public domain other than as a result of a breach of this clause.
12.2 - It is agreed that a Party may disclose such confidential information to its employees, professional advisers, insurers, agents and subcontractors, as required by (i) law, regulation, judicial or administrative process, (ii) in accordance with applicable professional standards, or (iii) (in the case of Zenpulsar) as deemed necessary in the performance of the services pursuant to this Agreement.
12.3 - Each of the Parties will take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, agents and subcontractors.
12.4 - You agree that we are authorised to collect and process data relating to your use of the Zenpulsar Platforms and to aggregate and combine that data with other data we hold for the purposes of analysing the Zenpulsar Platforms and providing information and reports to our subscribers. We undertake that any such information will not contain any personal data and will not relate to any identified individual and will only be provided to third parties on an aggregated, anonymised basis.
12.5 - For the avoidance of doubt, these terms apply throughout the Subscription Term and shall continue following termination of this Agreement. In addition, any information relating to the running of Zenpulsar, such as processes relating to technology, methodologies, machine learning and/or other items relating to our Software and Zenpulsar Platforms will also remain confidential beyond the Subscription Term.
13. Term, Renewals & Termination
13.1 - The Agreement shall, unless otherwise terminated as provided in this clause or agreed between the Parties in writing, commence on the Start Date and shall continue for the minimum subscription term as specified in the Order Form (“Initial Subscription Term”) and thereafter automatically renew for successive periods of 12 months (each a “Renewal Period”) unless:
13.1.1 - either Party gives prior written notice at least 1 month before the expiry of the Initial Subscription Term of its intent to terminate the Agreement in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term; or
13.1.2 - at any point during a Renewal Period, either Party gives prior written notice of at least 1 month of its intent to terminate the Agreement in which case this Agreement shall terminate upon the expiry of the applicable Renewal Period.
13.2 - Notwithstanding clause 13.1.1 above or anything to the contrary in these terms, you are free to cancel your Subscription at any time during the Initial Subscription Term. Upon cancelling your Subscription, you and the Authorised End Users will have access to the Zenpulsar Platforms for the remainder of the Initial Subscription Term however all Fees will still be due and payable by you for the full Initial Subscription Term and no refunds will be made.
13.3 - The Subscriber acknowledges and agrees that the end of the applicable Subscription Term or upon an Authorised End User ceasing to be engaged, you and the Authorised End Users will not be able to use the Zenpulsar Platforms and access to any documentation, materials, information or other content in the Zenpulsar Platforms will also cease.
13.4 - In addition to, but without prejudice to the other rights and remedies of each Party under this Agreement, in the event that:
13.4.1 - either Party fails to perform or comply with any of its material obligations under this Agreement and such failure is not remedied within 30 days of written notification; or
13.4.2 - either Party enters into insolvency;
then the other Party may terminate this Agreement immediately by written notice.
13.5 - For the purposes of clause 13.4, a Party shall be regarded as entering into insolvency if:
13.5.1 - it suspends or ceases or threatens to suspend or cease all or a substantial part of its operations;
13.5.2 - a meeting is convened, an order made or a resolution passed for its winding-up (except for the purposes of a reconstruction or amalgamation whilst solvent);
13.5.3 - a petition is presented for its winding up and not stayed, dismissed or withdrawn within 10 days (unless it is demonstrated to the other party’s satisfaction that the petition is frivolous or vexatious and it is dismissed before the petition is advertised and in any event within 14 days of presentation);
13.5.4 - a petition is presented for the appointment of an administrator in relation to it and is not dismissed within two days or in the case of a petition presented by a creditor, within two days of actual service by that creditor on it;
13.5.5 - a distress, execution or other legal process is levied against any of its assets and is not discharged or paid out in full within three days;
13.5.6 - an encumbrancer takes possession of or a receiver or an administrator or similar official is appointed in respect of the whole or any part of its assets or undertaking;
13.5.7 - it ceases or suspends generally the payment of its debts or is unable to pay its debts or is deemed unable to pay its debts within the meaning of s123 Insolvency Act 1986; or
13.5.8 - if any event occurs which, under the applicable law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events mentioned above.
14. General
14.1 - Entire Agreement: This Agreement constitutes the whole agreement and understanding of the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud.
14.2 - No Waiver: The Parties agree that a failure by either Party to enforce the performance of any provision in this Agreement shall not constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
14.3 - Severance: If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 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 the minimum modification necessary to make it legal, valid and enforceable.
14.4 - Variation: Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only in writing by both of the Parties. A reference to “writing” or “written” in this Agreement includes email.
14.5 - Notices: All notices or communication given under this Agreement shall be in writing. Notices shall be deemed to have been duly given:
If deemed receipt as set out above would occur outside Normal Business Hours, it shall be deferred until business hours resume.
In each case notices should be addressed to the address or e-mail address given in this Agreement or as otherwise notified to the other Party in writing. In the case of Zenpulsar, the email address for service of notices is contact@zenpulsar.com.
14.6 - Assignment: You are not entitled to assign or otherwise transfer this Agreement of any of your rights or obligations, nor are you permitted to sublicense the use (in whole or in part) of the Zenpulsar Platforms without our prior written consent.
14.7 - Force Majeure: Neither Party will be liable to the other for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under this Agreement as a result of any cause outside its reasonable control. Subject to the affected Party promptly notifying the other Party in writing of the cause and the likely duration of the delay or non-performance and provided that the affected Party shall use reasonable endeavours to limit the effect of such event on such other Party, such delay or failure, to the extent affected by the cause will not constitute a breach of the Agreement.
14.8 - Rights & Remedies: except as otherwise expressly provided in this Agreement, all rights contained in this Agreement and all remedies available to either Party for breach of this Agreement are cumulative and may be exercised separately or concurrently. The exercise of any one right or remedy shall not be deemed an election of such right or remedy to the exclusion of other rights and remedies. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
14.9 - Contracts (Rights of Third Parties) Act 1999: except as otherwise expressly provided in this Agreement, a person who is not a Party to this Agreement or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
14.10 - Governing Law and Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the English courts in respect thereof.
Schedule 1 – “SLA”
We shall provide you with certain day to day support and maintenance services in relation to the use of, and the identification and resolution of errors in, the Zenpulsar Platforms, including the provision of updates and upgrades but this shall not include the provision of training services unless otherwise set out in the Agreement. Support communications will be with the Administrator and not with individual Authorised End Users.
SUBSCRIBER RESPONSIBILITIES
The provisions in this Schedule 1 shall apply subject to the Subscriber:
UPTIME
Subject to the exclusions below, we will aim to deliver the following uptime levels and/or target responses in supplying the Zenpulsar Platforms support and maintenance services:
13.5.8 - if any event occurs which, under the applicable law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events mentioned above.
14. General
14.1 - Entire Agreement: This Agreement constitutes the whole agreement and understanding of the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud.
14.2 - No Waiver: The Parties agree that a failure by either Party to enforce the performance of any provision in this Agreement shall not constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
14.3 - Severance: If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 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 the minimum modification necessary to make it legal, valid and enforceable.
14.4 - Variation: Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only in writing by both of the Parties. A reference to “writing” or “written” in this Agreement includes email.
14.5 - Notices: All notices or communication given under this Agreement shall be in writing. Notices shall be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during Normal Business Hours of the recipient;
- when sent by e-mail, at the time of transmission (provided a postmaster email delivery failure notification has not been received);
- on the fifth Business Day following mailing, if mailed by national ordinary mail, postage prepaid;
- on the tenth Business Day following mailing, if mailed by airmail, postage prepaid.
If deemed receipt as set out above would occur outside Normal Business Hours, it shall be deferred until business hours resume.
In each case notices should be addressed to the address or e-mail address given in this Agreement or as otherwise notified to the other Party in writing. In the case of Zenpulsar, the email address for service of notices is contact@zenpulsar.com.
14.6 - Assignment: You are not entitled to assign or otherwise transfer this Agreement of any of your rights or obligations, nor are you permitted to sublicense the use (in whole or in part) of the Zenpulsar Platforms without our prior written consent.
14.7 - Force Majeure: Neither Party will be liable to the other for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under this Agreement as a result of any cause outside its reasonable control. Subject to the affected Party promptly notifying the other Party in writing of the cause and the likely duration of the delay or non-performance and provided that the affected Party shall use reasonable endeavours to limit the effect of such event on such other Party, such delay or failure, to the extent affected by the cause will not constitute a breach of the Agreement.
14.8 - Rights & Remedies: except as otherwise expressly provided in this Agreement, all rights contained in this Agreement and all remedies available to either Party for breach of this Agreement are cumulative and may be exercised separately or concurrently. The exercise of any one right or remedy shall not be deemed an election of such right or remedy to the exclusion of other rights and remedies. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
14.9 - Contracts (Rights of Third Parties) Act 1999: except as otherwise expressly provided in this Agreement, a person who is not a Party to this Agreement or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
14.10 - Governing Law and Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the English courts in respect thereof.
Schedule 1 – “SLA”
We shall provide you with certain day to day support and maintenance services in relation to the use of, and the identification and resolution of errors in, the Zenpulsar Platforms, including the provision of updates and upgrades but this shall not include the provision of training services unless otherwise set out in the Agreement. Support communications will be with the Administrator and not with individual Authorised End Users.
SUBSCRIBER RESPONSIBILITIES
The provisions in this Schedule 1 shall apply subject to the Subscriber:
- Notifying us of issues or problems relating to the Zenpulsar Platforms in a timely manner
- Co-operating and maintaining good communication with us at all times
UPTIME
Subject to the exclusions below, we will aim to deliver the following uptime levels and/or target responses in supplying the Zenpulsar Platforms support and maintenance services:
SUPPORT
Remote support will be provided by email at support@zenpulsar.com and/or web chat and will be operational 24/7, telephone support will be available during Normal Business Hours.
We will include also support for general enquiries up to 16 hours per Administrator or 8 hours per Authorised End User per calendar month. After that we reserve the right to charge additional fees.
INCIDENT RESPONSE
Remote support will be provided by email at support@zenpulsar.com and/or web chat and will be operational 24/7, telephone support will be available during Normal Business Hours.
We will include also support for general enquiries up to 16 hours per Administrator or 8 hours per Authorised End User per calendar month. After that we reserve the right to charge additional fees.
INCIDENT RESPONSE
Response times do not apply:
- outside of Normal Business Hours unless the Parties specifically include provisions for out-of-hours support;
- when the incident has been caused by using software or service(s) for a use other than as permitted;
- if you have prevented us from performing required maintenance and update tasks; or
- in circumstances that could be reasonably said to be beyond our reasonable control.