Terms & Conditions of Sale
Parties
1. The Marketing Brain Group Ltd, a company incorporated in England (registration number 14718909) having its registered office at 203 London Road, Hadleigh, Benfleet, Essex, SS7 2RD (“the Provider”); and
1.1 If you (“the Customer”) register with our website, submit any material to our website or use any of our website services, we will ask you to expressly agree to these terms and conditions.
1.2 You must be at least 18 years of age to use our website; by using our website or agreeing to these terms and conditions, you warrant and represent to us that you are at least 18 years of age.
Agreement
1. Definitions
1.1 In this Agreement, except to the extent expressly provided otherwise:
“Access Credentials” means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“API” means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
“Charges” means:
(a) the charges and other payable amounts specified in Section 2 of Schedule 1 (Hosted Services particulars) and elsewhere in this Agreement;
(b) such charges and payable amounts as may be agreed in writing by the parties from time to time;
“Customer Confidential Information” means:
(a) any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was described as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential; and
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding personal data with respect to which the Provider is a data controller;
“Data Protection Laws” means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means the date of execution of this Agreement;
“EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosted Services” means The Marketing Brain (The Marketing Brain Group Ltd) and subsidiary tools, as specified in the Hosted Services Specification and as updated by the Provider from time to time subject to the restrictions set out in this Agreement;
“Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
“Hosted Services Specification” means the specification for the Platform and Hosted Services set out in Section 1 of Schedule 1 (Hosted Services particulars) and in the Documentation;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Personal Data” means personal data under any of the Data Protection Laws;
“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Schedule” means any schedule attached to the main body of this Agreement;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services;
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Google Chrome or Apple Safari;
“Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
“UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; and
“User Interface” means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
2. Credit
2.1 This document was created using a template from Docular (https://docular.net).
3. Term
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force indefinitely, until the subscription has expired, upon which this Agreement shall terminate automatically, subject to termination in accordance with Clause 18 or any other provision of this Agreement.
4. Hosted Services
4.1 The Provider shall provide, or shall ensure that the Platform will provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of the User Interface and the API for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the User Interface may only be used through a Supported Web Browser;
(b) the User Interface may only be used by the officers, employees, agents and subcontractors of the Customer;
(c) the User Interface may only be used by the named users identified in Schedule 1 (Hosted Services particulars), providing that the Customer may change, add or remove a designated named user in accordance with the user change procedure defined by the Hosted Services;
(d) the User Interface must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars), providing that the Customer may add or remove concurrent user licences in accordance with the licence change procedure defined by the Hosted Services; and
(e) the API may only be used by an application or applications approved by the Provider in writing and controlled by the Customer.
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
4.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
4.6 The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 2 (Acceptable Use Policy).
4.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.10 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
4.11 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.12 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.13 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Scheduled maintenance
5.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 5.
5.2 The Provider shall where practicable give to the Customer at least 2 Business Days’ prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
5.3 The Provider shall ensure that all scheduled maintenance is carried out with minimal disruption.
5.4 The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed 48 hours.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall provide the Support Services with reasonable skill and care.
6.3 The Provider shall have no obligation to provide Support Services:
(a) to the extent that the requested Support Services amount to general training in the use of the Hosted Services;
(b) in respect of any issue that could have been resolved by a competent person who had received general training in the use of the Hosted Services;
(c) in respect of any duplicate issues raised by or on behalf of the Customer;
(d) in respect of any issue caused by the improper use of the Hosted Services by or on behalf of the Customer; or
(e) in respect of any issue caused by any alteration to the Hosted Services, or to the configuration of the Hosted Services, made without the prior written consent of the Provider.
6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive, worldwide licence to:
(a) copy, store and transmit the Customer Data;
(b) edit, translate and create derivative works of the Customer Data; and
(c) distribute and publish the Customer Data anonymously as part of a collective summarised report,
for the purpose of developing the hosted service and or marketing material, to the extent reasonably required for the performance of the obligations and the exercise of the rights of the Provider under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers strictly for this purpose and subject to any express restrictions elsewhere in this Agreement.
7.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.3 You authorize the Provider to use and copy any user-generated content that you upload, publish or display on or through any of the acquired content as the Provider deems necessary to facilitate the posting and storage of such user-generated content.
7.4 You further authorize the Provider to anonymize and aggregate User-Generated Content and any other data you share with the Provider (“Customer Data”), including data associated with your Google Ads, Google Analytics, Google Search Console, Google Business Profile, Bing Webmaster Tools, website and social media profiles, and by way of example and not limitation, to provide current or future services and for benchmarking, research and development, data products, or other marketing purposes. By uploading, publishing, or displaying User Data on or through any Sites or Services (including authorization to access any third-party account or profile), you grant the Provider, its affiliates, and partners an irrevocable, perpetual, worldwide, royalty-free, non-exclusive license (with the right to sublicense) to use anonymized and aggregated User-Generated Content and Customer Data, in all present and future media, and in any manner relating to the Providers business including to provide any Sites or Services.
7.5 For any User-Generated Content that you upload, publish, or display on or through any community portions of the Sites (“Interactive Content”), including without limitation your User Profile, the Provider’s Blog, Q&A service, and any future Provider Sites or Services that are designed to be viewed by the public or other Subscribers, you grant to the Provider, its affiliates, and partners an irrevocable, perpetual, worldwide, royalty-free, non-exclusive, transferable license (with the right to sublicense) to use, reproduce, translate, alter, publicly perform, publicly display, modify, adapt, publish, excerpt (in whole or in part), and distribute such Interactive Content, in whole or in part, in all present and future media and in any manner relating to the Provider’s business (including, without limitation, on the sites of our affiliates, partners, and others with whom the Provider may have business relationships relating to any Sites or Services). You further agree that the Provider is free to use any ideas, know-how, concepts, techniques, or other materials implied by Interactive Content. You acknowledge that the Provider may retain archived copies of such Interactive Content. Subject to the preceding, you may remove Interactive Content from the Sites at any time.
7.6 The data collected via API is as follows:
7.6.1 Google Ads Data – We collect your Google Ads data for up to a total of 5000 search terms based on the following level of priority:
7.6.1.1 Top 500 Search Terms by Conversions
7.6.1.2 Top 500 Search Terms by Clicks
7.6.1.3 Top 500 Search Terms by Impressions
7.6.2 Google Search Console Search Term Data Collection – We collect your Google Search Console data for up to a total of 5000 search terms based on the following level of priority:
7.6.2.1 Top 500 Search Queries by Clicks
7.6.2.2 Top 500 Search Queries by Impressions
7.6.2.3 Top 500 Search Queries by Positions
7.6.3 Google Analytics (GA) Search Term Data Collection – GA only represents search term data from non Google search engines:
7.6.3.1 Top 50 Search Queries by Conversions
7.6.3.2 Top 50 Search Queries by Clicks
7.6.3.3 Top 50 Search Queries by Impressions
7.6.4 Google Ads Search Term Conversion Data Collection
7.6.4.1 We collect your conversion data for your top 500 converting search terms based on the specific Google Ads conversions you have set up
8. No assignment of Intellectual Property Rights
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
9. Charges
9.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
9.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 9.2.
9.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.
10. Payments
10.1 The Provider shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in Section 2 of Schedule 1 (Hosted Services particulars).
10.2 The Customer must pay the Charges to the Provider on receipt of an invoice issued in accordance with this Clause 10, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
10.3 The Customer must pay the Charges using the online service method provided.
11. Provider’s confidentiality obligations
11.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in this Agreement;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use or allow the use of any of the Customer Confidential Information for any purpose.
11.2 Notwithstanding Clause 11.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 11 imposes no obligations upon the Provider with respect to:
(a) Customer Confidential Information that is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) Customer Confidential Information that is or becomes publicly known through no act or default of the Provider;
(c) Customer Confidential Information that is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality; or
(d) information that is independently developed by the Provider without reliance upon or use of any Customer Confidential Information.
11.4 The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, or by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange. If the Provider makes a disclosure to which this Clause 11.4 applies then, to the extent permitted by applicable law, the Provider shall promptly notify the Customer of the fact of the disclosure, the identity of the disclosee, and the Customer Confidential Information disclosed.
11.5 The provisions of this Clause 11 shall continue in force indefinitely following the termination of this Agreement following the termination of this Agreement, at the end of which period they will cease to have effect.
12. Data protection
12.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
12.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
12.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement:
(a) the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 3 (Data processing information); and
(b) Personal Data of the types specified in Section 2 of Schedule 3 (Data processing information).
12.4 The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 3 (Data processing information).
12.5 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 12.
12.6 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in this Agreement or any other document agreed by the parties in writing.
12.7 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
12.8 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
12.9 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.10 The Provider shall implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Section 4 of Schedule 3 (Data processing information).
12.11 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 7 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate this Agreement on 7 days’ written notice to the Provider, providing that such notice must be given within the period of 7 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to the equivalent legal obligations as those imposed on the Provider by this Clause 12.
12.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
12.13 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 12.13.
12.14 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 12 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 12.14, providing that no such charges shall be levied with respect to the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
12.15 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
12.16 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 12. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 12.16, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of this Agreement or any security breach affecting the systems of the Provider.
12.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
13. Warranties
13.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
13.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects as far as reasonably possible with the Hosted Services Specification;
(b) the Hosted Services will be, as far as reasonably possible, free from Hosted Services Defects;
(c) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(d) the Platform will incorporate security features reflecting the requirements of good industry practice.
13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
13.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
13.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
13.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
13.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
14. Acknowledgements and warranty limitations
14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
14.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15. Limitations and exclusions of liability
15.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
15.2 The limitations and exclusions of liability set out in this Clause 15 and elsewhere in this Agreement:
(a) are subject to Clause 15.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
15.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
15.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
15.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.
15.6 Neither party shall be liable to the other party in respect of any loss of use or production.
15.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
15.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
15.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
16. Force Majeure Event
16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
17. Effects of termination
17.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.12, 10.2, 10.4, 11, 12, and 15.
17.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
Schedule 1 (Hosted Services particulars)
1. Specification of Hosted Services
The Marketing Brain Group Ltd uses Google Cloud storage for hosting all of its services. The Provider develops SaaS (Software as a Service) ‘tools’ by extracting bespoke data via api access for various services which the ‘customer’ grants permission to do so.
Extracted data is presented to the customer on the provider’s website / app for the purpose of marketing services only. Customers own data can be downloaded via the providers website to help with providing marketing advice for future marketing efforts to be carried out by the customer.
API access must be granted by the customer for the provider’s software to function properly.
You also understand that the Service may include certain communications from The Marketing brain Group Ltd, such as service announcements, administrative messages and that these communications are considered part of The Marketing Brain Group Ltd’s free registration and paid subscriptions.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new The Marketing Brain Group Ltd properties, shall be subject to this agreement.
You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). Additionally, you must provide and are responsible for all equipment necessary to access the Service.
2. Financial Provisions
1. SUBSCRIPTIONS AND PAYMENT PLANS
1.1. We offer different levels of Subscription (Subscription Levels), including (but not limited to) the ‘Starter’ with ‘Free Trial’, ‘Premium’ and ‘Enterprise’ Subscription Levels, the benefits of which are outlined in detail on our sites, or otherwise set out in writing by us to you.
1.2. In addition to the different Subscription Levels, we also offer a choice of two different standard charging structures, being the ‘Monthly Plan’ and the ‘Yearly Plan’. The relevant fees in respect of each Subscription Level for the Monthly Plan (being the charge payable for a one month subscription period) the (the Monthly Fee) and the Annual Plan (being the charge payable for a 12 month subscription period) (the Annual Fee) are outlined in detail on our sites. We may agree, as set out in writing by us, to different charging structures (Bespoke Plans) from time to time.
1.2. ‘FREE TRIAL’ SUBSCRIPTIONS
1.2.1 Any references to subscription fees paid by you under these terms and conditions shall not apply to our ‘Free Trial’ Subscription Level, as it is a free service. However, all other provisions of these terms and conditions shall be applicable.
1.2.2 Notwithstanding any other provision of these terms and conditions, we reserve the right to terminate a ‘Free Trial’ Subscription Contract at any time without notice or charge to us.
1.3. MONTHLY PLAN
1.3.1. In the event that you subscribe to a Subscription Level on a Monthly Plan you will be obliged to pay the Monthly Fee for that Subscription Level at the commencement of your Subscription Contract. This will entitle you to one Months Period worth of access at that Subscription Level, subject to these terms and conditions.
1.3.2 In utilising your Subscription Level under a Monthly Plan, you shall not be entitled to carry any unused access or data allowances from one Monthly Period to the next Monthly Period.
1.3.3 In the event that you do not cancel your Monthly Plan before the expiry of that initial Monthly Period you shall be automatically subscribed to a further Monthly Period subscription on the same terms. Payment for that Period (which shall be the Monthly Fee) shall automatically be deducted from your account by us at the commencement of the Period. This recurring process shall be repeated until you cancel your Monthly Plan.
1.4. ANNUAL PLAN
1.4.1 In the event that you subscribe to a Subscription Level on an Annual Plan you will be obliged to pay the entire Annual Fee for that Subscription Level at the commencement of your Subscription Contract. This will entitle you to 12 consecutive Monthly Periods’ worth of access at that Subscription Level, subject to these terms and conditions.
1.4.2 In utilising your Subscription Level under an Annual Plan, you shall not be entitled to carry any unused access or data allowances from one Monthly Period to the next Monthly Period.
1.4.3 In the event that you do not cancel your Annual Plan before the expiry of the initial 12 Month Period you shall be automatically subscribed to a further 12 Monthly Period’s subscription on the same terms. Payment for these Periods (which shall be the Annual Fee) shall automatically be deducted from your account by us at the commencement of the 12 Monthly Periods. This recurring process shall be repeated until you cancel your Annual Plan.
1.5. BESPOKE PLAN
1.5.1 In the event that you subscribe to a Subscription Level on a Bespoke Plan you will be obliged to pay such fees, and be entitled to such number of consecutive Monthly Periods access as agreed between us (and confirmed in writing by us) at the outset of your Subscription Contract.
1.5.2 In utilising your Subscription Level under a Bespoke Plan, you shall not be entitled to carry any unused access or data allowances from one Monthly Period to the next Monthly Period.
2. Downgrades
2.1 Where you downgrade between Subscription Levels (i.e. you downgrade to a Subscription Level that provides you with a reduced data allowance as compared to a historic Subscription Level) we shall, at our sole discretion, be allowed to terminate or restrict your ability to access or refresh reports or other data that were ran or supported using your previous Subscription Level where (considering the data allowance required) such reports or other data could not be run or supported on the new downgraded Subscription Level.
Schedule 2 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the “Policy”) sets out the rules governing:
(a) the use of the website at themarketingbrain.io, any successor website, and the services available on that website or any successor website (the “Services”); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content”).
1.2 References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to The Marketing Brain Group Ltd (and “we” and “our” should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you use the Services.
1.5 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2. General Usage Rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) constitute a breach of official secrets legislation; or
(j) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic Material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual Accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
6.3 Any advice provided by you is for marketing purposes only. We take no responsibility whatsoever for any advice given as a result of using our software.
7. Etiquette
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must at all times be courteous and polite to other users of the Services.
8. Marketing and Spam
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
8.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
9. Regulated Businesses
9.1 You must not use the Services for any purpose relating to unlawful, illegal, fraudulent or harmful practices of any description.
10. Monitoring
10.1 You acknowledge that we may actively monitor the Content and the use of the Services.
11. Data Mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12. Hyperlinks
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Google API Services Limited Use Disclosure
The Marketing Brain Group Ltds’ use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
Schedule 3 (Data processing information)
1. Categories of data subject
Persons who are ‘customers’ i.e. you the user.
Clients data which you the customer grant access to via the api connections.
2. Types of Personal Data
Upon signing up for the service you will be required to enter your name and email address, optionally you can enter your phone number and select your role.
When signing up to our newsletter you will be required to enter your name, email address and select your role.
3. Purposes of processing
To enable the provider to operate and provide services and marketing support and promotion as per the agreement.
4. Security measures for Personal Data
The data collected is stored using best practice on established cloud services. User data is not taken off site and stored locally.
5. Sub-processors of Personal Data
Google Cloud, Cloudways, Brevo (formerly Sendinblue) and Cloudflare are all processors of personal data to some extent.
Liability for our Service
The Service and all information provided therein are on an “as is” and “as available” basis without any warranty.
The Marketing Brain Group Ltd does not guarantee or warrant that the Service (including any products or data) will meet your requirements, be secure, timely, accurate, error free, bug free, virus free, uninterrupted, comply with applicable law, or that The Marketing Brain Group Ltd will correct all errors.
TO THE EXTENT PERMITTED BY LAW, THE MARKETING BRAIN GROUP LTD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, AND THE MARKETING BRAIN GROUP LTD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT.
TO THE EXTENT PERMITTED BY LAW, THE MARKETING BRAIN GROUP LTD, WILL NOT BE RESPONSIBLE FOR LOSS OF PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR SERVICES, LOSS OF BUSINESS OPPORTUNITY, LOSS OF REPUTATION AND/OR CONTRACT, DOWNTIME COSTS, INCREASED EXPENSE OF OPERATION, LOSS OF OR CORRUPTION OF DATA, FINANCIAL LOSSES, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES OF ANY KIND WHATSOEVER.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF THE MARKETING BRAIN GROUP LTD, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICE IN THE 12 MONTHS PRECEDING THE CLAIM (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICE AGAIN).
TO THE EXTENT PERMITTED BY LAW, THE MARKETING BRAIN GROUP LTD, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
The Marketing Brain Group Ltd shall not be responsible for any delay in performance or non-performance due to any cause which is beyond the reasonable control of The Marketing Brain Group Ltd.