Terms of Service
These current consolidated Terms were published on 19 April 2020.
1. The Agreement
1.1. Each Order Form entered into by the Customer shall form a separate agreement, incorporating these Terms together with the Proposal (if any), the Policies and the Documentation (each an Agreement).
1.2. In the event of any conflict in respect of the provisions of an Agreement the following order of priority shall prevail (in descending order of priority): (i) these Terms; (ii) the Proposal (if any); (iii) the Order Form; (iv) the Policies; and (v) the Documentation.
1.3. If the Customer or any Authorised User does not agree with an Agreement, then the Customer or the Authorised User as applicable is expressly prohibited from using the Services or accessing the Gooee Platform. The Customer’s own terms and conditions (if any), attached to, enclosed with or referred to in any purchase order or other document shall not be incorporated into or govern an Agreement.
2. Rights of use
2.1. Upon Service Commencement, and subject to the terms of an Agreement, Gooee grants the Customer a non-exclusive, non-transferable, personal right to: access the Gooee Platform; use each Service, and copy and use the Documentation all as strictly necessary for Authorised Users to use the Services within the Territory during the Service Period for the Permitted Purpose.
2.2. The Customer acknowledges and agrees that the Services and access to the Gooee Platform are not intended for use by any person or entity in any jurisdiction or country where such access would be contrary to applicable law. Accordingly, those persons who choose to access the Gooee Platform from such jurisdictions do so at their own risk and are solely responsible for compliance with applicable law.
2.3. The Customer acknowledges and agrees that the Services do not include any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services) or dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data). Gooee may utilise and make available third-party products and services in connection with the provision of the Services or access to the Gooee Platform (Third Party Services). Customer acknowledges and agrees that Customer’s use of Third Party Services may be subject to additional terms and conditions and that Customer shall be bound by such terms and conditions if Customer elects to use such Third Party Services. Gooee makes no representations or warranties with respect to any Third Party Services, whether express or implied. Customer is solely responsible for determining the suitability of any Third Party Services that Customer elects to use in connection with the Services. Any use of such Third Party Services shall be at Customer’s sole risk.
3. Authorised Users
3.1. The Customer shall ensure that only Authorised Users use the Services and that such use is at all times in accordance with an Agreement. The Customer shall provide Gooee with the full legal name, valid email address and any other information Gooee may reasonably request in relation to an Authorised User. Any accounts created through automated methods or bots are not authorised.
3.2. The Customer shall keep a list of all Authorised Users and shall notify Gooee within two Business Days if any updates to any list of Authorised Users are made or required, including when Authorised Users cease to be employed or engaged by a Customer such that they are no longer entitled to be Authorised Users.
3.3. The Customer shall:
3.3.1. be liable for the acts and omissions of the Authorised Users as if they were its own;
3.3.2. only provide Authorised Users with access to the Services and/or the Gooee Platform using the access method prescribed by Gooee and shall not provide access to (or permit access by) anyone other than an Authorised User; and
3.3.3. procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Customer under an Agreement.
3.4. The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer’s organisation as necessary for use of the Service) their Access Credentials. The Customer acknowledges and agrees that it shall be fully liable for any unauthorised use of any Access Credentials.
3.5. The Customer shall (and shall ensure all Authorised Users shall) at all times comply with the Acceptable Use Policy and all other provisions of an Agreement.
3.6. If any Access Credentials have been provided to an individual that is not an Authorised User, the Customer shall, without delay, disable any such passwords and notify Gooee immediately. The Customer must immediately notify Gooee of any security breaches, incidents, threats or vulnerabilities involving the Gooee Platform that come to the Customer’s attention. Customer shall provide Gooee with such cooperation and assistance related to the investigation and remediation of any such breach, incident, threat or vulnerability as Gooee may reasonably request. In the event of any unauthorised use of any Access Credentials, Customer will take all steps necessary to terminate such unauthorised use.
3.7. The Customer shall comply (and shall ensure all Authorised Users comply) with all applicable law governing export that apply to the Services, the Customer Data and the Documentation (or any part), and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services, the Customer Data or the Documentation (or any part) to, or access or use the Services, the Customer Data or the Documentation (or any part) in, any country or territory for which an export licence or other approval is required under the laws of the United Kingdom without first obtaining such licence or other approval. The Customer shall be solely responsible for ensuring that its access, importation and use of the Services, the Customer Data and Documentation in or into any part of the Territory or elsewhere complies with all export and other laws.
4.1. The Customer shall pay the Fees for the relevant Service as set out in the Proposal or the Order Form.
4.2. Gooee shall invoice the Customer monthly in advance for all Subscription Fees and monthly in arrears for all other Fees due under an Agreement, and the invoices shall be paid within 30 days of the date on the invoice to the bank account nominated by Gooee and set out in the relevant invoice.
4.3. The Fees are exclusive of VAT or any other applicable sales taxes which shall be payable by the Customer at the rate and in the manner prescribed by law.
4.4. Gooee shall be entitled to increase the Fees for any and all Services at any time by notice to the Customer provided that Gooee shall not be entitled to increase the Fees on less than 60 days prior notice or more than once every 6 months.
5.1. Gooee shall provide the Services in accordance with the Agreement.
5.2. Gooee warrants that: (i) each Service shall operate materially in accordance with its Description when used in accordance with an Agreement under normal use and normal circumstances during the relevant Service Period; and (ii) it will provide each of the Services with reasonable care and skill.
5.3. Clause 5.2 does not apply to Proof of Value Services. Without prejudice to Gooee’s obligations under an Agreement, Proof of Value Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.
5.4. The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Gooee shall have no liability for any such delays, interruptions, errors or other problems.
5.5. If there is a breach of clause 5.2 Gooee shall use reasonable endeavours to repair or replace the impacted Services within a reasonable time. To the maximum extent permitted by law, this clause 5.5 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of clause 5.2.
5.6. The warranties in clause 5.2 shall not apply to the extent that any error in the Services arises as a result of:
5.6.1. incorrect operation or use of the Services or the Gooee Platform by the Customer or any Authorised User (including any failure to follow the Documentation or failure to meet minimum specifications);
5.6.2. use of any of the Services or the Gooee Platform other than for the purposes for which it is intended;
5.6.3. use of any Services or the Gooee Platform with other software or services or on equipment with which it is incompatible;
5.6.4. any act by any third party (including hacking or the introduction of any virus or malicious code);
5.6.5. any modification of Services (other than that undertaken by Gooee or at its direction); or
5.6.6. any breach of an Agreement by the Customer or by any Authorised User.
5.7. The Customer acknowledges that no liability or obligation is accepted by Gooee (howsoever arising whether under contract, tort, in negligence or otherwise) that the Services or the Gooee Platform shall meet the Customer’s individual needs, whether or not such needs have been communicated to Gooee.
5.8. Other than as set out in this clause 5, and subject to clause 15.5, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
6. Customer’s responsibilities
6.1. The Customer shall provide to Gooee in a timely manner such information as is reasonably requested by Gooee to provide the Service. The Customer shall ensure that such information is complete, accurate and not misleading.
6.2. The Customer shall provide Gooee or its subcontrators with such access to the Customer’s premises as are reasonably required for the provision of the Services.
6.3. The Customer shall ensure that all requirements under applicable law, including those relating to health and safety, are met in relation to employees, agents and contractors of the Customer working at the Customer’s premises.
6.4. The Customer shall (and shall ensure all Authorised Users shall) at all times comply with the Agreement, the Policies and all applicable laws relating to the use or receipt of the Services.
6.5. The Customer shall not use the Services or the Gooee Platform for any purpose other than the Permitted Purpose.
7. Intellectual Property
7.1. All Intellectual Property Rights in and to the Services, the Gooee Platform and the Documentation belong to and shall remain vested in Gooee or the relevant third party owner and the Customer and/or any Authorised User shall not acquire in any way any title, rights of ownership or Intellectual Property Rights of whatever nature in them. To the extent that the Customer, any Authorised User or any person acting on its or their behalf acquires any Intellectual Property Rights in the Services, the Gooee Platform or the Documentation, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Gooee or such third party as Gooee may elect. The Customer shall execute all such documents and do such things as Gooee may consider necessary to give effect to this clause 7.1.
7.2. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Gooee (and each of its sub-contractors) to use, copy and otherwise utilise the Customer Data to the extent necessary to perform or provide the Services or to exercise or perform Gooee’s rights, remedies and obligations under an Agreement.
7.3. The Customer hereby assigns (or shall or procure the assignment of) all Intellectual Property Rights in any feedback and/or suggestions for improving the Services provided by the Customer with full title guarantee.
7.4. Except for the rights expressly granted in an Agreement no Intellectual Property Rights of either party are transferred or licensed as a result of an Agreement.
8. Defence against infringement claims
8.1. Subject to clauses 8.2 and 8.4, Gooee shall indemnify and hold the Customer harmless against any claim brought against the Customer by any third party alleging that the Services infringe any Intellectual Property Right in the United Kingdom (an IP Claim).
8.2. The provisions of clause 8.1 shall not apply unless the Customer:
8.2.1. promptly notifies Gooee upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
8.2.2. makes no comment or admission and takes no action that may adversely affect Gooee’s ability to defend or settle the IP Claim;
8.2.3. provides all assistance reasonably required by Gooee in connection with the IP Claim, subject to Gooee paying the Customer’s reasonable costs; and
8.2.4. gives Gooee sole authority to defend or settle the IP Claim as Gooee considers appropriate.
8.3. In the event of any IP Claim, Gooee may at its option:
8.3.1. elect to terminate an Agreement immediately by written notice and promptly refund to the Customer on a pro-rata basis for any unused proportion of Fees paid in advance;
8.3.2. procure for the Customer the right to continue receiving the Services or using the Gooee Platform in a manner that does not infringe the Intellectual Property Rights of a third party; or
8.3.3. modify or replace the infringing part of the Services or so as to avoid the infringement or alleged infringement.
8.4. Gooee shall have no liability or obligation under this clause 8 in respect of any IP Claim which arises in whole or in part from:
8.4.1. any modification of the Services (or any part) without Gooee’s express written approval;
8.4.2. any Customer Data;
8.4.3. any breach of an Agreement by the Customer;
8.4.4. any use of the Services or the Gooee Platform (or any part) otherwise than in accordance with an Agreement and the Documentation; or
8.4.5. any use of the Services or the Gooee Platform (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Gooee.
8.5. Subject to clause 15.5, the provisions of this clause 8 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
9. Customer Systems and Customer Data
9.1. As between Gooee and a Customer, Customer Data shall at all times remain the property of the Customer or its licensors.
9.2. Except to the extent Gooee has direct obligations under data protection laws, the Customer acknowledges that Gooee has no control over any Customer Data hosted as part of the provision of the Services. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Service or the Gooee Platform) complies with all applicable laws and Intellectual Property Rights.
9.3. Gooee reserves the right to review and/or monitor any Customer Data. If Gooee becomes aware of any allegation that any Customer Data may not comply with the Acceptable Use Policy or any other part of an Agreement Gooee shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful Gooee shall notify the Customer before taking such action.
9.4. Except as otherwise expressly agreed in an Agreement, Gooee shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s business. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its and its Authorised User’s needs) and extracts it from each Service prior to the termination or expiry of an Agreement or the cessation or suspension of any of the Services.
9.5. Unless otherwise set out in a Proposal or subsequently agreed by the parties in writing, the Customer hereby instructs that Gooee shall within 60 days of the end of the provision of the Services (or any part) relating to the processing of the Customer Data, securely dispose of such Customer Data processed in relation to the Services (or any part) which have ended (and all existing copies of it) except to the extent required by any applicable law or Gooee’s own internal compliance policies. Gooee shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with an Agreement.
10. Confidentiality and security of Customer Data
10.1. Gooee shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with an Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services in accordance with its express rights and obligations under an Agreement.
10.2. The provisions of this clause 10 shall not apply to information which:
10.2.1. is or comes into the public domain through no fault of Gooee, its officers, employees, agents or contractors;
10.2.2. is lawfully received by Gooee from a third party free of any obligation of confidence at the time of its disclosure;
10.2.3. is independently developed by Gooee, without access to or use of such information; or
10.2.4. is required by law, by a court or governmental or regulatory order to be disclosed.
10.4. Gooee uses Amazon Web Services (AWS) as its cloud infrastructure and data storage provider. AWS infrastructure is located in Amazon managed datacentres and has been accredited under ISO 27001, as well as SOC 1/SSAE 16/ISAE 3402 (previously SAS 70 Type II). For more information on the security provided by AWS please see the Amazon Web Security Center page (www.aws.amazon.com/security).
10.5. Gooee may monitor, collect, store and use the information on the use and performance of the Services and use and/or disclose Customer Data for the purposes of (i) preparing and furnishing compilations, analyses, and other reports of aggregated information and anonymised information; (ii) developing and enhancing the Services; provided that in each case any compilations, analyses or other reports do not identify either the Customer or its customers (other than where Gooee prepares the compilation, analysis or other report for the Customer).
11. Gooee’s Confidential Information
11.1. The Customer shall maintain the confidentiality of Gooee’s Confidential Information and shall not without the prior written consent of Gooee, disclose, copy or modify Gooee’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under an Agreement.
11.2. The Customer undertakes to:
11.2.1. disclose Gooee’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under an Agreement;
11.2.2. procure that such persons are made aware of and agree in writing to observe the obligations in this clause 11; and
11.2.3. be responsible for the acts and omissions of those third parties referred to in this clause 11.2 as if they were the Customer’s own acts or omissions.
11.3. The Customer shall give notice to Gooee of any unauthorised use, disclosure, theft or loss of Gooee’s Confidential Information immediately upon becoming aware of the same.
11.4. The provisions of this clause 11 shall not apply to information which:
11.4.1. is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
11.4.2. is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
11.4.3. is independently developed by the Customer, without access to or use of such information; or
11.4.4. is required by law, by a court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies Gooee at the earliest opportunity before making any disclosure.
12.1. Gooee may at its absolute discretion make, and notify the Customer of, updated versions of the documents referred to in clause 1.2 or other documents referred to in any part of an Agreement from time to time (each an Update) by providing no less than 30 days notice by e-mail or by any other reasonable means which Gooee elects (Update Notice).
12.2. The Customer acknowledges that Gooee shall be entitled to modify the features and functionality of the Services. Gooee shall use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the relevant Service(s) by Gooee’s customers generally.
To the maximum extent permitted by law, Gooee shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of an Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.
14.1. The Customer shall indemnify, keep indemnified and hold harmless Gooee from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it as a result of:
14.1.1. the Customer’s breach of an Agreement;
14.1.2. the Customer’s use of the Gooee Platform or the Services; or
14.1.3. the Customer’s infringement, or alleged infringement of any third party Intellectual Property Rights.
15. Limitation of liability
15.1. Subject to clause 15.4, Gooee’s aggregate liability in respect of each individual Proof of Value Service (howsoever arising under or in connection with an Agreement) shall not exceed the Fees charged for the Proof of Value Service.
15.2. Subject to clause 15.4, Gooee’s total aggregate liability howsoever arising under or in connection with an Agreement shall not exceed an amount equal to the Fees for all Services paid to Gooee in the 12-month period immediately preceding the first incident giving rise to any claim under an Agreement.
15.3. Subject to clause 15.4, Gooee shall not be liable for any consequential, indirect or special losses and nor shall it be liable for any loss of profit, destruction, loss of use or corruption of data (including Customer Data), loss or corruption of software or systems, loss or damage to equipment, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings (whether actual or anticipated); and/or harm to reputation or loss of goodwill (whether direct or indirect).
15.4. Notwithstanding any other provision of an Agreement, Gooee’s liability shall not be limited in any way in respect of (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other losses which cannot be excluded or limited by applicable law.
16. Suspension of the Service
16.1. Gooee may suspend access to the Services to all or some of the Authorised Users if (i) the Customer fails to pay any sums due to Gooee by the due date for payment, provided that access to the Services will be restored promptly after Gooee receives payment in full and cleared funds; or (ii) Gooee suspects that there has been any misuse of the Services or breach of an Agreement or the Acceptable Use Policy.
16.2. Fees shall remain payable during any period of suspension notwithstanding that the Customer or some or all of the Authorised Users may not have access to the Services.
16.3. Gooee reserves the right, in its sole discretion, without limitation, notice or liability, to remove from the Gooee Platform or otherwise disable all files and content that are excessive in size, are in any way burdensome to the Gooee Platform, or are in breach of the Acceptable Use Policy.
17.1. Unless the Order Form or the Proposal specifies there shall be no automatic renewals and subject to clause 17.2, on expiry of the Initial Term (First Renewal Date), the Agreement shall continue and automatically renew for a further period of twelve months and thereafter renew for a further period of twelve months on each anniversary of the First Renewal Date (each of the first Renewal Date and each such anniversary being a Renewal Date). This clause 17.1 shall not apply in respect of Proof of Value Services (which shall not renew unless otherwise expressly stated in the Order Form or Proposal).
17.2. If either party wishes for an Agreement to expire on the next Renewal Date, it may cause the Agreement to expire on that Renewal Date by notice provided such notice is served at least 60 days prior to that Renewal Date. If notice is not served within the timeframes set out in this clause 17.2, the Agreement shall renew at the next Renewal Date in accordance with clause 17.1.
18. Term and termination
18.1. An Agreement shall come into force on Service Commencement and shall continue as set out in clause 17.1, unless terminated earlier in accordance with its terms.
18.2. Either party may terminate an Agreement immediately at any time by giving notice in writing to the other party if:
18.2.1. the other party commits a material breach of an Agreement and such breach is not remediable;
18.2.2. the other party commits a material breach of an Agreement which is not remedied within 20 Business Days of receiving written notice of such breach; or
18.2.3. the other party has failed to pay any amount due under an Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue;
18.2.4. the other party stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
18.2.5. the other party is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986;
18.2.6. the other party becomes the subject of a company voluntary arrangement under the Insolvency Act 1986; has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; has a resolution passed for its winding up; has a petition presented to any court for its winding up; or an application is made for an administration order, or any winding-up or administration order is made against it; or
18.2.7. the other party is subject to any events or circumstances analogous to those in clauses 18.2.4 to 18.2.6 in any jurisdiction.
19. Consequences of termination
19.1. Immediately on termination or expiry of an Agreement (for any reason), the rights granted by Gooee under an Agreement shall terminate and the Customer shall (and shall procure that each Authorised User shall):
19.1.1. stop using the Services and/or the Gooee Platform; and
19.1.2. destroy and delete or, if requested by Gooee, return any copies of the Documentation or Gooee’s Confidential Information in its possession or control (or in the possession or control of any person acting on behalf of any of them).
19.2. Termination or expiry of an Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of an Agreement that is expressly or by implication intended to continue beyond the termination, which shall include clauses 1, 4, 6, 7, 8, 9, 10, 12, 14, 15, 18, 19 and 20 to 33.
20.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Each party acknowledges that it has not entered into an Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in an Agreement. Nothing in an Agreement shall limit or exclude any liability for fraud.
20.2. Notices. Any notice given by a party under an Agreement shall be (i) in writing and in English; (ii) signed by, or on behalf of, the party giving it (except for notices sent by email); and (iii) sent to the relevant party at the address given to it for such purposes. Notices may be given, and are deemed received: (i) by hand: on receipt of a signature at the time of delivery; (ii) if posted in the United Kingdom byRoyal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting; (iii) if posted outside the United Kingdom by international courier, at 9.00 am on the fourth Business Day after posting; and (iv) by email: on receipt of a delivery email from the correct address. Notices shall be sent to the address given by that party for this purpose, or if no address is given, to the address given on the Order Form or the Proposal of the relevant party. This clause does not apply to notices given in legal proceedings or arbitration.
20.3. Variation. No variation of an Agreement shall be valid or effective unless (i) it is an Update made in accordance with an Agreement; or (ii) made in writing, refers to an Agreement and is duly signed or executed by, or on behalf of, each party.
20.4. Assignment and subcontracting. Except as expressly provided in an Agreement, Gooee may at any time assign, sub-contract, sub-licence (including by multi-tier), transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under an Agreement. Except as expressly permitted by an Agreement, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under an Agreement (including the licence rights granted), in whole or in part, without Gooee’s prior written consent.
20.5. Set off. Each party shall pay all sums that it owes to the other party under an Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
20.6. No partnership or agency. The parties are independent and are not partners or principal and agent and an Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
20.7. Severance. If any provision of an Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of an Agreement shall not be affected. If any provision of an Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
20.8. Waiver. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under an Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy. No single or partial exercise of any right, power or remedy provided by law or under an Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy. A waiver of any term, provision, condition or breach of an Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
20.9. Costs and expenses. Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of an Agreement (and any documents referred to in it).
20.10. Third-party rights. A person who is not a party to an Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
20.11. Authority. Each party represents and warrants to the other that it has the right, power and authority to enter into an Agreement and grant to the other the rights (if any) contemplated in an Agreement and to perform its obligations under an Agreement.
20.12. Governing law. This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
20.13. Jurisdiction. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, an Agreement, its subject matter or formation (including non-contractual disputes or claims).
DEFINITIONS & INTERPRETATION
In an Agreement:
Acceptable Use Policy means Gooee’s acceptable use policy, as made available by Gooee from time to time;
Access Credentials means the username and password provided to and/or created by an Authorised User in order to access the Gooee Platform;
Authorised Users means, in respect of the relevant Service, the named users authorised by the Customer to use that Service in accordance with the terms of an Agreement;
Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;
Customer means the recipient of the Services, as set out in the relevant Order Form or the Proposal;
Customer Data means all data (in any form) that is provided to Gooee or uploaded or hosted on any part of any Service or the Gooee Platform by the Customer or by any Authorised User;
Description means the description of a particular Service, as set out in the Documentation;
Documentation means the documentation describing a particular Service and the instructions on how to use that Service, each as made available by Gooee and Updated from time to time;
Fees means the Subscription Fees, the Non-Subscription Fees and any other amounts payable to Gooee under an Agreement;
Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under an Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to the transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;
Gooee means Gooee Limited, a limited liability company incorporated in England and Wales with company number 08495558;
Gooee’s Confidential Information means all information (whether in oral, written or electronic form) relating to Gooee’s business which is or may reasonably be considered to be confidential in nature including information relating to Gooee’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers. All information relating to Gooee’s prices for its Services, the Gooee Platform, the Documentation and any other technical or operational specifications or data relating to each Service shall be part of Gooee’s Confidential Information;
Gooee Platform means any hardware, software or other IT infrastructure owned by or licensed to Gooee and used to provide the Services;
Initial Term means (subject to clauses 17 and 18) in respect of each Service, the duration during which such services are to be provided as initially set out in the Order Form or the Proposal and as varied in accordance with an Agreement;
Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; and wherever existing;
Non-Subscription Fees means the Fees charged for any Non-Subscription Services;
Non-Subscription Services means any services or goods provided by Gooee under an Agreement which are on a non-recurring, one-off or ad hoc basis;
Order Form means the electronic or physical form (including its schedules, annexes and appendices (if any)) ordering the Services entered into by or on behalf of the Customer and Gooee, incorporating these Terms. If the Proposal is signed on behalf of the Customer in the absence of any Order Form, the Proposal shall constitute the Order Form for the purposes of an Agreement;
Permitted Purpose means the use of the Services solely for the Customer’s internal business operations, in each case in accordance with the applicable Documentation and an Agreement. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law:copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of any Service, the Gooee Platform or the Documentation; permitting any use of any Service, the Gooee Platform or the Documentation in any manner by any third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties or making any Service, the Gooee Platform or the Documentation (or any part) available to any third party or allowing or permitting a third party to do any of the foregoing; combining, merging or otherwise permitting any Service or the Gooee Platform to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or attempting to reverse engineer, observe, study or test the functioning of or decompile the Services or the Gooee Platform (or any part), except as expressly permitted under an Agreement.
Proof of Value Service means any Service identified as being provided on a temporary basis in order to demonstrate the value of the Service to the Customer;
Proposal means the document which may be provided by Gooee to a Customer detailing the Services to be provided to a Customer, which may include, without limitation, the scope and nature of the Services to be provided as well as the Fees;
Relief Event means any breach of an Agreement by the Customer; or any Force Majeure;
Renewal Date has the meaning given in clause 17.1;
Service Commencement means the date that provision of the Services is to commence, as notified by Gooee to the Customer;
Service Period the period during which the Services are to be provided, incorporating the Initial Period and any renewal in accordance with clause 17, or as may be agreed between the parties;
Services means the Services provided by Gooee under an Agreement, as described in the Proposal, the Order Form and/or the Documentation;
Subscription Fee means, in respect of each Service, other than a Non-Subscription Service, the fees payable by the Customer for that Service as set out in the Order Form or the Proposal;
Terms means the terms set out in the clauses and other provisions of this document (including the schedule), as Updated from time to time;
Territory means, in respect of the relevant Service, the territories identified in the Order Form or Proposal and if there is no territory identified in the Order Form or Proposal, the Territory for the purposes of an Agreement shall be the jurisdiction in which the Customer is incorporated;
Update has the meaning given in clause 12.1, and Updated shall be construed accordingly;
Update Notification has the meaning given in clause 12.1; and
VAT means United Kingdom value-added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.
In an Agreement, unless otherwise stated:
- the clause, paragraph, schedule or other headings in an Agreement are included for convenience only and shall have no effect on interpretation;
- Gooee and the Customer are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;
- words in the singular include the plural and vice versa;
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
- a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
- a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.