Standard Terms and Conditions
These terms and conditions (“Agreement”) govern the provision of subscription services by ChannelSight to the Client. Collectively, ChannelSight and the Client are referred to as the parties (“the parties”).
ChannelSight provides access to a proprietary Software as a Service platform and related data and technology services; the Client wishes to engage ChannelSight for the provision of technology services and granting of access to the proprietary Software as a Service platform as more fully detailed in the Order Form;
Now therefore, in consideration of the mutual promises contained in this Agreement and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. Promptly after the parties execute this Agreement, ChannelSight shall start deploying the software (the “Software”) and interfaces to retailers in scope specified by Client to ChannelSight. Copies of the documentation or other materials that ChannelSight ordinarily provides with the Software shall also be provided to agreed Client contacts. The Client shall thereupon have the right and license to use the Software during the term agreed (the “Term”) and solely in accordance with the terms of this Agreement.
1.2 Conditional on payment of the agreed Software Fees ChannelSight hereby grants to the Client a non-assignable license to use the Software on a non-exclusive basis during the Term. ChannelSight will provide assistance with the deployment and operation of the Software as required.
1.3. During the Term, and upon ongoing settlement of agreed service fees (the “Service Fees”), ChannelSight shall provide client with support services (the “Support Services”) that ChannelSight ordinarily makes available to licensees of the Software. The client and ChannelSight may agree that additional services (“Additional Services”) to the Support Services will be provided by ChannelSight to the client. The details and fees for these Additional Services shall be recorded and agreed by email. The base currency for billing is Euro. ChannelSight will invoice in foreign currency but the base currency is Euro (€) based upon the exchange rate on the invoice date from the source https://www.centralbank.ie/statistics/interest-rates-exchange-rates/exchange-rates.
The details and fees for these Additional Services shall be recorded and agreed by email.
- Term and Termination
2.1. This Agreement is valid for the term detailed in the Order Form “Start Date” and shall automatically renew for an additional term(s) on a rolling basis unless either party gives notice of termination at least sixty days prior to the end of the Term (or any extension of the Term). Notice of termination shall be in writing.
2.2. If either party materially breaches this Agreement and fails to remedy that breach within ten days of receiving notice of that breach from the other party, the non-breaching party may terminate this Agreement immediately by way of written notice to the breaching party.
2.3 Either party may terminate this Agreement at any time on written notice to the other if the other takes any corporate action or other steps are taken or legal proceedings are started for its winding up, dissolution, examinership or for the appointment of a liquidator, receiver, ex-aminer, conservator, custodian, trustee or similar officer of it or of any or all of its revenues and assets.
2.4 ChannelSight may suspend or terminate this Agreement and the Client’s access to the Software and/or Support Services immediately if the Client fails to pay any Software Fees or Service Fees (together “Fees”) when due. The Client will continue to be charged Fees (based on previous averages) during any period of suspension. Overdue Fees are subject to interest of 3% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
2.5 On termination of this Agreement for any reason all licenses granted to the Client under this Agreement shall cease, the Client shall cease all activities authorised by this Agreement and the Client shall pay to ChannelSight any sums due under this Agreement;
3.1. The parties each represent and warrant that they have the right, power and authority to enter into and perform this Agreement.
3.2 ChannelSight will make all commercially reasonable efforts to maintain Software availability, however such access may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. ChannelSight is not responsible for any delays, delivery failures, or other damage resulting from such problems.
3.3 Either Party’s liability to pay damages is limited to direct losses amounting to a total of one (1) months’ service fees, limited to the service fees paid for the individual Service which is in dispute.
3.4. In addition to the representations and warranties made by ChannelSight in ChannelSight’s sales literature and promotional materials, ChannelSight represents and warrants that the Software and use of it by the Client will not infringe any trademark, patent, copyright, trade secret, or other proprietary right of any third party or otherwise conflict with the rights of any third party.
4.1 ChannelSight shall defend, indemnify and hold harmless the Client and their respective directors, officers, agents and employees from and against all claims, liabilities, suits, losses, damages and expenses, including costs and reasonable attorney’s fees (“Claims”), relating to or resulting from any actual or alleged infringement of any trademark, patent, copyright, trade secret, or other proprietary right by the Software, except infringement resulting from modification of the Software by or at the direction of Client or any use of the Software other than in accordance with the terms of this Agreement. This indemnity shall be inapplicable if ChannelSight is not notified promptly of the Claim and is prejudiced by the delay in notice or if the Client makes any admission as to liability or compromises or agrees to any settlement of any Claims without the prior written consent of ChannelSight. All indemnified parties shall cooperate to the extent necessary in the defense of any Claim within the scope of this indemnity and settlement of any Claim must be consented to in writing by the Client, such consent not to be withheld unreasonably.
4.2 If any Claim is made, or in ChannelSight’s reasonable opinion is likely to be made, against the Client, ChannelSight may at its sole option and expense either (i) procure for the Client the right to continue using the Software in accordance with the terms of this Agreement; (ii) modify the Software so that any infringement ceases; (iii) replace the Software; or (iv) terminate this Agreement on seven (7) days’ notice.
4.2. Each party shall defend, indemnify, and hold harmless the other party and their directors, officers, agent and employees from and against any damages, injuries, claims, expenses includ-ing attorneys’ fees incurred by the other party arising out of claims based on personal injuries, including death at any time resulting therefrom, and/or damage to tangible property, from any cause whatsoever, arising out of, incidental to, or in connection with this Agreement and caused by the negligence or wilful misconduct of such party.
- Limitation of Liability & Disclaimers
5.1 Neither party shall be liable for any indirect, incidental, special, or consequential damages, or lost profits, or lost data, even if they have been advised of the possibility thereof.
5.2 ChannelSight and its licensors make no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Software or any content. ChannelSight and its licensors do not represent or warrant that (a) the use of the Software will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet the Client’s requirements or expectations, (c) any stored data will be completely error-free, or (d) the quality of any products, services, information, or other material purchased or obtained by the Client through the service will meet the Client’s requirements or expectations.
- Ownership and Intellectual Property Rights
All trademarks, copyright, patent, trade secret, and other proprietary rights, title and interest in and to the Software shall remain the sole property of ChannelSight, its Suppliers, or their assigns, as the case may be. The client will not alter or modify the Software in any way without the written consent of ChannelSight.
6.1. For the purpose of this Section 6, the term “Confidential Information” means any information used in or relating to the business of one party (the “Disclosing Party”), including but not limited to information concerning the Disclosing Party’s research or development efforts, trade secrets, computer software, recipes or formulas, product or marketing plans, vendor or customer relationships, finances, business operations or affairs and any information of third parties that the Disclosing Party maintains in confidence, and all tangible embodiments of such information, that is received by the other party (the “Receiving Party”), in any form; provided that “Confidential Information” does not include any information that the Receiving Party can demonstrate (i) is or becomes publicly known through no fault of the Receiving Party; (ii) is developed independently by the Receiving Party; (iii) is known by the Receiving Party when disclosed by the Disclosing Party if the Receiving Party does not then have a duty to maintain its confidentiality; or (iv) is rightfully obtained by the Receiving Party from a third party not obligated to preserve its confidentiality who did not receive the material or information directly or indirectly from the Disclosing Party.
6.2. A Receiving Party shall not use the Disclosing Party’s Confidential Informa¬tion for any pur-pose other than in accordance with this Agreement and shall not disclose Confidential Infor-mation to any person other than to its employees, and to those of its independent contractors who have a need to know such Confidential Information and who are subject to a nondisclo-sure obligation comparable in scope to this Section 6.
6.3. Notwithstanding Section 6.2, a Receiving Party may disclose Confidential Informa¬tion to the extent required by a court or other governmental authority, provided that (i) the Receiving Party gives the Disclosing Party reasonable notice of the disclosure, (ii) the Receiving Party us-es reasonable efforts to resist disclosing the Confidential Infor¬mation, (iii) the Receiving Party cooperates with the Disclosing Party on request to obtain a protective order or otherwise limit the disclosure, and (iv) as soon as reasonably pos¬sible the Receiving Party provides a letter from its counsel confirming that the Confiden¬tial Information is in fact required to be disclosed.
6.4. The parties acknowledge that either party’s breach of Section 6.2 would cause the other party irreparable injury for which it would not have an adequate remedy at law. In the event of a breach, the non-breaching party shall be entitled to injunctive relief in addition to any other remedies it may have at law or in equity.
All notices, reports, and receipts shall be in writing and shall be deemed duly given on (i) the date of personal or certified mail return receipt requested delivery; or (ii) the date of transmis-sion by telecopy or other electronic transmission service, provided a confirmation copy is also sent no later than the next business day by postage paid, first-class mail, addressed to the main contact as detailed in the Order Form. Either party may change its mailing address by written notice to the other party in accordance with this Article.
- No Solicitation
During the period commencing upon the date hereof and continuing until 1 (one) year after the termination of the term of this Agreement, neither the client nor its agents or employees shall directly or indirectly solicit or hire (on the client’s behalf or on behalf of any third party) any of ChannelSight’s employees, without the prior written consent of ChannelSight.
9.1. This Agreement shall be construed and enforced in accordance with the laws of Ireland. Any action or proceeding brought by one party against the other related to this Agreement shall be brought exclusively in a court located in the Republic of Ireland, and Client submits to the jurisdiction of such courts for purposes of any such action or proceeding.
9.2. The provisions of this Agreement are severable. The unenforceability of any provision of this Agreement shall not affect the enforceability of the remainder of this Agreement. The parties acknowledge that it is their intention that if any provision of this Agreement is determined by a court to be unenforceable as drafted, that provision should be construed in a manner designed to effectuate the purpose of that provision to the greatest extent possible under applicable law.
9.3. Neither party may assign any of its rights or subcontract or otherwise delegate any of its duties under this Agreement to any third party without the prior written consent of the other party, which shall not be withheld, conditioned or delayed unreasonably.
9.4. This Agreement shall be binding upon and inure to the benefit of the parties, their successors, permitted assigns and legal representatives.
9.5. All headings in this Agreement are included solely for convenient reference, are not in-tended to be full and accurate descriptions of the contents of this Agreement, shall not be deemed a part of this Agreement and shall not affect the meaning or interpretation of this Agreement.
9.6. The parties acknowledge that ChannelSight is an independent contractor of Client, and ChannelSight’s employees are not employees of Client. Nothing in this Agreement shall be construed as creating a partnership, joint venture or agency relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
9.7. The provisions of this Agreement concerning representations and warranties, proprietary rights, limitations of liability, confidentiality, indemnities, and duties upon termination, publicity and interpretation of the Agreement shall remain in effect after the expiration or termination of this Agreement.
9.8. This Agreement may be modified or amended only by written (including by email) agreement of the parties thereto in which this Agreement is expressly referred to.
9.9. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior agreements between the parties concerning the subject matter of this Agreement.
9.10 Neither party shall be responsible for (or be deemed in breach or default hereof as a result of) delays or failures in performance hereunder (other than failure to pay any amounts due) to the extent that such party was hindered in its performance by any act of God, civil commotion, application of any law or regulation or other act of any governmental officer or personnel, labour dispute, or any other occurrence beyond the reasonable control of such party.