WDS SaaS License Agreement

Version: 1.1
Last updated: 5th August 2020

Preamble

This SaaS Subscription Agreement (”the Agreement”) between you and Wine Dark Sea Ltd. (“WDS”) sets out the terms and conditions on which WDS licenses its services (“the Service”), whether free or chargeable, to you. Your use of the Service is subject to your acceptance of this Agreement and the commercial agreement setting out the details of the license granted to you by WDS (collectively “the Agreements”). Unless you agree to be bound by the terms and conditions of the Agreements you do not have authority to access and use the Service. WDS reserves the right, at its sole discretion, to amend, change, add to or delete any parts of this Agreement at its convenience. Your continued use of the Service after such changes signifies your acceptance of the new Agreement. Being a binding legal contract between you and WDS it is recommended that you save a copy for your records.

1. License

WDS will grant you a license to the Service for which you have contracted under the terms and conditions of the Agreements. You acknowledge that the Service may be offered at various separately priced license levels (the “Licenses”) and you will be granted License only to the Services for which you have contracted and are paying all agreed license and other fees. The Service is described in detail in the Agreements.

You may upgrade to higher level of Services, as and if available, at any time during the term of this Agreement by request to WDS. Upon confirmation of any such upgrade by WDS, your previous License Agreement will be terminated, and a new set of Agreements will be drawn up, detailing the Services and the corresponding license fee, which you agree to pay. Access to the new License will be granted upon your payment of the difference in license fee for the remainder of the License period. The new license fee will be invoiced in full as from the next License renewal date.

WDS reserves the right to modify, enhance, extend, or supplement the Service at any time at its sole discretion and shall notify you about any material changes no later than 30 days prior to such changes being released.

3. Contracting

To contract for a License to the Service you must provide WDS with certain registration data, as requested by WDS in writing. Such registration data shall include, but not be limited to, your company name, registered number, office address, VAT registration number (EU countries), name of authorized officer, email address, invoicing details and other contractual information. WDS reserves the right to refuse, at its sole discretion, the granting of License or activation of Service for any reason and shall not be obliged to divulge its reasons for such refusal. Access to the Service shall be granted by WDS upon receipt of payment for the License as invoiced.

WDS recommend that you protect your password and access to the devices that you use to access the Service in order to prevent fraudulent access to the Service.

WDS’ use and storage of your registration details is governed by WDS’ Privacy Policy and Confidentiality Agreement (conforming to current UK and EU GDPR legislation), which are incorporated into the Agreement by reference. By entering into this Agreement, you agree to be bound by the terms of the Privacy Policy.

4. Your Obligations

You hereby promise, represent and warrant that you shall:

  1. In a timely and efficient manner, provide WDS with:
    a. All necessary co-operation in relation to this Agreement; and
    b. All necessary access to such information as may be required by WDS in order to provide the Service, including but not limited to Customer Data, security access information and configuration services.
  2. Without affecting its other obligations under this Agreement, comply with all applicable laws and regulations to your activities under this Agreement.
  3. Carry out all your responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed with WDS, WDS may adjust any agreed timetable or delivery schedule as reasonably necessary.
  4. Ensure that the Customer Users use the Service in accordance with the terms and conditions of this Agreement and WDS’ instructions and shall be responsible for any Customer User’s breach of this Agreement.
  5. Obtain and maintain all necessary licenses, consents, permissions and access necessary for WDS, its contractors and agents to perform their obligations under this Agreement, including without limitation the Service.
  6. Ensure that your network and systems comply with the relevant specifications provided by WDS from time to time; and
  7. Be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to WDS’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

If WDS’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of you, your agents, subcontractors, consultants or employees, WDS shall not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

4. Payment

You agree to pay WDS any activation fees and recurring license fees as expressly stipulated in the Agreements. Recurring license fees shall be invoiced in accordance with the terms and conditions set out in the Agreements.

Failure to pay any amount when falling due under this Agreement will be a material breach on your part and WDS is legally entitled to terminate the Agreements and pursue any means for collecting outstanding due amounts.

5. License fee adjustments and other changes

License fees are assessed based on the features accessible for each level of the Service. Unless the Agreements between WDS and you stipulate otherwise, WDS may change its license fees, or any other terms of the Agreements, at any time by giving you not less than 30 days notification by email.

New license fees will become effective with the first invoice after WDS has given you notification of an adjustment. Changes to terms and conditions not related to license fees will become effective 30 days after WDS’ notification to you, or at such time as stipulated in the Agreements between WDS and you. If you do not agree with any changes as notified to you by WDS in accordance with this clause you are free to notify WDS that you terminate the Agreements by the next license renewal date; if you do not give notice of termination you will be deemed to have tacitly accepted and agreed to the changes.

6. Term and termination of license

The term of this Agreement shall commence on the date you accept the commercial agreement, which form part of the Agreements, and shall continue in full force until terminated in accordance with the stipulations of this clause.

Either party may terminate this Agreement by giving written notice to the other party, no later than 30 days prior to the license renewal date.

Notice of termination must be given in writing by electronic mail. The termination shall be valid upon receipt by the other party as per section 13.5 of this Agreement.

WDS reserves the right to terminate the Agreement immediately and without notice in the event that you materially breach any provision of the Agreements. In such case, you will not be entitled to a refund of paid license and other fees. Sections 8 through 15 of this Agreement shall survive and remain in effect regardless of any termination of this Agreement.

7. Refunds

If you terminate the Agreement you agree that no refund shall be made to you of any license or other fee paid to WDS. If WDS terminates the Agreement for other reasons than your material breach of the Agreement, WDS shall reimburse license fee paid by you on a pro rata basis.

8. Intellectual Property Rights

You agree that the Services and all computer programming, HTML code, graphic designs, icons, and other elements incorporated in the Services are the exclusive property of WDS. You also agree that WDS owns all right, title, and interest in and to WDS’ trademarks, trade names, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of the Service. Your rights to the Services are strictly limited to the rights expressly licensed in the Agreements.

You shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Customer Data.

9. Disclaimer of warranty

WDS makes no guarantees of any kind regarding the use of or the results derived from any Services in terms of dependability, accuracy, security, timeliness, availability, reliability, or usefulness.

The Services and all related materials are provided on a strictly “As Is” basis without warranty of any kind. WDS hereby disclaims all warranties, express or implied, with regard to the Services and related materials, including all implied warranties of merchantability, fitness for a particular purpose, and non-infringement. WDS does not warrant that the operation of the Services will be uninterrupted or error-free, that the Services will meet your requirements or will be suitable for your needs or your intended application, that the services will be compatible with or operated in the hardware, software, or website configurations that you select, that the Service will be uninterrupted, timely, secure, or error-free, or that the results that may be obtained from the use of the Service will be accurate or reliable.

Any material downloaded or otherwise obtained through the use of the Service is done at your sole discretion and risk and you shall be solely responsible for any damage to your computer system or equipment or loss of data that results from the download or use of any such material. No information, whether oral or written, obtained by you through or from the Service shall create any warranty not expressly stated in this Agreement.

10. Limitation of liability

WDS, its officers, directors, employees and/ or agents shall not, under any circumstance, be liable to you or any third party for any consequential, incidental, special, or indirect damages of any kind or nature, including but not limited to the loss of income, loss or damage of data, and damage to business reputation, under any theory of law or equity, and whether or not such party is notified of the possibility of such damages.

The total, cumulative liability of WDS, its officers, directors, employees and/ or agents (in the aggregate) shall not, under any circumstance, exceed the amount paid by you to WDS under this Agreement in the preceding twelve months. Without limiting the foregoing, you expressly acknowledge and agree that WDS is not responsible for any of your data residing on the WDS managed hardware.

WDS will back-up your data residing on the WDS managed hardware in accordance with its Backup Policy, copy of which is available on request. You are responsible for any additional back-up of your data and information that may reside on the WDS managed hardware, whether or not such data and information is produced through the use of the Service.

The above limitation of liability shall not apply with respect to any damages that are proven to be caused by the fraudulent or wilful misconduct of WDS.

11. Indemnification

You agree to indemnify, hold harmless, and, at WDS’ request, defend WDS and its officers, directors, shareholders, and representatives from and against any and all liability, damages, losses, costs, or expenses (including but not limited to legal fees and expenses) incurred in connection with any claim related to:

a) your breach of any term, condition, representation, warranty, or covenant in this Agreement; or
b) the information you supply to WDS or make available to any third party, including your Customer Data and the content of communications sent to WDS. This obligation shall survive any termination of your relationship with WDS.

12. Sole and exclusive remedy

If for any reason you are dissatisfied with any portion of any Service, your sole and exclusive remedy is to terminate your Agreement with WDS in accordance with the termination provisions set out in this Agreement.

13. General provisions

  1. Governing law and venue. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes of claims).
  2. Additional terms. This Agreement, together with WDS’ other terms, conditions, and policies referenced herein and/ or made available to you, including, without limitation, the Privacy Policy, Backup Policy, Acceptable Use Policy, Confidentiality Agreement, and Commercial Agreement, constitute the entire agreement between you and WDS with respect to the Services.
  3. Force Majeure. WDS shall have no liability to you under this agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents, beyond its reasonable control, including, without limitation, strikes, lock-outs or industrial disputes (whether involving the workforce of WDS or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
  4. Waiver; unenforceable terms. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. If any part of this Agreement is held to be unenforceable, that part will be amended to achieve its intended effect as nearly as possible, and the remainder of the Agreement will remain in full force.
  5. Notices. Except as provided otherwise herein, any notice given under this Agreement will be made by email and will be effective on the business day after it is sent.
  6. Assignment. You shall not, without the prior written consent of WDS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement.
  7. Data Protection Legislation. We aim to satisfy the obligation of transparency under the EU General Data Protection Regulation 2016/679 (‘GDPR’) and national laws implementing GDPR. You acknowledge that if WDS processes any personal data on your behalf when performing its obligations under this agreement, you are the controller and WDS is the processor for the purposes of the Data Protection Legislation. You furthermore acknowledge and accept thar you will be responsible for ensuring that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to WDS for the duration and purposes of this Agreement so that WDS may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf.
  8. Third-party data providers. You acknowledge that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at your own risk. WDS makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not WDS. WDS recommends that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. WDS does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

14. Publicity

WDS may include your company name and/ or website domain name and/ or company logo on its customer lists, testimonials and press releases related to the Services. Additionally, WDS may use anonymous and/ or aggregated data from your WDS account for internal research and analysis.

15. Questions

If you have any questions about this Agreement or the Services, please contact WDS by email at:
Info@winedarksea.co.uk