Terms and Conditions for the supply and use of the “plentymarkets” software (Software as a Service)
plentymarkets Ltd., 83 Baker Street, London, W1U 6AG, United Kingdom
1.1These terms and conditions (the “Conditions”) apply to a contract (the “Contract”) for the supply of the Services defined below by plentymarkets GmbH (the “Provider”) to a customer (the “Customer”).
1.2These Conditions will also apply to any support or maintenance agreement entered into by the Customer with the Provider from time to time.
1.3The online store pages of the Provider will guide the Customer through the steps the Customer needs to take to order the Services (as defined below). The Contract between the Provider and the Customer will only be formed when the Customer has received an e-mail from the Provider confirming the Customer's order for the Services.
2.1In consideration of the payment of the fees calculated in accordance with Condition 11 (the “Fees”) by the Customer to the Provider, the Provider will provide the following services (the “Services”):
on the terms of the Contract incorporating these Conditions. The Customer shall not use or permit any third party to use the Licensed Software except for the purpose specified in Condition 2.1(a). The Licensed Software will enable the Customer to establish an online store ("Online Store") and/or an online list of products which will be linked to various marketplaces ("Multi-channel Facility") and/or other facilities or functionalities (together defined as "System").
2.2The Provider shall make available to the Customer on its website the plentymarkets manual, (which as modified and updated from time to time is referred to as the "Manual") which provides comprehensive explanations of the numerous functions and interfaces of the Licensed Software.
2.3The Provider is under no obligation to provide or to continue to provide any additional services not specified in the Contract and/or which are provided free of charge and may cease providing them at any time without notice to the Customer. The Customer shall have no claim against the Provider in respect thereof.
3.1The Provider shall, from the time stated in the Contract, make available to the Customer the most recent version of the Licensed Software on the Servers for use in accordance with these Conditions. The Customer must ensure that it always uses the most recent version of the Licensed Software.
3.2TThe Provider shall use reasonable endeavours to ensure that at all times during the period of the Contract the Licensed Software is:
3.3The Provider will provide the Customer with an agreed number of usernames and passwords. The Customer shall promptly on receipt change the usernames and passwords supplied. Further security measures can be agreed.
3.4The Provider shall be entitled to introduce Changes at any time and will amend and update the Manual where necessary to reflect such Changes. Where a Change materially affects the functionality of the Licensed Software, the Provider will give not less than six weeks’ written notice to the Customer before it is introduced.
3.5If the Provider introduces a Change that would result in a material change in the functionality of the Licensed Software such that the Customer is no longer able to access or use any Customer Data and/or the System produced prior to such introduction, the Customer may notify the Provider in writing accordingly and if the issue cannot be resolved within ten days of the date of such notice, the Customer shall be entitled to terminate the Contract by giving not less than 30 days further written notice to the Provider which will repay, if appropriate, a proportion of the fixed monthly Fees paid by the Customer.
3.6The Provider will make available on its Servers such amount of disk space for storing the Customer Data in a usable condition in its business as shall have been agreed in the Contract. Details of the performance of the Servers and the storage of the Customer Data are set out in the Manual.
3.7The System and the Customer Data will be backed up regularly and not less than once on each calendar day.
3.8The Customer Data will be stored for a period of not more than three years at the expiry of which it will be deleted from the Servers, whether or not the Contract is still in force. The Customer shall be responsible for retaining the Customer Data for any periods that are required by law and shall make its own independent arrangements to back up and store the same.
3.9The Provider will make available the System and the Customer Data electronically to the Customer at the terminal on the Provider’s router (the “Point of Delivery”) and the Customer shall be responsible for maintaining the internet link to the Servers to facilitate the use of the System and the transmission of the System and Customer Data to the Customer.
3.10The Provider will give notice to the Customer of any change in the Servers or the Provider’s other computer equipment and will amend and update the Manual where necessary.
3.11Without prejudice to Conditions 12 and 13, the Customer hereby grants to the Provider the right to access the System and the Customer Data for the purposes of performing any of its obligations under the Contract.
3.12Title in the Licensed Software shall remain with the Provider at all times.
3.13The Customer confirms that it is acting on its own behalf and not as agent or otherwise for the benefit of any other person.
4.1The Customer shall ensure that at all times during the Contract its own computer equipment is free from any defect and is suitable for installing the Licensed Software. The Customer shall comply with all reasonable instructions and recommendations regarding the Customer’s computer equipment. In particular, the Customer shall ensure that its computer equipment, operating system and internet browser comply with the system requirements specified in the Manual.
4.2The Provider does not provide any software applications to the Customer which enable him to access the Servers. The Customer shall be responsible for installing one of the following internet browsers: Firefox, Safari or Google Chrome and obtaining a licence to use the applicable browser access software.
4.3The Provider will provide the Services at the Point of Delivery in the manner specified in the Contract such that the Customer will be able to use the Licensed Software and access the System and the Customer Data on the Servers using an internet browser as specified in the Manual. The Provider shall not be responsible for, and shall incur no liability to the Customer in respect of, the condition of the Customer’s computer hardware or software or for the status and quality of the internet connection or other telecommunications system between the Provider and the Customer and/or its Servers.
The licence granted under the Contract shall not entitle the Customer to install or load into temporary memory or permanent storage the whole or any part of the Licensed Software on its own computer equipment without the Provider’s prior written consent or unless permitted by the terms of any support agreement entered into separately with the Provider. These Conditions shall apply in the exceptional event that the Customer uses the Licensed Software on its own computer equipment.
6.1A defect (“Defect”) will arise in the Licensed Software if:
unless the Defect is caused by the improper use or unauthorised amendment of the Licensed Software by the Customer or anyone acting with the authority of the Customer.
6.2The Provider does not warrant that the Licensed Software will be free from Defects or that its use will be uninterrupted or error-free.
6.3If a Defect occurs in the Licensed Software, the Provider will at its own cost use reasonable endeavours to remedy the Defect within a reasonable time of receiving written notice thereof in accordance with the Provider’s procedures by repairing or replacing the Licensed Software PROVIDED THAT the Provider shall be under no obligation under this Condition unless the Customer provides all the information that may be necessary to enable the Provider to resolve the Defect, including a documented example of any Defect, or sufficient information to enable the Provider to re-create the Defect. The Provider will categorise the Defect referred to in any such notice appropriately, taking into account the interests of the Customer and will respond to a notice of a Defect as follows:
|Defect Category||Response times|
A Defect falls within this category if the Licensed Software cannot be used or its use is severely restricted because of, for example, a malfunction, defective work product or response times, and the Defect cannot be resolved by other reasonable organisational means.
Reaction: 8 hours
Remedy: 24 hours
A Defect falls within this category if the Licensed Software can be used or is not severely restricted but the Defect is significant and cannot be resolved by reasonable organisational means.
Reaction: 24 hours
Remedy: 3 working days
A Defect falls within this category if the use of the Licensed Software is not directly and/or materially restricted, but consists (for example) of badly defined default settings or missing “nice to have” functions.
Reaction: 2 working days
Remedy: 8 working days
6.4The Provider will remedy any Defect in the Licensed Software in such manner as he may reasonably decide. The Customer will promptly apply any patch, bug-fix or new version of the Licensed Software and will comply with any reasonable operating instructions provided by the Provider.
6.5If the Defect cannot be remedied within a reasonable time or if in the Provider’s opinion the cost of remedying the Defect is unreasonable, the Provider may terminate the Contract by notice in writing to the Customer and, if appropriate, refund a proportion of any fixed monthly Fees paid in advance by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Licensed Software to the date of termination).
6.6All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
6.7The Customer shall use the Provider’s timed-ticket system to notify Defects, raise queries or request the provision of additional support services in relation to the Licensed Software.
7.1Upon and subject to payment of the applicable Fees, the Provider shall deliver to the Customer at the intervals agreed in the Contract a complete copy of the Customer Data in downloadable form.
7.2The Provider maintains a helpdesk which the Customer may use on payment of the applicable Fees.
8.1The licence granted pursuant to Condition 2.1(a) gives the Customer the sole right to access and use the Licensed Software on the Server via the internet using an internet browser specified in the Manual and does not entitle the Customer to use the Licensed Software on any other computer equipment.
8.2The Customer shall ensure that the Licensed Software is not made available to or used by any person other than its own employees in the proper course of the Customer’s business.
8.3The Customer shall not be entitled to sub-license, assign or otherwise dispose of the Licensed Software to a third party.
8.4Except as expressly stated in this Condition 8, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, amend, modify, adapt or make error corrections to the Licensed Software in whole or in part. This Condition shall not apply to any amendment or modification of the Licensed Software which is required to correct a Defect that is not corrected by the Provider within a reasonable time after the Customer has notified the Defect to the Provider and required it to be remedied.
8.5The Customer shall not use the Licensed Software or create, store or use any Customer Data for any unlawful or improper purpose.
8.6In the event that the Customer is in material breach of its obligations under this Condition 8, the Provider may delete any relevant Customer Data and terminate the Contract.
8.7In the event that the Customer permits a third party to use the Licensed Software in breach of Conditions 8.2 or 8.3, the Customer shall pay to the Provider on demand a sum equal to the Fees that would have been paid in respect of such third party's use.
8.8All rights in any System containing Customer Data created by the Customer’s lawful use of the Licensed Software shall belong to the Customer. On termination of the Contract, the Provider shall back up the Customer Data in accordance with any applicable provision of the Contract and give written notice to the Customer that this has been done. The Provider shall be entitled to delete the System and all other Customer Data at any time after the expiry of 15 working days following the date of such notice.
9.1Except as expressly stated in Condition 9.2:
9.2The exclusions and limitations in Condition 6.5 and Condition 9.1 shall apply to the fullest extent permissible at law, but the Provider does not exclude liability for:
9.3All dates supplied by the Provider for the supply of any Services shall be treated as approximate only. The Provider shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.4All references to the “Provider" in this Condition 9 shall, for the purposes of this Condition only, be treated as including all employees, subcontractors and suppliers of the Provider, its holding company and any subsidiaries of its holding company, all of whom shall have the benefit of the exclusions and limitations of liability set out in this Condition 9, in accordance with Condition 20.
9.5The Customer shall indemnify and hold the Provider harmless against any loss or damage which it may suffer or incur as a result of the Customer's use of the Licensed Software which is otherwise than in accordance with the Contract.
10.1In these Conditions Intellectual Property Rights means: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
10.2The Customer acknowledges that all Intellectual Property Rights in the Licensed Software and any Changes belong and shall belong to the Provider, and the Customer shall have no rights in or to the Licensed Software other than the right to use it in accordance with the terms of the Contract.
10.3The Provider undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Licensed Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (IP Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such IP Claim. For the avoidance of doubt, this Condition 10.3 shall not apply where the IP Claim in question is attributable to possession or use of the Licensed Software (or any part thereof) by the Customer other than in accordance with the terms of these Conditions, or use of a non-current release of the Licensed Software.
10.4If any third party makes an IP Claim, or notifies an intention to make an IP Claim against the Customer, the Provider's obligations under Condition 10.3 are conditional on the Customer:
10.5If any IP Claim is made, or in the Provider's reasonable opinion is likely to be made, against the Customer, the Provider may at its sole option and expense:
provided that if the Provider modifies or replaces the Licensed Software, the modified or replacement Licensed Software must have the same or substantially similar functionality as set out in the Manual and these Conditions shall apply thereto.
10.6This Condition 10 constitutes the Customer's exclusive remedy and the Provider's only liability in respect of IP Claims and, for the avoidance of doubt, is subject to Condition 9.
11.1Unless otherwise agreed, in consideration of the provision of the Services, the Customer shall pay Fees calculated at the rates set out in the Provider’s website. By entering into a Contract, the Customer agrees to pay the Fees for the services described therein. The Customer shall pay for any additional services at the rates set out in the price lists.
11.2Unless otherwise agreed, Fees will be invoiced to the Customer on or around the 20th of each calendar month and are payable within seven days of receipt of invoice.
11.3The Provider is entitled to increase the rates of its Fees set out in its price lists at any time to reflect increases in staff and other costs, including (without limitation) the cost of developing the Licensed Products. The Provider will give the Customer written notice of such increases and will publish the revised rates of its Fees on its website. The revised rates will apply from the date on which they are published on the website.
11.4Any additional Services will be charged on a time and materials basis at the rates of Fees published at the time the Services are provided.
11.5All sums payable under the Contract are exclusive of VAT or any relevant local sales taxes, which will be payable by the Customer.
11.6If in any calendar month, the Provider fails to provide any of the Services in accordance with the Contract, the fixed monthly Fees shall be reduced proportionately.
The Customer shall (without limitation):
13.1The Customer and the Provider acknowledge that for the purposes of the Data Protection Act 1998, the Customer is the “Data Controller” and the Provider is the “Data Processor” of any “Personal Data” (all as defined or within the meanings set out in section 1(1) of the Data Protection Act 1998). Personal Data relates only to personal data, or any part of such personal data, comprised in the Customer Data produced under the Contract and of which the Customer is the Data Controller and in relation to which the Provider is providing Services under the Contract.
13.2The Provider shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes of the Customer’s business and in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any other purpose. The Provider will keep a record of any processing of personal data it carries out on behalf of the Customer.
13.3The Provider shall not prevent or hinder the Customer from amending, transferring or deleting any Personal Data held in the Customer Data on the Server.
13.4If the Provider receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data contained in the Customer Data or to either party's compliance with the Data Protection Act 1998 and the data protection principles set out therein, it shall immediately notify the Customer and each party will provide full cooperation and assistance to the in relation to any such complaint, notice or communication.
13.5The Customer shall be entitled at any time to take a copy of all Personal Data comprised in the Customer Data held by the Provider by way of download from on the Servers.
13.6The Provider shall not transfer the Personal Data outside the European Economic Area without the prior written consent of the Customer.
13.7The Provider shall promptly inform the Company if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Provider will restore such Personal Data at its own expense.
14.1Each party shall, during the term of any Contract and at all times thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any business entity from time to time controlling, controlled by, or under common control with, either party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
14.2No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
15.1Unless otherwise agreed, and subject to any right of termination set out in the Conditions, the Contract will have a minimum duration of one month from its date or any commencement date specified therein (the Commencement Date) and will continue thereafter automatically for further periods of one month unless and until terminated by either party giving to the other not less than 30 days prior written notice expiring on the next following anniversary of the Commencement Date.
15.2The Provider reserves the right to terminate the Contract if the Customer does not generate at least eighty orders through its Online Store or Multi-Channel Facility over a two-month period. The Provider will terminate the Contract by giving the Customer 30 days prior written notice.
15.3Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.4Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15.5Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16.1On termination for any reason:
16.2Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. The affected party shall give the other party written notice of any such circumstances as soon as it becomes aware of them. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or nonperformance continues for more than 60 days, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.
19.1If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the other provision of the Contract.
19.2If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21.1Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.1These Conditions, any information provided to the Customer in the registration process and any schedules and documents referred to in these Conditions contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
22.2Each party acknowledges that, in entering into the Contract that it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in the Contract.
22.3Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
22.4Nothing in these Conditions shall limit or exclude any liability for fraud.
23.1The Contract 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.
23.2The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including noncontractual disputes or claims).