1. TERMS AND CONDITIONS AND PARTIES
1.1 Access to or use of the Website (defined below) or use of any facilities or any part of the Profitero Service (defined below) made available through the Website or otherwise, is subject to the terms and conditions that appear below (all of which are called the “Agreement”).
1.2 The Website and any of the facilities and any part of the Profitero Service are intended for use by a business or commercial customer only. You, for yourself (being a User), and also you (for and on behalf of any organisation you represent) jointly and severally warrant and represent that you are not a consumer or using any of the Website or any of the facilities or any part of the Profitero Service for a non-commercial purpose.
1.3 If you are:
1.3.1 not subject to a Subscription, then this Agreement alone applies. In such case, this Agreement is between you personally (and also you for and on behalf of any organisation you represent, jointly and severally) on the one hand and Profitero Limited on the other hand; or
1.3.2 subject to a Subscription, then a Contract (defined below) applies. In such case, that Contract is between the Client (being any organisation you represent who is identified as the “Client” in a Subscription Order) on the one hand and Profitero Limited on the other hand.
1.4 Profitero Limited (Registration No 488715) is registered in Ireland with its registered office at 54 Harbour Court, Georges Place, Dun Laoghaire, Co.Dublin, Ireland (and is called “Profitero” in this Agreement).
2.1 In this Agreement, unless the context otherwise requires:
2.1.1 “Agreement” means the terms and conditions of this document which is entitled “Profitero Ltd terms and conditions for the Profitero Service”.
2.1.2 “Authorised User” means a User who is specified in a Subscription Order as being entitled to use a particular Subscription via the Website.
2.1.3 “Client” means:
184.108.40.206 if you are not subject to a Subscription, the User using the Website or Profitero Service and (jointly and severally) any organisation you represent; and
220.127.116.11 if you or the organisation you represent are subject to a Subscription, the party identified as the “Client” in a Subscription Order.
2.1.4 “Contract” means a contract between Client and Profitero in respect of a Package within the Profitero Service, comprised of: (i) this Agreement; and (ii) a Subscription Order.
2.1.5 “Data” means business intelligence and data relating to the Retailers and the goods and services they offer or do not offer (and to business intelligence and data relating to certain activities recorded through www.Profitero.com).
2.1.6 “Fees” means the fees payable in respect of any Package or Contract.
2.1.7 “Free Functionality” means:
18.104.22.168 any Website functionality or Profitero Service functionality which is available to a Client free of charge; or
22.214.171.124 any Package which is available to a Client free of charge.
2.1.8 “Profitero Service” means any service provided by Profitero whereby Profitero procures the provision of Data to Client, which service includes:
126.96.36.199 any or all of the service provided by Profitero via the Website (or via other electronic communication from Profitero with respect to Data) including Client using such different tools made available by Profitero, to manipulate, filter and display such Data in different ways; and
188.8.131.52 any report provided by Profitero in respect of Data in any form whatsoever; provided that the degree and extent to which Data is available and the degree and extent to which Client is entitled to view, filter and manipulate that Data is dependent on which Package is applicable to Client.
2.1.9 “Offline Retailer” means a Retailer which does not offer the sale of its products to the general public via an online dedicated website for this purpose.
2.1.10 “Online Retailer” means a Retailer which offers the sale of its products to the general public, inter alia, via an online dedicated website for this purpose.
2.1.11 “Package” means a level of service provided to Client for the Profitero Service which, dependent on the price paid for any particular such level, makes available to Client different Package Attributes; and, for the avoidance of doubt, “Package” includes Free Functionality and Subscriptions.
2.1.12 “Package Attributes” means the different variables in respect of a Package, which variables may include: duration of service (i.e. the term, the start date and the end date); the number and/or identity of Authorised Users; the number and details of product categories/brands made available; the degree of filtering and data analysis tools available; the degree of reports available; the extent of availability of data on competitor brands; the extent of availability of degree of export features; the number of Retailers available through such service; the Fees; and any overriding payment terms; the degree of availability of historic data; any other additional functionality and features; details of any custom reports in respect of Data; and any special terms that may override terms of this Agreement). In respect of Subscriptions, many Package Attributes will be set out in a Subscription Order.
2.1.13 “Software” means any proprietary software utilised by Profitero to enable use of the Profitero Service.
2.1.14 “Subscription” means a Package which is not Free Functionality.
2.1.15 “Subscription Order” means Profitero’ standard subscription order document in respect of a Subscription, which document has been executed by Profitero and by Client and which contains many details of the Package Attributes in respect of the relevant Subscription.
2.1.16 ” Retailer” means any Retailer (or other provider of goods and/or services selected by Profitero from time to time) whose products and services, from time to time, may be listed as part of the Data.
2.1.17 “User” means a single individual human being (who may, depending on Package, be specified by name).
2.1.18 “Website” means the website through which the Profitero Service is offered, currently www.Profitero.com.
2.2 Profitero reserves the right to amend this Agreement (amend a Contract) from time to time, provided that in respect of a Client subject to a Subscription (and only in that instance), subject to Clauses 4.3 and 4.9:
2.3 All amendments to this Agreement will be posted on-line. Subject to Clause 2.2, continued use of the Profitero Service or the Website or accessing Data will be deemed to constitute acceptance of amendments to this Agreement.
3. PROVISION (AND LIMITATIONS) OF THE PROFITERO SERVICE
3.1 Use of the Profitero Service and the Website and access to Data are each subject to the terms and conditions set out in this Agreement (and any Contract).
3.2 To use the Website and/or the Profitero Service and/or to access Data, Client must not be a consumer and Client warrants and represents that, for the purposes of this Agreement (and any Contract), it is not a consumer.
3.3 The Profitero Service is available only through a Package (whether that Package is a Free Functionality or a Subscription).
3.4 Profitero uses proprietary algorithms and datasets which match different goods and services together and against each other, as well as grouping them in different ways. Profitero has, of necessity, made assumptions as part of those algorithms and datasets; and Client may agree or disagree with such assumptions. Nevertheless, Client represents and warrants that it uses the Profitero Service, the Website and the Data on the basis that:
3.4.1 it has no objections to the assumptions made with respect to such algorithms (which may include assumptions as to matching rules, averaging rules and availability rules) and it has no objection to the limitations of any algorithms, assumptions or datasets.
3.5 The Profitero Service and use of the Website does not include the provision of a computer or other necessary equipment or software to access the Website. To use the Website, Client will require Internet connectivity and appropriate telecommunication links and software. Profitero shall not be liable for any telephone or other costs that Client may incur.
4. PACKAGES AND PAYMENT
4.1 Free Functionality: The Package Attributes for Free Functionality are set out on the Website and/or otherwise made available by Profitero. As the name implies, Free Functionality is free of charge. Client may elect to use Free Functionality by just using that Free Functionality. However, Free Functionality may require registration by a Client (and/or may require use of a username and/or a password supplied by Profitero) before use of that Free Functionality is allowed. (Please see further Clause 8.) A legal contract comprised of this Agreement in respect of any Free Functionality is formed when the Client starts using or accessing that Free Functionality.
4.2 ‘Subscription Packages’: The prices and Package Attributes for Subscriptions are available on request from Profitero. Client may contact Profitero by phone or email for details on firstname.lastname@example.org or on +44 (0) 20 8123 3101. Client may also be contacted by Profitero by phone or email to discuss such details, if Client has registered on the Website (as to which please see Clause 8). Once a Subscription is applicable to a Client, any functionality that would normally be provided as part of Free Functionality, is deemed also to form part of, and is deemed also to be provided pursuant to, that Subscription. In respect of a Subscription, Client must enter into a Contract for that Subscription before use of that Subscription will be permitted. A contract is formed when Profitero and Client have each executed a Subscription Order in respect of the relevant Subscription.
4.3 Changes to Package Attributes: Package Attributes may be changed at any time by Profitero. However, in respect of Subscriptions which have already been purchased and paid for (and which are therefore subject to a Subscription Order), Package Attributes will only be altered via a new Subscription Order, provided always that Profitero can always (without a new Subscription Order) add new features to a Subscription (by way of trial or otherwise) by way of expanded Package Attributes (or otherwise) at no extra cost to Client, for whatever period Profitero see fit.
4.4 Renewing or upgrading a Subscription: The term of a Contract for a Subscription shall be 12 months unless specified otherwise in the relevant Subscription Order (but whatever that term is, Profitero call it the “Subscription Fixed Term”). In respect of any Clients who wish to renew a Subscription mid-term, such renewal shall take effect at the end of the Subscription Fixed Term. A Subscription Order may contain provision for automatic renewal of the a Contract at the end of its term. However, in respect of any upgrading (or other alteration) of a Subscription, unless specified otherwise in the any subsequent Subscription Order, such upgrade (or other alteration) shall take place within the Subscription Fixed Term (which Subscription Fixed Term shall remain unchanged, unless with the prior written agreement of both the Client and Profitero through a new Subscription Order).
4.6 Payment: Payment shall be by such method as Profitero indicates it is prepared to accept and in the currency noted on the invoice. Fees shall always be paid and payable without set-off, reduction or withholding on any account whatsoever.
4.7 Variation of Fees: Profitero may vary the Fees from time to time provided that it does not vary such Fees in respect of any Subscription during the term of the Contract applicable to that Subscription (but may do so in respect of that Subscription in respect of any renewal of that Subscription).
4.8 Late Payment: If Client is overdue with any payment due (including Fees) then, without prejudice to any other right or remedy available to Profitero, Profitero may:
4.8.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
4.8.2 Profitero reserves the right to suspend the provision of the Profitero Service to Client until Client has rectified matters; and/or
4.8.3 terminate the affected Contract (or this Agreement) forthwith by notice in writing to Client.
4.9 Cost increase: If the cost to Profitero in providing the Profitero Service under any Contract increases as a result of any breach of the Agreement (or any Contract) by Client, or the supply of incorrect or inadequate information by Client, or any change to the law or any other reason beyond Profitero’ reasonable control, such increase shall be added to the Fees payable in respect of, and under, the relevant Contract. Profitero shall notify Client as soon as reasonably practicable in advance of any such increase.
5. WARRANTIES AND SERVICE LEVELS
5.1 Main warranty: Profitero warrants that it shall use reasonable care and skill in the provision of the Profitero Service, the Website and the provision of the Data (whether in respect of a Contract or not).
5.2 Non-responsibility for data source: When Profitero compares goods and services or displays business intelligence on any other matters including Data, although Profitero uses its reasonable endeavours to make such comparisons honestly and fairly, Profitero is dependent on raw data underlying the Data, which underlying raw data is sourced from outside Profitero. Subject to Clause 5.1, Profitero does not warrant and Profitero expressly excludes all liability in respect of the accuracy, completeness, fitness for purpose or legality of any Data or other information accessed using the Profitero Service or accessed via the Website or otherwise communicated to Client (by email, by hard copy printout from the Website or otherwise). Client agrees that sole responsibility for the accuracy, completeness, fitness for purpose or legality of information relating to a Retailer, Data or information as to goods or services or other data from a Retailer shall rest with the relevant Retailer (or manufacturer, if that information is sourced from a manufacturer, such as that on ‘back of pack’) or other person from whom such information or data is sourced; save to the extent that Profitero may not have complied with Clause 5.1.
5.3 Free Functionality: Subject to Clause 5.1, in respect of use of the Profitero Service and/or the Website and/or the Data which is subject to a Free Functionality, Client expressly agrees that use of the Profitero Service and the Website and Data is at Client’s sole risk and that the Profitero Service and the Website and the Data are provided on an “as is” and “as available” and “with all faults” basis and without warranties or representations of any kind either express or implied.
5.4 Subscriptions: Subject to Clause 5.1, in respect of use of the Profitero Service and/or the Website and/or the Data which is in respect of a Subscription, Client expressly agrees that use of the Profitero Service and the Website and Data is at Client’s risk. However, Profitero shall use reasonable endeavours to ensure that the Data is updated regularly as further detailed below in Clauses 5.4.1 and 5.4.2
5.4.1 Service Levels in general: Client acknowledges that the Data is not updated continually and ceaselessly. It is Client’s responsibility to verify actual prices and other details from independent sources.
5.4.2 Service Levels in detail: The following service level is offered:
184.108.40.206 In respect of: (a) Online Retailers, price and price promotions which appear within the Data are updated daily except in the case of: (i) technical glitches at a relevant Retailer’s online store; and/or (ii) maintenance down-time at a relevant Retailer’s online store.
220.127.116.11 Technical errors affecting the Website and the availability of the Profitero Service and Data may happen but, in respect of Subscriptions only, will not usually occur on more than 5 occasions in a year (each such occasion lasting for maximum 24 hours).
18.104.22.168 The price of a good or service within a particular Retailer will continue to be displayed as part of the Data for several days, even if Profitero notices a temporary shortage of that good or service. However, if such good or service is not restocked by a Retailer after several more days (as to which, the precise time period varies according to tweaking of the Profitero’ relevant proprietary algorithms) then such good or service will be removed from current Data (but may continue to appear in historical Data); although Profitero only warrants this service level for Subscriptions.
22.214.171.124 The Data will display (and support) the vast majority of the common offer types, ‘special promotion’ types and ‘bundling types’ used by the Retailers. However, there may be non-standard offers or non-standard promotions or complex bundling deals, which are, or will be, offered by the Retailers that may not appear in the Data (or may appear inaccurately in the Data). The Profitero Service is used on this basis. Profitero continues to develop new algorithms on an ongoing basis to bring more offer types, ‘special promotion’ types and ‘bundling types’ into the ambit of the Profitero Service so as to continually attempt to improve the accuracy of the Data.
126.96.36.199 New goods or services offered by the Retailers or new goods or services from particular manufacturers and suppliers may take several days to be appear and/or to be updated within any current Data.
5.5 Profitero will use reasonable endeavours to correct any errors or omissions as soon as practicable after being notified of them in writing. However, subject to Clause 5.1:
5.5.1 Profitero does not guarantee that the Profitero Service or the Website will be free of faults; and
5.5.2 Profitero does not accept liability for any errors or omissions. In the event of a fault in the Profitero Service, Client should report it by email to email@example.com.
5.6 Subject to Clause 5.1, Profitero does not warrant that use of the Profitero Service or the Website or the use of, or access to, Data will be uninterrupted and Profitero does not warrant that any information (or messages) transmitted via the Profitero Service or the Website will be transmitted accurately, reliably, in a timely manner or at all.
5.7 Profitero warrants that Profitero has taken reasonable steps (using industry-standard virus-checking software) with respect to the Profitero Service and the Website to check for viruses and anything else which may have a harmful effect on any technology; but subject to that, Profitero does not warrant that the Profitero Service or the Website is free from viruses or anything else which may have a harmful effect on any technology.
5.8 Subject to Clause 5.1, Profitero does not warrant and Profitero excludes all Liability (as defined in Clause 10.9.2) in respect of the accuracy, completeness, fitness for purpose or legality of any information or Data accessed using the Profitero Service or Website; and Profitero exclude all Liability (as defined in Clause 10.9.2) of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature.
5.9 Profitero assumes no responsibility for the content or services of any other websites or services to or from which the Website or the Profitero Service has links.
5.10 Subject to Clause 5.1, Client acknowledges that Profitero shall not have any responsibility for any business decisions taken by Client as a result of the Profitero Services (or the Data) or any use of the Profitero Services (or the Data) by Client or any other person.
6. CHANGES TO, AND MAINTENANCE OF, THE PROFITERO SERVICE AND WEBSITE
6.1 Although, subject to Clause 5, Profitero will try to allow uninterrupted access to the Profitero Service and the Website, access to the Profitero Service and the Website and Data may be suspended, restricted or terminated at any time. This is true generally save that in respect of a Subscription, this will only be the case for maintenance reasons or for reasons set out elsewhere in this Agreement (or any Contract).
6.2 Profitero reserves the right to change, modify, substitute, suspend or remove without notice any information or Data or service on the Website or forming part of the Profitero Service from time to time. Client’s access to the Website and/or the Profitero Service and/or Data may also be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. In the case of Subscriptions, Profitero will attempt to restore such access as soon as Profitero reasonably can.
6.3 Subject to Clause 4.3, Profitero may at any time withdraw any Retailer (or any goods or services of a Retailer) or data source from (or add a new Retailer or other data source to) the Profitero Service.
7. RULES FOR USE OF THE PROFITERO SERVICE, THE WEBSITE AND DATA
7.1 Limited Use of Data and Profitero Service: Subject to timely and proper payment to Profitero of all Fees due and payable, Profitero hereby grants to Client a non-exclusive, non-transferable, non-sublicensable revocable licence to use Data and the Profitero Service for Client’s legitimate internal business purposes in the UK only provided the same is in compliance with Clause 7.2.
7.2 Confidentiality: Data shall be confidential to the Client and Client may not make the same available to any other person without the prior written consent of Profitero. Furthermore, any publication of, or reference to, Data outside of the Client is expressly prohibited without the prior written consent of Profitero, whom Client hereby acknowledges would need to grant a separate licence in respect of the same (and which will, in any event, always be subject to the condition that “Source: Profitero” shall be appended to such publication or reference). Furthermore, Client shall keep and procure to be kept secret and confidential the Data and shall not use nor disclose the same save:
7.2.1 for the purposes of the proper performance of this Agreement (or any Contract); or
7.2.2 as otherwise permitted by this Agreement (or any Contract); or
7.2.3 with the prior written consent of Profitero; provided that Client may disclose (but not permit access to it via the Profitero Service or Website unless such persons are Authorised Users) the Data to its employees, agents, clients, consultants and contractors who reasonably need to receive the Data for the purposes of exercising Client’s rights or performing Client’s obligations under this Agreement (or any Contract). Where Client discloses Data to its employee, agent, client, consultant or contractor, it shall do so subject to obligations equivalent to those set out in this Clause 7.2 and shall use its best endeavours to ensure that any employee, agent, client, consultant or contractor complies with such obligations. Software
7.3 Profitero (or its licensors) grants to Client a non-exclusive, revocable, non-transferable licence to use the Software through the Website for the purpose of using the Profitero Service. Using the Profitero Service and Software allows Client to obtain information held on the Website or from the websites of third party providers to Profitero. When Client uses the Profitero Service, Client may cause the Software to send a request to the third party providers for information regarding goods and/or services. Client acknowledges and agree that when Client accesses and collects information from the third party sites using Profitero Software, Client does so on Client’s own behalf and that Client has not appointed Profitero to act as Client’s agent. Profitero simply makes the Profitero Service and Software available to Client by which Client may access such third party sites. General behavioural rules
7.4 Without limitation to other general prohibitions in this Agreement, the following uses of the Profitero Service, the Website and Data are expressly prohibited and Client undertakes not to do (or to permit anyone else to do) any of the following:
7.4.1 resell or otherwise make available the Profitero Service, Website or Data without Profitero prior written consent;
7.4.2 furnish any false data (including false names, addresses, contact details) or engage in fraudulent use of credit/debit card numbers or other payment or debit or credit mechanisms;
7.4.3 attempt to circumvent Profitero’ security or network including accessing data not intended for Client, logging into a server or account Client are not expressly authorised to access, or probing the security of other networks (such as running a port scan);
7.4.4 access the Profitero Service or Website or Data in such a way as to, or commit any act that would or does, impose an unreasonable or disproportionately large load on Profitero’s infrastructure;
7.4.5 execute any form of network monitoring which would or might intercept data not intended for Client;
7.4.6 send unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material. Client is explicitly prohibited from sending unsolicited bulk mail messages. This includes bulk mailing of commercial advertising, promotional, or informational announcements, and political or religious tracts. Such material may only be sent to those who have explicitly requested it. If a recipient asks to stop receiving email of this nature, Client may not send that person any further e-mail;
7.4.7 create or forward “chain letters” or other “pyramid schemes” of any type, whether or not the recipient wishes to receive such mailings;
7.4.8 send malicious e-mail, including flooding a user or site with very large or numerous e-mails;
7.4.9 use in an unauthorised manner, or forge, mail header information.
7.5 Client undertakes not to use or permit anyone else to use the Profitero Service or Website or Data:
7.5.1 to send or receive any material which is grossly offensive, of an indecent, obscene or menacing character, blasphemous or defamatory of any person, in contempt of court or in breach of confidence, copyright, rights of personality, publicity or privacy or any other third party rights;
7.5.2 to cause annoyance, inconvenience or needless anxiety;
7.5.3 to intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
7.5.4 for a purpose other than which Profitero have designed them or intended them to be used;
7.5.5 for any fraudulent purpose;
7.5.6 other than in conformance with accepted Internet practices and practices of any connected networks; or
7.5.7 in any way which is calculated to incite hatred against any ethnic, religious or any other minority or is otherwise calculated to adversely affect any individual, group or entity. Breaking the rules
7.6 Profitero reserves the right to block access to and/or to edit or remove any material which in Profitero’ reasonable opinion may give rise to a breach of Clauses 5, 7, 9 or 12.
7.7 Profitero may suspend use (either generally or in respect of particular persons) of the Profitero Service and/or Website and/or access to Data (in any preceding case, in whole or in part) if:
7.7.1 there is use of, or access to, the Profitero Service and/or Website and/or Data via Client’s registered account by any person being other than Client (and also, ion the case of a Subscription, by any person not being an Authorised User);
7.7.2 the number of Users permitted to access the Profitero Service and/or Website and/or Data exceeds the number of permitted Users according to the Package Attributes of a particular Package;
7.7.3 the number of computers from which a User (and in the case of a Subscription, an Authorised User) is permitted to access the Profitero Service and/or Website and/or Data exceeds the number of permitted computers in respect of that User (and in the case of a Subscription, an Authorised User);
7.7.4 Client breaches any of Clauses 3, 4, 7, 8 or 9;
7.7.5 there is use of, or access to, the Profitero Service and/or Website and/or Data via Client’s registered account in contravention of this Agreement (and any Contract);
7.7.6 Profitero reasonably suspects that any person is using the Profitero Service and/or Website and/or Data illegitimately, in breach of this Agreement (or any Contract) or fraudulently.
7.8 If Profitero suspends the Profitero Service or Website or access to Data, Profitero may refuse to restore the Profitero Service or Website or access to Data until Profitero receives an assurance from Client, in a form that Profitero, acting reasonably, deems acceptable that there will be no further breach of the provisions of this Agreement (or any Contract).
7.9 Client hereby indemnifies and holds Profitero harmless from and against all claims, liabilities, proceedings, costs, damages, losses, costs or expenses incurred by Profitero caused by, or in any way connected with any claims or legal proceedings arising from: (i) Client’s use of the Profitero Service or Website or Data; or (ii) use of the Profitero Service or Website or Data through any of Client’s password; which (in either preceding case) are brought or threatened against Profitero by any person; (iii) any breach of this Agreement (or any Contract) by Client.
7.10 If Client breaks (or anyone other than Client, with Client’s connivance breaks) any of the rules in this Clause 7, there may be a degradation in the quality and accuracy of Data for which Profitero is not responsible to Client.
8. REGISTRATION AND SECURITY
8.1 At any one time, many (if not all) Packages are only available to Client:
8.1.1 if Client registers on the Website for the Profitero Service (or part of it); and
8.1.2 in most cases, that registration is accepted by Profitero (which acceptance is indicated by the grant of a username and/or password) to Client.
8.3 If Profitero accepts that registration (and a decision to accept or otherwise is at the exclusive absolute discretion of Profitero) Profitero may allocate a password to Client (and possibly a separate password for each Authorised User) to enable Client to better use the Profitero Service. Client shall keep any such passwords strictly confidential (and shall procure that Authorised Users and keep any such passwords strictly confidential) and shall immediately notify Profitero if any unauthorised User becomes aware of any such password or if there is any unauthorised use of Client’s (or a User’s) email address or any breach of security known to Client. Client agrees that any person to whom its (or one of its Authorised Users’) user name or password is disclosed is authorised to act as Client’s agent for the purposes of using the Profitero Service and Website and Data. Client is therefore entirely responsible if Client (or an Authorised User) does not maintain the confidentiality of such passwords.
8.5 Client warrants, undertakes and guarantees that all information provided to Profitero is full and accurate.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All intellectual property rights (including all copyright, patents, trade marks, service marks, trade names, database rights designs (including the “look and feel” and other visual or non-literal elements) whether registered or unregistered) in the Website and Profitero Service and Data and information content on the Website or accessed as part of the Profitero Service, any database operated by Profitero, Software and all the website design, text and graphics, and their selection and arrangement, and all software compilations, underlying source code and Software (including applets and scripts) shall remain the property of Profitero (or that of its licensors). Client shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights are reserved by Profitero.
9.2 None of the material listed in Clause 9.1 may be reproduced or redistributed without the prior written permission of Profitero (subject always to the licence in Clause 7.1 and to Clause 7.2). Client may, however, retrieve and display the content of the Website temporarily on a computer screen or on other storage device) as part of the caching necessary to use the same for the legitimate purposes and within an authorised scope, each as set out in this Agreement (or any Contract). Client may not otherwise reproduce, modify, copy or distribute or use for any purposes any of the materials or content on the Website without the prior written permission of Profitero.
9.3 All rights (including goodwill and, where relevant, trade marks) in the Profitero brand and in the Profitero-Profitero.co.uk name are owned by Profitero (or its licensors). Other company names and brand or other names relating to particular goods and services mentioned on the Website are the trade marks or registered trade marks of their respective owners.
9.4 Profitero expressly reserves the rights to use, copy, modify, adapt, translate, publish and distribute world-wide any testimonials Client may provide to Profitero about the Website, the Profitero Service or Data and Profitero may use Client’s name appended to the testimonial.
9.5 All comments, suggestions, ideas, notes, drawings, concepts or other information disclosed or offered to Profitero by Client or in response to solicitations by Profitero regarding the Profitero Service or the Website or Data (each being “Ideas”) shall be deemed and shall remain the property of Profitero. Client understands and acknowledge that Profitero has both internal resources and other external resources which may have developed or may in the future develop ideas identical to or similar to Ideas and that Profitero are only willing to consider Ideas on these terms. In any event, any Ideas are not submitted in confidence and Profitero assumes no obligation, express or implied by considering them. Without limitation, Profitero shall exclusively own all now known or hereafter existing rights to the Ideas of every kind and nature throughout the world and shall be entitled to unrestricted use of the Ideas for any purpose whatsoever, commercial or otherwise without compensation to the provider of the Ideas.
10. LIMITATION OF LIABILITY
10.1 This Clause 10 prevails over all other Clauses in this Agreement (and any Contract) and sets forth the entire Liability of Profitero, and the sole and exclusive remedies of Client, in respect of:
10.1.1 the performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement (or any Contract) or of any goods or services or provision, mis-provision or non-provision in connection with this Agreement (or any Contract) ; or
10.1.2 otherwise in relation to this Agreement (or any Contract) or entering into this Agreement (or any Contract).
10.2 In performing any obligation under this Agreement (or any Contract), Profitero’ only duty is to exercise reasonable care and skill.
10.3 Profitero does not exclude its Liability for:
10.3.1 its fraud; or
10.3.2 death or personal injury caused by its Breach of Duty; or
10.3.3 any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
10.3.4 any other Liability which cannot be excluded or limited by applicable law.
10.4 Subject to Clause 10.3, Profitero does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Agreement (or any Contract).
10.5 Subject to Clause 10.3, Profitero shall not have any Liability in respect of any:
10.5.1 indirect or consequential losses, damages, costs or expenses;
10.5.2 loss of actual or anticipated profits;
10.5.3 loss of contracts;
10.5.4 loss of use of money;
10.5.5 loss of anticipated savings;
10.5.6 loss of revenue;
10.5.7 loss of goodwill;
10.5.8 loss of reputation;
10.5.9 loss of business;
10.5.10 loss of operation time;
10.5.11 loss of opportunity; or
10.5.12 loss of, damage to or corruption of, data, whether or not such losses were reasonably foreseeable or Profitero or its agents had been advised of the possibility of incurring such losses. For the avoidance of doubt, Clauses 10.5.2 to 10.5.12 apply whether such losses are direct, indirect, consequential or otherwise.
10.6 In respect of Liability in connection with, related to or arising under or in respect of Free Functionality, subject to Clause 10.3 and the exclusions and limits set out in this Agreement, the total aggregate Liability of Profitero shall be limited to $100.
10.7 Subject to Clauses 10.3 and 10.6 and to the exclusions and limits set out in this Agreement (or any Contract), the total aggregate Liability of Profitero shall be limited to the greater of: (a) $5,000; or (b) 110% of the total sums paid and 110% of the total other sums payable (in aggregate) by Client to Profitero under this Agreement (or any Contract), within the twelve months preceding the date on which a claim first arose. 10.8 The limitation of Liability under Clauses 10.6 and 10.7 have effect in relation both to any Liability expressly provided for under this Agreement (or any Contract) and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement (or any Contract).
10.9 In this Clause 10:
10.9.1 “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
10.9.2 “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement (or any Contract), including, without limitation, liability expressly provided for under this Agreement (or any Contract) or arising by reason of the invalidity or unenforceability of any term of this Agreement (or any Contract)(and for the purposes of this definition, all references to this “Agreement” or a “Contract” shall be deemed to include any collateral contract).
11.1 Client shall be entitled to terminate any Contract with Profitero immediately at any time by notice in writing to Profitero if:
11.1.1 Profitero is in material breach of any of its material obligations in respect of that Contract which are incapable of remedy; or
11.1.2 Profitero fails to remedy, where capable of remedy, any material breach of any of its obligations under such Contract after having been required in writing to remedy such breach within a period of no less than 28 days.
11.2 Profitero shall be entitled immediately or at any time (in whole or in part) to: i) suspend the Profitero Service and/or Website and/or access to Data and or any rights or licences with respect to the same; ii) suspend Client’s use of the Profitero Service and/or Website and/or access to Data and or any rights or licences with respect to the same; iii) suspend the use of the Profitero Service and/or Website and/or access to Data for persons for whom Profitero reasonably believes are connected (in whatever manner) to Client; and/or iv) terminate this Agreement or any Contract (at Profitero’ option) immediately if:
11.2.1 Client commits any material breach of this Agreement or a Contract;
11.2.2 Client commits a breach of any of Clauses 3, 4, 5, 6, 7, 8 or 9;
11.2.3 Profitero suspects, on reasonable grounds, that Client has, might or will commit a material breach of this Agreement or a Contract; or 11.2.4 Profitero suspects, on reasonable grounds, that Client may have committed or be committing any fraud against Profitero or any person.
11.3 A party’s right to terminate this Agreement (or any Contract) shall not prejudice any other right or remedy which that party may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.
12. DATA PROTECTION AND ADVERTISEMENTS
12.2 Profitero may place advertisements in different locations on the Website and at different points during use of the Profitero Service. These locations and points may change from time to time. Any such advertisements may be delivered by a third party advertising company.
13.1 In this Agreement (and any Contract):
13.1.1 words denoting persons includes natural persons, partnerships, limited liability partnerships, bodies corporate and unincorporated associations of persons;
13.1.2 clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement (or any Contract); and
13.1.3 references to “include” and “including” shall be deemed to mean respectively “include(s) without limitation” and “including without limitation”.
13.2 Nothing in this Agreement (or any Contract) shall be construed to create a joint venture, partnership or agency relationship between Client and Profitero and neither party shall have the right or authority to incur any liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
13.3 Except as expressly stated in this Agreement (or any Contract), all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
13.4 Client may not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement (or any Contract) or any right, benefit or interest under it nor transfer, novate or sub-contract any of its obligations under it (without the prior written consent of Profitero).
13.5 Profitero shall not be liable for any breach of obligations under this Agreement (or any Contract) where Profitero is hindered or prevented from carrying out its obligations by any cause outside its reasonable control, including by lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any law, accident (or by any damage caused by any of such events).
13.6 This Agreement (and any Contract) (and documents referred to in it by reference) contain all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement (or any Contract) except as expressly stated in this Agreement (or any Contract). Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (or any Contract) (unless such untrue statement was made fraudulently or was as to a matter fundamental to a party’s ability to perform this Agreement (or any Contract)) and that party’s only remedies shall be for breach of contract as provided in this Agreement (or any Contract). However, the Profitero Service is provided to Client under its operating rules, policies, and procedures as published from time to time on our website.
13.7 No waiver by Profitero of any default of Client under this Agreement (or any Contract) shall operate or be construed as a waiver by Profitero of any future defaults, whether or a like or different character. No granting of time or other forbearance or indulgence by Profitero to Client shall in any way release, discharge or otherwise affect Client’s liability under this Agreement (or any Contract).
13.8 If any provision of this Agreement (or any Contract) is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of this agreement shall not be affected.
13.9 Unless otherwise stated within this Agreement (or any Contract), notices to be given to either party shall be in writing and shall be delivered by hand, electronic mail, (other than, if Client is sending a notice to Profitero for the purpose of legal process) sent by fax or pre-paid post to the Client at the address supplied to Profitero or to Profitero.com at its address as specified on the Website.
13.10 No term of this Agreement (or any Contract) is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it other than any company which Profitero reasonably considers to be part of its group.
13.11 The provisions of Clauses 1, 2, 3, 4, 7.2, 9, 10, 11 and 13, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement (or any Contract).
13.12 This Agreement (and any Contract) (and all non-contractual relationships between the parties) shall be governed by and construed in accordance with English law and both parties hereby submit to the exclusive jurisdiction of the courts of England.
14. RELEVANT INFORMATION
14.1 The Website and the Profitero Service is owned and operated by Profitero Limited (Registration No 488715) that is registered in Ireland with its registered office at Unit 1 Adelphi House, George’s Street Upper, Dun Laoghaire, Dublin, Ireland.
14.2 If a client has any queries, please contact Profitero at www.profitero.com and by email at firstname.lastname@example.org.
14.3 These Terms and Conditions were most recently updated on 1st November, 2010.