Terms & Conditions

registering an account with Brandyfloss Limited.

PARTIES:

  1. BRANDYFLOSS LIMITED, a limited liability company incorporated in Ireland (registered no.585873), whose registered office is at 73a Laburnum Drive, Rathnapish, Carlow, R93 TY36, Ireland (the “Licensor”/the “Company”); and
  2. The “Licensee” refers to the end user of the Company’s products and services.

BACKGROUND:

(A) The Licensor is the developer and proprietor of all intellectual property rights in the Software, as defined below.

(B) The Licensee wishes to use the Software for evaluation purposes only and the Licensor is willing to grant to the Licensee a limited evaluation licence on the terms and conditions set out below to use the Software solely for that purpose.

In this Agreement, the following expressions have the following meanings:

Confidential Information” means all technical information obtained from the Licensor, whether pursuant to this Agreement or prior to it, and all other information that it may acquire from the Licensor in the course of this Agreement.

 “Licensee Data” means all data supplied by the licensee, including but not limited to any customer, sales and product data, via any channel, including but not exclusively through electronic transfer, manual transfer, manual upload, or third-party platform integrations, and all information extracted or otherwise derived from these sources.

Evaluation” means

the Licensee’s

evaluation of the Software.

Evaluation Period” means the period of 30 days from the date of this Agreement.

Feedback” means the feedback given by the Licensee in the form of the duly completed feedback forms furnished to the Licensor.

Intellectual Property Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.

Licence” means the licence to the Software granted pursuant to this Agreement.

Software” means the SaaS Marketing and Data Management IT Software as licensed by the Licensor pursuant to the terms of this Agreement further particulars of which are set out in Schedule 1.

2.1       In consideration of the Feedback and the provision of the Licensee Data, the Licensor grants to the Licensee a limited, non-exclusive, non-transferable, personal licence to use the Software on their computer system during the Evaluation Period for the purposes of carrying out the Evaluation, subject to the terms of this Agreement. For the avoidance of doubt, the Licensor shall be granted a right to use the Licensee Data for its own commercial purposes including the development and improvement to the Software.

2.2       Use of the Software is restricted to its use for the purpose of processing the Licensee’s data in connection with the Evaluation only.

2.3       The Software may not be used by, or for the benefit of, any person other than the Licensee and its employees.

2.4       The Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make copies of the Software.

3.1       The Licensee acknowledges and agrees that all Intellectual Property Rights in the Software and any Confidential Information and related documentation (the “Materials”) belong and shall belong to the Licensor. The Licensee has no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement.

3.2       The Licensee shall indemnify and keep indemnified the Licensor against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and professional costs and expenses) suffered or incurred by the Licensor arising out of or in connection with any breach, negligent-performance or non-performance, or enforcement of this Agreement.

3.3       During the term of this Agreement, and for a period of five (5) years after its expiry or termination, each party shall keep confidential, and not use for its own purposes nor without the prior written consent of the other disclose to any third party any, all and 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 of its affiliates, unless such 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.

3.4       Each party shall be responsible for its own compliance with the Data Protection Laws and regulation in respect of the Licensee Data. In the event of any loss or damage to Licensee Data, the Licensee’s sole and exclusive remedy against the Licensor shall be for the Licensor to use reasonable commercial endeavours to restore the lost or damaged Licensee Data from the latest backup of such Licensee Data maintained by the Licensor. The Licensor shall not be responsible for any direct or indirect loss, destruction, alteration or disclosure of Licensee Data whatsoever.

4.1       THE SOFTWARE IS PROVIDED “AS IS” AND THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND LIABILITIES TO THE GREATEST EXTENT PERMITTED BY LAW, WHETHER EXPRESS OR IMPLIED, ARISING FROM CONTRACT, TORT OR OTHERWISE, IMPOSED BY STATUTE OR OTHERWISE, RELATING TO THE SOFTWARE, THE CONFIDENTIAL INFORMATION AND RELATED DOCUMENTATION, INCLUDING ANY WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR PURPOSE, OR CORRESPONDENCE WITH DESCRIPTION.

4.2       Nothing in this Agreement shall exclude or limit the liability of the Licensor for death or personal injury resulting from the negligence of the Licensor or any of its employees or agents, nor shall they operate to exclude or limit any statutory rights which cannot be legally excluded or limited, including the statutory rights of a consumer.

5.1       The Licence and this Agreement will automatically terminate on the expiry of the Evaluation Period.

5.2       The Licensor may terminate the Licence and this Agreement at any time on one-week written notice to the Licensee.

  • The Licensor may also terminate the Licence and this Agreement at any time if:
    • the Licensee is in material breach of any of the terms of this Licence;
    • the Licensee is deemed to be unable to pay its debts within the meaning of section 570 of the Companies Act, 2014, is unable to pay its debts as they fall due, commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of or composition with its creditors;
    • the Licensee ceases carrying on, threatens to cease carrying on, or disposes of its business or a material part of its business;
    • the Licensee takes any corporate action or other steps are taken or legal proceedings are started for its winding up, dissolution, examinership or re-organisation or for the appointment of a liquidator, receiver, examiner, conservator, custodian, trustee or similar officer of it or of any or all of its revenues and assets; or
    • any execution or distress is levied against, or an encumbrancer takes possession of, the whole or any part of, the property, undertaking or assets of the Licensee or any event occurs which under the laws of any jurisdiction has a similar or analogous effect.

5.4       The Licensee may terminate the Licence and this Agreement at any time during the Evaluation Period upon acceptance by the Licensee of a full licence of the Software.

5.5       On expiry or termination of this Agreement, where such termination is not followed by a full licence of the Software:

    • the Licensee shall cease all activities authorised by this Agreement; and
    • the Licensee shall immediately destroy or return to the Licensor (at the Licensor’s option) all copies of the Software, Confidential Information and related documentation, as well as any document prepared by the Licensee in connection with the Evaluation then in its possession, custody or control and, in the case of destruction, certify to the Licensor that it has done so.
6.1       Each party shall accept liability for death or personal injury caused by its negligence and the negligence of its employees and agents acting within the scope of their duties.

6.2       Subject to Clause 6.1, the Licensor shall in no circumstances be liable for any consequential, indirect or special loss or damage (including without limitation loss of business, goodwill, opportunity, anticipated savings or loss of profit) howsoever arising whether in contract negligence, other tort or otherwise.

6.3       Except as set out in Clause 6.1, the total aggregate liability of the Licensor, whether in contract, tort or otherwise in connection with this Agreement, shall in no circumstances exceed a sum equal to €100.

7.1       If the Licensee makes, devises, discovers, or otherwise is involved in any modification or development of the Software whatsoever, the Licensee shall, to the extent that it is not prohibited by law or by any obligation to any third party (other than an Affiliate), promptly notify the Licensor in writing giving details of the development and shall, if the Licensor so requests, provide such further information as is reasonably required to be able to effectively evaluate the development. The Licensee shall grant to the Licensor a non-exclusive, royalty-free, worldwide, perpetual, irrevocable licence (together with the right to grant sub-licences) to any such development. For the avoidance of doubt, the Licensee hereby agrees and acknowledges that the Licensor is the owner of any improvements in the Software made by the Licensee. For the avoidance of doubt, all Intellectual Property Rights to the developments to the Software shall vest with the Licensor absolutely.

7.2       Any notice or other communication whether required or permitted to be given under this Agreement shall be given in writing and shall be deemed to have been duly given if delivered by hand to the addressee or sent by registered post to the addressee at the address set out for such party in this Agreement (or such other address as that party may from time to time designate in writing to the other parties in accordance with the provisions of this Clause).  Any such notice shall be deemed to have been duly given if delivered by hand, at the time of delivery, if sent by registered post, forty-eight hours after posting.

7.3       This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter, and except as expressly provided, supersedes all prior representations, warranties, negotiations or understandings with respect to that subject-matter.

7.4       A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.  No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.

7.5       Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered to the Company secretary of the party to be served at its registered office or to such other address as may be notified in writing to the other party.

7.6       This Agreement does not create any right enforceable by any person not a party to it, except that a person who is the permitted successor to or assignee of the rights of a party is deemed to be a party to this Agreement.

7.7       Any variation to this Agreement shall only be effective if in writing and signed by (or by persons duly authorised by) the Licensor and the Licensee.

7.8       Nothing in this Agreement shall create a partnership or joint venture between the parties to this Agreement and save as expressly provided for in this Agreement neither party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind or oblige the other party hereto.

7.9       If any provision or part-provision of this agreement 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 clause shall not affect the validity and enforceability of the rest of this agreement.

7.9       This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement.

7.10      This Agreement shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the exclusive jurisdiction of the Irish courts.

  • The purpose of the Software is to automate the process of customer segmentation.
  • By processing multiple data sources of Licensee Data, it organizes contacts into optimum customer groups.
  • It supplies customer groups’ insights in a visual format, with the option to export the customer list data.
  • To use the product, The Company requires the use of Licensee Data in advance of usage.