Terms and Conditions of Use

Last Updated: 22 Oct 2019

These Terms and Conditions of Use (T&C’s of Use) or End User License Agreement (EULA), together with the terms of the License Order and other terms, policies and procedures published by Us on the Website and modified by Us from time to time (collectively, the Agreement) set out the terms and conditions that govern your access to and use of the Services.  The Agreement is between Master Key Computer Systems LLC including its affiliates, subsidiaries and assigns (Masterkey, Licensor, We, Us or Our) and you or the entity you represent (You or Your). The Agreement takes effect from the Start Date.

Capitalized terms used in these T&C’s of Use shall have the meaning set out in Article 1.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

The following terms (except as otherwise provided or unless the context otherwise requires) for all purposes of the Agreement shall have the respective meanings hereinafter specified.

Acceptable Use Restrictions means the restrictions set out in Article 3.3.

Account means the account that was created to use the Services.

Confidential Information means all information disclosed by whatever means, in any medium or format (whether marked “confidential” or not) which the recipient receives from the disclosing party, either directly or from any other person, which concerns the business, operations or customers of the disclosing party, its affiliates and subcontractors.

Content means information, data, text, written posts and comments, software, scripts, graphics and interactive features generated, provided, or otherwise made accessible on or through the Services or any part thereof.

Derivative Work means:

(a) for material subject to copyright, registered or unregistered design protection, any work which is based on one or more pre-existing works of the Services, such as upgrades, revisions, modifications, improvements, translations, abridgments, condensation, expansion, collections, compilation or any other form in which such pre-existing works may be recast, transformed or adapted; and

(b) for material subject to trade secret protection, any new material, information or data relating to, and derived from, the Services, including without limitation, new material which may be protected by copyright, patent, trademark and other proprietary rights.

Email Services means the services defined in Article 7.2.

Intellectual Property Rights means:

(a) copyright, patents, database rights and rights in trade marks, designs, know-how and confidential information (whether registered or unregistered);

(b) applications for registration, and the right to apply for registration, for any of these rights; and

(c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.

Licence Order means the form which evidences the user subscription to the Services and specifies, amongst other things, product services, applicable fees, billing periods and other charges as agreed between You and Us.

Loss means each loss, damage, fine, penalty, cost, expense or other liability (including legal and other professional fees) and Losses shall be interpreted accordingly.

Masterkey Technology means all of the proprietary technology (including software, hardware, data, operating manuals, user instructions, technical literature and all other related materials, products, algorithms, source codes, formulas, user interfaces, know-know, techniques, designs and other tangible and intangible material or information) contained in, or made available to You by Us in providing, the Software, Program Documentation, Derivative Works and Updates.

Privacy Policy means Our privacy policy available here.

Program Documentation means the operating manuals, user instructions, technical literature, and all other related materials in eye readable form supplied to You in connection with the use and application of the Software

SMS Services means the services defined in Article 7.1.

Services means the use of the Software and the Masterkey Technology and each of the services operated and made available by Us or Our partners, including all features, content or applications as modified by Us from time to time, including the SMS Services and the Email Services;

Server means a Server owned and managed by Licensor or its subsidiary or affiliate or assigns and on which the Software will be hosted.

Software means the software applications known as “Masterkey” and “Airlist” (which shall include, without limitation, any future Updates, Derivative Works and the Program Documentation).

Start Date means the start date as specified in the applicable License Order.

Updates means any and all future releases, revisions or upgrades of the Software whether or not the same incorporate additional features or changes in functionality of such Software.  The Updates shall not include additional features and/or functionality of the Software that the Licensor may make generally available for a separate fee or charge as may be mutually agreed.

User Subscriptions means subscriptions for use of the Software and Masterkey Technology to be purchased for a relevant subscription term for a fee as specified in the Agreement and the License Order.

Users means any individual or entity which:

(a) accesses Your Content; or

(b) accesses or uses the Services by using Your Account.

Website means the site available at http://www.gomasterkey.com/.

Your Control means all Content that You add, create, upload, submit, distribute, or post in connection with the use of the Services, whether publicly posted or privately transmitted.

1.2 Interpretation

In these T&C’s of Use, unless the context otherwise requires:

(a) all of the provisions of these T&C’s of Use (other than where expressly stated to be representations or warranties), where the context requires, are to be construed as covenants as though the words importing such covenants were used in each separate Article hereof;

(b) references to Articles and Sub-Articles are to Articles and sub-Articles of these T&C’s of Use;

(c) headings are inserted for ease of reference only and are not to be used to define, interpret or limit any of the provisions of these T&C’s of Use;

(d) references to the singular number shall include references to the plural number and vice versa;

(e) the English language shall be deemed the language chosen by the parties to express their mutual intent;

(f) the words including and include shall mean including without limitation and include without limitation, respectively;

(g) all references to dates and times shall be according to the Gregorian calendar; and

(h) in the event of any conflict between the terms of these T&C’s of Use and a License Order, the terms of the relevant License Order shall prevail.

1.2 Free Trial

We may make one or more of the Services available to You on a trial basis at its sole discretion (Trial Services). Additional terms and conditions may apply to Your use of such Trial Services. Any such additional terms and conditions are incorporated into the Agreement by reference and are legally binding.

You acknowledge that any Content you enter whilst using the Trial Services, and any customizations made to the Trial Services by or for You, during free trial will be permanently lost unless You purchase a subscription to the same Services as those Trial Services, or export such Content, before the end of the Trial Services period. You cannot transfer Your Content entered or customizations made during the free trial to a Service that would be a downgrade from the Trial Services; therefore, if You purchase a Service that would be a downgrade from the Trial Services, You must export Your Content before the end of the Trial Services period or Your Content will be permanently lost.

The Trial Services are provided “as-is”, “with all faults” and “as available” and are excluded from the limited warranty in Article 13.  We may change or discontinue Your use of the Trial Services at any time without notice.

2. Representations and Warranties

2.1 General Representations and Warranties

You represent and warrant to Us that:

(a) in the case of a company, You are duly incorporated, organized and/or established and validly exist under the laws of the jurisdiction of Your incorporation, organization or establishment (as the case may be) and You have all necessary licenses, consents and permissions to enter into the Agreement, receive the Services and perform Your obligations in accordance with the terms of the Agreement; or

(b) in the case of an individual, You are of the age of majority and able to enter into binding contracts in accordance with applicable law.

2.2 Specific Representations and Warranties

You further represent and warrant to Us that:

(a) You have not falsely identified Yourself nor provided any false information to gain access to the Services; and

(b) Your billing information is correct.

3. Grant of License

3.1 Our license to You

Subject to terms and conditions of the Agreement, Licensor hereby grants to You a worldwide, non-exclusive, revocable, non-sub-licensable and non-transferable license to access and use the Software solely for Your own internal business purposes.  All rights not expressly granted to You are reserved by Licensor.

3.2 Your license to Us

You hereby grant to Us (including Our customers, successors and assigns) a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sub-licensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit Your Content, including after the termination and/or revocation of Your use of the Services.

You represent, warrant and undertake that:

(a) You have all rights to grant such licenses to Us without infringement or violation of any third party rights, including any privacy rights, publicity rights, contractual rights, or any Intellectual Property Rights or proprietary rights;

(b) You or Your licensors own all right, title and interest in and to all Your Content uploaded to the Services; and

(c) none of Your Content will violate any of the Acceptable Use Restrictions.          

We have the right but not the obligation to monitor and edit or remove any activity or Content. We take no responsibility and assume no liability for Your Content posted by You or any third party.

3.3 Acceptable Use Restrictions

You must not:

(a) transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that:

(1) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, offensive, profane, or is otherwise inappropriate as determined by Us in Our sole discretion;

(2) You know is false, misleading, untruthful or inaccurate;

(3) constitutes unauthorized or unsolicited advertising;

(4) impersonates any person or entity, including any of Our employees, officers, directors, affiliates, partners, agents or representatives; or

(5) includes anyone’s identification documents or sensitive financial information.

4. Orders and Modifications

4.1 Orders

Licensor may, at Your request, assist You in determining Your specific requirements for the Software but notwithstanding any such assistance, You will be responsible for ensuring:

(a) that the Services provided to You by Licensor are suitable for Your requirements;

(b) that You have software that enables You to use the Services;

(c) that You have hardware which enables You to access the internet; and

(d) the accuracy of the terms of the License Order including any specifications submitted by You in connection therewith. 

4.2 Modifications

From time to time during the term of the Agreement:

(a) You may request Licensor to develop and implement into, or change, alter or modify, the Services to accommodate certain features and functionality specifically for You. If the Licensor performs the requested development, implementation, change, alteration or modification it will do so provided that You pay all fees, costs and expenses charged by Licensor in connection with such development, implementation, change, alteration or modification as shall be agreed between the parties; or

(b) We may make changes, alterations and modifications to the Services.

Any and all information, documents, software, products, technology, processes, algorithms, formulas, source codes, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information and all Intellectual Property Rights, arising from, out of, or in connection with, such development, implementation, change, alteration or modification shall be deemed to be a Derivative Work. We or Our licensor, as the case may be, shall own any and all Derivative Works and You will not claim any ownership, proprietary rights and/or Intellectual Property Rights in any Derivative Works but shall have the same rights and licenses to use such Derivative Works as You have to use the Software.

The terms of the Agreement apply to any updates or supplements to any Service, unless they come with separate terms, in which case those terms apply.

4.3 Changes to the T&C’s of Use

We reserve the right, at any time, to amend or modify the T&C’s of Use at Our sole discretion by posting a revised version on the Website. If any such alterations constitute a material change to the T&C’s of Use, We will notify You by posting an announcement on the Website.[1]  Such amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications come into effect, You agree to be bound by the terms of such amended or modified T&C’s of Use. For this reason, We encourage You to review the T&C’s of Use whenever You use the Services. If You do not agree to any change to these T&C’s of Use, then You must immediately stop using the Services.

5. Payment obligations

5.1 Payment Obligation

You shall pay all fees specified in the License Order. Except as otherwise specified herein or in the License Order, (i) fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User Subscriptions purchased cannot be decreased during the relevant billing term stated in the License Order. User Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User Subscriptions added in the middle of a monthly period will be charged for that entire monthly period and the monthly periods remaining in the User Subscription term. All payments due under the Agreement shall be made in United States Dollars (USD), unless an alternative currency is specified in the applicable License Order.

5.2 Electronic Payment Method

Unless otherwise specified in the License Order, You will provide Licensor with a valid credit card account number or other account number permitting electronic charge, debit or transfer of funds as a condition to being granted access to the Services and for Your continued use of the Services throughout the term of the Agreement. You hereby authorize Licensor to charge the account number You specified. Licensor will automatically bill You for the fees and charges specified in the License Order in accordance with the Agreement.

5.3 Receipt of Funds

All payments due hereunder and under any License Order shall be deemed by Us to have been made only when funds have been actually credited to Our account. Receipt of funds to Our account on the date due shall constitute discharge in respect of such payment by You and receipt of funds after 12 noon (local time) on the date due shall be deemed received on the day following the due date for payment.

5.4 Interest

In the event of any delay in any payment to be made by You under the Agreement or any License Order, You shall pay to Us, on first demand from time to time (by way of agreed compensation and not as a penalty) interest at a rate of three percent per annum (3% p.a.) above LIBOR on the amount due and unpaid from and including the due date thereof up to and including the actual date when the payment is made (after as well as before judgment). Interest shall accrue on a daily basis and be compounded monthly and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.

5.5 No Deductions or Withholding

All amounts due under the Agreement and any License Order to be paid by You to Us shall be paid in full without any deduction or withholding whether in respect of set-off, counterclaim, duties or taxes imposed in any jurisdiction from which such payments are made unless You are prohibited by law from doing so, in which event You will gross up the payment amount such that the net payment received by Us after any deduction or withholding equals the amounts required under the Agreement or the relevant License Order. You shall not be entitled to assert any credit, set-off or counterclaim against Us in order to justify withholding payment of any amounts (whether in whole or in part) due under the Agreement or any License Order.

5.6 Value Added Taxes

All amounts payable by You under the Agreement and any License Order are exclusive of any value added tax, turnover tax or similar tax or duty which may from time to time be payable in respect thereof. If a value added tax, turnover tax or any similar tax or duty is payable in respect of any amounts due hereunder, You shall pay the full amount of such amount due hereunder and shall, in addition, pay all such taxes or duty and indemnify Us, Our licensors and their respective affiliates and subsidiaries against any claims for the same.

6. Licensor’s Obligations

6.1 Access

Provided that We have received the payments due to it under the applicable License Order prior to the Start Date, Licensor will on the Start Date provide You with Your Account user ID and password and all such other information as may be required to enable You to access the Software. 

6.2 Updates

Throughout the term of the Agreement, We will provide You with periodic Updates to the Software. Unless otherwise agreed, such Updates shall be provided at no additional cost other than handling charges.

6.3 Training

We can provide You with training upon written request.  Such training will be charged to You at the rates provided by Us.

6.4 Marketing

You consent to the Licensor’s inclusion of Your name on a general list of Licensor’s customers used for marketing and promotional purposes.

6.5 Support

We will provide You with ten (10) hours of online or telephonic product support per month free of charge. Additional product support will be provided upon written request and shall be charged to You at the rate provided by Us.

6.6 Data Security

We will use reasonable efforts to adhere to the latest industry standards and guidelines to maintain a secure application and database, however, You acknowledge that You are responsible for the security of Your Content.

6.7 Data Backups

We will use reasonable efforts to make separate weekly and incremental back-ups of Your Content, however, You acknowledge that You are responsible for the preservation and maintenance of Your Content.

6.8 Storage

You may upload Your Content onto the Software provided that you do not exceed Your storage limit.

6.9 Support Packs

All Support Packs expire twelve months after the date of purchase unless mentioned otherwise in the relevant License Order.

7. ADDITIONAL SERVICES

7.1 SMS Services

We may, through Our service provider, provide a facility to You for the transmission of SMS via any type of interface offered by Us and/or the service provider (SMS Services).  Without prejudice to Your other obligations, in relation to the SMS Services, You agree that:

(a) We and/or the service provider exercises no control in any way over the content and messages and is merely providing the transmission and handling of the content and messages. You shall bear sole responsibility for:

(1) the content transmitted using the SMS Services; and

(2) the acts, omissions or breaches of subscribers with respect to the use of the SMS Services, including but not limited to Your Content. Prior to the utilisation of any SMS Services, You shall, at Your own expense, take legal advice with regard to both the content and the conduction of the intended SMS Services;

(b) You will initiate or conduct any SMS Services only after the Agreement has been signed by the Licensee; 

Note to Daniel:

(c) You will strictly comply with the rules set out by applicable competition law. In particular, without limitation, You agree that You will not send unsolicited advertising material or any other unsolicited content (spam) to subscribers;

(d) You will send messages only to subscribers who have consented or “opted in” to receiving the quantity, frequency and types of messages sent through any gateway provided by Us and/or the service provider and who have been informed of their rights to and the process for canceling receipt or “opting-out” of receiving future messages. You will stop sending messages to subscribers who “opt-out” of receiving such messages as soon as possible but in no case later than twenty four (24) hours after receipt of the opt-out request (or any shorter time frame required by the network operator regulations, the applicable regulatory entity or regulation or the applicable code(s) of conduct);

(e) You will, on request, provide Us and/or the service provider with a proof of subscribers “opt-in” or “opt-out” requests and/or Your response time to discontinue the transmission of any messages to Us and/or the service provider’s satisfaction within twenty-four (24) hours of receiving such request; You agree to keep such records during the term of this agreement and for one (1) year after termination;

(f) You are solely responsible for Your contractual relationship with subscribers with respect to each customer account (including, where applicable, support and pricing). You will implement valid terms of use that are consistent with the terms of this Agreement, and at a minimum:

(1) inform subscribers that You are the source and supplier of the content and the related messages which must include a source indication within each message (ie mobile telephone number, “from” field in text message, etc.);

(2) without prejudice to Article 8.3, comply with the applicable laws and regulations governing the provider identification; and

(3) clearly describe the price and inform subscriber(s) that charges for any premium message will be included on the subscriber’s mobile phone bill; and

(g) You will promptly inform Us if You become aware of any violation of the terms of this Article.

7.2 Email Services

We may, through Our service provider, provide a facility to You for collection of tools and resources to create, launch, and manage online email marketing campaigns and surveys. (Email Services). Without prejudice to Your other obligations, in relation to the Email Services,  You agree that:

(a) You will use the Services only in compliance with Licensor’s Privacy Policy and Anti-Spam Policy, other policies provided to You from time to time and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws) ;

(b) You may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited emails or surveys to any third party. You may only use permission based lists. A permission based list is defined as a list in which each entity on the list is a person or organization that has explicitly granted their permission to receive emails, surveys or other communications from You. The agreement of a person or entity to participate in a survey does not constitute a valid consent to receive correspondence from You to such person or entity. Consent to receive correspondence from You shall be obtained through an opt-in link contained within the body of the survey. You are solely responsible for ensuring that its email campaigns do not generate a number of spam complaints in excess of industry norms. We, in Our sole discretion, shall determine whether the level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under the Agreement. We may terminate Your use of the Services if We determine that the level of spam complaints is higher than industry norms.

(c) each email sent by You in connection with the Email Services shall contain an “unsubscribe” link that allows a recipient to remove themselves from Your mailing list. You are prohibited from mailing to any recipient who has clicked on the unsubscribe link. You shall process all unsubscribe requests within ten (10) days of request from an email recipient. Failure to comply with this requirement may result in a termination of Your Account by Us, and all payments previously paid to Licensor shall be forfeited by You at the time of termination.

(d) You agree that each email sent by You in connection with the Email Services shall contain a link to the then current Privacy Policy, unless You have obtained specific authorization from Us in writing to remove such link. Failure to comply with this requirement may result in a termination of Your Account by Us.

(e) Subject to the posted terms and conditions. You may upload images hosted by Us into Your email and postcard campaigns, and within the body of surveys. Any images hosted by Us are only to be used in conjunction with the Email Services, and You are expressly prohibited from using the images for any other purpose. You are prohibited from using images within an email, survey or postcard campaign to:

(1) sublicense, distribute, transfer or assign any images in connection with any other product except for a Licensor email or postcard;

(2) reverse engineer, decompile, translate or dissemble any part of the Images;

(3) Remove any copyright notices, trademarks or watermarks from any place where it appears on the Images;

(4) Use the Images as part of another trademark, service mark or logo;

(5) Use the Images in any way that could be considered by a reasonable person to be defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to them, in the juxtaposition to accompanying text or images or otherwise;

(6) Use the Images in a manner that includes people as part of any sensitive subject matter, which shall be determined by Licensor in its sole discretion. Example of sensitive subject matters include, but are not limited to, mental and physical health issues, sexual activity or preferences, substance abuse, guns and weapons, crime, suicide, abortion, hate groups, political or religious fanaticism, etc

(f) For every email message sent or survey launched in connection with the Email Services, You acknowledge and agree that the Email Services shall automatically add an identifying footer stating “Powered by Licensor and/or service provider” or a similar message, unless You have obtained specific written authorization from Us to remove such identifying footer.

(g) In using the varied features of the Email Services, You may provide information (such as name, contact information, or other registration information relating to either You or Your employer (as applicable)) to Us. You may use this information and any technical information about Your use of this web site to tailor its presentations to You, facilitate Your movement through this web site, or communicate separately with You. If You accessed the Email Services through a partner of Us, you agree that all information about You obtained by such partner may be shared with Us. We may also share any information about You with such partners. We will not provide information to companies without Your consent, and We will not permit the companies that get such information to sell and redistribute it without Your prior consent.

(h) Although You have no obligation to monitor Your Content provided in Your use of the Email Services, We may do so and may remove any such Content or prohibit any use of the Services We believe may be (or alleged to be) in violation of the Agreement.

8. Use and Restrictions

8.1 Your Account

To use the Services, You must register for an Account which is associated with a valid email address.

You are solely responsible for the activity that occurs on Your Account, regardless of whether the activities are undertaken by You, Your employees or a third party (including Your contractors, agents and Users), and for keeping Your Account password(s) secure.

You shall be solely responsible for securely maintaining Your user name, password and other information associated with Your Account. We may follow the instructions of any person who represents he is authorized by You to use or make any changes to Your Account, provided such person delivers the correct user name and password. We shall have no liability to Licensee for any unauthorized use of Your Account or the Services provided hereunder unless the password’s confidentiality is breached by Licensor’s own negligence.

8.2 Your Users

You are responsible for the acts of Your Users and any other persons that use Your details to access and use the Services and Your Users’ use of Your Content. You shall ensure that Your Users access and use the Services in accordance with this Agreement. You are responsible for violations of this Agreement by Your Users. You shall ensure that all Users comply with Your obligations under this Agreement.

8.3 Your Use

You agree to use the Services only for Your own internal business purposes and for lawful purposes in compliance with applicable laws. You are responsible for strict compliance with any and all terms and conditions of the Agreement. You agree to immediately:

(a) notify Us of any unauthorized use of the Services, Your user ID or password or any other known or suspected breach of Your obligations under the Agreement; and

(b) report to Us, and use reasonable efforts to immediately stop, any copying not expressly permitted herein or distribution of the Services in whole or in part that is known or suspected by You, Your directors, officers, employees, servants, agents, affiliates or subsidiaries.

8.4 Copies of Program Documentation

You may make copies of the Program Documentation provided that such copies are used solely for training Your own employees, use in Your own internal seminars or internal casual use or to provide copies for emergency back-up for Your own business purposes; provided always that appropriate copyright notices are included on all such copies.

8.5 Restrictions on use

You shall not:

(a) use either the Services or any part thereof or any Intellectual Property Rights therein in any manner or for any purpose not expressly permitted under the Agreement including, without limitation, any commercial or pecuniary use thereof;

(b) rent, lease, license, sublicense, loan, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, whether directly or indirectly, the Services in whole or in part, in any medium whatsoever;

(c) directly or indirectly reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services, documentation, or data related to the Services; modify, translate, or create derivative works based on the Services or copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party unless specifically authorized by Us; or remove any proprietary notices or labels.

(d) allow or permit any parent, affiliate, subsidiary or other third party to benefit from the use or functionality of the Services, either directly or via a facility management, timesharing, service bureau or any other arrangement;

(e) take, or allow any third party to take, any action inconsistent with Our or Our licensor’s, as the case may be, Intellectual Proprietary Rights in the Services, including without limitation: (i) removing any proprietary notices or labels thereon; (ii) the translation, adaptation, arrangement, or other alteration of the Services in whole or in part; (iii) modifying or creating Derivative Works based upon the Services in whole or in part; or (iv) the combination or incorporation of the Services with, or into, any other computer software; or (v) create Internet “links” to the Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device;

(f) duplicate, reproduce or copy, whether in whole or in part, the Services or any ideas, features, functions or graphics thereof except as otherwise provided in the Agreement;

(g) develop, or allow any third party to develop, a competitive product that incorporates or uses similar ideas, features, functions or graphics of the Services; or

(h) use, or allow any third party to use, the Services to: (i) fraudulently represent products; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Services or any part thereof; or (iv) attempt to gain unauthorized access to the Services or any related systems or networks.

You shall not, and shall ensure that your employees, agents and directors shall not, share User Subscriptions or allow User Subscriptions to be used by more than one individual user. Without prejudice to the foregoing, you shall be entitled to reassign User Subscriptions from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use the Services. Licensor reserves the right to conduct audits from time to time upon not less than thirty (30) days’ advance written notice to verify compliance with the Agreement

9. Intellectual Property Ownership

9.1 Software/Program Documentation

You acknowledge and agree that We or Our licensors owns all right, title and interest, including all related Intellectual Property Rights, in and to the Services, suggestions, ideas, enhancement requests, feedback, recommendations or other information (other than Your Content) relating to the Software or the Masterkey Technology. You further agree that:

(a) the Agreement is not a sale and Your possession, access to, or use of the Services does not convey or transfer to You, and You will not acquire or claim, any rights of ownership, title or registerable interest in, or related to, the Services or any Intellectual Property Rights therein or any copies thereof;

(b) You will properly reproduce on any copy of the Program Documentation produced under Article 8.4, such notices of Intellectual Property Rights as We may advise from time to time. The placing of such notices shall not mean that the Services are in the public domain;

(c) You will take adequate security measures to safeguard the Services from access or use by any unauthorized person. For the purposes of the Agreement, authorized persons are You, Your directors, officers and employees but shall not include Your parent, subsidiaries, affiliates, agents, servants or subcontractors or any of their respective directors, officers, employees, agents or servants; and

(d) the trade name, trade dress, logo and product names associated with the Services are trademarks of Licensor or third parties and no right or license is granted to use them.

9.2 Your Content

Licensor acknowledges and agrees that the ownership of all Intellectual Property Rights in Your and any and all copies thereof shall be and remain Your exclusive property. Neither Licensor nor its licensors shall have any responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Your Content and neither Licensor, it’s licensors nor their respective affiliates, subsidiaries, directors, officers, shareholders, employees, servants or agents shall be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Your Content or any part thereof.

10. Data privacy

By accessing and using the Services, You agree that We may collect, process, share, store, transfer, destroy and otherwise use Your personal data in accordance with the terms of Our Privacy Policy.

11. Confidentiality

11.1 Non-Disclosure

Each party acknowledges that in the course of performing the Agreement, it may obtain information from the other party that is confidential and proprietary in nature. Each party covenants that, except as otherwise provided in Article 11.2, it shall at all times, both during the term of the Agreement and for a period of three (3) years after the termination of the Agreement, keep confidential (and shall procure that its directors, officers, employees, servants, agents, affiliates and subsidiaries shall keep confidential) all Confidential Information now or hereafter received or obtained from the other party save that they may disclose Confidential Information of the disclosing party to their employees, directors, subcontractors and professional advisers and to any other party to whom the Agreement expressly permits disclosure (Permitted Users) on a strict “need-to-know” basis only and provided that such Permitted Users are bound by a confidentiality undertaking substantially on the terms set out in this Article 11.1.

11.2 Exceptions

Article 11.1 shall not apply to any information which:

(a) is publicly available (other than as the result of a breach by the parties of their respective obligations under Article 11.1);

(b) has been or is subsequently received by the receiving party from a third party which is under no confidentiality obligation in respect of that information;

(c) has been or is subsequently independently developed by the receiving Party without use of the disclosing party’s Confidential Information; or

(d) was previously known to the receiving party free of any obligation to keep it confidential.

11.3 Disclosure required by law

Each Permitted User may disclose Confidential Information where that Permitted User (or, where the Permitted User is an individual, his or her employer or any affiliate of his or her employer) is required to do so by law or by any competent regulatory authority or securities exchange on which securities of the receiving party (or any member of its corporate group) are listed.  In these circumstances the receiving party shall give the disclosing party prompt advance written notice of the disclosure (where lawful and practical to do so) so that the disclosing party has sufficient opportunity (where possible) to prevent or control the manner of disclosure by appropriate legal means. 

11.4 Injunctive Relief and Other Remedies

Each party hereby acknowledges that the covenants and obligations contained in this Article 11 relate to special, unique and extraordinary matters and are necessary for the protection of such party’s business and goodwill and are reasonable for such purpose. Each party hereby agrees that any breach by the other of this Article 11 will cause irreparable damage to the other party and that in the event of such breach, the non-breaching party shall be entitled, in addition to monetary damages and to any other remedies available to it under the Agreement and at law, to equitable relief, including injunctive relief, and to payment by the breaching party, of all costs (including, without limitation, legal costs) incurred by such in enforcing the provisions of the Agreement.

12 Indemnification

12.1 Indemnification of Licensor

You will defend, indemnify and hold Us harmless in respect of all Losses incurred by or awarded against Us in connection with:

(a) any breach of Your obligations under the Agreement;

(b) Your use of the Software; or

(c) any claim or contention that Your use of the Services or Your Content infringes the rights (including Intellectual Property Rights) of, or has caused harm to, a third party or violates any third party’s rights of privacy or publicity.

12.2 Indemnification of You

We will defend, indemnify and hold You harmless in respect of all Losses incurred by or awarded against You in connection with any claim or contention that the Software or the Masterkey Technology directly infringes a copyright, patent issued as of the Start Date, or a trademark of a third party, provided that:

(a) You give Us prompt notice of any such claim;

(b) You provide reasonable assistance and information to Us in the defense of such claim;

(c) You give Us sole control of the defense of any such claim; and

(d) You have not compromised or settled such claim. The indemnity contemplated in this Article 12.2 shall not extend to Losses to the extent that such Losses have resulted from the gross negligence or willful misconduct of You.

13. Warranty, Disclaimer and Limitation of Liability

13.1 Warranty

We warrant that the Software will be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with the Program Documentation under normal use and circumstances. We make no warranty that the Services (which, for the avoidance of doubt, includes the Software) will be error-free, or free from interruptions or other failures or that the Services will satisfy Your specific requirements. We shall use reasonable efforts to ensure that the Services (which, for the avoidance of doubt, includes the Software) are virus free.

13.2 Disclaimer

THE SERVICES UNDER THIS AGREEMENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL USES OF THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE 13.1, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

13.3 Internet Delays

WE WILL USE REASONABLE EFFORTS TO ENSURE THAT THE SERVICES WILL BE ACCESIBLE TO CONNECTION FROM THE INTERNET. THE SERVICES ARE ACCESSIBLE VIA THE INTERNET AND THEREFORE ARE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT TO THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  NEITHER US, OUR LICENSORS NOR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SERVANTS OR AGENTS, SHALL BE LIABLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE USE OF THE SERVICES MAY BE INTERRUPTED BY ROUTINE MAINTENANCE; WE WILL USE REASONABLE EFFORTS TO MINIMIZE SUCH INTERRUPTION AND SCHEDULE MAINTENANCE AT NON-PEAK HOURS.

13.4 Limitation of Liability

(a) Nothing in the Agreement excludes or limits either party’s liability:

  1. for fraud;
  2. for death or personal injury caused by its negligence; or
  3. to the extent that any applicable laws preclude or prohibit any exclusion or limitation of liability.

(b) Subject to Articles 13.4(a) and 13.4(c), in no event shall Our total aggregate liability, either in contract, tort (including negligence), under any other theory of liability or otherwise arising out of, from, or in connection with, either the Agreement exceed the amounts actually paid by You in the twelve (12) month period immediately preceding the event giving rise to the claim.

(c) Subject to Article 13.4(a), in no event shall We have any liability to You for any special damages (to the extent they are consequential loss or damage), indirect or consequential loss or damage, or any loss of business, loss of revenue, loss of profits, loss of anticipated savings or loss of goodwill, however caused, whether in contract, tort or under any other theory of liability, and whether or not We have been advised of the possibility of such damages.

14. Force Majeure

14.1 No Liability

Neither party shall be liable for any failure or delay in performing its obligations hereunder when required (other than an obligation to make payment hereunder) if such failure or delay is due to circumstances beyond its control which shall include civil disturbances, strike or other labor disturbances, epidemics, insurrections, sabotage, embargos, fires, floods, natural disasters, wars, acts of any governmental body, acts of terrorism, acts of God, interruption of, or delay in, transportation, unavailability or, or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain materials, supplies or power used in, or equipment needed for the provision of the Services and/or any training, product support or other services or any other such events outside the control of a party that make it impossible for it to comply with its obligations hereunder (Force Majeure Event). Such failure or delay in performing such obligations shall not constitute a breach or default of the Agreement and shall not subject the affected party to any liability to so long as such Force Majeure Event exists. To the extent that the affected party is unable to perform its obligations hereunder, such obligations shall be suspended so far as they are affected by the Force Majeure Event and the affected party shall resume performance of the relevant obligation as soon as practicable following the elimination of such event.

15. Non-payment and Suspension

15.1 Suspended Access

In addition to any other rights granted to Us herein, We reserve the right to suspend Your access to the Services, with immediate effect and without notice to You, if You fail to pay any amount due under the Agreement by the due date. You will continue to be charged for the license granted hereunder during any period of suspension.

15.2 Reconnection Fee

Licensor reserves the right to impose a reconnection fee in the event Your access to the Services is suspended pursuant to Article 15.1 and thereafter You request access to the Services.

16. Term and Termination

16.1 Term of Agreement

This Agreement commences on the Start Date and continues until all User Subscriptions granted in accordance with the Agreement have expired or been terminated.

16.2 Term of Purchased User Subscriptions

User Subscriptions purchased by You commence on the start date specified in the applicable License Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable License Order Form, all User Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant subscription term.

16.3 Termination with Notice

Either party may terminate the Agreement by giving at least sixty (60) days’ written notice to the other prior to the expiry of the Initial Term or any renewal term, in which case the Agreement will terminate as of the end of such term unless the parties agree an earlier termination date.

16.4 Termination without Notice

If:

(a) You fail to pay any amount due under the Agreement or any License Order by the due date or within 30 days thereof;

(b) You fail to comply with any provision (other than obligations referred to in Article 16.4(a)) of the Agreement, and such failure, if capable of being remedied, is not remedied to Our satisfaction within thirty (30) days after written notice thereof from Us requiring such remedy;

(c) there is an actual or proposed change in control of You that results or would result in a direct competitor of Licensor directly or indirectly owning or controlling 50% or more of You; or

(d) You are adjudged bankrupt or insolvent by a competent authority or court.

We may, in Our sole discretion, terminate the Agreement and/or Your access to the Services immediately without notice to You.

For the avoidance of doubt no termination of the Agreement shall require a court order or award approving the termination.

16.5 Effects of Termination

The termination of the Agreement will terminate Your access to the Services. We shall not be liable to You or to any third party for termination of the Agreement or Your access to the Software for any reason whatsoever. Upon termination of the Agreement for any reason whatsoever, You shall promptly return to Us the Program Documentation and all copies thereof.

16.6 Survival of Obligations

The termination of the Agreement does not relieve You of Your obligation to pay to any amounts accrued or payable by You pursuant to the Agreement or any License Order prior to the date of termination of the Agreement. Any termination or expiry of the Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or continuation in force of any other Articles and provisions of the Agreement which are expressly or by implication intended to come into force or continue in force on or after termination or expiry of the Agreement. 

16.7 Return of Your Content

Upon termination of the Agreement other than pursuant to Article 16.4 We will, if You so request within 30 days after the effective date of termination of the Agreement, make available to You for download a file of Your Content in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Content and shall thereafter, unless legally prohibited, delete all of Your Content in Our systems or otherwise in Our possession or under Our control. We reserve the right to withhold, remove and/or discard Your Content without notice for any breach of Your obligations under the Agreement.

17. Miscellaneous

17.1 Independent Contractors

The Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between You and Us. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party in any respect whatsoever.

17.2 Assignment and Subcontracting

You shall not be permitted to assign, transfer or otherwise dispose of any of its rights or subcontract, transfer (including by way of novation) or otherwise dispose of any of its obligations under the Agreement without Our prior written consent.

17.3 Entire Agreement

(a) The Agreement, including all related terms and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and (unless otherwise agreed in writing by the parties) supersedes any prior or contemporaneous agreement between the parties relating to the Services.

(b) Each party acknowledges that, in agreeing to enter into the Agreement, it has not relied on any express or implied representation, warranty, collateral contract or other assurance except those set out in the Agreement.

(c) Each party waives all rights and remedies which, but for Article 17.3(b), might otherwise be available to it in respect of any such express or implied representation, warranty, collateral contract or assurance.

(d) Nothing in this Article 17.3 limits or excludes any liability for fraud.

17.4 Amendments

No amendment of the Agreement shall be binding on the parties unless set out in writing, expressed to amend the Agreement and signed by an authorized representative of each of the parties.

17.5 No Waiver

The rights of each party under the Agreement:

(a) may be exercised as often as necessary;

(b) unless otherwise expressly provided in the Agreement, are cumulative and not exclusive of any rights and remedies provided by law; and

(c) may be waived only in writing and specifically.

17.6 Binding Effect

The Agreement is binding and shall inure to the benefit of the parties and their respective assigns.

17.7 Notices

Any notice or other communication to be made hereunder or in connection with the Agreement or any License Order shall be in writing in the English language and shall be delivered personally or by post, facsimile transmission or email transmission to the address, facsimile number or email address specified in the relevant License Order and will be effective upon delivery or transmission.

17.8 Severability

In case any one or more of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement, but the Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein and there shall be deemed substituted for such invalid, illegal or unenforceable provision such other provision as will most nearly accomplish the intent of the parties to the extent permitted by the applicable law.

17.9 Third Party Rights

Except as set out herein, the Agreement does not confer any rights on any person or party other than the parties to the Agreement and, where applicable, their successors and permitted assigns.

17.10 Language

All communications and notices to be made or given under the Agreement shall be in English. If We provide a translation of the English version of the Agreement, the English language version shall prevail if there is any conflict.

17.11 Governing Law

The Agreement, including all matters of construction, validity and performance shall be governed by and construed in accordance with the laws of England and Wales.

17.12 Dispute Resolution

(a) Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination (a Dispute) shall be settled in accordance with this Article 17.12.

(b) The parties shall act in good faith to attempt to resolve the Dispute.

(c) In the event that the Dispute cannot be resolved in accordance with Article 17.12(b) within two (2) months after commencement of such negotiations, the Dispute shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre.

17.13 Questions or Additional Information

If You have questions regarding the Agreement or wish to obtain additional information, please send an email to info@gomasterkey.com.