BulbThings Terms & Conditions
Last updated on December 15, 2020
1 General Terms
| 1.1 | We are Bulb Software Limited. Our company number is 09220688 and our registered address is Work Life, Kings House, 174 Hammersmith Road, W6 7JP, London, United Kingdom (“BulbThings“, “we“, “us“). |
| 1.2 | These terms and conditions (the “General Terms“) apply to you (the “Customer“, “you” and “yours”) when you use the online BulbThings asset tracking services (whether on the Standard (free), Advanced or Enterprise versions), (the “Services“) on our website BulbThings.com (the “Site“). |
2 Interpretation
| 2.1 | In these General Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings: |
| “Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services. |
| “Competitor” means any person or entity operating in the same industry as BulbThings and which offers a similar product or service to that being offered by BulbThings (i.e asset or fleet management software). |
| “Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11. |
| “Customer Data” means the data inputted by the Customer, Authorised Users, or BulbThings on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services. |
| “Fee(s)” means the subscription fee(s) payable by the Customer to BulbThings for the access and use of the Services, such fees being set out on the relevant Site page as amended from time to time. |
| “Subscription Term” means the period stated in Clause 3. |
| 2.2 | All references to Clauses are, unless otherwise expressly stated, references to the Clauses of these General Terms. |
| 2.3 | Clause and paragraph headings shall not affect the interpretation of these General Terms. |
| 2.4 | References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time. |
3 Term
| 3.1 | These General Terms take effect from the date you begin using the Services (the “Effective Date”) and subject to Clause 7 (Termination) shall continue in effect for the duration of your use of the Services (the “Subscription Term”). |
4 Terms of use of the Service
| 4.1 | Subject to the Customer subscribing to the Services, the restrictions set out in this clause 4 and the other terms and conditions of these General Terms, we hereby grant to you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business operations. |
| 4.2 | The Customer shall: |
| (a) | comply with any and all instructions provided to the Customer by BulbThings relating to the Services; |
| (b) | not be a Competitor; |
| (c) | comply with the terms of the Privacy Policy; |
| (d) | not use the Services for any immoral or illegal purpose or in any way that would bring BulbThings into disrepute; |
| (e) | procure that its officers and employees co-operate with BulbThings, its agents and sub-contractors in carrying out the Services; and |
| (f) | be responsible for any and all applicable sales, use, excise, value added or other taxes and duties and any other fees, charges or payments payable to any governmental or regulatory authority, body or organisation incurred as a result of or in connection with the use by the Customer of the Services. |
5 Pricing and payment
| 5.1 | In consideration of the supply of the Services, the Customer agrees to pay BulbThings all applicable Fees. Unless otherwise expressly stated, all prices are exclusive of value added tax. |
| 5.2 | BulbThings shall send an electronic receipted invoice to the Customer upon receipt by us of the relevant payment. |
| 5.3 | Without prejudice to any other right or remedy it may have, BulbThings reserves the right to set off any amount owing to it at any time from the Customer against any amount payable by BulbThings to the Customer under or in connection with these General Terms. |
| 5.4 | If the Customer fails to pay any amount payable by it under these General Terms then BulbThings reserves the right to restrict access to the Services until payment is made. |
| 5.5 | No refund of any Fees shall be given under any circumstances. |
| 5.6 | Discount codes (also known as ‘affiliate codes’ or ‘promo codes’) may only reduce the standard pricing for a maximum period of 6 months, thereafter the standard pricing will be applicable. |
6 Proprietary Rights
| 6.1 | The Customer acknowledges and agrees that BulbThings and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, these General Terms do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services. |
| 6.2 | BulbThings confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these General Terms. |
7 Termination
| 7.1 | These General Terms shall, unless otherwise terminated as provided in this clause 7, commence on the Effective Date and shall continue for the Subscription Term. |
| 7.2 | Without affecting any other right or remedy available to it, either party may terminate these General Terms by giving no less than 30 days written notice to the other party. |
| 7.3 | Without affecting any other right or remedy available to it, either party may terminate these General Terms with immediate effect by giving written notice to the other party if: |
| 7.3.1 | the other party fails to pay any amount due under these General Terms on the due date for payment and remains in default not less than 5 working days after being notified in writing to make such payment; |
| 7.3.2 | the other party commits a material breach of any other term of these General Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; |
| 7.3.3 | the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ; |
| 7.3.4 | the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; |
| 7.3.5 | a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; |
| 7.3.6 | an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; |
| 7.3.7 | the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; |
| 7.3.8 | a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; |
| 7.3.9 | a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; |
| 7.3.10 | any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.3.3 to clause 7.3.9 (inclusive); |
| 7.4 | Not withstanding the provisions of this Clause 7, in the event that BulbThings becomes aware that any Customer is a Competitor, BulbThings, may, with immediate effect, terminate these General Terms in respect of that particular Customer. |
| 7.5 | On termination of these General Terms for any reason: |
| 7.5.1 | all licences granted under these General Terms shall immediately terminate; |
| 7.5.2 | each party shall return and make no further use of any items (and all copies of them) belonging to the other party; |
| 7.5.3 | BulbThings may destroy or otherwise dispose of any of the Customer Data in its possession unless BulbThings receives, no later than ten days after the effective date of the termination of these General Terms, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. BulbThings shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by BulbThings in returning or disposing of Customer Data; and |
| 7.5.4 | any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced. |
8 Obligations
| 8.1 | The customer shall: |
| 8.1.1 | provide BulbThings with: (a) all necessary co-operation in relation to these General Terms; and (b) all necessary access to such information as may be required by BulbThings; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services; |
| 8.1.2 | comply with all applicable laws and regulations with respect to its activities under these General Terms; |
| 8.1.3 | carry out all other Customer responsibilities set out in these General Terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, BulbThings may adjust any agreed timetable or delivery schedule as reasonably necessary; |
| 8.1.4 | ensure that the Authorised Users use the Services in accordance with these General Terms and shall be responsible for any Authorised User's breach of these General Terms; |
| 8.1.5 | obtain and shall maintain all necessary licences, consents, and permissions necessary for BulbThings, its contractors and agents to perform their obligations under these General Terms, including without limitation the Services; |
| 8.1.6 | ensure that its network and systems comply with the relevant specifications provided by BulbThings from time to time; and |
| 8.1.7 | be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet. |
9 Liability
| 9.1 | This clause 9 sets out the entire financial liability of BulbThings (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer: |
| (a) | arising under or in connection with these General Terms; |
| (b) | in respect of any use made by the Customer of the Services or any part of them; and |
| (c) | in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these General Terms. |
| 9.2 | Except as expressly and specifically provided in these General Terms: |
| 9.2.1 | the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. BulbThings shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to BulbThings by the Customer in connection with the Services, or any actions taken by BulbThings at the Customer's direction; |
| 9.2.2 | all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these General Conditions; and |
| 9.2.3 | the Services are provided to the Customer on an "as is" basis. |
| 9.3 | Nothing in these General Terms excludes the liability of BulbThings: |
| 9.3.1 | for death or personal injury caused by BulbThings's negligence; or |
| 9.3.2 | for fraud or fraudulent misrepresentation. |
| 9.4 | Subject to clause 9.2 and clause 9.3: |
| 9.4.1 | the BulbThings shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these General Terms ; and |
| 9.4.2 | BulbThings’ total aggregate liability in contract), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these General Terms shall be limited to the total Fees paid for Services during the 6 months immediately preceding the date on which the claim arose. |
10 Indemnity
| 10.1 | The Customer shall defend, indemnify and hold harmless BulbThings against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that: |
| 10.1.1 | the Customer is given prompt notice of any such claim; |
| 10.1.2 | BulbThings provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and |
| 10.1.3 | the Customer is given sole authority to defend or settle the claim. |
| 10.2 | BulbThings shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: |
| 10.2.1 | BulbThings is given prompt notice of any such claim; |
| 10.2.2 | the Customer provides reasonable co-operation to BulbThings in the defence and settlement of such claim, at BulbThings's expense; and |
| 10.2.3 | BulbThings is given sole authority to defend or settle the claim. |
| 10.3 | In the defence or settlement of any claim, BulbThings may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these General Terms on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. |
| 10.4 | In no event shall BulbThings, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: |
| 10.4.1 | a modification of the Services by anyone other than BulbThings; |
| 10.4.2 | the Customer's use of the Services in a manner contrary to the instructions given to the Customer by BulbThings; or |
| 10.4.3 | the Customer's use of the Services after notice of the alleged or actual infringement from BulbThings or any appropriate authority. |
| 10.5 | The foregoing states the Customer's sole and exclusive rights and remedies, and BulbThings’ (including BulbThings’ employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality. |
11 Confidentiality
| 11.1 | Each party may be given access to Confidential Information from the other party in order to perform its obligations under these General Terms. A party's Confidential Information shall not be deemed to include information that: |
| 11.1.1 | is or becomes publicly known other than through any act or omission of the receiving party; |
| 11.1.2 | was in the other party's lawful possession before the disclosure; |
| 11.1.3 | is lawfully disclosed to the receiving party by a third party without restriction on disclosure; |
| 11.1.4 | is independently developed by the receiving party, which independent development can be shown by written evidence; or |
| 11.1.5 | is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. |
| 11.2 | Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these General Terms. |
| 11.3 | Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these General Terms |
| 11.4 | Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. |
| 11.5 | The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the BulbThings’ Confidential Information. |
| 11.6 | BulbThings acknowledges that the Customer Data is the Confidential Information of the Customer. |
| 11.7 | No party shall make, or permit any person to make, any public announcement concerning these General Terms without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. |
| 11.8 | The above provisions of this clause 11 shall survive termination of these General Terms, however arising. |
12 Customer Data
| 12.1 | The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. |
| 12.2 | In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for BulbThings to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by BulbThings in accordance BulbThings’ then current archiving procedure. BulbThings shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by BulbThings to perform services related to Customer Data maintenance and back-up). |
| 12.3 | BulbThings shall, in providing the Services, comply with its Privacy Policy, as such document may be amended from time to time by BulbThings in its sole discretion. |
13 Customer's IPR
| 13.1 | Subject to Clause 13 , the Customer agrees that BulbThings may use the Customer’s logo, name and trade marks in connection with BulbThings’s advertising and marketing materials but only in accordance with Clause 13.2. |
| 13.2 | BulbThings shall submit all advertising and marketing materials which incorporate the Customer’s logo, name and/or trade marks to the Customer before publication. The Customer shall have a period of seven (7) business days commencing on the date on which BulbThings sends the materials in which to notify BulbThings as to whether the Customer approves or disapproves the materials, such approval not to be unreasonably withheld or delayed. If the Customer does not communicate its approval or disapproval to BulbThings within such seven day period, the Customer shall be deemed to have approved the materials. |
14 Force Majeure
| 14.1 | BulbThings shall have no liability to the Customer under these General Terms if it is prevented from or delayed in performing its obligations under these General Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BulbThings or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration. |
15 Variation
| 15.1 | No variation of these General Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives). |
16 Waiver
| 16.1 | No failure or delay by a party to exercise any right or remedy provided under these General terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. |
17 Rights and Remedies
| 17.1 | Except as expressly provided in these General Terms , the rights and remedies provided under these General Terms are in addition to, and not exclusive of, any rights or remedies provided by law. |
18 Severance
| 18.1 | If any provision (or part of a provision) of these General Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. |
| 18.2 | If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. |
19 Entire Agreement
| 19.1 | These General Terms, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. |
| 19.2 | Each of the parties acknowledges and agrees that in entering into these General Terms, it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these General Terms or not) relating to the subject matter of these General Terms, other than as expressly set out in these General Terms. |
20 Assignment
| 20.1 | The Customer shall not, without the prior written consent of BulbThings, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these General Terms. |
| 20.2 | BulbThings may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these General Terms |
21 No Partnership or Agency
| 21.1 | Nothing in these General Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). |
22 Third Party Rights
| 22.1 | These General Terms do not confer any rights on any person or party (other than the parties to these General Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. |
23 Notices
| 23.1 | Any notice required to be given under these General Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these General Terms , or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in these General Terms. |
| 23.2 | A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). |
24 Governing Law
| 24.1 | These General Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. |
25 Jurisdiction
| 25.1 | Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these General Terms or its subject matter or formation (including non-contractual disputes or claims). |