A Whereas we have developed and own certain software known as thebigword GMS®, thebigword TMS, and thebigword IMS (collectively known as thebigword GMS®).
B Whereas we wish to licence thebigword GMS® to you and you wish to take a licence of thebigword GMS® from us on the terms and conditions set out in this thebigword GMS® Licence and Terms and Conditions.
- Definitions and Interpretation
1.1 In these Terms and Conditions:
Acceptable Use Policy sets forth an agreement between you and us which defines fair and acceptable use of the Services and which is incorporated into these Terms and Condition.
Business Day means any day which is not a public holiday in the time zone in which we work.
Business Hours means 9.00am to 5.30pm UTC (or British Summer Time (UTC+1).
Customer, you or your means the company, firm, body or person to whom we are supplying the Services.
Customer Data means all data, including all text, sound, or image files that you provide, or are provided on your behalf, to us through your use of the Services which is input into the information fields of the software comprising the thebigword GMS® by your Authorised Users, or by us on your behalf.
Customer Resources means Customer specific material, such as translation memories, accessible by the Customer via thebigword GMSTM Portal.
Effective Date means the date you accept these Terms and Conditions and in the case of the Upgraded Services, the anniversary of the date on which you pay for the upgraded Services.
Intellectual Property Rights means all current and future copyright, patents, trademarks or rights in databases, inventions or trade secrets, know-how, rights in designs, topographies, trade and business names, domain names, marks and devices (whether or not registered) and all intellectual property rights and applications for any of those rights (where such applications can be made) capable of protection in any country in the world.
Licence means the licence granted in clause 2.1 below.
Services means all the services available via the thebigword GMS® Portal and under these Terms and Conditions.
Subscription means those charges in respect of the provision of the relevant upgraded Services for which you agree to pay.
Terms and Conditions means these thebigword GMS® Licence and Terms and Conditions.
thebigword GMS® means the software applications comprising thebigword Globalisation Management System®, which includes the thebigword TMS and thebigword IMS and any other system that we may develop from time to time. Reference to thebigword GMS® shall include the other available systems, unless otherwise specified
thebigword GMS® Portal means the portal located at the Website which provides access to the thebigword GMS®
thebigword TMS means thebigword Translation Management System.
thebigword IMS means thebigword Interpreting Management System.
Upgraded Services means additional features and functionalities for which a Subscription is paid.
We, us, our means Gould Tech solutions Limited (company number 1926324), whose registered office is at Link Up House, Ring Road, Lower Wortley, Leeds, LS12 6AB UK, a wholly owned subsidiary of thebigword Group plc
Website means the website located at www.thebigword.com and any other domains or sub domains under our control or ownership which you are redirected to as part of your use of the Services.
Year means 12 month period commencing on the Effective Date and every 12 month period thereafter.
1.2 Clause, schedule and paragraph headings are for ease of reference only and shall not affect the interpretation of these Terms and Conditions.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 References to the singular shall include the plural (and vice versa) and words denoting persons or a party include individuals, bodies corporate, partnerships, unincorporated associations and other bodies.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.1 Subject to these Terms and Conditions (and where we provide you with Upgraded Services, in consideration of your payment of the Subscription), we hereby grant you a non-exclusive, non-transferable, revocable, licence to access to thebigword GMS® solely for your business purposes. You shall prevent multiple users of the Licence from your organisation and anyone other than you to use the same login/password.
2.2 The Subscription shall be reviewed annually on each anniversary of the Effective Date during the Term and varied by mutual consent. If the review of Subscription is inconclusive we have the right to suspend the Licence and the Services. Payment of the Subscription shall be made by you on the anniversary of the Effective Date in each year of the Term.
2.3 You shall comply at all times with our Acceptable Use Policy and you warrant that you have read, agreed and understood the content.
2.4 The rights provided under these Terms and Conditions are granted to you only, and shall not be considered granted to any of your company's subsidiary or holding companies.
2.6 YOU SHALL NOT:
(a) attempt to duplicate, modify or distribute thebigword GMS® or any part thereof; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of thebigword GMS®, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; (c) use thebigword GMS® to provide services to third parties except as otherwise agreed in advance and in writing between the parties; (d) transfer, temporarily or permanently, any of our rights under these Terms and Conditions, or (e) attempt to obtain, or assist others in obtaining, access to thebigword GMS® save as is provided in these Terms and Conditions.
3.1 We shall provide you with a unique password, created by us in the first instance and accessible for amendment by you, to enable you to have access to thebigword GMS®. You must have a valid email address to facilitate management of your user account and password.
3.2 Access to thebigword GMS® shall be limited to the functionality selected and purchased (if applicable) by you.
3.4 You are entirely responsible for ensuring that you keeps a secure password for use of thebigword GMS® and that you keep your password confidential.
3.5 We may carry out an audit regarding the use of the Licence. Such audit may be conducted no more than once per quarter, at our expense, and shall be exercised with reasonable prior notice, in a manner so as not to substantially interfere with your normal conduct of business. If such audit reveals that the Licence is being used by more than you, without prejudice to our other rights, we reserve the right to disable your password and/or suspend and/or terminate the Services.
3.6 Routine maintenance of thebigword GMS® shall be performed outside Business Hours, unless we give reasonable notice. In any event we may interrupt thebigword GMS® to perform emergency maintenance during Business Hours.
3.7 Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in thebigword GMS®. Support for additional features developed by us, as requested by you, may be purchased separately at our then current rates.
3.8 Should you consider that thebigword GMS® includes a defect, you may at any time file error reports. During maintenance periods, we may, at our discretion, upgrade versions, install error corrections and apply patches to thebigword GMS®.
3.9 We shall maintain technical support on the two most current releases of thebigword GMS™. Our 24 hour technical support help desk can be accessed through https;//support.thebigword.com/. We shall use reasonable endeavours to process support requests, issue incident ticket tracking numbers if necessary, determine the source of the problem and respond to you. Our technical support call centre shall respond to all support requests within reasonable time periods, according to priority.
3.10 We reserve the right to add to, delete from, vary or modify the Services but we will notify you of such change as soon as practically possible thereafter.
- Our Obligations
4.1 We undertake that the maintenance and support services (as described above) will be performed with all reasonable skill and care. Time is not of the essence.
4.2 We will, at our expense, use all reasonable commercial efforts to correct any non-conformance promptly, or provide you with an alternative means of accomplishing its desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertakings set out in this clause. Notwithstanding the foregoing, we do not warrant that your use of thebigword GMS® will be uninterrupted or error-free.
4.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms and Conditions.
4.4 These Terms and Conditions shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under these Terms and Conditions.
- Your Obligations
5.1 You shall provide us with all necessary co-operation in relation to these Terms and Conditions and all necessary access to such information as may be required from time to time in order for us to provide the Services.
5.2 You shall provide such personnel assistance as may be reasonably requested by us from time to time.
5.3 You shall comply with all applicable laws and regulations with respect to our activities under these Terms and Conditions.
5.4 You shall carry out all your responsibilities set out in these Terms and Conditions in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any timetable or delivery schedule set out in these Terms and Conditions as reasonably necessary.
- Charges and Payment
6.1 All Subscriptions referred to in these Terms and Conditions are exclusive of value added tax and all other taxes charges and duties which shall be added to our invoice(s) at the appropriate rate.
6.2 The Subscription is immediately due and payable online through a third party payment provider. If this is not convenient to you then an invoice for an annual Subscription will be sent to you for immediate settlement. The required access to the Upgraded Services will only be available once payment is received.
- Proprietary Rights
7.1 We confirm that we have all the rights in relation to thebigword GMS® that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of these Terms and Conditions.
7.2 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Services and the thebigword GMS®. Except as expressly stated herein, these Terms and Conditions does not grant you any rights to, or in, patents, copyrights, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the thebigword GMS®.
7.3 The Customer Resources and Customer Data shall remain at all times your property.
7.4 You grant us a licence to use both the Customer Data and Customer Resources to the extent necessary for us to comply with our obligations under these Terms and Conditions and you shall indemnify, defend and hold us harmless from any and all losses, liabilities, damages, costs and expenses arising from and in connection with any claim relating to our use of the Customer Data and Customer Resources including (without limitation) any claim that the Customer Data and/or the Customer Resources (or any part thereof) infringes a third party's Intellectual Property Rights.
7.6 We acknowledge that the Customer Data and Customer Resources is the confidential information of the Customer.
7.7 This clause 7 shall survive termination of these Terms and Conditions, however arising.
8.1 We shall defend you, your officers, directors and employees against any claim that thebigword GMS® infringes any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
(a) we are given prompt notice of any such claim;
(b) you provide us with reasonable co-operation in the defence and/or settlement of such claim, at our expense; and
(c) we are given sole authority to defend or settle the claim.
8.2 In the defence or settlement of the claim, we may obtain for you the right to continue using thebigword GMS®, replace or modify it so that it becomes non-infringing or, if such remedies are not reasonably available, terminate these Terms and Conditions without liability to you. We shall have no liability if the alleged infringement is based on:
(a) a modification of thebigword GMS® by anyone other than us; or
(b) your use of thebigword GMS® in a manner contrary to the instructions given to you by us; or
(c) your use of thebigword GMS® after notice of the alleged or actual infringement from us or any appropriate authority.
8.3 The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.
- Limitation of Liability
9.1 This clause 9 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of any breach of these Terms and Conditions (including the indemnity set out at clause 8) use of thebigword GMS® and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms and Conditions.
9.2 Nothing in these Terms and Conditions excludes our liability:
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation.
9.3 We shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar loss or pure economic loss, or for any special, indirect or consequential losses, costs, damages, charges or expenses however arising.
9.4 You assume sole responsibility for results obtained from the use of thebigword GMS® and for any conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with thebigword GMS®, or any actions or omissions taken by us at your direction including in relation to any Customer Data input by us.
9.5 Our 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 Terms and Conditions shall be limited to the price paid for your use of thebigword GMS® during the 12 months preceding the date on which the claim arose.
- Dispute Resolution
10.1 Any dispute, controversy or claim arising out of or relating to the thebigword GMS® (Dispute) will be dealt with in accordance with this clause.
10.2 If a party believes that a Dispute has arisen, it must promptly provide any other parties with a written notice setting out material details of the Dispute. The parties must not start arbitration or court proceedings in relation to a Dispute until they have followed the alternative dispute resolution procedures set out in this clause.
10.3 On receipt of a notice of Dispute, the parties must use their best efforts, in good faith, to resolve the Dispute by negotiation.
10.4 If the Dispute is not resolved by negotiation within 21 Business Days (or a longer period agreed by the parties), a party may give written notice terminating the negotiations and may commence proceedings to resolve the Dispute in a court of competent jurisdiction.
10.5 Nothing in this clause prevents a party from seeking urgent interim or interlocutory relief in a court or tribunal that has jurisdiction to grant that relief.
10.6 Each party:
(a) must treat information disclosed to it by any other party during the Dispute resolution process as confidential and must only use that information for the purpose of resolving or attempting to resolve the Dispute; and
(b) is responsible for its own costs of participating in this Dispute resolution process.
11.1 We reserve the right to suspend and/or terminate these Terms and Conditions, the Services and/or your access to thebigword GMS® if your account falls into arrears. The suspension of services will end upon payment by you of the invoice.
11.2 You agree and acknowledge that we have no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is in arrears for 30 days or more.
- Term and Termination
12.1 These Terms and Conditions and the Licence granted hereunder shall commence on the Effective Date and shall continue thereafter unless either party terminates it in writing to the other party giving at least three months notice of termination. You will not be entitled to a refund of a Subscription if you terminate or downgrade part way through a Year, unless you pay your Subscription monthly in which case you will receive the refund after the expiry of the notice period and after deduction of a deactivation fee of 10% of the Subscription.
12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate these Terms and Conditions and the Licence granted hereunder immediately and without liability to the other if:
(a) the other party commits a material breach of any of these Terms and Conditions and (if such a breach is remediable) fails to remedy that breach within 30 Business Days of that party being notified in writing of the breach;
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
(d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets;
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt;
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
12.3 On termination of these Terms and Conditions and the Licence granted hereunder for any reason:
(a) all licences including the Licence granted under these Terms and Conditions shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(c) we may destroy or otherwise dispose of any Customer Data in our possession unless we receive, no later than ten days after the effective date of the termination or expiry of these Terms and Conditions and the Licence granted hereunder, a written request for the delivery to you of the then most recent back-up of Customer Data. We shall use reasonable commercial efforts to deliver the back-up to you within 30 days of our receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
- Force Majeure
We shall have no liability to you under these Terms and Conditions if we are prevented from or delayed in performing our obligations under these Terms and Conditions, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport 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 you are notified of such an event and its expected duration.
14.1 A waiver of any right under these Terms and Conditions is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.2 Unless specifically provided otherwise, rights arising under these Terms and Conditions are cumulative and do not exclude rights provided by law.
15.1 If any provision (or part of a provision) of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2 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.
- Entire Agreement
16.1 These Terms and Conditions, 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.
16.2 Each of the parties acknowledges and agrees that in entering into these Terms and Conditions 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 Terms and Conditions or not) relating to the subject matter of these Terms and Conditions, other than as expressly set out in these Terms and Conditions.
17.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms and Conditions.
17.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms and Conditions.
- No Partnership Or Agency
Nothing in these Terms and Conditions 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).
- Third Party Rights
These Terms and Conditions are made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
20.1 Any notice required to be given under these Terms and Conditions 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 Terms and Conditions, 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 Terms and Conditions.
20.2 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).
- Governing Law and Jurisdiction
21.1 These Terms and Conditions and any disputes arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
21.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions.
In relation to the Upgraded Services only, you have the right to cancel the Subscription which runs for 14 days from paying for the Upgraded Services.
where you wish to obtain the Upgraded Services from us, you agree to pay for them either
- by using a designted third party payment provider, or
- by requesting an invoice. you must pay for the Upgraded services within 60 days of receipt of the invoice.
If you do not pay in accordance with either of the above alternatives, your access to the upgraded services will be withdrawn but you will retain this licence.
If you are using thebigword GMS® on behalf of a company or other legal entity you represent that you have the authority to bind such entity to this Licence and these Terms and Conditions.