This Software Services Agreement, as of the date that You accept this Agreement (defined below) (“Effective Date”), is hereby entered into and agreed upon by you, either an individual or an entity (“You” or “Company”) and Direct Software Limited (“Direct Software”). BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILISING THE SERVICES (DEFINED BELOW), YOU AGREE TO THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND DI- RECT SOFTWARE AND SETS FORTH THE TERMS THAT GOVERN THE LICENSE PROVIDED TO YOU HEREUNDER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR SERVICES. Direct Software may modify this Agreement from time to time and will post the most up-to-date version on its website or send the agreement directly to you via Email. Your continued use of the Services and Software following modification to the updated Agreement constitutes your consent to be bound by the same.
1.1 Affiliates means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Your Affiliates may use the license granted hereunder.
1.2 Agreement means the Software Services Agreement, any applicable Product Addendum, the Data Processing Addendum, and the Order Form.
1.3 Client(s) means, if You are an MSP, Your customer(s).
1.4 Data Processing Addendum (DPA) means the terms of the attached data processing addendum.
1.5 Devices means (whether physical or virtual) a server, system, workstation, computer, mobile device, or end point upon which or through which the Services are used and/or on which the Software is installed.
1.6 Documentation means the official user documentation prepared and provided by Direct Software to You on the use of the Services or Software (as updated from time to time). For the avoidance of doubt, any online community site, unofficial documentation, videos, white papers, or related media, or feedback do not constitute Documentation.
1.7 MSP means a managed service provider.
1.8 Order Form means the Direct Software order page, product/service quotation, or other Direct Software ordering document that specifies Your purchase of the Services, pricing, and other related information.
1.9 Personal Data has the meaning given to that term in the Data Processing Addendum.
1.10 Product Addendum(a) means additional terms and conditions set forth in Section 14 that relate to the applicable Services, Software, or Documentation.
1.11 Services means the products and software services, including any application programming interface that accesses functionality, that are provided to You by Direct Software.
.12 Software means the object code versions of any downloadable software provided by Direct Software solely for the purpose of accessing the Services, including but not limited to an agent, together with the up- dates, new releases or versions, modifications or enhancements, owned and provided by Direct Software to You pursuant to this Agreement.
1.13 User means an individual authorized by You to use the Services, Software, and Documentation, for whom You have purchased a subscription or to whom You have supplied a user identification and password. User(s) may only include Your employees, consultants, and contractors. You may not include your customers as resale of our product is prohibited by this agreement.
1.14 Your Data or Data means data, files, or information, including data, files, or information (including without limitation any Personal Data), accessed, used, communicated, stored, or submitted by You or Your Users related to Your or Your User’s use of the Services or Software.
2.1 Services License. Upon payment of fees and subject to continuous compliance with this Agreement, Direct Software hereby grants You a limited, non exclusive, non-transferable license to access, use, and in- stall (if applicable) the Services, Software, and Documentation during the Term (defined below). You may provide, make available to, or permit Your Users to use or access the Services, the Software, or Documentation, in whole or in part. You agree that Direct Software may deliver the Services or Software to You with the assistance of its Affiliates, licensors, and service providers. During the Term (as defined herein), Direct Software may update or modify the Services or Software or provide alternative Services or Software to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third party program. Direct Software’s updates or modifications to the Services or Software or provisions of alternative Services or Software will not materially reduce the level of performance, functionality, security, or availability of the Services or Software during the Term. If Direct Software decides to end of life the Services or Software, then it shall be in accordance with its established End of Life Policy.
2.2 Upgrading/Downgrading Account Type. If applicable to Your license, You may, at any time, upgrade Your Direct Software account type. The change will take effect immediately. After an upgrade, You will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. The amount due and owing for the upgraded account type will be reduced by the amount You have already paid for the applicable Term. Downgrading your license can be performed only at the end of agreed license period, and may cause loss of content, features, or capacity as available to you under Your previous license, and Direct Software does not accept any liability for such loss.
3.1 License Restrictions. You may not (i) provide, make available to, or permit individuals other than Your Users for which you have purchased the relevant package to use or access the Services, the Software, or Documentation, in whole or in part; (ii) copy, reproduce, publish, upload, post, or transmit the Services, Software, or Documentation (except for backup or archival purposes, which will not be used for transfer, distribution, sale, or installation on Your Devices); (iii) license, sell, resell,
rent, lease, transfer, distribute, or otherwise transfer rights to the Services, Software, or Documentation unless as authorized in this Agreement; (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Services, Software, or Documentation; (v) create, market, distribute add- ons or enhancements or incorporate into another product the Services or Software without prior written consent of Direct Software ; (vi) remove any proprietary notices or labels on the Services, Software, or Documentation, unless authorized by Direct Software; (vii) license the Services, Software, or Documentation (a) if You (or any of Your Users) are a direct competitor of Direct Software; (b) for the purposes of monitoring the availability, performance, or functionality of the Services or Software or (c) for any other benchmarking or competitive purposes; (viii) use the Services or Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; (ix) use the Services or Software to violate any rights of others; (x) use the Services or Software to store or transmit malicious code, Trojan horses, malware, spam, viruses, or other destructive technology (“Viruses”); (xi) interfere with, impair, or disrupt the integrity or performance of the Services or any other third party’s use of the Services; (xii) use the Services in a manner that results in excessive use, bandwidth, or storage; or (xiii) alter, circumvent, or provide the means to alter or circumvent the Services or Software, including technical limitations, recurring fees, or usage limits.
YOUR OBLIGATIONS 3.2 Your Obligations. You acknowledge, agree, and warrant that: (i) You will be responsible for Your and Your Users’ activity and compliance with this Agreement, and if You become aware of any violation, You will immediately terminate the offending parties access to the Services, Software, and Documentation and notify Direct Software immediately; (ii) You and Your Users will comply with all applicable local, national and international laws; (iii) You will establish a constant internet connection and electrical supply for the use of the Services, ensure the Software is installed on a supported platform as set forth in the Documentation, and the Services and Software are used only with public domain or properly licensed third party materials; (iv) You will install the latest version of the Software on Devices accessing or using the Services; (v) You are legally able to process Your Data and are able to legally able to provide Your Data to Direct Software and its Affiliates, including obtaining appropriate consents or rights for such processing, as outlined further herein, and have the right to access and use Your infrastructure, including any system or network, to obtain or provide the Services and Software and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; and (vi) You will keep your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as You subscribe to the Services, Software and Documentation.
4.1 Ownership of Direct Software Intellectual Property. The Services, Software, and Documentation are licensed, not sold. Use of “purchase” in conjunction with licenses of the Services, Software and Documentation shall not imply a transfer of ownership. Except for the limited rights expressly granted by Direct Software to You, You acknowledge and agree that all right, title and interest in and to all copyright, trademark, patent, trade secret, intellectual property (including without limitation algorithms, business processes, improvements, enhancements, modifications, derivative works, information collected and analyzed in connection with the Services) and other proprietary rights, arising out of or relating to the Services, the Software, the provision of the Services or Software, and the Documentation, belong exclusively to Direct Software. All rights, title, and interest in and to content, which may be accessed through the Services or the Software, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same. Direct Software is hereby granted a royalty-free, fully-paid, world- wide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the Services or Software. All rights not expressly granted under this Agreement are reserved by Direct Software.
4.2 Ownership of Your Data. You and Your Users retain all right, title, and interest in and to all copyright, trademark, patent, trade secret, intellectual property and other proprietary rights in and to Your Data. Direct Software’s right to access and use the same are limited to those expressly granted in this Agreement. No other rights with respect to Your Data are implied.
5.1 You may seek termination of our services at any time. We reserve the right to suspend or end the Services to you in whole or part at any time, with or without cause, and with or without notice, without incurring the liability of any kind. Without limitation, we may suspend or terminate your use if you are not complying with these Terms, or if you use the Services in any way that may cause us legal liability or disrupt others’ use of Direct Software or damage to our business or reputation, or for any other reason.
TAXES 6.1 Payment of fees will only be acceptable through the defined methods to the correct account information given by to you by Direct Software: (i) PayPal Payments pro; (ii) Credit card transaction by Visa or MasterCard (iii) BACS transfer.
6.2 Payments will be made on time with regards to your presented payment plan, In the event payments are not made on time through the specified methods your Direct Software service may be suspended. The time for payments to process should be taken into account by you, so that Direct Software receives payment in full on the defined date by your payment plan.
6.3 Direct Software is billed in advance in accordance with our pricing schedule and all monthly payments are nonrefundable. Direct Software is not billed as a ‘rolling-monthly contract’ and therefore there will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. If you terminate mid-way through a contract you will be obliged to pay the remaining months until the full contract total has been paid and you will not receive a refund for any service already paid for.
6.4 Taxes relevant to your business must be paid to Direct Software in addition to the listed price of services in any quotation, advertisement or listing. VAT does not need to be paid to Direct Software under this agreement.
7.1 Your Data. Direct Software may remove Your Data or any other data, information, or content of data or files used, stored, processed or otherwise by You or Your Users that Direct Software, in its sole discretion, believes to be or is: (a) a Virus; (b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene; (c) used for the purpose of spamming, or dissemination of objectionable material; (d) used to cause offense, defame or harass; or (e) infringing the intellectual property rights or any other rights of any third party.
7.2 You agree that You and Your Users are responsible for maintaining and protecting backups of Your Data directly or indirectly processed using the Services and Software and that Direct Software is not responsible for exportation of, the failure to store, the loss, or the corruption of Your Data.
7.3 You agree that Direct Software will process configuration, performance, usage, and consumption data about You and Your Users use of the Services and Software to assist with the necessary operation and function of the Services and Software and to improve Direct Software’s products and services and Your and Your Users’ experience with Direct Software.
8.1 THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD PARTY HOSTED SERVICES, ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. DIRECT SOFTWARE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF YOUR DATA, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE SERVICES, SOFTWARE, DOCUMENTATION, ANY OTHER PRODUCT OR SERVICES, OR RESULTS OF THE SAME PROVIDED TO YOU UNDER THIS AGREEMENT. DIRECT SOFTWARE DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED. EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE SERVICES AND SOFTWARE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS AGAINST THE OTHER PARTY WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES.
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL DIRECT SOFTWARE AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR AGENTS HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE AGGREGATE LIABILITY OF DIRECT SOFTWARE AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, AND AGENTS, AND THE SOLE REMEDY AVAILABLE TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO DIRECT SOFTWARE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO TERMINATION.
10.1 You shall indemnify, defend and hold harmless Direct Software from any and all third party claims and related losses, liability, damages and/or costs (including lawyer’s fees and costs) arising from (i) any Content, (ii) your use of the Services, or (iii) breach by you or your Content of any Law or this Agreement.
10.2 We shall indemnify, defend and hold you harmless from any and all third party claims and related losses, liability, damages and/or costs (including lawyer’s fees and costs) arising from an allegation that Direct Software infringes or misappropriate any third party intellectual property right.
11.1 Notices. All notices must be in writing and should be sent via email to- firstname.lastname@example.org
11.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the Services, Software, and Documentation provided hereunder and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof. If other Direct Software terms or conditions conflict with this Agreement, this Agreement shall prevail and control with respect to the Services, Software, and Documentation provided hereunder. In addition, any and all additional or conflicting terms provided by You, whether in a purchase order, an alternative license, or otherwise, shall be void and shall have no effect.
11.3 Modifications. Unless as otherwise set forth herein, this Agreement shall not be amended or modified by You except in writing signed by authorised representatives of each party.
11.4 Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement.
11.5 Waiver. The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver of that right.
11.6 Force Majeure. Direct Software will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.
11.7 Governing Law. This Agreement shall be governed by the laws of the United Kingdom. If this Agreement is translated into a language other than English and there are conflicts between the translations of this Agreement, You agree that the English version of this Agreement shall prevail and control.
11.8 Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a party to it, and no person not a party to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.
Data Processing Addendum
1.1 This DPA sets out the parties’ respective obligations and all other terms governing the parties’
Processing of Personal Data in connection with the Agreement.
2 Definitions and Interpretation
2.1 Capitalised terms used but not defined in this DPA shall have the meaning set forth in
2.2 The following terms have the following meanings when used in this DPA:
"Controller" has the meaning given to that term in Data Protection Law;
"Data Protection Law" means any laws or regulations that apply from time to time to the Processing of Personal Data by either Party under this Agreement and to include the EU Data Protection Directive 95/46/EC, the EU Privacy & Electronic Communications Directive 2002/58/EC, Regulation (EU) 2016/679 (if and from the date that it enters into force in the United Kingdom), all national implementing legislation (including the Data Protection Act 2018) and subordinate legislation in the United Kingdom and any applicable decisions and guidance made under them;
"Data Subject" means an individual who is the subject of any of the Disclosed Data;
"Data Subject Request" means a written request of You by or on behalf of a Data Subject to exercise any rights conferred by Data Protection Law;
"Disclosed Data" means the Personal Data disclosed to Direct Software by or on behalf of You in connection with the Purpose, comprising: email addresses; first names and last names which you import to the system. Direct Software also processes on Your behalf any other Personal Data you choose to import on your prospective customers in order for you to incorporate these details into a campaign. Direct Software do not process sensitive Personal Data, and will refuse to incorporate any sensitive information into a campaign;
“European Economic Area” means the member states of the European Economic Area, from time to time, and for the purposes of this Agreement will include the United Kingdom notwithstanding any departure of the United Kingdom from the European Economic Area;
"Personal Data" and "Processing" each have the meanings given to them in Data Protection Law and "Process" and any other tense or part of that verb will be interpreted accordingly;
"Processor" has the meaning given to that term in Data Protection Law;
"Purpose" means the provision by Direct Software of the Services under this Agreement; and
"Sub-Processor" has the meaning given to that term in Clause 6.1 below.
2.3 Where any expressions defined in this Agreement by reference to a particular Data Protection Law and such Data Protection Law is amended, extended, applied, consolidated or re-enacted such that the relevant expression is no longer used, the expressions shall be interpreted to refer to the terms used within the Data Protection Law as amended, extended, applied, consolidated or re-enacted as most closely relate to the meaning of those expressions prior to the amendment, extension, application, consolidated or re-enacted of such Data Protection Law.
3 Your Obligations
3.1 You and Direct Software acknowledge that, for the purposes of Data Protection Law, You are the Controller and Direct Software is the Processor of any Disclosed Data. Each party will comply with its obligations under Data Protection Law.
3.2 You warrant and represent that the Processing of the Disclosed Data instructed by You under this Agreement is lawful. If You or Your Users do not comply with Data Protection Law in connection with your use of the Software and Services, then that will be a material breach of this Agreement and your right to use may be suspended and terminated by Direct Software.
3.3 You warrant and represent that You will be solely responsible for You and Your Users’ own compliance with Data Protection Laws while using Direct Software services and systems.
3.4 You agree that You are responsible for ensuring that the security of the Services is appropriate for Your intended use and the storage, hosting, or processing of Personal Data.
4 Obligations of Direct Software
4.1 Direct Software will:
(a) Process the Disclosed Data only to the extent, and in such a manner, as is necessary for the Purpose, subject to and in accordance with Your express written instructions from time to time. If Direct Software considers that any instruction from You contravenes Data Protection Law, Direct Software will notify You, giving reasonable details;
(b) in accordance with Direct Software’s obligations under Data Protection Law, implement appropriate technical and organisational measures so as to ensure an appropriate level of security is adopted to mitigate the risks associated with the Processing of such Disclosed Data;
(c) ensure that the Disclosed Data is processed only by Affiliates, employees, contractors or other personnel that are subject to an appropriate duty of confidentiality; and
(d) not transfer any of the Disclosed Data outside the European Economic Area, except upon and in accordance with the express written instructions or agreement in writing of You.
4.2 At Your cost and expense Direct Software will:
(a) promptly comply with any request from You requiring Direct Software to update or otherwise amend, transfer, delete or destroy the Disclosed Data, provided that Direct Software will not be in breach of any other obligation under this Agreement to the extent that Direct Software cannot perform that obligation as a result of its compliance with this Clause 5.2(a);
(b) assist You to the extent reasonably required in responding to any relevant Data Subject Request; and Data requests. Direct Software will comply with all requests with regards to the treatment or access to your data;
(c) without prejudice to Clauses 5.2(a) and 5.2(b), assist You to the extent that such assistance is necessary to enable Your compliance with its obligations under Data Protection Law in relation to the Processing of the Disclosed Data by Direct Software under this Agreement, such assistance having regard to the nature of the processing and the information available to Direct Software; and
(d) subject to compliance with Direct Software’s relevant policies and procedures and upon reasonable notice permit You have a reasonable right of audit in relation to Direct Software’s records and procedures relating to the Processing of Disclosed Data provided that Direct Software will not be obliged to disclose any information which is subject to third party confidentiality undertakings and such right of audit shall not be exercised more than once in any 12 month period (other than where required by a regulator).
in each case as is reasonably necessary to enable You to demonstrate Your compliance with Data Protection Law in connection with this Agreement.
5.1 You agree that Direct Software may deliver the Services or Software to You with the assistance of its Affiliates, licensors, and service providers in connection with the Processing of the Disclosed Data (each a “Sub-Processor”). Direct Software shall maintain a record of any Sub-Processors that are utilised or otherwise contemplated by Direct Software from time to time and shall impose obligations on that Sub-Processor substantially equivalent to those applying to Direct Software under this Clause 6. You authorise the use of the following as a Sub-Processor:
(a) any Affiliate of Direct Software;
(b) any such Processors as contemplated by that record as at the date of this
(c) any other Sub-Processors utilised by Direct Software from time to time,
provided that where there is an addition or replacement of any Sub-Processor, Direct Software shall inform You in advance of any such intended changes. If You, acting reasonably, object in writing to such addition or replacement, the parties shall discuss in good faith Your concerns and Direct Software shall use reasonable efforts to make a change to the affected Services or to propose a commercially reasonable change that avoids the need to utilise that Sub-Processor. If Direct Software is unable to implement such a change within 60 days of receipt of Your objection, then You acknowledge that its sole remedy is to terminate this Agreement (in respect of those affected Services only) on not less than 30 days’ notice in writing.
6 Obligations on Termination
6.1 Except to the extent that Direct Software is required by law to retain any copies of any Disclosed Data, upon the expiry or termination of this Agreement Direct Software will deliver to You or destroy and/or permanently delete from its information technology systems all copies of any Disclosed Data in its possession. If You require Direct Software to extract and/or transfer to You any Disclosed Data then an administration fee may apply.
6.2 Nothing in this Agreement relieves either party of its own direct responsibilities and liabilities under Data Protection Law.